Earle v. Earle

• Decision Date: 03 December 2008
• Docket Number: No. 43,925-CA.,43,925-CA.
• Citation: 998 So.2d 828
• Parties: Robert Charles EARLE, Plaintiff-Appellee v. Mary Anne Hill EARLE, Defendant-Appellant.
• Court: Court of Appeal of Louisiana — District of US

998 So.2d 828

Robert Charles EARLE, Plaintiff-Appellee v. Mary Anne Hill EARLE, Defendant-Appellant.

No. 43,925-CA.

Court of Appeal of Louisiana, Second Circuit.

December 3, 2008.

Rehearing Denied December 19, 2008.

Law Offices of T.J. Adkins, by T.J. Adkins, Ruston, for Appellant.

The Earle Law Firm, L.L.C., by Robert R. Earle, Farmerville, Donald L. Kneipp, Monroe, for Appellee.

Before CARAWAY, PEATROSS & DREW, JJ.

PEATROSS, J.

Mary Anne Hill Earle ("Andy") appeals the trial court's judgment on issues incidental to her uncontested divorce from Robert Charles Earle ("Chuck"). In particular, she argues that the trial court erred in awarding Chuck overnight and out-of-state visitation with the two minor children of the marriage. She further argues that the trial court erred in the amount of child support and spousal support awarded and in failing to award any amount for her contribution to the education and training of Chuck. For the reasons set forth below, we affirm the custody arrangement ordered by the trial court and its denial of any claim for reimbursement for educational expenses, but amend the awards for child support and spousal support.

FACTS

After 19 years of marriage and an attempt at reconciliation, Chuck and Andy divorced. During the marriage, the parties had three children: Katelyn Ann Earle, a major at the time of trial, Robert Pierce Earle, who was sixteen years old at the time of trial, and John Abram Earle, who was two years old at the time of trial. Also, during the marriage, Chuck completed a Masters of Science degree in electrical engineering and he received his juris doctorate in 1998.

The youngest child, John Abram Earle, has a chronic medical condition diagnosed as reactive airway disease (RAD), an asthma-type disease. To treat this condition, he requires the use of a nebulizer, a portable device used to provide a breathing treatment, along with various medications. He has related episodes of respiratory distress that are life-threatening unless immediately recognized and treated.

Pursuant to its oral reasons, the trial court granted joint custody with Andy designated as the domiciliary parent. The trial court granted Chuck standard visitation on every other weekend, summer vacation and alternating holidays with Robert, with deference given the child's basketball schedule and his band and church activities. In regard to the youngest son, the trial court granted Chuck the same visitation as with Robert, but adjusted the visitation for the first year in consideration of the young child's medical condition. For the first year, all visitation is to be in North Louisiana and the summer visitation was reduced to 15 consecutive days in June and 15 consecutive days in July. The trial court further ordered that Chuck receive instruction by the health care professional on how to operate and administer a nebulizer. Chuck completed the instruction and filed a letter to that effect with the trial court.

The trial court ordered Chuck to maintain the children on his health insurance. It further ordered that Chuck's child support payments be set at $3,185 a month, but gave a credit of $350 per month for the health insurance premiums. The resulting child support payment was set at $2,878. After declining to find Andy at fault for the break up of the marriage, the trial court awarded her spousal support in the amount of $400 per month for 24 months and $250 per month for 36 months thereafter. The trial court declined to make an additional award for Andy's support of Chuck while he was in law school and his masters program.

DISCUSSION

Child Custody

Andy argues that Chuck's visitation is not in the best interest of the children and should be amended. In regard to the youngest child, John Abram, Andy argues that the child's medical condition prevents him from visiting overnight or out of state because Chuck does not have the experience to recognize when the child is having a life-threatening episode. She submits that these episodes are detected through a change in John Abram's breathing. The respiratory distress must be addressed quickly and the episode can last over a number of days. She asserts that, until John Abram can recognize and articulate that he is having trouble breathing, visitation with the child should not be out of state or overnight. She further argues that Robert should not be made to visit in Dallas where Chuck was living with a woman to whom he was not married.

