
    Rodney P. HIGHT v. Lisa Lynn McKenzie HIGHT
    NO. 2017-CA-0566
    Court of Appeal of Louisiana, Fourth Circuit.
    December 13, 2017
    
      Wiley J. Beevers, Shayna Beevers Mor-vant, Steven Michael Mauterer, BEEV-ERS & BEEVERS, L.L.P., 210 Huey P. Long Avenue, Gretna, LA 70063, COUNSEL FOR PLAINTIFF/APPELLEE
    David M. Prados, Robert C. Lowe, LOWE STEIN HOFFMAN ALLWE1SS & HAUVER, L.L.P., 701 Poydras Street, Suite 3600, New Orleans, LA 70139, COUNSEL FOR DEFENDANT/APPELLANT
    (Court composed of Judge Paula A. Brown, Judge Tiffany G. Chase, Judge Marion F, Edwards, Pro Tempore) .
   Judge, Tiffany G. Chase

| ¶ Plaintiff/Appellant, Lisa Lynn McKenzie Hight (hereinafter “Mrs. Hight”) seeks review of the trial court’s judgment awarding her interim spousal support and Defendant/Appellee, . Rodney P. Hight’s, (hereinafter “Mr. Hight”) rule for rental reimbursement for Mrs. Hight’s use and occupancy of the matrimonial domicile. Specifically, Mrs. Hight lists the following assignments of error on appeal: (1) The trial court failed to award the full amount requested for interim spousal support using Mrs. Hight’s income and expense sheet; (2) excluded her expert from testifying at the hearing for interim spousal support; (3) failed to first provide a monetary amount on the spousal support due to Mrs. Hight and then failed to calculate the monetary amount of credits due to Mr. Hight; (4) failed to award legal interest on interim spousal support; (5) failed to deny Mr. Hight’s request for rent and failing to rule on the request for rent contemporaneously with the use and occupancy; (6) and failed to find Mr. Hight did not prove a rental value at trial. For the reasons s,et forth below, we amend the judgment as to the’ issue of 1¡¡legal interest and in all other respects, we find the trial court did not abuse its discretion and affirm.

Facts and Procedural History

The Hights were married on November 2,1990. Mr. Hight filed for divorce on May 14, 2016. On August 19, 2015, he filed a supplemental petition for divorce pursuant to La. Civ. Code art. 103. Mrs. Hight answered the petition and filed a reconven-tional demand in which she sought interim spousal support, use and occupancy of the matrimonial' domicile, or, alternatively, rental reimbursement. Mr. Hight answered Mrs. Hight’s reconventional demand bn May 29, 2016, and sought rental reimbursement for the first time. The trial court granted the divorce on October 6| 2015/

On January 29, 2016, Mrs. Hight’s request for interim spousal support and use and occupancy of the former matrimonial domicile were partially tried. The trial resumed to conclusion on October 31, 2016, with Mr. Hight’s rule to establish rental factor being set for trial on the same date.

During the trial, the parties presented conflicting testimony regarding Mrs. Hight’s monthly expenses in support of her interim spousal support claim. For example, Mrs. Hight listed expenses for her-gasoline bill at $400.00 a month. At trial, she testified that during the marriage she did not generally drive far, even when she worked, as her office was nearby. However, Mrs. Hight has not worked since January 2015. While there were some months Mrs. Hight would drive to their | ¡¡vacation home in Alabama, she acknowledged that she did not routinely drive thousands of miles a month.

Regarding her vacation expenses, Mrs. Hight testified that over the last three years of the marriage, she and Mr. Hight, along with their children and sometimes friends, would take vacations to locations such as London and Paris. She arrived at the amount of her portion of those vacations by dividing the total amount of the vacation costs of her portion (twenty five percent) by twelve months to arrive at $563.00 per month for vacation expenses. She testified that while she also claims $867.00 per month on restaurants, she does not usually dine alone. Mrs. Hight stated that she and her mother take turns paying for the restaurant bill when they dine together. Likewise, while she claimed $200.00 per month in maintenance costs for her vehicle, she acknowledged she had no receipts or credit card charges to specifically support that monthly estimate. The trial court declined to award support for these expenses.

In contrast, while Mrs. Hight acknowledged that she would prepare food for her adult children on occasion or send food back with them to school, she testified that she spent $867.00 a month on groceries for herself. The trial court accepted this testimony and awarded this expense [food] in the judgment, along with her expenses for rent, lawn care, electricity, gas, water, cable television, phone, and cell phone.

