text:
    Blane GUILLORY v. Rachel Cefalu GUILLORY.
    No. 09-929.
    Court of Appeal of Louisiana, Third Circuit.
    Feb. 3, 2010.

      Howard C. Dejean, Opelousas, LA, for Plaintift/Appellee, Blane Guillory.
    Errol L. Cormier, Lafayette, LA, for Defendant/Appellant, Rachel Cefalu Guillo-ry.
    Court composed of SYLVIA R. COOKS, MARC T. AMY, and ELIZABETH A. PICKETT, Judges.
   AMY, Judge.

hThe trial court awarded the defendant interim spousal support. The defendant appeals, asserting the trial court erred in calculating the total sum of the award and awarding credits against the judgment to the plaintiff for various payments he made to the defendant. For the following reasons, we affirm.

Factual and Procedural History

The plaintiff and defendant were married on August 5, 2006, in St. Landry Parish. They lived together as husband and wife until December 2007, when the plaintiff moved out of the family residence. On December 12, 2007, the plaintiff filed a petition for divorce under La.Civ. Code art. 102, in addition to a partition of community property and request to be granted exclusive use of the family residence in Opelou-sas. The parties reached an agreement granting the plaintiff exclusive use of that residence.

On December 20, 2007, the defendant filed a rule for both interim and final spousal support. A trial on the divorce and request for final spousal support was scheduled for August 4, 2008. A hearing in regard to the issue of whether the defendant was entitled to interim spousal support was scheduled for September 9, 2008. On August 15, 2008, the trial court granted the parties a divorce and denied the defendant’s request for final spousal support and/or extension of interim spousal support.

The defendant appealed the judgment denying final spousal support and/or extension of spousal support. This court affirmed the trial court’s judgment. See Guillory v. Guillory, 08-1375 (La.App. 3 Cir. 4/1/09), 7 So.3d 144.

A hearing to determine whether the defendant was entitled to interim spousal support was held on September 9, 2008. The trial court awarded the defendant | ¡Interim spousal support in the amount of $32,294.16 minus a $17,234.41 credit to the plaintiff for payments made, for a final award amount of $15,056.75 for the period of time between March 1, 2008 and August 15, 2008. It determined that from the December separation until March 1, 2008, the plaintiff continued to pay all of the defendant’s household, automobile, insurance and personal expenses, in addition to allowing her to live in the family residence despite a judgment awarding the use and occupancy to himself. Also, the plaintiff transferred to the defendant $25,000.00 at the time of separation for her expenses and paid approximately $6,000.00 for the defendant to furnish her new townhome. The trial court reasoned that because the defendant enjoyed the same standard of living and all her “needs” were met at the defendant’s expense, the defendant was not entitled to interim spousal support for the months of December, January, and February, but was entitled to $32,294.16 for the period of time between March and August 2008.

The defendant now appeals asserting two assignments of error. First, she argues that the trial court was manifestly erroneous in determining she was only entitled to $32,294.16 in interim spousal support. The defendant argues that the trial court erred in calculating her “need” by an “inappropriate consideration of [her] actual expenses after the separation of the parties” as opposed to the consideration of the “standard of living of the parties during the marriage.” Specifically, the defendant contends the trial court’s award should be increased for housing expenses, food, household supplies, laundry and cleaning, utilities, holiday expenses, vacations, entertainment, pet expenses, and transportation. Second, the defendant asserts that the trial court committed manifest error in crediting the plaintiff for a $1500.00 | ¡¡payment which was paid from the couple’s joint checking account, in addition to, a $6,000.00 credit card payment.

Discussion

Interim Spousal Support

Louisiana Civil Code Article 113 provides that a “court may award a party an interim spousal support allowance based upon the needs of that party, the ability of the other party to pay, and the standard of living of the parties during the marriage.... ” The party claiming entitlement to interim spousal support has the burden of proving his or her need. Derouen v. Derouen, 04-1137 (La.App. 3 Cir. 2/2/05), 893 So.2d 981. “A claimant demonstrates need for interim spousal support if she establishes that she lacks sufficient income or the ability to earn a sufficient income ‘to sustain the style or standard of living that [s]he enjoyed while [s]he resided with the other spouse.’ ” Id. at 984, quoting January v. January, 94-882, 94-888, p. 3 (La.App. 3 Cir. 2/1/95), 649 So.2d 1133, 1136. The trial court enjoys considerable discretion in determining whether a claimant is entitled to interim spousal support, and thus, its decision will not be overturned on appeal absent a clear abuse of discretion. Derouen, 893 So.2d 891.

Needs

The defendant argues that the trial court erred in its calculation of her needs, in that the calculation “revolves around the Trial Court’s inappropriate consideration of the claimant spouse’s actual expenses after the separation of the parties[.]” Specifically, the defendant disputes the trial court’s award amount for housing expenses, food, household supplies, laundry and cleaning, utilities, holiday expenses, vacations, entertainment, pet expenses, and transportation.

I/The trial court categorized the expenses pursuant to testimony and estimates submitted by both parties of their monthly earning and expenses for the year 2007. The trial court found that “[cjonsid-erable evidence was presented to the Court establishing that [the plaintiff] and [the defendant] enjoyed a very substantial standard of living during their marriage.” Housing

During the marriage, the parties resided in a 2,500 square foot, four-bedroom home. In March 2007, the defendant moved out of that residence and leased a three-bedroom townhome at a monthly rate of $1,100.00. The defendant’s estimated monthly expenses for the marital residence included $1,612.00 for the mortgage, $434.98 for homeowner’s insurance, $20.00 for flood insurance, $350.00 for yard care, $100.00 for maintenance, $20.00 for pest control, $400.00 for maid service, and $100.00 for pool maintenance. In its reasons for judgment, the trial court found that all of the itemized “housing” amounts in the defendant’s expenses were for both parties use, enjoyment, and maintenance of the home during the marriage. It noted that the defendant’s rental amount for the town-home included many of the itemized categories such as expenses for yard care and maintenance. Accordingly, the trial court awarded the defendant $1,100.00 per month in interim spousal support for housing expenses.

The defendant argues that the trial court should have used the mortgage note and homeowner’s insurance payable during the marriage “as the best indicators of the amount of housing expenses necessary to maintain [her] in her standard of living enjoyed during the marriage.” She also contends that her award should include the amount of maid expenses necessary to maintain a home like the parties’ family | .¡residence. The total of these amounts the defendant believes should have been added is $2,446.98, which is a difference of $1,346.98 from the awarded amount.

Hood, Household Supplies, and Laundry and Cleaning

The trial court awarded the defendant $337.50 for expenses in this categoi'y, which represents one-half of the amount the defendant listed. In its reasons for judgment, the trial court reasoned that the “amounts [the defendant] listed as “Food”, “Household Supplies”, “Laundry and Cleaning”, also reflect these expenses for both parties in 2007. Thus, this Court only finds it appropriate to award [the defendant] one half (½) of those amounts as part of her interim spouse support award[.]”

The defendant asserts that the full amounts of the items she listed should be included in her award because they “can hardly be said to be unreasonable in light of [the plaintiffs] expenses[,]” which totaled $4,200.00.

Utilities

The defendant estimated $341.00 for utility expenses of the family residence. However, the plaintiff disputed that $341.00 represented the average electric bill for that home. Chris Rainey, a certified public accountant accepted as an expert by the trial court, testified at trial and substantiated the amount presented by the defendant by analyzing the couple’s account history. The trial court accepted this amount as a legitimate expense of the couple’s home. However, it noted that the defendant failed to present evidence regarding her actual utilities for her town-home. The trial court ultimately awarded $200.00 for utilities reasoning that “[g]iven the lack of any guidance as to an estimate of [the defendant’s] electricity bill at the three bedroom apartment, the Court finds that $200.00 per month is adequate”

IfiThe defendant argues that the trial court committed manifest error by indicating that it believed her actual expenses are determinative of her standard of living, and “[s]ince the Trial Court acknowledge that it accepted [her] amount of $341.00 as the legitimate monthly expense incurred at the matrimonial residence for electricity, that amount should be used for this expense, a difference of $141.00 per month.”

Entertainment/Holidays/Extracurricular Activity

For entertainment expenses, the trial court again relied on the expert testimony to substantiate the defendant’s estimates in this category. The trial court awarded the full amounts for certain items such as book and magazine subscriptions and her health club membership, finding that the testimony presented indicated that those expenses were exclusively for the benefit of the defendant. However, the trial court found that the remainder of the expenses in this category were incurred for the benefit of both parties during the marriage, and thus awarded the defendant $955.50, one-half of those remaining amounts listed.

