Wisecarver v. Wisecarver

• Decision Date: 18 September 2020
• Docket Number: NUMBER 2019 CA 1217
• Parties: KRISTYN WISECARVER v. GLEN WISECARVER
• Court: Court of Appeal of Louisiana — District of US

KRISTYN WISECARVER v. GLEN WISECARVER

NUMBER 2019 CA 1217

STATE OF LOUISIANA COURT OF APPEAL FIRST CIRCUIT

September 18, 2020

NOT DESIGNATED FOR PUBLICATION

Appealed from the Twenty-First Judicial District Court In and for the Parish of Tangipahoa State of Louisiana

Docket Number 2010-0003975

Honorable Jeff Oglesbee, Judge Presiding

Emily Guidry Jones

C. Glenn Westmoreland

Sherman Q. Mack

Albany, LA

Counsel for Plaintiff/Appellee,

Kristyn Wisecarver

Kermit L. Roux, III

Isaac H. Ryan

New Orleans, LA

Counsel for Defendant/Appellant,

Glen Wisecarver

BEFORE: WHIPPLE, C.J., GUIDRY, AND WOLFE, JJ.

WHIPPLE, C.J.

This matter is before us on appeal by the defendant, Glen Wisecarver, from a judgment of the trial court in favor of plaintiff, Kristyn Wisecarver, increasing his child support obligation. For the reasons that follow, we affirm.

FACTS AND PROCEDURAL HISTORY

Kristyn Wisecarver and Glen Wisecarver were married on February 12, 2000, and are the parents of two children, M.J.W., born in 2003, and S.A.W., born in 2001.¹ On October 5, 2010, Kristyn filed a petition for divorce. While the divorce proceedings were pending, by agreement of the parties, the trial court signed a stipulated judgment on November 29, 2010, granting Kristyn and Glen joint custody of the children, with Kristyn designated as the domiciliary parent. Under this judgment, Glen was responsible for paying child support in the amount of $1,950.00 per month. Thereafter, the trial court signed a judgment of divorce on April 15, 2013.

On July 24, 2017, Kristyn filed a rule for contempt, to suspend and modify custody, and to modify child support, contending that a material change in circumstances had occurred, necessitating a suspension and subsequent modification of Glen's physical custody. Kristyn further alleged that a change in the needs of the children and the income of the parties had occurred, necessitating a modification of child support. Additionally, she alleged that Glen had failed to follow the previous consent judgment and should be found in contempt of court for his failure.

In response, Glen filed exceptions of no cause of action and vagueness, arguing that Kristyn's rule contained conclusions without supporting material facts. Kristyn opposed the exceptions, but also filed an amended pleading further expanding on her allegations before the matter was heard. After a hearing, thecourt denied the exception of no cause of action, but granted the exception of vagueness, giving Kristyn fifteen days to amend her pleading.²

On April 12, 2018, Glen filed a rule for contempt against Kristyn, alleging that she had not adhered to certain provisions in the 2010 stipulated judgment. On April 13, 2018, Glen filed a rule to decease child support, alleging that he had undergone neck and back surgery, with additional surgeries scheduled. He also alleged that he had filed for disability and his income was "less than $5,000[.00] per month," which was "significantly less than his previous salary," warranting a decrease in his support obligation.

Kristyn's and Glen's rules were set for hearing and continued several times, until a hearing was eventually held on January 16, 2019. At the hearing, both parties agreed to dismiss their respective rules for contempt, and Kristyn dismissed her rule to suspend and modify custody. Accordingly, the only remaining matters to be heard were the parties' cross-motions to modify child support. Both parties testified and presented evidence. At the end of the testimony, the trial court left the record open for fifteen days, and invited both sides to file post-trial memorandums before a decision would be rendered.³

Thereafter, on April 9, 2019, the trial court signed a judgment, granting Kristyn's rule for modification of child support and denying Glen's rule to decrease child support. The trial court found that although Glen alleged that his income was less than $5,000.00 per month, he testified that his total monthly income was actually $13,960.00. Additionally, relying on the definition of gross income found in LSA-R.S. 9:315(C)(3) and Glen's twenty-five percent ownership interest in Wechem, Inc., his family's company, the trial court imputed to him additional income of $3,000.00 per month for income from the business. The trialcourt also found that, despite Glen's assertions, although Kristyn was already certified as an LPN, she was not voluntarily underemployed while working 30 hours per week at an insurance company in order to complete nursing school. Accordingly, utilizing child support obligation Worksheet A as found in LSA-R.S. 9:315.20, the trial court increased Glen's child support obligation to $2,284.00 per month and ordered him to pay an additional $100.00 per month "towards the accrual amount until satisfied."

