Tuey v. Tuey

• Citation: 546 So.2d 235
• Decision Date: 14 June 1989
• Docket Number: No. 20,542-CA,20,542-CA
• Parties: Virginia Ann Lowe TUEY, Plaintiff-Appellant, v. Ronald Wayne TUEY, Defendant-Appellee.
• Court: Court of Appeal of Louisiana (US)

Page 235

546 So.2d 235

Virginia Ann Lowe TUEY, Plaintiff-Appellant, v. Ronald Wayne TUEY, Defendant-Appellee.

No. 20,542-CA.

Court of Appeal of Louisiana,

Second Circuit.

June 14, 1989.

Rehearing Denied July 13, 1989.

C. S. Sentell, Jr., Minden, for plaintiff-appellant.

Randy D. Elkins, Minden, for defendant-appellee.

Before SEXTON, LINDSAY and HIGHTOWER, JJ.

LINDSAY, Judge.

The plaintiff, Virginia Ann Lowe Tuey Davis, appeals from a trial court judgment which held that she and the defendant, Ronald Wayne Tuey, had entered into an agreement by which she accepted $1,650 as payment in full for the defendant's arrearages in child support. Thus, the trial court refused to allow the plaintiff to recover an additional sum allegedly owed by the defendant for child support. On appeal, the plaintiff also claims attorney fees and costs.

FACTS

The parties were legally separated pursuant to a judgment signed on January 26, 1978. They were subsequently divorced on March 8, 1979. The judgment of divorce awarded the plaintiff permanent custody of the two minor children, Ronald Shane Tuey and Jeffrey Blane Tuey, while reserving reasonable visitation rights to the defendant. The defendant was ordered to pay child support of $300 per month in globo for the support of the two children. The plaintiff's right to claim alimony in the future was reserved.

On July 2, 1987, the older child, Shane, reached the age of 18. At that time, the defendant, unilaterally and without court approval, reduced his monthly child support payments to one-half the court-ordered amount, plus $25.

At the time of Shane's 18th birthday, the defendant was already about $845.00 behind in his child support payments. This arrearage continued to increase as a result of the defendant's unilateral reduction in his monthly child support payments. On May 13, 1988, plaintiff wrote a letter to the defendant demanding payment of the arrearages, although, as outlined in detail hereafter, the amount sought by plaintiff was erroneous. At any rate, in response, the defendant paid the amount demanded, the sum of $1,650.00.

Having sent the check for $1,650.00 on May 18, 1988, the defendant, less than a week later, on May 24, 1988, filed a petition and rule to modify visitation rights, for a decrease in child support, and for contempt of court and attorney fees. The defendant asserted that in October, 1984, the parties were awarded joint custody of the children. ¹ He requested a reduction in child support to $150.00 per month (retroactive to the date of judicial demand), based upon his elder son's obtaining his majority in July, 1987.

The defendant also sought to have the plaintiff, who moved to Texas shortly after the last custody award, held in contempt for allegedly frustrating his ability to visit and communicate with the children. He sought specific modification of his visitation rights with the remaining minor child, Jeffrey. He also requested that the court suspend his support obligation during the summer while the boy was living with him and that the court prohibit the plaintiff from moving in the future without first seeking modification of the defendant's visitation rights.

On June 2, 1988, the plaintiff answered the rule and sought a child support increase to $300 per month for Jeffrey. She also filed a counter rule to recover the remaining amount of past due child support which had not been included in the sum paid by the defendant two weeks earlier.

On June 14, 1988, a hearing on the rules was held. The parties amicably resolved the visitation dispute, and agreed that the defendant would pay monthly child support of $200 for Jeffrey, effective June 1, 1988, to be paid in two installments. They also agreed to suspend child support for the month of July when Jeffrey was visiting his father.

The only remaining issues for resolution were whether there were any grounds for holding either party in contempt and whether the parties had agreed to reduce the amount of the defendant's child support arrearages to the sum of $1,650. The dispute over the child support arrearages arose as a result of an exchange of letters.

On May 13, 1988, the plaintiff sent the following letter to the defendant:

Dear Ronnie:

As as of this date, you are behind in child support in the amount of $1,650.00. If this amount is not paid in full within seven days of the date of this letter, I will turn this matter over to my lawyer for collection by whatever means he needs to use. Sincerely, Virginia L. Davis.

