Strange v. Strange

• Decision Date: 20 June 2007
• Docket Number: No. 42,318-CA.,42,318-CA.
• Parties: Dana Dycus STRANGE, Plaintiff-Appellee, v. Tracy G. STRANGE, Defendant-Appellant.
• Court: Court of Appeal of Louisiana — District of US

960 So.2d 1223

Dana Dycus STRANGE, Plaintiff-Appellee, v. Tracy G. STRANGE, Defendant-Appellant.

No. 42,318-CA.

Court of Appeal of Louisiana, Second Circuit.

June 20, 2007.

Loomis & Dement by Albert E. Loomis, III, Monroe, for Appellant.

Barry W. Dowd, for Appellee.

Before BROWN, GASKINS and CARAWAY, JJ.

GASKINS, J.

Tracy Strange appeals from a trial court judgment reducing the amount of child support to be paid by Dana Dycus Strange (now Crumley) for the parties' two children. For the following reasons, we affirm the trial court judgment.

FACTS

The parties were married in October 1992 and had two children, Tracy Alexandra, born June 7, 1993, and Daniel Riley, born December 16, 1997. The parties separated in August 2000 and were divorced in March 2001. In June 2001, the trial court granted joint custody and named the father as the primary domiciliary parent. In March 2004, the trial court entered a judgment ordering the mother to pay $540.57 per month for child support retroactive to November 2003.

The mother had been employed at a car rental company earning approximately $23,000.00 per year. She remarried, had another child, and quit her job. On October 12, 2005, she filed a motion to reduce child support, claiming that she was unemployed and was staying at home to care for the new child. The father answered, claiming that the mother was voluntarily unemployed. These claims, and others not presently before this court, were submitted to a hearing officer, who ruled that the claim for a reduction should be denied.

The mother filed an objection to the hearing officer's report, stating:

The mother filed the rule to decrease based on her new conditions and other reasons, which include the fact that the father has a new job, new circumstances, and other reasons to be shown at the trial of this matter. Assuming arguendo the mother is voluntarily underemployed, the child support should be modified in accordance with the law and the guidelines.

The father filed a motion to strike, claiming that the mother did not raise the issue of his new job with the hearing officer.

The trial court commenced the hearing on this matter on March 29, 2006; it denied the motion to strike. The father testified that at the time of the original child support award, he was working part-time at Conway Hospital for $6.20 per hour, was receiving residuals from the sale of insurance policies, and was a full-time student in radiologic technology. At the time of the hearing, he had graduated and was working for Monroe Medical Clinic, earning approximately $16.00 per hour. He also still received some insurance residuals of about $600.00 per month.

The mother testified that she had been employed at a car rental agency earning approximately $23,000.00 per year. She had remarried and had another child in April 2005. She admitted that she voluntarily quit her job to stay home with the baby and to help her new husband in his landscaping business. She testified that she answered phone calls and did some bookkeeping for the business, but was not paid for her efforts. However, her work kept her husband from having to hire an employee. The court left the evidence open to obtain more information on the father's income. The hearing resumed on September 21, 2006. The father furnished information regarding his salary, as well as insurance premiums and medical expenses for the children.

The mother reiterated her prior testimony concerning her earnings while employed. She stated that her baby was 18 months old and she was expecting another child. She outlined the amounts spent in her current household for housing, utilities, a car note, and food. The court also received evidence concerning the earnings of the mother's new husband.

On October 23, 2006, the trial court issued its "Ruling, Order and Judgment" in this matter. The court found that the mother is voluntarily underemployed; the court would not say that she was unemployed, because she helped her current husband in his business, even though she was not paid for her work. The court stated that, "after considering the overall economic impact on the parties, the ways and means of the parties, and the best interest of all the minor children potentially [a]ffected by the requests of all the parties to this cause (as well as the equities and reasoning behind the `underemployment')," a reduction in the mother's child support obligation was in order for a limited time. The court ordered that her obligation be reduced to $400.00 per month for a period of 18 months, subject to automatic review upon the filing of a motion for review by the father. All other relief requested by the parties was denied. The father appealed.¹

