MAX N. TOBIAS, JR., Judge.
This is a post-divorce matter. The defendant, Malcolm John Rebennack ("Rebennack"), appeals the trial court's granting of a motion for partial new trial filed by his former wife, the plaintiff, Sarah Reva Kaye ("Kaye"),
Rebennack and Kaye were married in 1987. While the parties were legally divorced in 1996, by agreement they consented to the termination of their community of acquets and gains as of April 1994. The 1996 divorce judgment, entered into by the consent of both parties, awarded
The record reflects that in 2001, Rebennack voluntarily began reimbursing Kaye for all of her medical and transportation expenses. The payments were made to Kaye through Rebennack's CPA.
On 7 May 2007, Kaye filed an "Emergency Rule to Show Cause & Reinstate Medical Treatment Unilaterally Terminated by Mac Rebennack" ("Rule to Reinstate Medical Treatment"), which was originally set for hearing on 15 May 2007.
Kaye's Rule to Reinstate Medical Treatment, after being set and re-set on three separate occasions, was finally scheduled to be heard on 27 June 2007, however, no judgment exists in the record pertaining to Kaye's rule or disposing of Rebennack's exception.
Rebennack responded by filing a second Exception of No Cause of Action directed to Kaye's attempt to have the court enforce the consensual agreement averring that his prior reimbursement was voluntary and that no enforceable agreement pursuant to La. C.C. art. 116 had been alleged or could be proven.
On 1 May 2009, Kaye filed a Voluntary Petition for debtor relief under Chapter 7 of the United States Bankruptcy Code. Thereafter, but prior to the hearing on Kaye's rule, Rebennack filed a Notice of Removal to bankruptcy court. The bankruptcy court eventually remanded the matter to state court and Kaye's rule was reset for trial accordingly.
The hearing on Kaye's motion setting forth alternative theories of enforcement of the alleged agreement or modification of the support award and Rebennack's exception proceeded to trial on 25 June 2009. The trial court rendered its judgment on 9 July 2009, sustaining Rebennack's exception of no cause of action on the grounds that the record lacked evidence establishing that a judgment modifying the previous support award had been entered or that Rebennack had acknowledged or ratified any alleged oral agreement to reimburse Kaye for continued medical and related expenses as is required by La. C.C. art. 116 to establish modification of a support obligation. Further, the trial court awarded an increase in monthly spousal support payments to $5,000 in favor of Kaye providing that "[t]his award shall be retroactive to the date of the request for increase."
Both parties filed motions for new trial. On 24 August 2009, the trial court denied Rebennack's motion and granted Kaye's motion for partial new trial solely "insofar as to clarify that the retroactivity of the Court's original judgment is to May 7, 2007," which the court determined was the date Kaye initially requested an increase in support. It is from this judgment that Rebennack timely filed the instant appeal. Kaye neither appealed, nor answered the appeal.
We are asked to determine whether the trial court committed legal error when it decided that Kaye's 7 May 2007 Rule to Reinstate Medical Treatment constituted
While the general rule is that a trial court's judgment awarding spousal support is entitled to great weight and will not be disturbed on appeal absent a clear abuse of discretion, this same leeway is not afforded by La. R.S. 9:321. In fact, the language found in La. R.S. 9:321 C, "shall be retroactive," denotes a mandatory duty. See La. R.S. 1:3. This statute mandates that in the absence of good cause shown, a judgment modifying or revoking a final spousal support judgment must be retroactive to the date of demand for same. Thus, while a court may, in its discretion, limit or bar the retroactivity of a modification of a spousal support order, there is no legal authority for going beyond the filing date of the rule setting forth the demand. To do so constitutes legal error.
We find that whether or not a pleading constitutes a proper demand or suit for purposes of a modification of a prior spousal support award requires a legal determination. Accordingly, we review the trial court's determination de novo, despite Kaye's argument that the trial court's findings were not an abuse of its discretion or clearly wrong.
In his lone assignment of error, Rebennack argues the trial court erred as a matter of law by awarding an increase in spousal support payments retroactive to a date preceding Kaye's judicial demand for modification of the prior spousal support obligation, which he contends she made for the first time, in the alternative, when she filed her 6 April 2009 motion to enforce the consensual agreement. To the contrary, Kaye maintains that under Louisiana's
In her Rule to Reinstate Medical Treatment filed in May 2007,
Nearly two years later in April 2009, Kaye filed a second Motion to Enforce Consensual Agreement, for Retroactive Reimbursement and for Damages and, or Alternatively, Rule to Modify Post-Divorce Alimony, once again asking the court to enforce the alleged consensual agreement existing between the parties wherein Kaye avers Rebennack purportedly agreed to pay for all of her monthly expenses. In the event the court deemed the alleged consensual agreement unenforceable, Kaye asked the court to alternatively "increase the current post-divorce alimony award" (essentially retracting her prior statement that there was no "current order for alimony and support" in effect), to an amount that would meet her then monthly expenses. Kaye contends this 6 April 2009 motion was merely a substitute or replacement to her previously filed motion of 7 May 2007 and, therefore, the trial court was correct in determining that 7 May 2007 was the proper date upon which she made her initial demand for modification of the prior spousal support judgment. We disagree.