As to the credit awarded to Mr. Hight, testimony was presented at trial that he paid numerous expenses. Mr. Hight testified that he would deposit money into Ltheir joint checking account; then, Mrs. Hight would write checks to herself for cash. Mr. Hight maintained that he continued to deposit money into the joint checking account in the months after filing for divorce. At some point during their separation, Mr. Hight submitted that he opened a separate account to pay those same bills because the joint account was continually overdrawn due to actions by Mrs. Hight.

The trial court allowed the parties to file post-trial briefs and issued the judgment on March 15, 2017. The trial court determined that Mrs. Hight failed to satisfy her burden of proof on entitlement to all the categories listed on her income and expense sheet for interim spousal support. Specifically, the court found no merit to Mrs. Hight’s claims for restaurants, gas [gasoline], clothing, grooming, household supplies, recreation, vacation and health insurance, except as to an award of $2,568.00 to Mrs. Hight for six months of COBRA insurance payments. The trial court awarded interim spousal support to Mrs. Hight from May 15, 2015 to April 3, 2016 for the following monthly expenses: rent, lawn care, electricity, gas, water, cable television, phone, cell phone and food and found that Mr. Hight was entitled to receive a credit for the prior payment of these expenses. The judgment did not provide a monetary award amount for Mrs. Hight’s interim spousal support award, or for Mr. Hight’s credit. The trial court found, based on testimony and evidence, that Mr. Hight continued to pay for some of Mrs. Hight’s expenses after filing for divorce, including the mortgage payment for the | ^matrimonial domicile, along with various other expenses, including utilities, taxes, groceries, cell phone bills and Mrs. Hight’s credit card bills.

This appeal from Mrs; Hight follows.

Interim Spousal Support

A trial court’s determination of an interim spousal support award will not be disturbed unless there is a clear abuse of discretion. If the trial, court, record supports the trial court’s reasoning and conclusions regarding the means of the payor spouse and his or her ability to pay, no abuse of discretion will be found. Factual findings by the trial court will not be set aside unless there is manifest error.

La. Civ. Code art. 113 provides for interim spousal support “based on the needs of that party, the ability of the other party to pay, any interim allowance or final child support obligation, and the standard of living of the parties during the marriage.” The purpose behind interim spousal support is to ensure that the parties maintain the status quo enjoyed during the marriage while the divorce is pending. The spouse seeking interim spousal support bears the burden of proving his or her entitlement to such support. In order to establish that need, it must be shown that the requesting spouse lacks sufficient income to preserve the- standard of living they previously enjoyed while married. Once that spouse has demonstrated their | fineed, then the court will look to the ability of the other spouse to pay interim support.

Mrs. Hight argues the trial court erred by failing to award the full amount she requested for interim spousal support and erred in offsetting all interim support due to her against Mr. Hight’s credits without fixing the sum of either. Mrs. Hight argues the lower court also erred in failing to use Mrs. Hight’s income and expense list regarding the pre-filing standard of living expenses in making the support determination.

The trial court denied interim spousal support for certain items listed above, finding Mrs. Hight had failed to meet her burden of proof that she was entitled to support for those expenses. The-trial court granted interim .spousal support to Mrs. Hight from May 15, 2015 to April 3, 2016 for the following monthly expenses: rent, lawn care, electricity, gas, water, cable television, phone, cell phone and food and awarded Mr. Hight credit for the prior payment of these expenses.

Income tax returns produced at trial demonstrated that Mr. Hight earned a substantial income of over $500,000 per year, which neither party disputed. Further, testimony at trial established that Mrs. Hight did not work for most of the marriage but only worked sporadically, holding jobs at different points during the marriage. At the hearing on January 29, 2016, Mrs. Hight presented her monthly income and expense list at trial. In addition to that evidence, she presented supporting documentation in the form of credit card and bank statements, showing 17the amounts she spent for various monthly expenses during the marriage. However, as noted above, there was conflicting testimony regarding the expenses listed in Mrs. Hight’s monthly income and expense list and their accuracy. With regard to Mr. Hight’s crédit,' he introduced evidence' at trial documenting expenses -he paid.- The exhibits consisted of excel spreadsheets and bank statements demonstrating bills that were automatically debited each month from their joint checking account, along with checks written on the joint, account by Mrs. Hight during their period of separation.

If there is conflicting testimony-at trial, “reasonable evaluations of credibility and reasonable inferences of fact should not be disturbed upon review, even though the appellate court may feel that its own evaluations and inferences are as-reasonable.” The trial court below had the benefit of hearing the live testimony, observing the demeanor of the parties and evaluating' the credibility of their testimony., While Mrs. Hight submitted a monthly income and, expense list for $9,374.00, the trial judge, did not accept this as an accurate reflection of her true expenses and needs. From this Court’s review of the record, including the monthly income and expense list introduced by Mrs. Hight, the judgment reflected that the interim spousal support award to Mrs. Hight was completely offset by Mr. Hight’s credit, except as to the award of $2,568.00 to Mrs. Hight for COBRA insurance payments. The trial court found credible Mr. Hight’s testimony and evidence that he paid bills owed by Mrs. Hight, along with joint expenses such as the mortgage, Ras they became due each month. This Court finds that the record supports the trial court’s finding regarding the amounts owed to Mrs. Hight for interim spousal support and the amounts owed to Mr. Hight as credits and finds these assignments of error lack merit.