Glen then filed the instant appeal, assigning the following as error:

1. The trial court erred in finding that he received an additional $3,000.00 per month in income from Wechem in 2018; and

2. The trial court erred in considering Wechem, Inc.'s corporate retained earnings for the years 2014-2016, when the trial was based on income from 2018, and evidence indicated that Wechem was operating at a loss in 2018.

DISCUSSION

An award of child support may be modified if the circumstances of the child or of either parent materially change. LSA-C.C. art. 142. Specifically, "[a]n award for support shall not be modified unless the party seeking the modification shows a material change in circumstances of one of the parties between the time of the previous award and the time of the rule for modification of the award." LSA-R.S. 9:311(A)(1). What constitutes a change in circumstances is determined on a case-by-case basis and falls within the great discretion of the trial court. Folse v. Folse, 2001-0946 (La. App. 1^st Cir. 5/10/02), 818 So. 2d 923, 925. Thus, on appeal, a trial court's child support judgment will not be reversed except for abuse of discretion; however; as in any other case, on appellate review of a trial court's factual findings, those findings of fact are subject to the manifest error/clearly wrong standard of review. Harang v. Ponder, 2009-2182 (La. App. 1^st Cir. 3/26/10), 36 So. 3d 954, 967, writ denied, 2010-0926 (La. 5/19/10), 36 So. 3d 219.

According to LSA-R.S. 9:315(C)(3), "gross income," for the purposes of determining child support, includes:

(a) The income from any source, including but not limited to salaries, wages, commissions, bonuses, dividends, severance pay, pensions, interest, trust income, recurring monetary gifts, annuities, capital gains, social security benefits, workers' compensation benefits, basic and variable allowances for housing and subsistence from military pay and benefits, unemployment insurance benefits, disaster unemployment assistance received from the United States Department of Labor, disability insurance benefits, 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; and

(c) Gross receipts minus ordinary and necessary expenses required to produce income, for purposes of income from self-employment, rent, royalties, proprietorship of a business, or joint ownership or a partnership or closely held corporation. "Ordinary and necessary expenses" shall not include amounts allowable by the Internal Revenue Service for the accelerated component of depreciation expenses or investment tax credits or any other business expenses determined by the court to be inappropriate for determining gross income for purposes of calculating child support.

As the assignments of error are interrelated, we will consider them together. At the hearing on the cross rules for child support modification, both parties presented evidence as to their incomes. Kristyn testified that while she holds an LPN certification, she was enrolled in nursing school to obtain a higher degree. Kristyn also testified that because she was in school, she was working for an insurance company for approximately 30 hours a week. Relying on a recent pay stub, Kristyn showed that with overtime, her gross income for 2018 was $29,176.26, making her monthly gross income $2,431.00. This testimony as to her actual income was undisputed. However, Glen introduced into evidence two different internet printouts showing a higher median salary for LPNs to prove that for purposes of calculating the child support obligation, Kristyn was voluntarilyunderemployed because she was attending nursing school and only working part-time despite already holding an LPN certification.⁴

With respect to Glen's income, Kristyn introduced his disability insurance policy and his income tax summaries from 2015 and 2016, which also reflect Glen's income information from 2014. The only documentation Glen submitted to establish his salary was Wechem's 2018 profit/loss statement. With regard to his income, Glen admitted that he was receiving $8,460.09 per month in disability payments due to his recent surgeries and a salary of $2,500.00 per month from Wechem. Glen also testified that he has an ownership interest in a separate partnership that receives rental payments from Wechem and that he received payments of $3,000.00 per month from that partnership.⁵ Based on this testimony, the trial court found that Glen's monthly income was at least $13,960.00 per month, and was significantly higher than he alleged in his rule to decrease child support.

Additionally, Glen's tax information from 2014 showed his adjusted gross income to be $296,491.00. His tax information from 2015 showed his adjusted gross income to be $452,219.00. Finally, Glen's 2016 tax information showed his adjusted gross income as $387,264.00. Glen testified...