While La. C.C.P. art. 1153 generally pertains to the relation back of an amended pleading to the filing date of the original pleading, La. R.S. 9:321 specifically addresses the retroactivity of a judgment concerning spousal support and provides that judicial demand for modification must be made in order for an award to be made retroactive to the filing date of same. In determining the applicability of laws, it is axiomatic that the more specific governs over the more general. Richardson v. Richardson, 07-0430, p. 13 (La.App. 4 Cir. 12/28/07), 974 So.2d 761, 771. La. R.S. 9:321 is found in a section of the revised statutes that specifically governs the substantive rights between spouses insofar as they pertain to spousal support. In contrast, La. C.C.P. arts. 1151-1156 are contained in the Louisiana Code of Civil Procedure in the section relating to amended and supplemental pleadings. Therefore, when applicable as in the instant case, the provisions set forth in La. R.S. 9:321, being more specific to spousal support, prevail over general provisions contained in La. C.C.P. art. 1153. Accordingly, we find that an amended motion (in this case, Kaye's 6 April 2009 motion) that demands modification of a spousal support obligation does not relate back, for purposes of retroactivity of a judgment modifying support, to the date of the originally filed rule (in this case, Kaye's 7 May 2007 rule to reinstate medical treatment). We further hold that La. R.S. 9:321 requires that judicial demand for modification of a support award be expressly made and that a
In the instant case, we find that Kaye's Rule to Reinstate Medical Treatment did not expressly request modification of the post-divorce spousal support agreement, but that this request was first set forth, in the alternative, in her later filed Rule to Modify Spousal Support. The trial court, therefore, committed legal error when it made the judgment modifying the support obligation retroactive to a date preceding judicial demand for such relief. The jurisprudence supports our conclusion.
In Howell v. Howell, 391 So.2d 1304 (La.App. 4th Cir.1981), involving a proceeding to change custody and reduce child support and alimony, the father requested that the trial court issue an order apportioning support "per child" rather than in globo because one of the two children had attained the age of majority. The father suggested that fulfilling his request would eliminate the necessity of further modification of the support. This court upheld the trial court's refusal to do so on the basis that the father had failed to bring proper suit seeking a modification of the support obligation. Specifically, we noted:
Id., 391 So.2d at 1307-08. Because Dr. Howell failed to make proper demand, the court was without authority to modify the support obligation.
In Halcomb v. Halcomb, 352 So.2d 1013 (La.1977), the Court addressed the issue of whether the husband had the right to unilaterally reduce the in globo support award proportionately as each of his four children arrived at the age of majority or became emancipated. In pronouncing that the husband had no right to do this, the Court noted that, while an alimony judgment is not final in that a modification, reduction or termination of such a judgment may be sued for, in the absence of such a suit seeking modification of the support obligation, or provided for by operation of law,
Similarly, in McGovern v. Tatman, 410 So.2d 779 (La.App. 4th Cir.1982), the trial court retroactively discharged the ex-husband from payment of arrears in child support that had accumulated during the three years preceding the hearing on the ex-wife's rule seeking child support arrearages. Relying in part on Halcomb, supra, this court reversed the finding that since the husband had failed to bring a proper suit seeking to have the support obligation amended, the judgment ordering support could not be altered or modified and, thus, the full amount of the support ordered was due. The trial court was without authority to retroactively discharge the ex-husband from a portion of the arrears accumulating prior to the hearing. Id. at 781.
In Racca v. Racca, 99-2948 (La.App. 1 Cir. 12/22/00), 775 So.2d 689, the ex-wife
Lastly, this court also refused retroactive payment of support when no demand therefor had been made in Barkemeyer v. Barkemeyer, 560 So.2d 837 (La.App. 4th Cir.1989)(on rehearing). In Barkemeyer, the wife sought to make a judgment granting an increase in support retroactive to the date of the filing of a rule for contempt for nonpayment of alimony pendent lite, which claim the court determined failed to state a cause of action. Specifically, the court stated:
Id., 560 So.2d at 842-843. In essence, Barkemeyer instructs that unless a cognizable claim for relief is asserted in the earlier demand, a trial court commits legal error when it makes an award retroactive to the date of such a demand.
In the instant case, as noted above, Kaye's 2007 Rule to Reinstate Medical Treatment failed to state a cause of action. Applying the principles set forth by this court in Barkemeyer to the case at bar further supports our conclusion that the trial court committed legal error when it made the judgment increasing support retroactive to the date Kaye filed the Rule to Reinstate Medical Treatment rather than to 6 April 2009, the date she made judicial demand for an increase in support.
Applying La. R.S. 9:321 and the applicable jurisprudence cited above to the facts and circumstances presented by the case at bar, we hold that unless and until judicial demand for modification of a spousal support obligation has been expressly made a trial court lacks authority to issue an award increasing spousal support. We further hold that such an award cannot be applied retroactively to a date preceding the date the express demand for modification of the spousal support obligation was actually made.
For the foregoing reasons, we find the trial court erred in making the judgment awarding an increase in spousal support retroactive to 7 May 2007, the filing date of Kaye's Rule to Reinstate Medical Treatment, which failed to state a cause of action. Accordingly, we reverse the trial court's 24 August 2009 judgment and rule that the 9 July 2009 judgment increasing spousal support payments for Kaye is retroactive to 6 April 2009, the date Kaye first made judicial demand for modification of the spousal support obligation.