Lutke v. Lutke
| Decision Date | 01 February 2000 |
| Docket Number | No. 33,001-CW.,33,001-CW. |
| Citation | 750 So.2d 512 |
| Parties | Wayne D. LUTKE, Jr., Plaintiff-respondent, v. Katrina Ann Moore LUTKE, Defendant-applicant. |
| Court | Court of Appeal of Louisiana — District of US |
Bodenheimer, Jones & Szwak by James P. Bodenheimer, Shreveport, Counsel for Applicant.
Joe B. Cordill, Jr., Counsel for Respondent.
Before GASKINS, CARAWAY and KOSTELKA, JJ.
Because of the parent's delinquency in the payment of her child support obligations, the trial court held her in contempt of court and imposed an unconditional, and thus criminal, jail sentence. Additionally, the trial court refused to modify and lower the parent's support obligation finding that her depression and alcohol abuse did not excuse her unemployment. The trial court further suspended the parent's driver's license for her child support delinquency. After granting the parent's writ application to consider the criminal conviction and the other issues, we now affirm in part and reverse in part.
Wayne Lutke, Jr. ("Wayne") and Katrina Ann Moore Lutke ("Katrina") were divorced on May 4, 1994 after nearly fourteen years of marriage. The Lutkes had three minor children, and the court ordered a joint custody arrangement with Wayne being the custodial parent. On September 27, 1994, the parties, by way of consent judgment and in compliance with La. R.S. 9:315.14, agreed that Katrina would pay Wayne 8446 per month in child support. This amount was based upon Katrina's earnings of $1,820 per month.
Wayne first hailed Katrina to court for past due child support payments in 1997. On November 10, 1997, the court found Katrina in contempt of court "for July 1996 non-payment" and also ruled that "by agreement plaintiff is awarded $5,997.94, $900 attorney fees and court cost." Although the accrued arrearages were substantial, the court found that Katrina did not wilfully disobey the child support order for the missed payments, except for the July 1996 non-payment.1 On March 20, 1998, the court considered the contempt punishment for Katrina, and decided that jail time was not appropriate. The court then admonished Katrina to maintain a job, to keep Wayne advised of her work and living arrangements, and to notify Wayne of any change in circumstances. The trial court granted Katrina leniency at that time, because Katrina was employed (in a probationary period) as a poker dealer at Horseshoe Casino.
Katrina did not successfully complete her three month probationary period at Horseshoe Casino, and was terminated in May of 1998. She subsequently found occasional part-time work in TV production, and at the time of the 1999 hearing, was working for Michael Campisi on a part-time basis. Her work for Campisi consisted of helping him as a general assistant with lights, running the camera, directing and marketing.
The record additionally reveals that the State became involved in the collection of the past due arrearage as well as collection of the monthly child support obligation. The record indicates that a judgment in juvenile court was rendered against Katrina in 1996, and under that judgment, it appears that Katrina's wages were garnished by the State. Apparently, the amount garnished was one-half of Katrina's income. Since Katrina was no longer earning $1,820 per month, the amount deducted was far below her obligation of 8446 per month.
Katrina was unable to pay both her monthly child support obligation and the arrearage. By August 1998, Wayne filed a second rule for contempt against Katrina asserting a delinquent balance of $136.59 as of November 15, 1997 and non-payment of child support beginning June 8, 1998. In November 1998, Katrina answered this rule and filed a reconventional rule urging that she was entitled to a reduction in her obligation because one of the children had reached the age of majority in May 1998. Also, she asked that the court further modify the amount of her child support obligation based on her present income earning ability.
On June 9, 1999, the trial court held a hearing on both rules. At the hearing, the court heard testimony from Wayne and Katrina, as well as from Katrina's psychiatrist, Dr. Robin Rogers and Katrina's employer, Michael Campisi. Wayne, whose earnings were stipulated at $5,200 per month, testified that as of the date of the hearing, Katrina was behind $10,900.75 in child support payments.
