Durfee v. Durfee

• Decision Date: 13 May 2009
• Docket Number: No. 44,281-CA.,44,281-CA.
• Citation: 12 So.3d 984
• Court: Court of Appeal of Louisiana — District of US
• Parties: Scott Richard DURFEE, Plaintiff-Appellee v. Amber D'Laine DURFEE, Defendant-Appellant.

12 So.3d 984

Scott Richard DURFEE, Plaintiff-Appellee v. Amber D'Laine DURFEE, Defendant-Appellant.

No. 44,281-CA.

Court of Appeal of Louisiana, Second Circuit.

May 13, 2009.

Rehearing Denied June 18, 2009.

Raley Law Firm, by Robert W. Raley, Bossier City, for Appellant.

William B. King, Shreveport, for Appellee.

Before PEATROSS, DREW & LOLLEY, JJ.

PEATROSS, J.

Following a Rule to Show Cause in this child support case, the trial court ordered that Amber D'Laine Durfee pay to Scott Durfee monthly child support in the amount of $473.21, through income assignment order. The trial court further ordered that Ms. Durfee continue to provide health insurance coverage for the two minor children, but specifically disallowed Ms. Durfee to deduct the monthly health insurance premiums from her total child support obligation. This appeal ensued. For the reasons stated herein, we reverse the judgment of the trial court and remand for further proceedings in accordance with this opinion and applicable law and jurisprudence.

FACTS

Mr. and Mrs. Durfee divorced and an interim judgment was entered in 2004 granting the parties shared custody of their two minor children with Mr. Durfee being ordered to pay to Ms. Durfee $500 in monthly child support. Subsequently, in March 2006, Ms. Durfee filed a Rule to increase the amount of child support paid to her by Mr. Durfee. That matter was apparently never litigated; however, the Department of Social Services filed a Rule to Increase Child Support in May 2007. The hearing officer presiding over the matter recommended that the amount of child support paid by Mr. Durfee to Ms. Durfee be reduced from $500 per month to $158 per month. The hearing officer's recommendations were implemented by the trial judge on August 18, 2006.

According to Ms. Durfee, however, the reduction in child support left her unable to properly care for the two minor children and in February 2007, as a purported solution to the problem, Ms. Durfee signed a consent judgment granting Mr. Durfee sole custody of the two minor children which included a clause that "neither party will pay child support to the other." According to Ms. Durfee, Mr. Durfee assured her that he would not require her to pay child support once she signed the consent judgment granting him sole custody of the children. Less than a year later, Mr. Durfee filed a rule to establish support through the Department of Social Services and the case was referred back to the civil judge.

Mr. Durfee then filed a Rule to Show Cause in June 2008 asking for child support to be set by the trial court. Mr. Durfee claimed that there had been a change in circumstances since he had been awarded sole custody of the minor children in February 2007 and that warranted reconsideration of the child support award. Since Mr. Durfee and his current wife lived in a home with Mr. Durfee's two children and his current wife's two children, Mr. Durfee's current wife quit her job in order to stay at home and care for the four children living there. Accordingly, Mr. Durfee's current wife no longer brought in her monthly income of approximately $1,732, and Mr. Durfee claimed that this constituted a change in circumstances.

Ms. Durfee filed an Exception of No Cause of Action which was overruled by the trial judge on the grounds that Mr. Durfee was legally entitled to request child support as the domiciliary parent of the children exercising sole custody. The hearing went forward on the merits and the trial judge ordered Ms. Durfee to pay monthly child support to Mr. Durfee in the amount of $473.21. The trial judge further ordered Ms. Durfee to maintain health insurance coverage for the two minor children by making direct payments for the monthly premiums in the approximate amount of $295. Finally, the trial judge ordered that Ms. Durfee was specifically prohibited from offsetting her total child support obligation by the amount of monthly health insurance premiums she paid for the minor children.

Ms. Durfee now appeals.

DISCUSSION

On review, an appellate court may not set aside the findings of fact by the trial court unless those findings are clearly wrong or manifestly erroneous. Smith v. Louisiana Dept. of Corrections, 93-1305 (La.2/28/94), 633 So.2d 129; Stobart v. State through Dept. of Transp. and Development, 617 So.2d 880 (La.1993); Rosell v. ESCO, 549 So.2d 840 (La.1989). An appellate court must not base its determination on whether it considers the trier of fact's conclusion to be right or wrong, but on whether the fact finder's conclusion was reasonable. Stobart, supra.

