State ex rel. A.M. v. Taylor

• Decision Date: 15 February 2002
• Docket Number: No. 2000 CA 2048.,2000 CA 2048.
• Citation: 807 So.2d 1156
• Parties: STATE of Louisiana, DEPARTMENT OF SOCIAL SERVICES, SUPPORT ENFORCEMENT SERVICES, In the Interest of A.M., Minor Child of Tiffany McGary v. John TAYLOR.
• Court: Court of Appeal of Louisiana — District of US

807 So.2d 1156

STATE of Louisiana, DEPARTMENT OF SOCIAL SERVICES, SUPPORT ENFORCEMENT SERVICES, In the Interest of A.M., Minor Child of Tiffany McGary v. John TAYLOR.

No. 2000 CA 2048.

Court of Appeal of Louisiana, First Circuit.

February 15, 2002.

COPYRIGHT MATERIAL OMITTED

Walter P. Reed, Leigh Anne Wall, Office of District Attorney, Covington, for Plaintiff-Appellee State of Louisiana, Through Department of Social Services, Support Enforcement Services.

John O. Braud, Braud & Braud, Independence, for Defendant—Appellant John Taylor.

Before: CARTER, C.J., PARRO, and CLAIBORNE,¹ JJ.

PARRO, Judge.

John Taylor appeals a judgment denying his request for a reduction in child support payments, upholding the recommendations of a hearing officer concerning those payments, and finding him in contempt of court for failing to make payments previously ordered by the court. After a thorough review of the record and applicable law, we reverse, render in part, and remand.

FACTUAL AND PROCEDURAL BACKGROUND

Taylor had an intimate sexual relationship with Tiffany McGary during 1995, and on July 19, 1996, Anissa McGary was born. Taylor and McGary were not married; in fact, at the time of their relationship, Taylor was married to someone else. McGary requested assistance from the Louisiana Department of Social Services, Support Enforcement Services (the Department), and on June 12, 1997, the Department filed a petition to establish paternity and obtain support for Anissa.

No answer was filed, and a preliminary default was entered September 11, 1997. After a number of continuances, a hearing officer conducted a hearing on June 26, 1998. Taylor and McGary were present. Based on information provided by them and on blood test results showing a 99.9994% probability that Taylor was Anissa's father, the hearing officer recommended to the district court that Taylor be found to be Anissa's father and ordered to: (1) pay child support in the amount of $554 per month, plus a 5% administrative fee, effective June 15, 1997; (2) pay $200 per month, plus a 5% administrative fee, toward $5,648 in arrearages owed as of June 15, 1998;² (3) provide medical support if the mother became unable to provide it; and (4) pay $110 in court costs and $156 for the blood tests. The hearing officer also recommended entry of an income assignment order. Taylor filed a handwritten "appeal" to the district court of the hearing officer's findings and recommendations.

Following several continuances, a hearing on Taylor's request for review was set for December 18, 1998. Taylor did not appear, and the court dismissed his appeal and ordered that the hearing officer's recommendations be made the judgment of the court. Taylor asked for a new hearing based on the lack of notice to him of the scheduled hearing; his request was denied by the court. A judgment confirming the default and incorporating the hearing officer's findings and recommendations was signed March 10, 1999, and was not appealed.

On July 14, 1999, Taylor filed a rule to show cause why child support should not be decreased; it was set for hearing on September 3, 1999. On August 10, 1999, the Department filed a contempt rule based on Taylor's failure to pay the court-ordered child support; it was also set for September 3, 1999. On that date, the hearing officer continued the contempt hearing without date, finding the motion had not been served on Taylor.³ Taylor asked that a compromise agreement he and McGary had confected be recognized and that his support obligation and arrearages be reduced accordingly. The Department had not participated in the compromise, and after receiving testimony and documentary evidence, the hearing officer refused to accept the compromise and modify the child support.⁴ However, the hearing officer did order the Department to give Taylor credit against the arrearages for two and one-half months during which he and McGary had lived together, as well as for some payments he had made directly to her during that period. Taylor was ordered to continue paying $200 per month, plus the 5% administrative fee, toward $12,948.85 in arrearages, which were made executory.⁵ A judgment incorporating the hearing officer's recommendations was signed September 15, 1999; Taylor's motion for new trial and/or appeal to the district court was denied November 4, 1999, and the judgment was not appealed to this court.