With regard to expert testimony at trial, a trial judge’s determination on whether an expert will be allowed to testify will not be disturbed unless it is found to be manifestly erroneous. As noted above, Mrs. Hight’s expert on interim spousal support was excluded prior to trial. The trial court found that expert testimony was- not needed to assist the trier of fact to understand evidence or to determine a fact in issue regarding Mrs. Hight’s request for interim spousal support. From this Court’s review of the record, we find no merit to this assignment of error as'to the exclusion of her expert regarding interim spousal support and affirm the trial court’s ruling.

Judicial Interest on Interim Spousal Support Award

As an assignment of error, Mrs. Hight submits that the trial court erred in failing to award judicial interest on her interim spousal support award. While Mrs. Hight prayed for general and equitable relief, she admits she failed to specifically pray for legal interest. The March 15, 2017 judgment awarded Mrs. Hight $2,568.00 for six months of medical insurance she demonstrably paid following the judgment of divorce on October 6, 2016. At oral argument, counsel for Mr. Hight acknowledged he has not paid Mrs. Hight the $2,568.00 awarded to her. As | Reasoning for the delay, counsel for Mr. Hight cited the appeal. However, the appeal is devolutive, thus execution of the judgment is not stayed. The judgment itself is silent as to the issue of interest. If a judgment is silent as to a litigated issue or a portion of the demand, that issue or demand is deemed to be rejected. However, La. Code Civ. Proc. art. 1921 provides that “[t]he court shall award interest in the judgment as prayed for or as provided by law.” Therefore, the question for this Court is whether legal interest on interim spousal support is provided for by law.

La. Civ. Code art. 2000 provides:

When the object of the performance is a sum of money, cjamages for delay in performance are measured by the interest on that sum from the time it is due, at the rate agreed by the parties or, in the absence of agreement, at the rate of legal interest as fixed by R.S. 9:3500.

Thus, it is clear that judicial interest on spousal support is provided for by law.

The next step of inquiry is when the interim spousal support award for the medical insurance payments of $2,568.00 or $428.00 per month for six months following the divorce became due. Ordinarily an interim spousal support award is retroactive to the date of judicial demand. However, La. R.S § 9:310 provides in pertinent part, that “[i]n the event the court finds good cause for not making the award retroactive, the court may fix the date such award shah become due.” As noted above, the judgment is silent as to judicial interest and the date the monetary |tnaward became due. On May 15, 2015, Mrs. Hight first filed her request for interim spousal support, thus, this is the date of her demand. Therefore, this Court finds the trial court erred in failing to award .judicial interest on the interim spousal support for medical payments awarded to Mrs. Hight. This Court amends the trial court judgment to reflect that Mrs. Hight is entitled to judicial interest on her interim spousal support award of $2,568.00 from the date of her demand until it is paid, as provided for in La. R.S. § 9:3500.

Use and Occupancy and Rental Reimbursement

As Mrs, Hight’s final assignment of error, she submits that the trial court properly awarded her use and occupancy of the home but erred in failing to rule on the rental reimbursement claim. The March 15, 2017 judgment awards to Mrs. Hight the use and occupancy of the former matrimonial domicile located at 160 Primrose, Belle Chase, Louisiana until sold. However, the trial court continued Mr. Hight’s rule to establish rental factor until the community partition trial. Mrs. Hight argues the trial court erred in setting Mr. Hight’s rule, because he was never refused use and occupancy of the matrimonial domicile.

La. R.S. § 9:374 allows either spouse to request use and occupancy Of the matrimonial domicile during the pendency of the divorce. Once the community property regime is terminated, the rules of co-ownership apply to former community property. Those rules recognize that the co-owner of a property need not pay rent to the other co-owner for his or her exclusive use of the co-owned ^property. A co-owner may be liable for rent, if they are in exclusive possession and another co-owner has been refused occupancy after demand for use.

While the record reflects that Mr. Hight requested rental reimbursement should Mrs. Hight be awarded use and occupancy, the parties cannot agree on whether Mr. Hight conceded that Mrs. Hight should have use and occupancy of the home or requested use of the home himself. At trial, Mr. Hight testified that he only left the matrimonial domicile based on advice by former counsel that it would help speed up the divorce process. Additionally, Mr. Hight also testified that he was no longer allowed to sleep or stay in the home once he moved out. Thus, a review of the record demonstrates he was refused use and occupancy of the matrimonial domicile, making the trial court’s setting of his rule for rental reimbursement proper.