The defendant asserts that the trial court erred in finding that a portion of the expenses should have been reduced. Rather, she contends that her claimed expenses were reflective of the costs incurred for her benefit alone since “expenses incurred for such things as hotels and gas do not decrease if one (1) person is traveling out of town.”

Pet Expenses

The trial court denied an award for pet expenses, reasoning that the “pet expenses have been paid solely by [the plaintiff] after the parties’ separation, as [the plaintiff] retained possession of the couple’s pets. Since the parties’ testimonies were consistent that [the defendant] did not have a pet after she moved out of the 17matrimonial residence, the Court finds that she is not entitled to any amount for pet expenses as interim spousal support.”

The defendant asserts that the finding of whether she owns a pet or not is irrelevant in awarding pet expenses because it fails to consider that she did own a pet during the marriage.

Transportation

Testimony revealed that the defendant drove a 2003 Mercedes Benz over the course of the marriage until May 2008. The plaintiff owned the Mercedes and paid all of its related expenses. It appears that sometime in May 2008, the plaintiff reclaimed his Mercedes and the defendant began driving a Ford Probe which she had previously owned before the marriage. The trial court awarded half of the amount of expenses associated with the Mercedes incurred until May 2008, however, it reduced that sum for the period of time after May when the defendant had use of the Ford Probe.

The defendant asserts that she clearly experienced a change in her standard of living when she began driving the Ford instead of the Mercedes, and accordingly, the trial court should have included the Mercedes lease payments and maintenance expenses for the period of time after May 2008.

Amount of Award

In brief, the plaintiff does not argue about whether the defendant is entitled to interim spousal support; rather, he asserts that the defendant presents a fallacy by arguing “that maintaining her in the lifestyle she enjoyed during the marriage does not mean a specific dollar amount but more appropriately refers to a level of comfort and enjoyment.” Further, he adds that “[ajlthough there is adequate authority for the | ^measure of lifestyle to which a divorcing spouse is entitled and same is correctly cited by [the defendant], none of same is cited for the proposition advanced by her that she is entitled to an amount equal to the cost of living for two people.”

Once the claimant spouse has established a need, the court must determine whether that need surpasses the ability of the other spouse to pay. If that situation exists, the support amount should be fixed at a sum which is just and fair to all of the parties involved. Derouen, 893 So.2d 981. A review of the record reveals that the trial court carefully considered the estimates submitted by the parties, the parties’ testimony, and expert testimony in determining the needs of the defendant in light of the standard of living enjoyed by the parties during the marriage. The trial court determined that in some respects the needs estimated by the defendant would be the same as before separation and, in some aspects, less. For example, as far as expenses regarding clothing, health club membership, book and magazine subscriptions, and personal grooming, the trial court accepted that the defendant was entitled to the entire amount requested because these expenses were solely for her benefit and thus did not change post-separation. However, the trial court found that her “need” in regard to those expenses such as entertainment, food, and vacation, were necessarily satisfied by an award of half of the amount requested, wherein the amount requested reflected expenses of two persons.

In regard to housing, the trial court reasoned that a $1,100 award was sufficient considering that it encompassed the same amenities such as yard care, maintenance, and a swimming pool, which she enjoyed at the matrimonial domicile. The defendant admits that while she had access to those amenities, the trial court should have used the mortgage and homeowner’s insurance figures to determine her |9standard of living enjoyed during the marriage. The defendant also makes a similar argument in regard to transportation and pet expenses. However, the defendant does not cite any legal authority to support the proposition that the determination of a claimant’s spouse’s standard of living is a mathematical formula wherein the trial court makes an award solely by reference to an expense sheet. Here, the trial court looked at what level or comfort and amenities the defendant enjoyed during the marriage and found that the award amounts were necessarily sufficient to maintain that standard.

Although the defendant submitted an affidavit showing her need for interim spousal support to exceed $50,000, the trial judge evidently did not accept this as an accurate reflection of her expenses in light of her standard of living enjoyed during the marriage. Rather, the trial court, after reviewing the parties submitted expenses, the parties’ testimony, and expert testimony, found $32,294.16 was the amount the defendant proved to be sufficient. Based on the record, we cannot say that this award constitutes an abuse of discretion.

Accordingly, this assignment lacks merit.

Credits

In her second assignment of error, the defendant asserts that the trial court erred in deciding that the plaintiff was entitled to credits toward his interim spousal support obligation. The trial court credited the plaintiff with six separate payments, but the defendant only disputes two of these payments, one in the amount of $1,500 and one in the amount of $6,000.

Louisiana Revised Statutes 9:321(D) provides that:

Spousal support of any kind, except that paid pursuant to an interim allowance award, provided by the debtor from the date of judicial [ 10demand to the date the support judgment is rendered, to or on behalf of the spouse for whom support is ordered, shall be credited to the debtor against the amount of the judgment.

The defendant argues first, that the April 9, 2008, payment in the amount of $1500 was deposited into her bank account from the couple’s joint checking account is presumed to be community property, and thus, it is error to credit the plaintiff for that amount. Second, the $6,000 credit in dispute is related to a credit card payment, paid by the plaintiff on August 5, 2008. The defendant alleges that the credit card charges were made before she moved out in March of 2008, in the period of time in which the trial court did not award her spousal support, and thus it “would be inconsistent and patently unfair to give [the plaintiff] credit for payments for what is alleged to be her charges during months in which the Court did not award any spousal support.” She further argues that this issue should be litigated in the community property partition.

While we agree with the defendant that the issues of whether these payments represented community obligations or were paid from community or separate property should be litigated in the community property partition, we do not agree that warrants a reversal of the trial court’s judgment crediting those amounts to the plaintiff. Under the plain language of La. R.S. 9:321(D) and a review of the record, it cannot be said that the trial court abused its discretion in crediting the plaintiff with those payments provided by the plaintiff after the defendant’s request for interim spousal support.

Accordingly, this assignment lacks merit.

DECREE

For the foregoing reasons, the judgment of the trial court is affirmed. All costs of this appeal are assessed to the defendant/appellant, Rachel Cefalu Guillory.

AFFIRMED.


source: Caselaw Access Project

author: CHATELAIN, Judge Pro Tempore.

license: Public Domain

text:
    STATE of Louisiana v. Zoran JOHNSON.
    No. 09-862.
    Court of Appeal of Louisiana, Third Circuit.
    Feb. 3, 2010.

      Van Hardin Kyzar, District Attorney, R. Stuart Wright, Assistant District Attorney, Natchitoches, Louisiana, for State of Louisiana.
    W. Jarred Franklin, Louisiana Appellate Project, Bossier City, Louisiana, for Defendant/Appellant Zoran Johnson.
    Court composed of OSWALD A. DECUIR, JIMMIE C. PETERS, and DAVID E. CHATELAIN, Judges.
   CHATELAIN, Judge Pro Tempore.

h The defendant, Zoran Johnson, appeals his convictions and sentences for illegal possession of a stolen firearm, a violation of La. R.S. 14:69.1, and possession of a firearm by a convicted felon, a violation of La. R.S. 14:95.1. We affirm.

FACTS

On January 5, 2008, the defendant was an occupant in a vehicle owned and driven by Cordero Palmer. On that date, Sergeant Travis Johnson of the Natchitoches Parish Police Department stopped the vehicle because one of its headlights was inoperative. Upon stopping the vehicle, Sergeant Johnson smelled the odor of burnt marijuana emanating from the vehicle. When Sergeant Johnson requested consent to search the vehicle, Mr. Palmer refused. Shortly thereafter, Detective Jessie Taitano arrived, and he also smelled marijuana at the passenger side of the vehicle. A K-9 dog, however, alerted officers to the passenger side door of the vehicle. Based upon these observations and the canine alert, the officers subsequently searched the vehicle. An AK-47 assault rifle was found underneath a jacket on the backseat of the vehicle. Thereafter, Sergeant Johnson determined that the firearm had been reported stolen, and both men were arrested.

