McFall v. Armstrong

50 So. 3d 904, 2010 La. App. LEXIS 1379, 10-181 (La.App. 5 Cir. 10/12/10)

 

RULE:

A court may award interim periodic support to a spouse in a divorce proceeding based on the needs of that spouse, the ability of the other spouse to pay, and the standard of living of the spouses during the marriage.

FACTS:

The McFalls were married in 1994 and divorced in 2009. Shannon filed an answer and reconventional demand in which she sought interim periodic spousal support and also filed a perition for protection from abuse in trial court. The trial court issued a written judgment and reasons for judgment on December 15, 2009 awarding Ms. McFall interim spousal support of $ 1,075.00 per month, retroactive to September 22, 2009.  The trial court also awarded her exclusive use of the family home, payment of her car loan and insurance, and payment of the mortgage during the pendency of the proceedings, subject to a one-half rental rate credit in the community property partition.Mr. McFall filed a motion for new trial on the spousal support judgment, which was denied. Mr. McFall now appeals the trial court's judgment awarding interim spousal support. 

ISSUE:

Do the interim spousal payments have to meet the standard of living prior to the divorce and should the payments be retroactive?

ANSWER:

Yes.

CONCLUSION:

The Court affirms in part and reverse in part the judgment of the trial court.Interim spousal support is designed to assist the claimant spouse in sustaining the same style or standard of living that he or she enjoyed while residing with the other spouse, pending the litigation of the divorce.This court found the trial court did not abuse its discretion in calculating an income potential of minimum wage because she would most likely not be able to return to the same position and salary as she was previously as a certified medical assistant, nor does she have the proper certifications to work in the same position. But the court amended the trial court’s finding that the award be made retroactive to September 22, 2009 and find the award should be made retroactive to November 2, 2009.

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