Mrs. Hight argued the trial court should have ruled on Mr. Hight’s request for rental reimbursement contemporaneously with her award of use and occupancy and erred in failing to rule that Mr. Hight failed to prove a rental value at the time of the trial on the use and occupancy.

In this matter, the trial court decided to continue the rule for rental reimbursement and the valuation issue to be addressed at the community partition trial. It is well established that a trial judge has vast discretion in conducting a trial, “and it is only upon a showing of a gross abuse of discretion that appellate courts 11ghave intervened.” Further, “[a] final judgment is one that determines the merits in whole or in part and is identified as such by appropriate language.” An interlocutory judgment does not determine the merits but only the preliminary matters in the course of a trial. In the case sub judice, this Court does not find that the trial court abused its discretion in continuing the rule and the valuation to the community partition trial. A continuance is not a final judgment, thus, the issue of the rental reimbursement and valuation are not final and any review by this Court would be premature. As such, this Court finds no merit to these two assignments of error.

Conclusion

We find the trial court did not abuse its discretion in its award of interim spousal support to Mrs. Hight. However, since the judgment was silent as to the award of judicial interest, we amend the judgment to provide for judicial interest pursuant to La. R.S. § 9:3500.

JUDGMENT AMENDED AND AFFIRMED AS AMENDED 
      
      , Prior to trial, on January 22, 2016, the trial court granted Mr. Hight’s Motion in Limine to exclude Mrs. Hight's expert on the interim spousal support issue.
     
      
      . Molony v. Harris, 2009-1529, p.2 (La. App. 4 Cir. 10/14/10), 51 So.3d 752, 756.
     
      
      . Id. (quoting Lambert v. Lambert, 06-2399, p. 10-11 (La. App. 1 Cir. 3/23/07), 960 So.2d 921, 928)).
     
      
      . Molony, 51 So.3d at 756.
     
      
      . Evans v. Evans, 49,160, p.3 (La. App. 2 Cir. 6/25/14), 145 So.3d 1093, 1094-95.
     
      
      . Loftice v. Loftice, 2007-1741, p.5 (La. App. 1 Cir. 3/26/08), 985 So.2d 204, 207.
     
      
      . Brown v. Brown, 44,989, p.5 (La. App. 2 Cir. 1/27/10), 31 So.3d 532, 536.
     
      
      . Id. (citing Loftice, 985 So.2d at 208).
     
      
      , The income and expense list was introduced as Exhibit LH2 at trial.
     
      
      . Rosell v. ESCO, 549 So.2d 840, 844 (La. 1989).
     
      
      . Molony, 51 So.3d at 757.
     
      
      . Post v. Post, 376 So.2d 1275, 1276 (La. Ct. App. 1979).
     
      
      . S. Marine Sates, Inc. v. Matherne, 05-181, p. 8 (La. App. 5 Cir. 11/29/05), 915 So.2d 1042, 1047, writ denied, 2006-0177 (La. 4/24/06), 926 So.2d 545 (citing Mooers v. Sosa, 01-286, p.11 (La.App. 5 Cir. 9/25/01), 798 So.2d 200, 208)).
     
      
      
        . Short v. Short, 11-1084, p.9 (La. App. 5 Cir. 5/22/12), 96 So.3d 552, 558.
     
      
      . Loftice, 985 So.2d at 210.
     
      
      . La. Civ. Code art. 2369.1
     
      
      . Lupberger v. Lupberger, 99-0144 (La. App. 4 Cir. 6/16/99), 738 So.2d 138, 140.
     
      
      . McCarroll v. McCarroll, 96-2700, pp. 19-20 (La. 10/21/97), 701 So.2d 1280, 1290.
     
      
      . D.M.S. v. I.D.S., 2014-0364, p. 17 (La. App. 4 Cir. 3/4/15), 225 So.3d 1127, 1138, writ denied, 2015-0897 (La. 6/19/15), 172 So.3d 654, reconsideration not considered, 2015-0897 (La. 8/28/15), 174 So.3d 1160 (citing Cooper v. Lacorte, 99-1726, p. 3 (La.App. 4 Cir. 5/17/00), 775 So.2d 4, 7.))
     
      
      . Moon v. City of New Orleans, 2015-1092, p.6 (La. App. 4 Cir. 3/16/16), 190 So.3d 422, 425.
     
      
      . La. Code Civ. Proc. art. 1841.
     