On February 1, 2008, the defendant was charged by bill of information with illegal possession of a stolen firearm, a violation of La. R.S. 14:69.1, and with possession of a firearm by a convicted felon, a violation of La. R.S. 14:95.1. Following a jury trial held January 26, 2009, the defendant was found guilty as charged. On February 25, 2009, the trial court sentenced the defendant to serve five years at hard labor for illegal possession of a stolen firearm and to serve ten years at hard labor without benefit of parole, probation, or suspension of sentence for | .¿possession of a firearm by a convicted felon. The sentences were ordered to run concurrently. The defendant did not file a motion to reconsider sentences.

The defendant is now before us, asserting that the evidence was insufficient to support his convictions and that his sentences are excessive.

SUFFICIENCY OF THE EVIDENCE

The analysis for a claim of insufficient evidence is well-settled:

When reviewing the sufficiency of the evidence to support a conviction, Louisiana appellate courts are controlled by the standard enunciated by the United States Supreme Court in Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979); State v. Sylvia, 01-1406, p. 2 (La.4/9/03), 845 So.2d 358, 361; State v. Captville, 448 So.2d 676, 678 (La.1984). Therefore, the appellate court must determine that the evidence, viewed in the light most favorable to the prosecution, was sufficient to convince a rational trier of fact that all of the elements of the crime have been proved beyond a reasonable doubt. Sylvia, 01-1406 at p. 2-3, 845 So.2d at 361; Captville, 448 So.2d at 678. The trier of fact makes credibility determinations and may, within the bounds of rationality, accept or reject the testimony; thus, a reviewing court may impinge on the “fact finder’s discretion only to the extent necessary to guarantee the fundamental due process of law.” Sylvia, 01-1406 at p. 2-3, 845 So.2d at 361 (citing State v. Mussall, 523 So.2d 1305, 1310 (La.1988)).

State v. Johnson, 03-1228, pp. 4-5 (La.4/14/04), 870 So.2d 995, 998.

Possession of a Firearm by Convicted Felon

The elements of the offense, possession of a firearm by a convicted felon, are found in La. R.S. 14:95.1, which reads, in pertinent part:

A. It is unlawful for any person who has been convicted of a crime of violence as defined in R.S. 14:2(B) which is a felony or simple burglary, burglary of a pharmacy, burglary of an inhabited dwelling, unauthorized entry of an inhabited dwelling, felony illegal use of weapons or dangerous instrumentalities, manufacture or possession of a delayed action incendiary device, manufacture or possession of a bomb, or any violation of the Uniform Controlled Dangerous Substances Law which is a felony, or any crime which is defined as a sex offense in R.S. 15:541, or any crime defined as an attempt to commit one of the above-enumerated offenses under the laws of this state, or who has been convicted under the laws of any other state or of the United States or of |3any foreign government or country of a crime which, if committed in this state, would be one of the above-enumerated crimes, to possess a firearm or carry a concealed weapon.
C. Except as otherwise specifically provided, this Section shall not apply to the following cases:
(1) The provisions of this Section prohibiting the possession of firearms and carrying concealed weapons by persons who have been convicted of certain felonies shall not apply to any person who has not been convicted of any felony for a period of ten years from the date of completion of sentence, probation, parole, or suspension of sentence.

Accordingly, for the defendant to be convicted of possession of a firearm by a convicted felon: “[T]he State must prove beyond a reasonable doubt: (1) the possession of a firearm; (2) a previous conviction of an enumerated felony; (3) absence of the ten-year statutory period of limitation; and, (4) general intent to commit the offense.” State v. Recard, 97-754, p. 9 (La.App. 3 Cir. 11/26/97), 704 So.2d 324, 329, writ denied, 97-3187 (La.5/1/98), 805 So.2d 200. Only general criminal intent must be proved. La. R.S. 14:95.1. “General criminal intent is present ... when the circumstances indicate that the offender, in the ordinary course of human experience, must have adverted to the prescribed criminal consequences as reasonably certain to result from his act or failure to act.” La. R.S. 14:10(2). Although the existence of intent is a question of fact, it need not be proven as such and may be inferred from the circumstances of a transaction. State v. Brown, 42,188, 42,189, 42,190 (La.App. 2 Cir. 9/26/07), 966 So.2d 727, writ denied, 07-2199 (La.4/18/08), 978 So.2d 347.

The defendant first challenges the element of possession, contending that the State failed to show he was aware or knew the firearm was in the vehicle and that he had the general intent to possess it. The defendant’s contentions are threefold: (1) Lthere was no testimony about who owned the jacket; (2) there were no fingerprints on the firearm; and (3) there was no assertion of ownership by himself or Mr. Palmer, the owner and driver of the car. He adds that there was no evidence that he knew the firearm was present in the vehicle or that he exercised any dominion or control over it. Lastly, he states that the firearm was concealed, so that upon entering the car, he would not have seen it, and that the officers did not discover the weapon until approximately ten minutes after the stop was initiated.

“[CJonstructive possession of a firearm satisfies the possessory element [of La. R.S. 14:95.1], Constructive possession exists when the illegal object is subject to the defendant’s dominion and control.” State v. Brooks, 99-478, p. 4 (La.App. 3 Cir. 12/8/99), 756 So.2d 336, 339, writ denied, 00-1492 (La.5/25/01), 792 So.2d 750 (citations omitted).

At trial, the two officers involved in the stop testified about the search and seizure. Sergeant Johnson testified that he was traveling eastbound on Texas Street at 12:51 a.m. when he observed a 1992 Cadillac Seville traveling westbound with a headlight that was not functioning. After stopping the vehicle, he could smell the odor of burnt marijuana on the driver’s person. Sergeant Johnson asked if he could search the vehicle, but the driver refused to consent to the search. Sergeant Johnson, also a K-9 dog officer, searched the exterior of the vehicle with his K-9 dog, and the K-9 dog “received a positive odor response on the passenger side door of the vehicle.” Based on the dog’s positive odor response, the vehicle was subsequently searched.

Sergeant Johnson stated that he was looking for marijuana when he entered the car but did not find any. However, when he opened the rear driver’s side door, he |fifound an AK-47 assault rifle underneath a jacket. He immediately ran the serial number on the firearm to see if it was stolen and learned that it was. Sergeant Johnson then arrested the defendant and Mr. Palmer. A photograph of the firearm was entered into evidence.

On cross-examination, Sergeant Johnson testified that he did not take any fingerprints from the weapon and that he did not submit anything to forensics to determine if the defendant or Mr. Palmer had handled the weapon. He also did not determine the ownership of the jacket. Lastly, Sergeant Johnson estimated that he was at the vehicle for about ten minutes before he discovered the weapon.

Detective Taitano, an officer with the Multi-Jurisdictional Drug Task Force of the Natchitoches Parish Sheriffs Department, the Natchitoches City Police, and the Louisiana National Guard, testified that he stopped to assist Sergeant Johnson. When he approached the passenger side of the vehicle, he could smell a strong odor of marijuana coming from the vehicle. He was present when Sergeant Johnson searched the vehicle and seized the firearm.

Detective Taitano stated that he did not handle the weapon and that he was not involved with the firearm. According to him, he was only a witness to the search and seizure. On cross-examination, Detective Taitano confirmed that neither the defendant nor Mr. Palmer admitted ownership of the firearm.

Mr. Palmer, the twenty-two-year-old co-defendant, also testified at trial. Mr. Palmer admitted that he had been convicted of possession of marijuana and cocaine when he was seventeen years of age. He also stated that he was the defendant’s second cousin but explained that he only met the defendant approximately one and one-half years prior to trial. According to Mr. Palmer, he and |(lthe defendant were at his house smoking marijuana on the night in question. The defendant asked to use his car, and when he returned, the defendant showed him the firearm that was later seized during the stop. Mr. Palmer testified that he and the defendant then sat in his car, smoking “weed” and talking for a while. The defendant then asked him to take him home, and while en route to the defendant’s home, the police stopped him because his headlight was out. Mr. Palmer testified that the defendant first had the firearm on his lap but then placed the gun on the backseat when the police officer pulled behind the car. Mr. Palmer stated that he never touched the gun and that he did not know if it was loaded.

Although the defendant correctly asserts that there was no testimony as to who owned the jacket or the firearm and that there were no fingerprints taken from the firearm, Mr. Palmer’s testimony was that the defendant had actual possession of the firearm, that the defendant knew the firearm was present in the vehicle, and that he exercised dominion or control over it. Moreover, Mr. Palmer’s testimony further negates the defendant’s claim that the firearm was concealed and that he could not have seen it when he entered the car.