The Department re-filed its rule for contempt on November 5, 1999, and it was set to be heard on January 14, 2000. On. January 13, Taylor filed another motion to decrease his ongoing child support obligation and the arrearages, which was also set for January 14. The matters were continued until February 23, 2000. On that date, with Taylor and McGary present, the hearing officer found Taylor was in contempt of court for non-payment and recommended three months imprisonment, which could be avoided by Taylor's payment of $1425 by March 22, 2000. Finding no change in circumstances, the hearing officer again denied Taylor's request for modification, leaving his monthly support payments at $554, plus a 5% administrative fee. The arrearages were shown as $14,642.31,⁶ and the $200 per month payments for arrearages were continued. Taylor was ordered to pay additional court costs of $150 by April 12, 2000.

Taylor asked for a court hearing concerning the hearing officer's findings and recommendations, which was ordered. On March 3, 2000, the district court held a hearing at which Taylor, McGary, and a Department employee testified and documentary evidence was submitted. The court took the matter under advisement and on March 23, 2000, signed a judgment denying Taylor's request for a modification in his payments and again making the hearing officer's recommendations, including the contempt finding and penalty, the judgment of the court. This appeal followed.

In this appeal, Taylor claims the trial court abused its discretion by: (1) refusing to find a change of circumstances; (2) imputing earnings to him beyond what was established by the evidence and in the absence of a finding of voluntary underemployment; (3) finding him in contempt; and (4) refusing to give him credit for child support he was paying for his eighteen-year-old son who was enrolled full-time in a GED program.

APPLICABLE LAW

The authority for the Department's action in this case is provided by Louisiana Revised Statutes 46:236 through 46:236.16.⁷ Under these statutes, whenever the Department is providing certain public welfare and assistance services, the Department may take direct civil action, including an action to establish filiation, against an alleged biological parent of a child and may obtain an order, judgment, or agreement of support for the child against the responsible person. A separate and distinct cause of action in favor of the Department is created by these provisions. See LSA-R.S. 46:236.1(F)(1); State ex rel. Munson v. Washington, 32,550 (La. App. 2nd Cir.12/8/99), 747 So.2d 1245, 1247; State ex rel. CTG v. Ball, 26,841 (La.App. 2nd Cir.4/5/95), 653 So.2d 224, 225-26. Upon entry of any court order for the establishment or modification of support, the court must order an immediate income assignment, by which any employer of the responsible parent can be ordered to deduct from the parent's income the portion of the support payments subject to seizure and remit those funds to the Department. See LSA-R.S. 46:236.3(B)(1) and (E).

An expedited process to establish paternity and enforce support has been established, whereby hearing officers must be appointed by the court to hear paternity, support, and related matters brought by the Department. See LSA-R.S. 46:236.5(C)(1). The hearing officer acts as the finder of fact and makes recommendations to the court concerning the establishment and modification of support, collection methods, enforcement of support, and paternity. See LSA-R.S. 46:236.5(C)(3). Among other things, the hearing officer may conduct hearings, take testimony, recommend punishment by the court for contempt, make a record of the hearings, and present a factual summary and written recommendation to the court concerning the disposition of the matter. See LSA-R.S. 46:236.5(C)(4). The hearing officer's recommendation must include a statement of the pleadings, the findings of fact and law, and a proposed judgment. See LSA-R.S. 46:236.5(C)(5). Although support enforcement cases are a distinct cause of action, the courts use the child support guidelines in Louisiana Revised Statutes 9:315-315.15 (the Guidelines)⁸ to determine an appropriate amount of child support in actions by the Department. State ex rel. Gilbert v. Gilbert, 34,203 (La. App. 2nd Cir.12/20/00), 775 So.2d 1182, 1185.

Two provisions address the remedy for a party who does not agree with the recommendations of the hearing officer. Under Section 236.5(C)(6), a party may file an exception to the findings of fact or law of the hearing officer, and a contradictory hearing must be held by the court. The court may accept, reject, or modify in whole or in part the findings of the hearing officer, may receive additional evidence at the hearing, or may remand the proceeding to the hearing officer. See LSA-R.S. 46:236.5(C)(6). Under Section 236.5(C)(8), if the defendant disagrees with the finding of the hearing officer regarding either the establishment of paternity or the establishment and enforcement of support, he is entitled to a de novo review of the findings of the hearing officer by a court of competent jurisdiction. See LSA-R.S. 46:236.5(C)(8).

A party seeking modification of a child support award bears the burden of proving that a change in circumstances has occurred. Once the moving party proves a change in circumstances, a presumption exists that the support obligation must be modified. The burden then shifts to the other party to disprove the change or otherwise overcome the presumption. Barrios v. Barrios, 95-1390 (...