State, Dss ex rel. D.F. v. L.T.

• Decision Date: 06 July 2006
• Docket Number: No. 2005-CJ-1965.,2005-CJ-1965.
• Citation: 934 So.2d 687
• Parties: STATE of Louisiana, DEPARTMENT OF SOCIAL SERVICES, in the Interest of D.F. v. L.T., Jr. State of Louisiana, Department of Social Services, in the Interest of J.T. v. L.T., Jr.
• Court: Louisiana Supreme Court

Page 687

934 So.2d 687

STATE of Louisiana, DEPARTMENT OF SOCIAL SERVICES, in the Interest of D.F. v. L.T., Jr.

State of Louisiana, Department of Social Services, in the Interest of J.T. v. L.T., Jr.

No. 2005-CJ-1965.

Supreme Court of Louisiana.

July 6, 2006.

Paul D. Connick, Jr., District Attorney, Joseph R. McMahon, Jr., Lekita G. Robertson, Assistant District Attorneys, for Applicant.

Beevers & Beevers, Raylyn R. Beevers, Wiley J. Beevers, Steven J. Mauterer, Gretna, for Respondent.

JOHNSON, Justice.

We granted this writ application to address whether military allowances for housing and subsidies must be included in gross income for the calculation of child support. The State of Louisiana, Department of Social Services (hereinafter referred to as "State"), filed this writ application to review the lower courts' decisions to exclude the father's military allowances for housing and subsistence from his "gross income" for the purpose of calculating his child support obligation to his two minor children. For the following reasons, we reverse and remand the case to the trial court to reassess the father's child support obligation and include his military allowances in his gross income.

FACTS AND PROCEDURAL HISTORY

This matter involves a United States Navy officer, who fathered six children, but only two minor children born of different women are at issue. Officer Legredis Taylor serves in the Navy as a non-commissioned officer, Grade E-6. He earns a monthly base salary of $2,763.30 and also enjoys the benefits of basic allowance housing ("BAH") in the amount of $995.00 a month in addition to basic allowance subsidies ("BAS") in the amount of $254.46.¹ Legredis Taylor (hereinafter referred to as "Taylor") was determined by the trial courts to be the biological father of D.F., whose mother is Floria Francois, and J.T., whose mother is Charissa Williams.² Both mothers sought child support through the State of Louisiana, Department of Social Services against Taylor. Both child support cases were heard before a hearing officer, who determined Taylor's obligation by imputing his military allowances (BAH and BAS) into his gross income for the purpose of calculating his child support obligations.³ In D.F.'s case, the hearing officer determined that Taylor should pay $503, which was an additional $150 after his military allowances were included. In J.T.'s case, the hearing officer determined that Taylor was obligated to pay $450.19 per month, which was approximately $174 more after including the allowances. Taylor contested the rulings, which imputed his military allowances (housing and subsistence) to his salary in determining his child support obligation.

Subsequently, the matters were heard on November 8, 2004, by the trial court judge, who determined that the BAH and BAS should not be included as income when calculating child support.⁴ According to the transcript of the hearing, the trial court held that the basic allowance for subsistence and housing should not be used for the purpose of calculating child support. The trial court noted that the military allowances (BAS and BAH), as defined by the United States Military, are "slightly different then a per diem allowance." The trial court also noted that the military allowances are not taxed by the Internal Revenue Services, and therefore, these allowances should not be imputed as income for the calculation of child support. The trial court found that this falls within the ambit of LSA-R.S. 9:315, which provides that gross income does not encompass per diem allowances, which are also not subject to federal income tax under the Internal Revenue Code. The State appealed both cases.

These appeals were consolidated as they reflected identical issues of law. See, LSA-C.C.P. art. 1561.⁵ The Fifth Circuit Court of Appeal, in a 2-1 split vote, affirmed the trial court ruling, noting that there is "no specific statutory provision governing this particular case," the trial court "correctly paralleled these military allowances to per diem allowances, which are specifically excluded from gross income. Therefore, . . . these military allowances are not to be included in Taylor's gross income calculation. . ." State, Dept. Of Social Services, ex rel. D.F. v. L.T., 04-1455, 04-1456 (La.App. 5 Cir. 5/31/05) 903 So.2d 657. Judge Rothschild dissented and opined that:

Under the clear terms of LSA-R.S. 9:315(C)(4)(a), the definition of gross income includes the disputed allowances, as these allowances constitute income from "any source." Further, as stated in La. R.S. 9:315(C)(4)(b), where expense reimbursements received by a parent are significant and reduce the parent's personal living expense they are considered for purposes of child support calculations to be part of the parent's gross income. The fact that these allowances are paid by the military branch of federal government and not subject to income tax does not exclude them from the definition of gross income under the applicable child support guidelines.