The appellate court’s authority to review questions of fact in a criminal case is limited to the sufficiency evaluation of Jackson, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560, and does not extend to credibility determinations made by the trier of fact. La. Const. art. 5, § 10(B); State v. Williams, 448 So.2d 753 (La.App. 2 Cir.1984). Within the bounds of rationality, the trier of fact may accept or reject, in whole or in part, the testimony of any witness. State v. Casey, 99-23 (La.1/26/00), 775 So.2d 1022. In the absence of internal contradiction or irreconcilable conflict with physical evidence, one witness’s testimony, if believed by the trier of fact, is sufficient support for a | ^requisite factual conclusion. State v. Davis, 35,298 (La.App. 2 Cir. 12/5/01), 803 So.2d 256, writ denied, 02-205 (La.1/24/03), 836 So.2d 36; State v. White, 28,095 (La.App. 2 Cir. 5/8/96), 674 So.2d 1018, writs denied, 96-1459 (La.11/15/96), 682 So.2d 760 and 98-282 (La.6/26/98), 719 So.2d 1048. In the present case, it was the jury’s prerogative to accept or reject Mr. Palmer’s uncontradicted testimony. We find no ground to interdict the jury’s acceptance of that testimony.

The defendant next argues that the State did not prove that he had prior felony convictions for the crimes of simple burglary, a prohibited felony in La. R.S. 14:95.1, and simple robbery, a specifically listed crime of violence in La. R.S. 14:2(B)(23). The defendant asserts that the State’s introduction of the court minutes at trial to establish his prior felony convictions was improper because the minutes were not certified. Notwithstanding the defendant’s assertion, our examination of the record shows that the minutes introduced by the State were certified by the Deputy Clerk of the Tenth Judicial District Court on January 26, 2009. Further, the certified minutes indicate that on February 26, 2003, the defendant pled guilty to simple robbery and was sentenced to three years at hard labor, suspended, and two years of supervised probation. The certified minutes also show that on November 12, 2003, the defendant pled guilty to two counts of simple burglary. On this latter conviction, the minutes indicate that the defendant was sentenced to three years at hard labor to run concurrently with the probation revocation proceedings to which he had agreed therein and that he was given credit for nine months already served. Finally, these court minutes reflect that at both these guilty pleas Laura Johnson represented the defendant as his attorney of record.

IsThe defendant next attacks the State’s use of Ms. Johnson to identify the defendant as the same person who committed the prior felonies. He contends that there was no testimony that Ms. Johnson knew him except for her brief representations. The defendant asserts that she provided no history of her relationship or acquaintance with him, other than she had “represented him before.”

As an element of the offense charged, the State bore the burden of proving the existence of a prior felony conviction as required by La. R.S. 14:95.1. It is well established that various methods may be used to carry this burden of proof, such as “testimony of witnesses, by expert opinion as to the fingerprints of the accused when compared with those in the prison record introduced, or by photographs contained in a duly authenticated record.” State v. Curtis, 338 So.2d 662, 664 (La.1976).

The record shows Ms. Johnson testified at trial that she represented the defendant during his prior criminal proceedings in 2003 and identified him as being the same Zoran Johnson who entered guilty pleas to the offenses as stated in the minutes for those dates. Accordingly, we find Ms. Johnson identified the defendant as the same person who committed the offenses, as set forth in the certified minutes for February 26, 2003, and November 12, 2003, which the State introduced.

Lastly, the defendant argues that the evidence of the prior convictions was insufficient because it simply showed the date of the pleas and the initial sentences. He contends that the State had to prove the date of completion of the punishment. We disagree.

The record reflects that the defendant’s prior convictions were in 2003, a period that is less than ten years prior to his January 26, 2009 conviction herein. Therefore, the evidence established that ten years had not lapsed from the date of | ^completion of his sentence, probation, parole, or suspension of sentence for his pri- or convictions. See State v. Hicks, 98-1231 (La.App. 5 Cir. 3/30/99), 733 So.2d 652 (court can look to record of proceeding for proof that predicate offense fell within ten-year period).

In summation, we find that the State carried its burden of proving the element of a prior conviction for the purposes of La. R.S. 14:95.1. The court minutes show the defendant’s guilty pleas to simple robbery and two counts of simple burglary and conclusively show the defendant’s pri- or felony convictions occurred less than ten years prior to his present conviction. Additionally, Ms. Johnson identified the defendant as the same person who pled guilty to those offenses in 2003.

Therefore, viewing the evidence in the light most favorable to the prosecution, we find that the evidence was sufficient to convince a rational trier of fact that the State proved beyond a reasonable doubt all of the elements needed to convict the defendant of the crime of possession of a firearm by a convicted felon.

Illegal Possession of Stolen Firearms

Illegal possession of stolen firearms is proscribed by La. R.S. 14:69.1, which defines the crime as, “the intentional possessing, procuring, receiving, or concealing of a firearm which has been the subject of any robbery or theft under circumstances which indicate that the offender knew or should have known that the firearm was the subject of a robbery or theft.” (Emphasis added). Based on this statutory provision, the State had to prove that the defendant intentionally possessed a firearm, that the firearm was the subject of robbery or theft, and that he knew or should have known the firearm was the subject of a robbery or theft.

1 iqThe defendant first contends that the State failed to prove that he possessed the firearm in question. As discussed previously, Mr. Palmer’s uncontradicted testimony about the defendant’s handling of the AK-47 in the automobile and his relocation of the weapon from the front to the backseat of the vehicle allowed the jury to conclude that the defendant intentionally possessed a firearm. Thus, there is no merit to the defendant’s contention that he did not possess the firearm.

The defendant next argues that the State did not prove that he had knowledge the firearm was the subject of a theft. As discussed above, Sergeant Johnson testi-fled that when he ran the serial number on the weapon through the NCIC database, he learned that it had been reported stolen from Jeffs Guns in May of 2007.

Because there is very little jurisprudence involving La. R.S. 14:69.1 and no reported cases involving an evidence sufficiency review, we have looked to La. R.S. 14:69, illegal possession of stolen things, for guidance in determining whether the State proved that the defendant knew or should have known the firearm was stolen. In State v. Chester, 97-1001, pp. 2-3 (La.12/19/97), 707 So.2d 973, 974, the supreme court stated:

In Louisiana, the “mere possession of stolen property does not create a presumption that the person in possession of the property received it with knowledge that it was stolen by someone else.” State v. Ennis, 414 So.2d 661, 662 (La.1982); State v. Nguyen, 367 So.2d 342, 344 (La.1979); State v. Walker, 350 So.2d 176, 178 (La.1977). The state must therefore prove the defendant’s guilty knowledge as it must every other essential element of the offense. Ennis, 414 So.2d at 662. Nevertheless, jurors may infer the defendant’s guilty knowledge from the circumstances of the offense. See Barnes v. United States, 412 U.S. 837, 843, 93 S.Ct. 2357, 2362, 37 L.Ed.2d 380 (1973)[.] (“For centuries courts have instructed juries that an inference of guilty knowledge may be drawn from the fact of unexplained possession of stolen goods.”).

In Chester, 707 So.2d at 973, the supreme court prefaced its discussion of guilty knowledge with the following:

In With the question of defendant’s guilt turning at trial on his knowledge that the property in his possession had been the subject of a theft, the court of appeal reversed his conviction and sentence for possession of stolen property, La. R.S. 14:69, on grounds that “without additional circumstantial evidence concerning the defendant’s acquisition of the [stolen property] ... the state’s proof of the crime is not constitutionally sufficient in this case.” State v. Chester, 95-1428, p. 5 (La.App. 1st Cir.3/27/97), 698 So.2d 1065 (unpublished). We granted the state’s application for review because the court of appeal’s decision appears to conflict with the settled principle of appellate review that “[w]hen a case involves circumstantial evidence, and the jury reasonably rejects the hypothesis of innocence presented by the defendant! ] • •. that hypothesis falls, and the defendant is guilty unless there is another hypothesis which raises a reasonable doubt.” State v. Captville, 448 So.2d 676, 680 (La.1984).

Our review of the record shows that Jefferson A. Guilliams, Sr., the owner of Jeffs Guns, testified that in May of 2007, an AK-47 assault rifle was stolen from his business. He explained that he had momentarily left the store in the care of his granddaughter and upon his return, a young man and an older person were in the store to buy ammunition for an AK-47. Mr. Guilliams testified that very few people have a weapon that uses that kind of ammunition. After selling the men a box of the ammunition, Mr. Guilliams noticed that his AK-47 was gone. He then realized that someone had taken the gun during his absence from the store. He testified that earlier three young men had been looking around in his store and during that time, one of the young men said, “Well, I’m gonna buy that gun, before the week’s over with.” Mr. Guilliams then left the store to tend to some business. When he returned, he noticed that the gun was missing.