Before allowing Katrina to testify, the court informed her of her Miranda rights.2 Katrina, who was represented by counsel at the hearing, indicated that she understood her rights, and then went on to testify on her behalf. Katrina testified that she had been unable to pay her support obligation because of debilitating depression. Katrina said that she had a substance abuse problem with alcohol and admitted to using crack cocaine and marijuana (both of which she claims she used only on one occasion). Katrina testified that she has a masters degree in chemical dependency counseling from an unaccredited university. Additionally, Katrina testified that her prior $1,820 wage was grossly inflated for the amount of work required. She earned that wage in 1994 grading test papers for an unaccredited university. Katrina lost this job through no fault of her own when the establishment was forced to close.
Katrina stated that in May 1998, upon losing her job at Horseshoe (where she earned approximately $10-$12 per hour, depending on tips), she hospitalized herself for two weeks after a suicide attempt. After the hospitalization at LSU Medical Center, she spent two weeks in a detox center and then moved into a halfway house. She left the halfway house after ten days, because the program did not allow her to work. Katrina then moved into Oakwood, a home for women, until February 1999. She said that she tried to find work during this period, and that she had significant financial problems due to her unemployment. In February 1999, Katrina moved into another halfway house for about three weeks until she moved in with her fiancé. She testified that one weekend in April, 1999, her fiancé stole $1,150 from her and that she had him arrested. She also said that her fiancé took her food stamp card and used it to buy steaks to give to a drug dealer in exchange for drugs.3 After this episode, Katrina again tried to commit suicide and was hospitalized for three days at LSU Medical Center. Upon leaving the hospital, Katrina again went to a halfway house to live.
At the hearing, Katrina said that she had been working part-time for Michael Campisi doing television production work and earning about $200 per month. She was currently living in a halfway house, the Margaret Brown House, where her rent would soon be raised from $50 to $90 per week.
Campisi testified that Katrina was a good employee and that if his business grew, he planned to give her more responsibility in the future. He also stated that he was aware of her problems with depression and alcohol, and stated that he would not hold her problems against her.
Dr. Rogers testified that she met Katrina after her 1998 hospital stay. The doctor related that Katrina had twice before been hospitalized for psychological and substance abuse problems; once in 1991 and again in 1994. The doctor said that Katrina's treatment has included "ongoing" sessions with a social worker at the Shreveport Mental Health Clinic on a bimonthly basis since May 1998. The social worker is supervised by Dr. Rogers. Dr. Rogers actually saw Katrina on four occasions: for her initial evaluation, as necessary to evaluate medications, and following hospitalization. Katrina was diagnosed by the doctor as having major depression, with alcoholism as a secondary and contributing factor. Katrina is also on medication for hypothyroidism.
The doctor opined that Katrina was not capable of holding a 9:00 a.m. to 5:00 p.m. job, due to her depression, and that Katrina was only capable of holding a job with significantly low stress levels, because of her personality disorder. Furthermore, Dr. Rogers stated that given Katrina's ongoing problems with depression, personality disorder, and substance abuse, she felt that Katrina's prognosis to return to 100 percent functioning was poor. Dr. Rogers also testified that she did not believe that Katrina was intentionally trying to remain a pauper. In fact, the doctor noted that every time Katrina had a relapse of her depression or substance abuse, she has gone out and attempted to find medical/psychiatric help and obtain work. In addition to and in support of Dr. Roger's testimony, the defense entered into evidence all of Katrina's medical records from LSU Medical Center.
After hearing the testimony, the district court found that Katrina was capable of working and earning a wage at her 1994 salary of $1,820 per month. Rejecting much of the testimony, the court found that Katrina had wilfully disobeyed the court's 1998 order requiring her to maintain employment and to pay child support. The court also concluded that: (i) Katrina's proposed depression defense was merely an "excuse;" (ii) there had not been sufficient attempts to get help for her alcohol abuse; (iii) the court was not impressed with the four doctor visits with Dr. Rogers; and (iv) Katrina was woefully underemployed. Furthermore, the trial court also specifically stated its belief that Dr. Rogers' impression and opinion "wasn't very persuasive." Later, the court found Katrina to be in contempt of court, in part, finding her "excuses" for nonpayment to be insufficient. The trial court concluded that Katrina could go to work "flipping burgers," and that no one was "forcing" Katrina to drink and use drugs.
On June 11, 1999, the court signed a judgment disposing of the rules. The court reduced Katrina's obligation effective November 1, 1998 from $446 per month to $398.70 per month based on one of the minor children reaching the age of majority. The trial court concluded that Katrina was...
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