As in every child custody determination, the primary consideration is the best interest of the child. La. C.C. art. 131; Adams v. Adams, 39,424 (La.App.2d Cir.4/6/05), 899 So.2d 726. The court is to consider all relevant factors in determining the best interest of the child. La. C.C. art. 134.¹ Factors that may be considered are set forth in Article 134, but the court is not bound to make a mechanical evaluation of each. Rather, a custody dispute must be decided in light of its peculiar set of facts and the relationships involved in order to reach a decision that is in the best interest of the child. Wages v. Wages, 39,819 (La.App.2d Cir.3/24/05), 899 So.2d 662.

Courts have inherent power to determine a child's best interest and to tailor a custody order, including visitation, that minimizes the risk of harm to the child. The trial court's findings in child custody matters are entitled to great weight and will not be disturbed on review without a showing of clear abuse. Bergeron v. Bergeron, 492 So.2d 1193 (La.1986). Further, acts of adultery do not necessarily render a parent morally unfit who is otherwise suited to custody. Slack v. Slack, 26,036 (La.App.2d Cir.8/17/94), 641 So.2d 1059.

From our review of the record, we cannot find that the trial court erred in its child custody award. The testimony of Andy was that it took experience with John Abram to recognize when he was having difficulty breathing. We find her argument circular that Chuck cannot care for the child because he does not have the requisite experience, but he does not have the experience because he is not allowed to care for the child. Chuck has received training from a health care provider on the nebulizer to assure that if the need arose, he could use the device properly. Nothing in the record leads us to believe that Chuck will not be diligent in observing John Abram for respiratory distress or unable to address it if the need arises.

We further find no merit in Andy's argument that Chuck's living situation should prevent visitation by either child. The judgment includes a provision that neither party will be allowed to have an unrelated guest of the opposite sex spend the night in the same house when the children are present. Nothing in the record reflects that Chuck would not abide by this provision. Andy argues that the relationship will make the older son, Robert, uncomfortable around Chuck's paramour. Again, our review of Robert's testimony reveals nothing that should prevent Chuck's visitation. Robert's overall response to his father's new paramour is hesitant and confused, but not unusual for a child adjusting to his parents' divorce. We find, therefore, that neither this issue, nor any of the other issues raised by Andy concerning the visitation of Chuck have merit and we affirm the child custody as ordered by the trial court.

Child Support

Andy argues that the trial court erred in setting the amount of child support at $3,185 a month and giving Chuck a credit of $350 per month for the health insurance premiums. She argues that the trial court should have considered Chuck's $27,000 bonus in 2006 in determining his monthly income. She further contends that the trial court erred in considering the health insurance premiums when determining the total child support obligation, but then also giving Chuck a credit for the amount.

La. R.S. 9:315.19 provides a schedule to be used to determine basic child support. The highest level specified in the schedule is a combined adjusted gross monthly income of $20,000.² At that level, for two children, the basic support amount is $2,647. La. R.S. 9:315.13(B), however, provides that, if the parties' combined adjusted gross income exceeds the highest specified level, the court shall use its discretion in setting the amount of the basic child support obligation in accordance with the best interest of the child and the circumstances of each parent as provided in La. C.C. art. 141; but, in no event, shall the payment be less than the highest amount provided in the schedule.

The overriding factor in determining the amount of support is the best interest of the children. The amount of support should be determined on a case-by-case basis. A parent's ability to pay and the lifestyle that the children would have enjoyed if the parents had not separated are important considerations. Jones v. Jones, 38,790 (La.App.2d Cir.6/25/04), 877 So.2d 1061; Reeves v. Reeves, 36,259 (La.App.2d Cir.7/24/02), 823 So.2d 1023. Pursuant to the express language of La. R.S. 9:315.13, the district court must use its discretion in setting the amount of the basic child support obligation when the parties' monthly income exceeds the highest figure provided in the schedule, and its judgment will not be disturbed absent an abuse of that discretion. Jones, supra.

Under La. R.S. 9:315(C)(3)(a), gross income includes bonuses. This court has recognized, however, the potential problems when a large year-end bonus, which is sometimes almost equal to the annual base salary, is included in the calculation of the parent's income for purposes of setting a monthly child support amount. Patrick v. Patrick, 34,799 (La.App.2d Cir.4/4/01), 785 So.2d 169. The trial court, therefore, has considerable discretion in considering bonuses in the child support calculation. Id.

While the trial court did not expressly accept the totals set forth in the child support worksheet submitted by Chuck, it did award nearly identical child support as...