It cannot be denied there was no direct evidence linking the defendant to the theft of the firearm or establishing how he came into possession of the stolen gun. That fact, however, is not fatal to the defendant’s conviction in the present case.

112“[J]urors may infer the defendant’s guilty knowledge from the circumstances of the offense.” Id. at 973. Moreover, as provided in La. R.S. 14:69.1, the illegal possession of a firearm may be shown if circumstances indicate “that the offender knew or should have known that the firearm was the subject of a robbery or theft.” (Emphasis added). To this extent, the inference of guilty knowledge arising from the possession of stolen property is generally a much stronger one than the inference the possessor committed the theft. Cosby v. Jones, 682 F.2d 1373 (11th Cir.1982).

In the present case, Mr. Guilliams testified that an AK-47 is an assault rifle that sells for about $600 and that “very few people have a gun that shoots that kind of ammo.” This evidence, coupled with the proof that the gun was stolen, was sufficient to allow a rational trier of fact to infer that the defendant knew or should have known the gun was stolen. Accordingly, the jury’s conclusion that the defendant knew the firearm was stolen is reasonable and fully supported by the record.

Therefore, viewing the evidence in the light most favorable to the prosecution, we find the evidence was sufficient to convince a rational trier of fact that the State proved beyond a reasonable doubt all of the elements needed to convict the defendant of the crime of the illegal possession of a stolen firearm.

EXCESSIVENESS OF SENTENCE

The defendant argues that his sentences are excessive. Because the defendant did not file a motion to reconsider his sentences, La.Code Crim.P. art. 881.1. bars his excessiveness claims. However, in the interest of justice, this court has chosen to review such an assignment as a bare claim of excessiveness. State v. Hargrave, 05-1027 (La.App. 3 Cir. 3/1/06), 926 So.2d 41, writ denied, 06-1233 (La.11/22/06), 942 So.2d 552; State v. Dabney, 01-1110 (La.App. 3 Cir. 6/25/03), 848 So.2d 784.

113This court has set forth the following standard to be used in reviewing excessive sentence claims:

La. Const. art. I, § 20 guarantees that, “[n]o law shall subject any person to cruel or unusual punishment.” To constitute an excessive sentence, the reviewing court must find the penalty so grossly disproportionate to the severity of the crime as to shock our sense of justice or that the sentence makes no measurable contribution to acceptable penal goals and is, therefore, nothing more than a needless imposition of pain and suffering. The trial court has wide discretion in the imposition of sentence within the statutory limits and such sentence shall not be set aside as excessive absent a manifest abuse of discretion. The relevant question is whether the trial court abused its broad sentencing discretion, not whether another sentence might have been more appropriate.

State v. Barling, 00-1241, 00-1591, p. 12 (La.App. 3 Cir. 1/31/01), 779 So.2d 1035, 1042, writ denied, 01-838 (La.2/1/02), 808 So.2d 331 (citations omitted).

To decide whether a sentence shocks the sense of justice or makes no meaningful contribution to acceptable penal goals, this court has held:

[A]n appellate court may consider several factors including the nature of the offense, the circumstances of the offender, the legislative purpose behind the punishment and a comparison of the sentences imposed for similar crimes. State v. Smith, 99-0606 (La.7/6/00), 766 So.2d 501. While a comparison of sentences imposed for similar crimes may provide some insight, “it is well settled that sentences must be individualized to the particular offender and to the particular offense committed.” State v. Batiste, 594 So.2d 1 (La.App. 1 Cir.1991). Additionally, it is within the purview of the trial court to particularize the sentence because the trial judge “remains in the best position to assess the aggravating and mitigating circumstances presented by each ease.” State v. Cook, 95-2784 (La.5/31/96), 674 So.2d 957, 958.

State v. Smith, 02-719, p. 4 (La.App. 3 Cir. 2/12/03), 846 So.2d 786, 789, writ denied, 03-562 (La.5/30/03), 845 So.2d 1061.

The defendant received the minimum possible sentence of ten years for possession of a firearm by a convicted felon. La. R.S. 14:95.1(B). He received the | ^maximum possible sentence of five years for illegal possession of a stolen firearm. La. R.S. 14:69.1(B)(1).

At sentencing, the trial court stated that it had reviewed the defendant’s Pre-sen-tence Investigation Report. The trial court noted that the defendant was twenty-four years of age and that the present offenses were his third and fourth felonies since 2002. The trial court added:

I have reviewed the provisions of Article 894.1 of the Code of Criminal Procedure. And under mitigating circumstances, I find that he’s a young man, and that’s a shame ... that he’s in this situation. But I find the following aggravating circumstances .... his criminal history over a six (6) year period ... four (4) felonies in six (6) years is aggravating. The Legislature is [sic] obviously placed great seriousness on crimes involving firearms, and in particular, Possession of Firearms by convicted felons.

As outlined in Smith, the defendant’s circumstances weigh heavily in favor of the sentencing court’s choice of sentences. The trial court’s review of the defendant’s criminal history establishes that it did not abuse its discretion by imposing the minimum sentence for conviction of possession of a firearm by a convicted felon. Accordingly, the defendant’s sentence for this conviction is affirmed.

As previously noted, the jurisprudence involving illegal possession of a stolen firearm is limited. In State v. Martin, 40,150 (La.App. 2 Cir. 9/21/05), 911 So.2d 917, the defendant pled guilty to illegal possession of a stolen firearm and was sentenced to the maximum sentence of five years at hard labor. In that case, the defendant was found in possession of a stolen gun he had purchased from a man who told the defendant that it had been stolen. The trial court found that the defendant’s criminal conduct caused serious harm by facilitating the commission of the burglary and that the purchase of stolen items created a market for such items. Also, the trial court found that the defendant did not act under strong provocation, that the victim 115did not induce or facilitate the crime, and that the defendant could not compensate the victim for the economic and emotional loss he and his family suffered. The sentence was affirmed.

In State v. Brooks, 38,963 (La.App. 2 Cir. 9/22/04), 882 So.2d 724, writ denied, 04-2634 (La.2/18/05), 896 So.2d 30, the defendant was originally charged with possession of a firearm by a convicted felon, illegal possession of stolen things, and illegal possession of stolen firearms. After pleading guilty to these charges, he received the maximum sentence on each charge, a total of twenty-two and one-half years. The defendant did not challenge his sentences on appeal; therefore, the trial court’s reasons for sentencing are not known.

The defendant correctly asserts that the trial court relied heavily upon his prior criminal history in sentencing him. Nonetheless, he received the minimum possible sentence for possession of a firearm by a convicted felon. Additionally, although he received the maximum sentence for illegal possession of a stolen firearm, the sentence is not out of line with the cited jurisprudence. Moreover, the sentence was ordered to run concurrently with his mandatory sentence for possession of a firearm by a convicted felon. Accordingly, we find that the defendant’s sentences are not excessive, and they are affirmed.

Disposition

The defendant’s convictions and sentences are affirmed.

AFFIRMED.

       Honorable David E. Chatelain participated in this decision by appointment of the Louisiana Supreme Court as Judge Pro Tempore.


author: PETERS, J.

text:
    Shawanna Marie Carrier LOFTIN v. Glen Edward LOFTIN.
    No. 09-0795.
    Court of Appeal of Louisiana, Third Circuit.
    Feb. 3, 2010.

      Charles A. “Sam” Jones, III, Attorney At Law, DeRidder', LA, for Plaintiff/Appel-lee, Shawnna Marie Carrier Loftin.
    Scott Westerchil, Attorney at Law, Leesville, LA, for Defendant/Appellant, Glen Edward Loftin.
    Court composed of OSWALD A. DECUIR, JIMMIE C. PETERS, and DAVID E. CHATELAIN, Judges.

       We note that although the record spells the plaintiff's first name "Shawanna,” plaintiff herself spells her name "Shawnna.”

       Honorable David E. Chatelain participated in this decision by appointment of the Louisiana Supreme Court as Judge Pro Tempore.