In fact, in the calculation of child support, Louisiana courts have imputed income to a parent who eliminated housing costs by living in a new wife's home. Thus, the benefit a parent receives in the form of reduced housing expenses have been determined as constituting income. See, Shaw v. Shaw, 30,613 (La. App. 2 Cir. 6/24/98), 714 So.2d 906, writs denied, 98-2414, 98-2426 (La.11/20/98), 729 So.2d 556, 558.

The trial court correctly recognized that the housing and subsistence allowances paid to Mr. Taylor are distinguishable from a per diem allowance which is specifically excluded from gross income pursuant to La. R.S. 9:315(C)(4)(d)(ii). However, in my view, the trial court erred in relying on the federal tax code to exclude this income where there are specific provisions in Louisiana governing the calculation of child support which provides otherwise. For these reasons, I would reverse the judgment of the trial court and reinstate the recommendation of the hearing officer in setting the child support of defendant, Legredis Taylor, Jr.

The State applied for a rehearing, which the court of appeal refused. Upon application of the State, this Court granted a writ. State, Dept. Of Social Services, ex rel. D.F. v. L.T., 05-1965 (La.2/10/06), 920 So.2d 863.

DISCUSSION

The sole issue before this Court is whether the military allowances for housing and subsidies are to be included in Taylor's gross income for the calculation of child support to his two minor children. We note that this case is res nova, an issue of first impression in Louisiana, and thus, it is appropriate to look to the law of other jurisdictions for guidance after reviewing the statutory law of Louisiana.

Before reviewing the persuasive authority of other jurisdictions, we note that LSA-R.S. 9:315 et seq., provides the guidelines for the determination of child support, which relies on the combined adjusted monthly gross income of both parents. According to LSA-R.S. 9:315(A), child support is a continuous obligation of both parents, whose current income the child is entitled to share, as the child should not be the economic victim of a divorce or an out-of-wedlock birth. These guidelines are mandates applicable to both military personnel and civilians. Further, the trial court's discretion in setting the amount of child support is structured and limited. James v. James, 34,567 (La.App. 2 Cir. 4/6/01), 785 So.2d 193; Voorhies v. Voorhies, 96-342 (La.App. 3 Cir. 10/9/96), 688 So.2d 1158. This obligation must be administered and fairly apportioned between parents in their mutual financial responsibility for their children; toward that end, guidelines balance the needs of children with the means available to parents. See, LSA-R.S. 9:315 et seq.

We also note that the standard of review in a child support case is manifest error. Generally, an appellate court will not disturb a child support order unless there is an abuse of discretion or manifest error. Reeves v. Reeves, 36,259 (La.App. 2 Cir.2002), 823 So.2d 1023, 1027. With this standard in mind, we can proceed to address the State's argument.

Definition of "gross income" and Legislative Intent

First, the State argues that the lower courts erred in determining that Taylor's BAH and BAS constituted income for the purpose of calculating child support. The State argues that the lower courts misinterpreted LSA-R.S. 9:315(C)(4)(b), which is presently LSA-R.S. 9:315(C)(3)(b), as military allowances fall squarely within the parameters of "gross income" as defined in the statute.⁶

LSA-R.S. 9:315(C)(4) states, in pertinent part, that:

(a) The income from any source, including but not limited to salaries, wages, commissions, bonuses, dividends, severance pay, pensions, interest, . . . and spousal support received from a preexisting spousal support obligation . . .

(b) Expense reimbursement or in-kind payments received by a parent in the course of employment, self-employment, or operation of a business, if the reimbursements or payments are significant and reduce the parent's personal living expenses. Such payments include but are not limited to a company car, free housing, or reimbursed meals . . .

(Emphasis added).

In contrast, Taylor contends that the statute is clear and unambiguous. Taylor points out that LSA-R.S. 9:315 contains specific enumerated sources of income, and none of these sources includes military allowances. Taylor submits that the lower courts' rulings are clearly supported by the legislative intent. Accordingly, Taylor asserts that BAH and BAS should not be included as income when calculating child support under Louisiana law. We disagree.

In reviewing a statute, we must determine whether the language of the statute is clear or ambiguous. Also, we must determine what the legislature intended when promulgating the statute. Here, in analyzing LSA-R.S. 9:315(C)(4), we find that the statute does not limit income merely to the type of...