Rosenfeld v. Rosenfeld

In 2009, Mr. and Mrs. Rosenfeld agreed to child custody and child support arrangements further stipulating that Dr. Rosenfeld would pay permanent spousal support in the amount of $3,000 per month for two years beginning in August 2009 and $2,000 per month thereafter for four years.  Settlement documents executed between the parties did not contain a non-modification clause.  Eventually, Mrs. Rosenfeld remarried and Dr. Rosenfeld moved to terminate her spousal support awards pursuant to LSA-C.C. Art. 115.

The Trial Court found that the agreement entered into by the parties did not expressively prohibit modification and therefore terminated Mrs. Rosenfeld's spousal support award.  On appeal, the Fifth Circuit affirmed the Trial Court's award noting that the jurisprudence demonstrates that a non-modification clause contained in a Consent Judgement will be enforced by Louisiana courts and prohibit modification of a spousal support agreement.  In this case, however, the Consent Judgement failed to expressively prohibit modification of the award and therefore, the award was subject to modification or termination.  Louisiana Civil Code Article 115 specifically provides that by operation of law, the obligation of a spouse to pay spousal support is extinguished upon remarriage of the obligee's spouse.  The Fifth Circuit noted that the Judgement of the Trial Court was correct in the determination that Article 115 applied to the facts of this case and as a matter of law, terminated any obligation Dr. Rosenfeld had to pay spousal support to Mrs. Rosenfeld following her remarriage.

Rosenfeld v. Rosenfeld, 11-686 (La. App. 5th Cir., 3/13/12), 90 So.3d, 1077 (2012).

Pociask v. Moseley

Derrick Pociask and Kara Moseley were married that the time of Hurricane Katrina. Following the tragic storm, Pociask's employer left the city of New Orleans and offered him a position in Pittsburgh, Pennsylvania.  Prior to leaving, Pociask arranged for a contractor to perform repairs to his house with the expectation that the home would thereafter be sold and that Kara Moseley and her young son would eventually join him in Pennsylvania.  Unfortunately, Moseley had an affair with the contractor and the marriage quickly disintegrated after she became pregnant with the contractor's child.

After the birth, Pociask file a Petition to Disavow Paternity. Because the child was born while the divorce was pending, there was a presumption that Pociask was still the father of the child after the paternity test confirmed it wasn't. Eventually, Pociask filed a Motion for Summary Judgement asserting that he was not the biological father of the minor child. Moseley countered with her own Motion for Summary Judgement alleging that Pociask could not avail himself of the exception to the time limitations set forth in the Civil Code Article 189 which addressed disavowal actions.  She claimed that the parties did not live separate and apart continuously during the 300 days immediately preceding the birth of the minor child.  The Trial Court eventually granted Pociask's Motion for Summary Judgement. In a shocking move, the First Circuit Court of Appeal reversed the Trial Court's ruling finding that Pociask was presumed to be the father of the child because he spent one or two nights with his wife in the 300 days prior to the birth of the child.

The Supreme Court granted Writs and reversed the Court of Appeal's erroneous ruling finding that Pociask could avail himself on the 300 day time period exception to the running of prescription in the disavow action.  In this ruling, the Louisiana Supreme Court held that the Court of Appeal erred in not reading Louisiana Civil Code Article 189 in pari materia with La. Civil Code Articles 102 and 103 before determining whether the husband and mother had lived separate and apart continuously for the 300 days immediately preceding the birth of the child.  The District Court correctly found that one overnight visit, absent any allegation of cohabitation, sexual relations, or reconciliation, did not serve to interrupt the 300 day period.  Thus, the Supreme Court found that the District Court properly denied the defendant's Motion for Summary Judgement and granted Summary Judgement in favor of Pociask allowing him to disavow the paternity of the minor child.

Pociask v. Moseley, 2013-0232 (La. 6/28/13), 122 So.3d, 533 (2013).

Favor v. Favor 2010 WL 8972084

This case involved the setting of child support and, in particular, the computation of Ms. Favor's husband's income.  Ms. Favor argued unsuccessfully on appeal that Mr. Favor's income was twice that which was found by the Trial Court.

Harper v. Harper 777 So.2d 1275

The 24th Judicial District Court entered an Injunction prohibiting both ex-spouses from exercising overnight custody or visitation with the minor children while persons of the opposite sex, not married or related by blood, were present.  Fred Harper appealed. The Court of Appeal found that the Trial Court's failure to make a best interest of the children finding when modifying the Custody/Visitation Agreement was legal error and that the ex-wife failed to meet the burden of proving that the requested modification of Custody/Visitation Agreement was in the best interest of the children.

Rosenbloom v. Bauchat 654 So.2d 873

In this case, the ex-wife filed a Motion to Increase Child Support after one her two children reached the age of  majority.  The Civil District Court increased child support for the remaining minor child retroactive from the date of judicial demand.  The former husband failed to pay the retroactive component of the new support obligation and informed the university where the adult son attended classes that he would no longer pay tuition and fees.  Thereafter, the ex-wife filed a Motion for Contempt and to Compel.  The District Court granted the ex-husband's Exception of No Right of Action and No Cause of Action.  On appeal, the Fourth Circuit held that a parent may not sue to enforce the other parent's child support obligation after a child reaches the age of majority.

Rosenbloom v. Rosenbloom 654 So.2d 877

Rosenbloom v. Rosenbloom was one of the first significant appellate decisions addressing the setting of child support when the combined gross monthly income exceeds the highest amount set forth on the child support table.  In this case, the Court of Appeal found that the Trial Court erred in setting the support obligation using a fixed percentage where the parents' income exceeded the maximum income set forth in the child support guidelines.  The Fourth Circuit subsequently reduced the child support obligation in view of all of the evidence submitted as to the child's expenses.

Kambur v. Kambur 652 So.2d 99

The Trial Court entered an Order partitioning life insurance policies, annuities, and individual retirement accounts (IRA's) in creating an equal distribution between the husband and wife for the value of the policies.  The husband appealed.  On appeal, the Fifth Circuit held that the proceeds of the life insurance policy, but not the life insurance policy itself, are considered sui generis and not subject to claims of community in a partition of community property.  The Fifth Circuit further found that the trial court did not abuse its discretion in dividing the value of the policies equally even though the husband purchased the majority of the policies on his life for the wife's benefit and only one of 11 policies divided the insured's wife's life.