   PETERS, J.

h Glen Edward Loftin appeals a trial court judgment awarding his wife, Shawn-na Marie Carrier Loftin, child support and interim spousal support. For the following reasons, we amend the trial court judgment and affirm it as amended.

DISCUSSION OF THE RECORD

Glen Edward Loftin and Shawnna Marie Carrier Loftin were married in July of 1997, and physically separated on April 3, 2008. On May 1, 2008, Mrs. Loftin filed a petition for divorce based on the provisions of La.Civ.Code art. 102, et seq. In her initial petition, Mrs. Loftin sought, along with other relief, custody of the two minor children born to the couple, Daniel Edward Loftin (born March 26, 1997) and Wayne Cooper Loftin (born on January 26, 1999); an award of child support; and an award of interim spousal support. Mr. Loftin responded to the petition with a reconventional demand wherein he sought, along with other relief, to have the trial court award the couple joint custody of the children.

After a September 4, 2008 hearing, the trial court rendered judgment on a number of issues, including custody. In that judgment, the trial court awarded joint custody of the children to the couple, but named Mrs. Loftin as primary domiciliary parent. The trial court continued the child and spousal support issues to a December 15, 2008 hearing. The trial court subsequently continued the December 15 hearing to March 19, 2009.

The evidence adduced at the March 19 hearing established that during the marriage, Mr. Loftin had been self-employed, operating his own eighteen-wheeler truck when business opportunities arose. There exists some dispute concerning when and how the business dissolved, but it is undisputed that from September of 2009 |2until the time of trial, Mrs. Loftin had physical possession of the eighteen-wheeler used in the business and had it parked at her father’s house. Her possession came about because Mr. Loftin had filed for bankruptcy relief soon after leaving her.

By the time the issues now before us went to trial, Mr. Loftin had obtained employment with Cubic Worldwide Tech Services driving a company truck. His new employer paid him $15.78 per hour on a regular basis, but he was able to receive some overtime when work was available. The payroll check stub for the period from February 14, 2009 through February 27, 2009, reflects that Mr. Loftin had earned $8,646.44 with the company since the beginning of 2009. However, he testified that because his hours are based on the availability of work at Fort Polk, Louisiana, he had not worked at all between February 27, 2009, and the date of trial. Mr. Loftin’s income and expenses affidavit reflects a gross monthly income of $3,084.00.

By the time of trial, Mrs. Loftin had obtained employment with Leesville Dialysis in Leesville, Louisiana. In that job, she regularly made $9.27 per hour, but often worked overtime. In support of her request for spousal support, Mrs. Loftin introduced payroll check stubs for the period immediately before the trial, as well as her 2008 W-2 form and her 2008 federal income tax return. The most recent of the payroll check stubs covered the period from February 22, 2009 through March 3, 2009, and reflected a gross income of $652.17, a net payment of $542.14, and a total gross income for the year to date of $4,706.61. Her 2008 W-2 form reflected gross lawages of $19,309.59 for that year, and her 2008 federal income tax return reflected no additional income. Mrs. Lof-tin also introduced the couples’ joint federal tax returns for 2005 through 2007. Those returns reflected that they reported $24,512.00 as their adjusted gross income for 2005, $24,908.00 for 2006, and $29,734.00 for 2007. However, Mrs. Lof-tin also introduced other financial records suggesting that a significant amount of the business deductions claimed each year were funds actually deposited into a “house account” and used to pay personal bills. She testified that the amount deposited in the house account in 2007 totaled $52,080.00.

In rendering judgment, the trial court recognized that the bankruptcies rendered the financial status of the parties prior to their separation useless in its analysis of the issues then before it. That being the case, the trial court factually found that Mrs. Loftin’s gross monthly income was $1,609.00, and Mr. Loftin’s gross monthly income was $3,034.00. Based on a total gross income of $4,643.00, the trial court applied La. R.S. 9:315.19 (the Louisiana Child Support Guideline Table) and set the basic child support obligation at $1,153.00 per month. The trial court then adjusted the basic child support obligation by adding child care expenses, medical insurance, and counseling expenses to increase the total support obligation to $1,981.00. Because Mr. Loftin’s gross income is sixty-five percent of the total gross income of |4the couple, the trial court set his child support obligation at sixty-five percent of $1,981.00, or $1,287.00 per month.

The trial court then awarded Mrs. Lof-tin $900.00 per month as interim spousal support. However, in making the award, the trial court stated only that “obviously, Mrs. Loftin has some expenses.” The trial court then made both awards retroactive to May 1, 2008, the date Mrs. Loftin filed her petition for divorce.

Mr. Loftin has appealed this judgment, asserting four assignments of error:

The trial court erred in its calculation of the child support award of $1,287.00 in adding to the basic child support obligation alleged child care costs and counseling expenses wherein said alleged costs were not proven at trial.
The trial court erred in its calculation of the child support award in failing to reduce the basic child support taking into consideration the amount of time the children would spend with their father during the specified visitation.
The trial court erred in awarding interim spousal support in the amount of nine hundred dollars per month unto Shanna Loftin [sic], or alternatively the trial court erred in that the amount awarded was excessive.
The trial court erred in making the interim spousal support retroactive to the date the divorce petition was filed.

OPINION

Assignment of Error Number One

In his first assignment of error, Mr. Loftin asserts that the trial court erred in adding child care expenses and counseling expenses to the child support obligation because Mrs. Loftin did not establish the need or amount of those expenses at trial. While we find some merit in this assignment of error, our calculations reflect little difference in the obligation imposed by the trial court and our conclusion.

IfiMrs. Loftin testified that she pays $179.00 every two weeks for insurance to cover the children. Mr. Loftin does not contest this amount or the fact that the trial court added insurance expenses into the basic child support obligation. By our calculations, the addition should be $387.83 per month [(179.00 x 26) h- 12]. With this amount factored in, the adjusted basic child support obligation increases to $1,540.83 ($1,153.00 -I- $387.83).

With regard to child care expenses, Mrs. Loftin testified that she pays $400.00 per month. While Mr. Loftin questioned the lack of receipts for this expenditure, he did not seriously question the need for child care during Mrs. Loftin’s working hours. We find no error in the trial court’s acceptance of Mrs. Loftin’s testimony on this issue and its addition of this amount to the basic child support obligation. With this amount factored in, the adjusted basic child support obligation increases to $1,940.83 ($1,540.83 + $400.00).

We do agree with Mr. Loftin that the counseling expenses should not have been added. Mrs. Loftin testified that the older child is being counseled and that her share of the expense is $35.00 per week. However, she did not identify the counsel- or nor did she explain the basis for the counseling. In other words, we have only her self-serving testimony on this issue. Therefore, to the extent that the trial court considered this expense, we find this to be error.

Without regard to the counseling expense, the adjusted basic child support obligation is still $1,940.83. Sixty-five percent of $1,940.83 is $1,261.54. Thus, we adjust Mr. Loftin’s monthly obligation from $1,287.00 to $1,262.00.

| (⅜Assignment of Error Number Two

In his second assignment of error, Mr. Loftin argues that the trial court abused its discretion by failing to adjust his child support obligation to reflect the amount of time that the children are in his care. Specifically, he argues that he should not be required to pay child support for the weekends, holidays, and summer period that he has physical custody. Louisiana Revised Statutes 9:315.8(E) does allow for a decrease in the amount of child support owed by the non-custodial parent if that parent retains physical custody of the child for at least seventy-three days out of the year. This credit due to the noncustodial parent is considered a deviation from the child support guidelines. However, this deviation is not automatic.

Rather, the party urging the reduction in the child support obligation based on the amount of time spent with the child must bear the burden of proving that he or she exercises shared custody or extraordinary visitation with the child, that the extra time spent with the nondomi-ciliary parent results in a greater financial burden on that parent and in a concomitant lesser financial burden on the domiciliary parent, and, finally, that the application of the guidelines would not be in the best interest of the child or would be inequitable to the parties.

Guillot v. Munn, 99-2132, p. 1 (La.3/24/00), 756 So.2d 290, 292.

As the parent seeking the deviation, Mr. Loftin bears the burden of proving that he exercised extraordinary visitation with the two minor children. However, at no time in the trial court below did Mr. Loftin raise the credit question. Based on Mr. Loftin’s failure to raise it in the trial court, we will not address the issue on appeal. Uniform Rules—Courts of Appeal, Rule 1-3.