DEVIATION FROM CHILD SUPPORT GUIDELINES

On appeal, the father argues that the trial court erred in failing to adhere to the guidelines set forth in La. R.S. 9:315.1(B)(1) by not giving specific oral and written reasons for deviation from the child support guidelines, by not finding the amount of support required under a mechanical application of the guidelines, by not making a finding as to the particular facts and circumstances that warrant a deviation from the guidelines, and by not making all of these factors a part of the record of the proceedings. The father also contends that the trial court did not follow La. R.S. 9:315.1(C) in considering factors that would justify a deviation from the child support guidelines.²

Closely tied to this argument, the father claims that the trial court erred in reducing child support because the mother had a child under the age of five who was not the child of the parties, the mother is unemployed, and the father now earns more than when the child support order was originally entered. The father contends that the law offers relief from a child support obligation for a child under the age of five only if it is the child of the parties.

Legal Principles

The Louisiana Child Support Guidelines set forth the method for implementation of the parental obligation to pay child support. La. R.S. 9:315, et seq.; Gardner v. Gardner, 41,655 (La.App.2d Cir.12/27/06), 946 So.2d 321. The guidelines are intended to fairly apportion between the parents the mutual financial obligation they owe their children in an efficient, consistent and adequate manner. Child support is to be granted in proportion to the needs of the children and the ability of the parents to provide support. Gardner v. Gardner, supra.

The guidelines are to be used in any proceeding to establish or modify child support. La. R.S. 9:315.1(A); State ex rel. Metcalf v. Samuels, 34,402 (La.App.2d Cir.12/20/00), 775 So.2d 1162; Germany v. Germany (La.App.₆ 1st Cir.1992), 599 So.2d 350. The guidelines are mandatory and provide limits and structure to the trial court's discretion in setting the amount of support. The trial court's child support judgment will not be disturbed absent a clear abuse of discretion. Aydelott v. Aydelott, 42,161 (La.App.2d Cir.5/9/07), 957 So.2d 350.50

There is a rebuttable presumption that the amount of child support obtained by use of the guidelines is proper and in the child's best interest. La. R.S. 9:315.1(A); Aydelott v. Aydelott, supra. The trial court may deviate if it finds that application of the guidelines would not be in the child's best interest or would be inequitable to the parties. Aydelott v. Aydelott, supra.

La. R.S. 9:315.1(B) mandates that the trial court give specific oral or written reasons for a deviation and include specific findings as to the amount of support that would have been required under a mechanical application of the guidelines and as to the particular facts and circumstances that warranted the deviation. This information is required to be made part of the record of the proceedings. Aydelott v. Aydelott, supra. When a trial court decides that deviation is appropriate, it should fully explain what the support should be if it were not deviating and how much is being allowed for each factor of deviation. Utilizing and fully explaining the deviation gives an appellate court a basis to review the appropriateness of the deviation. State ex rel. Metcalf v. Samuels, supra. If the trial court fails to follow the mandatory procedure for deviation set forth in La. R.S. 9:315.1, it is legal error and precludes review of the deviation under the manifest error standard. Aydelott v. Aydelott, supra; Peck v. Peck, 37,184 (La.App.2d Cir.5/14/03), 847 So.2d 111.

Where the record contains adequate information, this court may apply the guidelines and render a support judgment rather than remand to the trial court for further proceedings. Aydelott v. Aydelott, supra; Gardner v. Gardner, supra.

A party seeking a reduction in child support must show a material change in circumstances of one of the parties between the time of the previous award and the time of the motion for modification of the award. La. R.S. 9:311(A); Wyatt v. Wyatt, 39,518 (La.App.2d Cir.4/6/05), 899 So.2d 788. Louisiana jurisprudence distinguishes between voluntary and involuntary changes in circumstances. An involuntary change in circumstances results from fortuitous events or other circumstances beyond a person's control, such as loss of one's position or illness. A voluntary change in circumstances generally does not justify a reduction in the support obligation. When a parent voluntarily terminates his or her employment, the child support obligation may be reduced if the obligor parent can show that (1) a change in circumstances has occurred; (2) the voluntary change is reasonable and justified; (3) the parent is in good faith and not attempting to avoid his or her alimentary obligation; and (4) the action will not deprive the child of continued reasonable financial support. Wyatt v. Wyatt, supra.

Voluntary underemployment is a question of good faith of the obligor spouse. If a parent is voluntarily unemployed or underemployed, the child support obligation shall be...