State v. Nelson

• Decision Date: 26 September 1991
• Docket Number: No. 91-C-1153,91-C-1153
• Citation: 587 So.2d 176
• Parties: STATE of Louisiana v. Isaac NELSON, III. 587 So.2d 176
• Court: Court of Appeal of Louisiana — District of US

Page 176

587 So.2d 176

STATE of Louisiana v. Isaac NELSON, III.

No. 91-C-1153.

587 So.2d 176

Court of Appeal of Louisiana, Fourth Circuit.

Sept. 26, 1991.

Harry F. Connick, Dist. Atty., Elizabeth P. Duffy, Paulette M. Holahan, Asst. Dist. Attys., Eric Mountin, Law Clerk, New Orleans, for the State.

Luttie Wheat, Orleans Indigent Defender Program, New Orleans, for defendant.

Before BARRY, WILLIAMS and PLOTKIN, JJ.

PLOTKIN, Judge.

The sole issue in this case is whether a criminal conviction and incarceration is a legal ground to annull child support payments. This circuit has previously held, as did our brethren in the Third Circuit, that a party is not relieved of the obligation to pay child support when the inability to pay results from imprisonment. Salazar v. Salazar, 582 So.2d 374 (La.App. 4th Cir.1991).

Defendant Issac Nelson III was charged with criminal neglect of family, a violation of LSA-R.S. 14:74. Prior to trial, the defendant and the State stipulated to an order of support for the defendant's two children, pursuant to LSA-R.S. 14:75.2, ¹ which required the defendant to pay $10 per month support, beginning August 5, 1989. The defendant failed to comply with this support order.

On October 9, 1990, the court ordered the defendant's support obligation increased to $20 biweekly plus an additional $5 biweekly toward the arrearage. Defendant failed to comply with this order also. The State filed a Rule to Show Cause why the defendant should not be held in contempt of court. The defendant failed to appear for the hearing and the court issued a capias for his arrest.

Defendant was arrested on the juvenile court capias September 13, 1990. He was charged with three counts of battery on a police officer incident to the arrest on the capias and unauthorized entry of an inhabited dwelling. Defendant pled guilty to these charges and was sentenced to two years at hard labor, suspended, with two years active probation.

The juvenile court, on defendant's request, annulled the support payments which had accrued from September 14, 1990, the date defendant was incarcerated, until his release. ² The State seeks a supervisory writ on this issue.

This court has previously determined that civil, rather than criminal, law controls in cases such as this where the defendant failed to comply with a consent judgment entered between the defendant and the State pursuant to the provisions of LSA-R.S. 14:75.2. State v. Smith, 492 So.2d 1272 (La.App. 4th Cir.1986).

La.C.C. art. 227 places on parents a primary "obligation of supporting, maintaining, and educating their children." That obligation may be reduced only "[w]hen the person who gives or receives alimony is replaced [placed] in such a situation that the one can no longer give, or that the other is no longer in need of it, in whole or in part...." La.C.C. art. 232. Additionally, under LSA-R.S. 9:311, "[a]n award for support shall not be reduced or increased unless the party seeking a reduction or increase shows a change in circumstances ... between the time of the previous award and the time of the motion for modification."

The defendant in the instant case claims that he has been placed in a situation by virtue of his incarceration that he can no longer pay his child support. He also asserts that the incarceration is a "change in circumstances" entitling him to a reduction under LSA-R.S. 9:311.

The Louisiana Supreme Court has interpreted the above support provisions in Laiche v. Laiche, 237 La. 298, 111 So.2d 120 (1959), a case in which a father sought a reduction of his child support obligations on the basis of increased obligations resulting from his remarriage. In overturning the trial court decision, which allowed the reduction, the court stated as follows:

[T]he provisions of Article 232 of the Civil Code ... simply mean[ ] that, if the person who is required to provide alimony becomes unable to do so, by reason of fortuitous events or other circumstances beyond his control, such as the loss of his position or illness, relief will be granted as it would be highly unjust to exact from the obligor a strict compliance with his duty under those conditions. But it would be contrary to the letter and spirit of the law to conclude that one required to pay alimony should be relieved therefrom, either wholly or partially, when he has brought about his own unstable financial condition by voluntarily incurring subsequent obligations, secondary to the alimony obligation, which render him unable to meet that obligation.

Id. 111 So.2d at 122. (Emphasis added.)

In Alexander v. Alexander, 417 So.2d 92 (La.App. 3d Cir.1982), the Third Circuit Court of Appeal relied on the above cited language from Laiche to hold that a defendant's child support obligations continue during a period of incarceration. In that case, the court acknowledged the defendant's "practical inability to pay any award," but pointed to record evidence that that circumstance was caused by the defendant's "voluntary use of assets, acquired shortly before a hearing in this matter, for the payment of a secondary obligation" (payment of legal fees to his attorney). Id. at 94-95. The court found that the child support obligation could not be relieved "[u]nder such circumstances." Id.

The Alexander holding was expanded by the third circuit in Rivers v. Rivers, 511 So.2d 30 (La.App. 3d Cir.1987), which held that "[c]ourts will not grant...