Assignment of Error Number Three

In his third assignment of error, Mr. Loftin argues that the trial court’s award of $900.00 for interim spousal support was in error or, alternatively, was excessive. We agree that the award was excessive based on the record before us.

|7Louisiana Civil Code Article 113 provides that, during the pendency of a divorce action, a spouse may petition the trial court for an award of interim spousal support. This award, if granted, is based on the needs of the spouse, the ability of the other spouse to pay, and the standard of living the couple enjoyed during their marriage. Id. The intent of interim spousal support is to allow the spouse seeking such assistance to maintain a standard of living pending the outcome of the divorce status quo with that maintained during the marriage. Smoloski v. Smoloski, 01-485 (La.App. 3 Cir. 10/3/01), 799 So.2d 599.

A spouse’s right to claim interim periodic support “is grounded in the statutorily imposed duty on spouses to support each other during marriage, and thus, provides for the spouse who does not have sufficient income for his or her maintenance during the period of separation.” Brar v. Brar, 01-370, p. 5 (La.App. 3 Cir. 10/3/01), 796 So.2d 810, 813. Interim support preserves parity in the levels of maintenance and support, and avoids “unnecessary financial dislocation until a final determination of support can be made.” Jones v. Jones, 38,790, p. 15 (La.App. 2 Cir. 6/25/04), 877 So.2d 1061, 1072.
A claimant demonstrates need for interim spousal support if she establishes that she lacks sufficient income or the ability to earn a sufficient income “to sustain the style or standard of living that [s]he enjoyed while [s]he resided with the other spouse.” January v. January, 94-882, 94-883, p. 3 (La.App. 3 Cir. 2/1/95), 649 So.2d 1133, 1136; Jones, 877 So.2d 1061. The claimant spouse has the burden of proving his or her need. Jones, 877 So.2d 1061. The needs of the claimant spouse have been defined as “the total amount sufficient to maintain her in a standard of living comparable to that enjoyed by her prior to the separation, limited only by the husband’s ability to pay.” Hitchens v. Hitchens, 38,339, p. 2 (La.App. 2 Cir. 5/12/04), 873 So.2d 882, 884. For example, in Thomey v. Thomey, 33,000 (La.App. 2 Cir. 4/7/00), 756 So.2d 698, the court determined that the claimant had demonstrated need by establishing that she had insufficient income to meet her monthly expenses, which exceeded her income by over $1,000.00 per month. Awarding support also requires finding that expenses were reasonable. Vassallo v. Vassallo, 540 So.2d 1300 (La.App. 5 Cir.1989).

Derouen v. Derouen, 04-1137, pp. 4-5 (La.App. 3 Cir. 2/2/05), 893 So.2d 981, 984.

|8A trial court is granted vast discretion in deciding whether to award support in such instances, and its decision will not be reversed on appeal absent a clear abuse of that discretion. Id.

At the time of trial, Mrs. Loftin and her two children resided with her father. In that situation, her only household expenses were one-half of the approximately $400.00 per month utility bill and the cost of food for her and the children. Mrs. Loftin claims a need for interim spousal support based on her assertion that she and her two sons will soon move from her father’s home. That move will require that she make deposits on utilities and pay rent and utilities. The only evidence of rental expenses is Mrs. Loftin’s claim that she has inquired about rental property and, based on the prices in the area, she expects to pay $700.00 per month for a place of her own. She testified that she will also have to make a one-time deposit of $150.00 each for telephone, electricity, and gas hookup.

Apparently, based on this testimony, the trial court concluded that Mrs. Loftin “[o]bviously ... has some expenses.” That is to say, Mrs. Loftin established the “need” element of the interim spousal support award. We find no error in that conclusion of the trial court. However, Mrs. Loftin’s obligation is not simply to prove a need for an award. She must also establish both the standard of living she and her husband enjoyed during the marriage and Mr. Loftin’s ability to pay interim spousal support.

With regard to the standard of living element, a trier of fact could find that the record establishes that a large amount of the deductions on the tax returns filed during the marriage inaccurately included as a business deduction a large amount of money transferred annually into the house account, which was used to enhance the couple’s | standard of living. Assuming that as fact, Mrs. Loftin clearly suffers a lower standard of living than that which she enjoyed during the marriage.

However, we find that Mrs. Loftin failed to establish that Mr. Loftin’s ability to pay interim spousal support warrants a $900.00 per month award. The child support judgment, as modified by this court, has the effect of providing Mrs. Loftin with $2,871.00 per month ($1,609.00 + $1,262.00) to cover the needs of her and the children and has the effect of providing Mr. Loftin with $1,772.00 per month ($3,034.00 - $1,262.00) to cover his personal needs. At the same time, when the total child support obligation as provided for in La. R.S. 9:315.19 is deducted from Mrs. Loftin’s monthly allotment, she is left with $930.00 ($2,871.00 - $1,941.00) for her own personal needs.

We find that the amount of interim spousal support awarded by the trial court is excessive and reduce that amount to $400.00 per month.

Assignment of Error Number Four

In his final assignment of error, Mr. Loftin argues that the trial court abused its discretion by ordering that the interim spousal support award commence retroactive to May 1, 2008, the date Mrs. Loftin filed her petition for divorce. Mr. Loftin argues that since the issue of interim spousal support was not heard until March 19, 2009, good cause exists for the trial court to order that the support award commence effective at a date later than the initial filing date. We disagree.

Louisiana Revised Statutes 9:321(A) provides that, “[e]xcept for good cause shown, a judgment awarding, modifying, or revoking an interim spousal support 110allowance shall be retroactive to the date of judicial demand.” (Emphasis added.) The trial court obviously determined that no good cause existed for setting the effective date at any time other than May 1, 2008, and we find no error in that determination.

DISPOSITION

For the foregoing reasons, vye amend the trial court judgment by reducing Glen Edward Loftin’s monthly child support obligation to $1,262.00 and by reducing his monthly interim spousal support obligation to $400.00. We affirm all other aspects of the trial court judgment and tax the costs of this appeal equally between Glen Edward Loftin and Shawnna Marie Carrier Loftin.

AFFIRMED AS AMENDED.

      . Mr. Loftin testified that he dissolved the business during the latter days of the marriage with Mrs. Loftin's consent because of rising fuel prices. On the other hand, Mrs. Loftin testified that he dissolved the business almost immediately after he left her in April of 2008.

      . At the time of trial, Mrs. Loftin had also filed for bankruptcy protection. The eighteen-wheeler is listed in both bankruptcy proceedings and nothing in the record suggests whether the parties will be able to keep the vehicle when emerging from bankruptcy protection.

      . He claims to have reached this figure by extrapolating the wages paid to date through the remainder of the year and dividing accordingly.

      . The 2005 tax return reflected that while Mr. Loftin’s personal business had gross receipts of $137,505.00, the net profit for the business was only $23,872.00.

      . The 2006 tax return reflected that while Mr. Loftin’s personal business had gross receipts of $135,367.00, the net profit for the business was only $24,142.00.

      . The 2007 tax return reflected that while Mr. Loftin’s personal business had gross receipts of $130,922.00, the net profit for the business was only $21,041.00.

      . While the trial court did not specifically reference La. R.S. 9:315.19 in its oral reasons for judgment, it is clear from the amount of the obligation reached that the source of that amount is the statute.

      . The trial court added $828.00 to the basic child support obligation without specifying how much of the increase was credited to insurance costs, child care, or counseling.

      . We do note that the $1,609.00 is pre-tax income.

      . Although the entire $1,772.00 is pre-tax income, we note that taxes will be deducted based on the $3,034.00.


author: WALLER, Chief Justice,

text:
    FIDELITY & DEPOSIT COMPANY OF MARYLAND v. RALPH McKNIGHT & SON CONSTRUCTION, INC., Tommy L. McKnight and Vonda L. McKnight.
    No. 2009-CA-00446-SCT.
    Supreme Court of Mississippi.
    Feb. 25, 2010.
    Alec M. Taylor, David J. Krebs, Ellie B. Word, Jackson, attorneys for appellant.
    R. Adam Kirk, Grenada, Andrew J. Kil-patrick, Jr., Ridgeland, attorneys for ap-pellees.
    Before WALLER, C.J., LAMAR and PIERCE, JJ.
   WALLER, Chief Justice,

for the Court:

¶ 1. Fidelity and Deposit Company of Maryland filed suit against Ralph McKnight & Son Construction, Inc., Tommy L. McKnight, and Vonda L. McKnight (collectively “McKnight”) in the Chancery Court of Attala County. Fidelity sought injunctive relief and specific performance of an indemnity agreement entered with McKnight in conjunction with Fidelity’s issuance of a performance bond. The chancellor dismissed the case on the basis that Mississippi Code Section 31-5-41 prohibits Fidelity from seeking indemnity for its own negligence. Fidelity now appeals. We find that Section 31-5-41 does not apply to this case. Therefore, we reverse and remand.