The defendant's present wife, Lisa Tuey, responded to the letter:

Dear Ginger:

Pursuant to your letter of May 13, 1988, enclosed please find our check in the amount of $1,650.00, representing payment of child support through that date. Sincerely, Lisa Tuey.

Enclosed with the letter was a check made out to the plaintiff in the amount of $1,650. The check bore the notation "for child support."

At trial, plaintiff testified that the defendant was still behind in his child support payments despite the $1,650.00 check. According to plaintiff's calculations, the defendant owed a total of $10,200 in child support for the period of August 1, 1985 to May 31, 1988. Of this amount, the defendant claims to have paid $9,705. (This sum includes the check for $1,650.) However, due to one "missing" check of $175, the defendant could only document proof of payment of $9,530. Thus, the amount claimed by plaintiff as due and unpaid through the end of May, 1988, was $670.

The defendant testified at the hearing that he had in fact issued a check for $175 in February of 1988. However, he could not produce a cancelled check verifying his claim.

The defendant also claimed that he did not know that the child support award was in globo and that it was necessary to return to court to obtain a reduction after his older son obtained his majority. He testified that after Shane turned eighteen, he reduced the amount of the child support payments by one-half but added an extra $25. The defendant also indicated that his present wife, who handles all financial matters, was acting on his behalf when she corresponded with the plaintiff. ²

At the hearing, the plaintiff testified that she had no record of receiving the February check for $175. She denied that she entered into any kind of agreement with the defendant to accept the amount of $1,650 in full settlement of past due child support. She testified that when she wrote the demand letter she had not calculated with precision all of the child support due. After she received the check of $1,650 from the present Mrs. Tuey, she conducted a thorough audit of her records and discovered that she was more than $600 in error.

The trial court found that the defendant had not made the February payment of $175 as claimed by the defendant. However, the court found that the parties had entered into an agreement through the exchange of letters by which the plaintiff agreed to accept $1,650 as full payment of the child support arrearages, and therefore the plaintiff was not entitled to collect the balance of $670 in child support which she claimed. The trial court admitted that it found the issue to be "very close" and that it was relying upon Timm v. Timm, 511 So.2d 838 (La.App. 5th Cir.1987). The trial court ordered the defendant to pay costs, but declined to award attorney fees. The trial court also found that the defendant was in arrears for the sum of $100 which was due for the month of June. The trial court declined to hold either party in contempt.

A judgment in conformity with the trial court opinion was signed on July 5, 1988. The stipulations entered into by the parties concerning future child support and visitation were made part of the judgment. The judgment also made executory the amount of $100 which was past due for June. The court assessed all costs against the defendant. Additionally, the trial court denied the reciprocal demands of the parties to hold each other in contempt and responsible for attorney fees.

The plaintiff appeals from the trial court judgment. The plaintiff's assignments of error may be summarized as follows: (1) The trial court erred in finding that the plaintiff had entered into a compromise and settlement of the child support arrearages owed by the defendant; (2) the trial court erred in finding that the defendant's present spouse was authorized to act on the defendant's behalf to enter into such an agreement with the plaintiff; and (3) the trial court erred in refusing to award attorney fees pursuant to LSA-R.S. 9:305. Our disposition of the plaintiff's first assignment of error makes consideration of the second assignment unnecessary.

CHILD SUPPORT ARREARAGES

The plaintiff argues that the trial court erred in finding there was an agreement between the parties by which she agreed to accept $1,650 in full payment of the defendant's arrearages on his child support obligation. The plaintiff also contends that, as a mother, she could not enter into an enforceable agreement to deprive her son of child support unless the child received some benefit as a result of the agreement.

A child support award may not be modified, reduced, or terminated unless: (1) proper suit is brought; (2) by operation of law; or (3) the parties enter into a conventional obligation suspending the support award. Boudreaux v. Harrington, 496 So.2d 1278 (La.App. 3rd Cir.1986).

"It is settled that parents may agree to modify the amount of child support fixed by judgment, and such agreement will be given effect if it is in the interest of the child. But, for such an agreement to be effective, the parties must clearly agree to such modification. Moreover, the burden of proof is on the party relying on the agreement to relieve him of his obligation, or to modify his obligation, under the judgment to prove the existence of the agreement." Gomez v. Gomez, 421 So.2d 426 (...