In order to reverse a fact finder's determination of fact, an appellate court must review the record in its entirety and (1) find that a reasonable factual basis does not exist for the finding and (2) further determine that the record establishes that the fact finder is clearly wrong or manifestly erroneous. Salvant v. State, 05-2126 (La.7/6/06), 935 So.2d 646; Stobart, supra. The appellate court must not reweigh the evidence or substitute its own factual findings because it would have decided the case differently. Pinsonneault v. Merchants & Farmers Bank & Trust Co., 01-2217 (La.4/3/02), 816 So.2d 270. Where the fact finder's conclusions are based on determinations regarding credibility of a witness, the manifest error standard demands great deference to the trier of fact because only the trier of fact can be aware of the variations in demeanor and tone of voice that bear so heavily on the listener's understanding and belief in what is said. Rosell, supra. With regard to decisions of law, however, a trial court's ruling is subject to de novo review. Hall v. Folger Coffee Co., 03-1734 (La.4/14/04), 874 So.2d 90.

The case sub judice stems from a consent judgment signed by the parties and the trial judge in February 2007 which states that neither party will have the obligation to pay child support. A consent judgment is a bilateral contract which is voluntarily signed by the parties and accepted by the court. Gray v. Gray, 37,884 (La.App. 2d Cir.12/12/03), 862 So.2d 1097. It has binding force from the voluntary acquiescence of the parties, not from the court's adjudication. Id.; Mobley v. Mobley, 37,364 (La.App. 2d Cir.8/20/03), 852 So.2d 1136; Gulledge v. Gulledge, 32,561 and 32,562 (La.App. 2d Cir.8/18/99), 738 So.2d 1229. A contract is unlawful when the enforcement of the obligation would produce a result prohibited by law or against public policy. See La. C.C. art. 1968.

Fathers and mothers, by the very act of marrying, contract together the obligation of supporting, maintaining and educating their children. See La. C.C. art. 227. In Lutke v. Lutke, 33,001 (La.App. 2d Cir.2/1/00), 750 So.2d 512, this court discussed the complexities of child support disputes. The support obligation imposed on a mother and a father of minor children by La. C.C. art. 227 is firmly entrenched in our law and is a matter of public policy. See La. C.C. art. 227; Davis v. Davis, 43,490 (La.App. 2d Cir.10/22/08), 997 So.2d 149; Lutke v. Lutke, supra. Neither equity nor practical inability to pay overrides this policy or allows a parent to avoid paying his or her share of the obligation where the inability arises solely from that parent's own neglect and failure. Id.

The consent judgment signed by the parties and the trial judge in February 2007 indicates that Mr. Durfee would retain sole custody of the two minor children and that "neither party will pay child support to the other." In accordance with the statutory law and jurisprudence set forth above, we find that the portion of the consent judgment indicating that neither party is to pay child support to the other is against public policy and, thus, void. See La. C.C. art. 227; Davis v. Davis, supra; Lutke v. Lutke, supra.

Accordingly, we will discuss Ms. Durfee's first assignment of error regarding the existence of a change in circumstances after the initial child support award and the present circumstances underlying Mr. Durfee's right to child support. Ms. Durfee contends that the trial judge erred because she did not require Mr. Durfee to show an involuntary material change in circumstances before granting his motion for a modification of child support. According to Ms. Durfee, Mr. Durfee's current wife's decision to voluntarily quit her job should not be considered by the court as a reason to modify the child support award. We agree.

An award of child support may be modified if the circumstances of the child or of either parent materially change and shall be terminated upon proof that it has become unnecessary. See La. C.C. art. 142. A party seeking a reduction in child support must show a material change in circumstances of one of the parties between the time of the previous award and the time of the motion for modification of the award. See La. R.S. 9:311(A); Strange v. Strange, 42,318 (La.App. 2d Cir.6/20/07), 960 So.2d 1223; Wyatt v. Wyatt, 39,518 (La.App. 2d Cir.4/6/05), 899 So.2d 788. Requiring proof of a change of circumstances is useful to prevent relitigation of the same issues and to protect the finality of judgments and compromises. Armstrong v. Rayford, 39,653 (La.App. 2d Cir.5/11/05), 902 So.2d 1214; Craft v. Craft, 35,785 (La.App. 2d Cir.1/23/02), 805 So.2d 1213. A change of circumstances is a change material to the well-being of the child and his or her support that has occurred since the rendering of the original award. Armstrong v. Rayford, supra; Craft v. Craft, supra.

Louisiana jurisprudence distinguishes between voluntary and involuntary changes in circumstances. Strange v. Strange, supra. An involuntary change in circumstances results from fortuitous events or other circumstances beyond a...