FACTS

¶2. C & I Entertainment, LLC, contracted with McKnight for the construction of a theater/skating rink in Kosciusko, Mississippi. C & I required McKnight to obtain a performance bond for the project. McKnight then .entered into an indemnity agreement with Fidelity which, in turn, issued a performance bond naming McKnight as principal and C & I as obli-gee.

¶ 3. Following completion of the project, a dispute arose between McKnight and C & I about the quality of construction and warranty obligations. C & I withheld its final payment and litigation ensued.

¶ 4. McKnight filed suit against C & I to recover unpaid funds. C & I counterclaimed for damages associated with McKnight’s alleged construction defects. C & I further notified Fidelity about McKnight’s alleged breach of contract and demanded that Fidelity fulfill its obligations under the performance bond. Fidelity, however, denied C & I’s demand on the bond. As a result, C & I sued Fidelity for breach of performance bond and bad-faith denial of C & I’s claim.

¶ 5. Faced with potential liability to C & I, Fidelity attempted to enforce its indemnity agreement with McKnight. The indemnity agreement required McKnight to provide Fidelity “reasonable access” to McKnight’s financial statements and to indemnify Fidelity “as soon as liability exists or is asserted against [Fidelity],” in an amount equal to the reserves set aside by Fidelity. McKnight refused to provide sworn financial statements and refused to match the $475,000 that Fidelity had set aside in reserves.

¶ 6. Fidelity filed this suit against McKnight for quia timet relief and specific performance. McKnight responded by filing a motion to dismiss and for sanctions. McKnight asserted that the indemnity agreement did not apply because Fidelity’s potential liability arose out of its own negligence; and that Mississippi Code Section 31-5-41 prohibits indemnification for one’s own negligence in construction contracts. Fidelity filed a response requesting summary judgment.

¶ 7. Following a hearing, the chancellor granted McKnight’s motion to dismiss without sanctions. Although Section 31-5-41 applies explicitly to construction contracts, not performance bonds, the chancellor applied the statute because the performance bond incorporated the construction contract by reference. The chancellor found that C & I’s pending suit against Fidelity was based upon Fidelity’s negligent, bad-faith denial of C & I’s claim. Fidelity thus sought indemnification for its own negligence, which Section 31-5-41 forbids.

¶ 8. Fidelity now appeals, asserting that the chancellor erred in granting McKnight’s motion to dismiss and in denying Fidelity’s motion for summary judgment.

DISCUSSION

I. Whether the chancellor erred in granting McKnight’s motion to dismiss.

¶ 9. This Court uses a de novo standard of review when considering the grant or denial of a motion to dismiss. Harris v. Miss. Valley State Univ., 873 So.2d 970, 988 (Miss.2004). In considering such motions, “the allegations in the complaint must be taken as true, and the motion should not be granted unless it appears beyond a reasonable doubt that the plaintiff will be unable to prove any set of facts in support of his claim.” Id. (citing T.M. v. Noblitt, 650 So.2d 1340, 1342 (Miss.1995)).

¶ 10. We find that Section 31-5-41 is itself dispositive of this case. The last sentence of the statute states that its provisions do not apply to “construction bonds.” Miss.Code Ann. § 31-5-41 (Rev. 2008). A performance bond is a type of construction bond. See Morgan v. U.S. Fid. & Guar. Co., 191 So.2d 851, 852 (Miss.1966) (referring to performance and payment bonds as construction bonds); Alexander v. Fid. & Cas. Co., 232 Miss. 629, 633, 100 So.2d 347, 348 (Miss.1958) (describing a performance bond and then indirectly equating it to a construction bond); see also Roger P. Sauer, Kevin J. Russell, & James E. Rudwick, Performance Bonds, in 2 Construction Law Handbook § 35.03, at 1278 (Robert F. Cushman & James J. Myers eds., Aspen Law & Business 1999) (“[t]he two main construction bonds are performance bonds and payment bonds”). Section 31-5-41 then, by its own language, excepts performance bonds. This remains true even if the performance bond incorporates the construction contract by reference. Performance bonds routinely incorporate the pertinent construction contract by reference. Benjamin D. Lentz, Default, Notice of Default, Impact Upon Surety’s Obligations Where Notice Is Not Given, in The Law of Performance Bonds at 21-22, (Lawrence R. Moelmann & John T. Harris eds., ABA 1999); David C. Dreifuss, Bond, Contractual, and Statutory Provisions and General Agreement of Indemnity, in Bond Default Manual, Second Edition at 5 (Duncan L. Clore ed., ABA 1995). The most commonly used performance bond forms include such language. See Deborah S. Griffin, Completion by the Bond Obligee, Bond Default Manual, Second Edition at 212-13 (Clore ed., ABA 1995); Bond Default Manual, Second Edition at app. 421, 423 (Clore ed., ABA 1995). Incorporation by reference simply indicates that the bond and construction contract set forth “mutually interdependent rights and obligations,” and that the two documents must be construed together. See State for Use of Nat’l Sur. Corp. v. Malvaney et al., 221 Miss. 190, 209-10, 72 So.2d 424, 431 (1954).

¶ 11. Because Section 31-5-41 exempts construction bonds from its application, the chancellor erred in granting McKnight’s motion to dismiss.

II. Whether the chancellor erred in denying summary judgment for Fidelity.

¶ 12. The parties dispute whether the issue of summary judgment is ripe for appeal. McKnight argues that this Court should not address the issue because the chancellor never ruled on Fidelity’s motion for summary judgment. Fidelity, on the other hand, points out that twice during the hearing, the chancellor stated that Fidelity’s motion for summary judgment was before her.

¶ 13. Although the chancellor twice mentioned Fidelity’s motion for summary judgment at the hearing, she never ruled on that issue. At the beginning of the hearing, the chancellor noted that McKnight’s motion to dismiss and Fidelity’s motion for summary judgment were before her. She then said “[l]et us begin with ... [McKnight’s] Motion to Dismiss and for Sanctions.” From that point on, the motion for summary judgment was not addressed. The chancellor labeled her final order an “Order on [McKnight’s] Motion to Dismiss and for Sanctions.” In the order, she stated that oral arguments had been heard on McKnight’s motion to dismiss. The order never references summary judgment.

¶ 14. This Court does not consider matters that have not been decided by the trial court. Bryant Const. Co., Inc. v. Cook Constr. Co., Inc., 518 So.2d 625, 632 (Miss.1987) (citing Educ. Placement Servs. v. Wilson, 487 So.2d 1316, 1320 (Miss.1986)). Because the chancellor never decided the merits of Fidelity’s motion for summary judgment, we do not address this issue on appeal.

CONCLUSION

¶ 15. Because Section 31-5-41 excepts construction bonds, e.g., performance bonds, the statute does not bar Fidelity’s suit. Accordingly, we find that the chancellor erred in granting McKnight’s motion to dismiss. Furthermore, we decline to consider Fidelity’s motion for summary judgment because the issue is not ripe for appeal.

¶ 16. REVERSED AND REMANDED.

CARLSON, P.J., DICKINSON, RANDOLPH, LAMAR, KITCHENS, CHANDLER AND PIERCE, JJ., CONCUR. GRAVES, P.J., CONCURS IN RESULT ONLY.

      . McKnight’s suit against C & I, along with C & I's counterclaim, is presently ongoing.

      . C & I initially filed suit against Fidelity in the Circuit Court of Attala County. This suit was removed to federal court where it remains pending.

      . Mississippi Code Section 31-5-41 states that:
      With respect to all public or private contracts or agreements, for the construction, alteration, repair or maintenance of buildings, structures, highway bridges, viaducts, water, sewer or gas distribution systems, or other work dealing with construction, or for any moving, demolition or excavation connected therewith, every covenant, promise and/or agreement contained therein to indemnify or hold harmless another person from that person's own negligence is void as against public policy and wholly unenforceable.
      This section does not apply to construction bonds or insurance contracts or agreements.

        Miss.Code Ann. § 31-5-41 (Rev.2008).