Opinion
No. KA 07 00140.
May 30, 2007.
APPEAL FROM THE FIFTEENTH JUDICIAL DISTRICT COURT, PARISH OF LAFAYETTE, NO. 2005-2690, HONORABLE DAVID A. BLANCHET, DISTRICT JUDGE.
George R. Knox, Attorney at Law, Lafayette, Louisiana, Counsel for Plaintiff/Appellee: Joe Ann Cherie Dalton.
William C. Vidrine, Vidrine and Vidrine, Lafayette Louisiana, Counsel for Defendant/Appellant: Richard Collins Dalton.
Court composed of Michael G. Sullivan, Billy Howard Ezell, and J. David Painter, Judges.
AFFIRMED.
Richard Collins Dalton ("Rick") appeals the trial court's rulings concerning child support and custody of his three children with his former spouse, Joe Ann Cherie Dalton ("Joe Ann"). For the following reasons, we affirm.
Procedural History
Rick and Joe Ann married on May 2, 1996 and divorced on July 19, 2005. Rick is an attorney with offices in Lafayette Parish and in Dallas, Texas, and Joe Ann is a registered nurse, although she has not worked outside the home since 1998. Their three children are Christian, age 11; Jack, age 8; and JaLena, age 4.
After a hearing on February 15 and March 13, 2006, the trial court took the matters of child support and custody under advisement, issuing written reasons on June 28, 2006. The trial court named Joe Ann as the domiciliary parent, with Rick to enjoy physical custody of the children on alternating Thursdays through Mondays and the Monday night of the off week, specified holidays, and alternating seven-day periods in the summer months. Based upon Rick's stipulated gross monthly income of $28,000.00, the affidavits of income and expenses submitted by both parties, and testimony as to the parties' lifestyle during the marriage, the trial court set Rick's monthly child support obligation at $5,200.00 and ordered that he pay tuition, books, and supplies to maintain the children's enrollment in the Episcopal School of Acadiana (ESA), as recommended by the court-appointed psychologist, Dr. Kenneth Bouillion. The trial court also ordered both parents to attend counseling to improve their communication skills and to learn how to co-parent the children. It further ordered that the oldest child, Christian, undergo counseling to deal with adjustments in the custody schedule and to help in developing appropriate boundaries with his father, as the trial court found that Rick inappropriately involved Christian in adult issues by asking him to report on his mother's activities.
On July 25, 2006, the trial court issued amended written reasons to clarify certain issues raised by the parties. Those reasons specified that the child support award was retroactive to the date of judicial demand; that Rick and Joe Ann were to share the costs of their court-ordered counseling, but that Rick would be responsible for Christian's counseling because his problems stemmed mostly from Rick's placing the child in the midst of this controversy; that Joe Ann would be responsible for ordinary medical expenses, with Rick responsible for extraordinary medical expenses as defined by statute; and that Rick was entitled to the income tax dependency deductions for the children until further orders of the court, since Joe Ann was not working and Rick was paying one hundred percent of the child support. The trial court signed a judgment incorporating both rulings on September 12, 2006.
On September 21, 2006, Rick filed a motion for new trial, alleging that, after trial but prior to the trial court's ruling of June 28, 2006, Joe Ann returned to work as a registered nurse and allowed her boyfriend to move into her residence with the minor children. Rick also argued that the judgment of September 12, 2006 was contrary to the law and evidence because the trial court failed to impute any earning capacity to Joe Ann, the child support award overcompensated Joe Ann during the period of time when she was receiving interim spousal support, and the children's existing custody should have been maintained. On September 26, 2006, the trial court denied Rick's motion for new trial, finding no authority that would permit the reopening of a case based upon an alleged change in circumstances occurring after the case had been submitted for ruling. The trial court, however, treated the motion for new trial as a rule to show cause to modify child support and visitation based upon an alleged change in circumstances and set that matter for hearing. The transcript of that hearing, if it took place, is not in the record before us.
On appeal, Rick argues that the trial court erred: (1) in refusing to impute any earning capacity to Joe Ann because, even though the parties' youngest child, JaLena, is under the age of five, she is a full-time student in ESA's pre-K program; (2) in fixing child support at $5,200.00 a month; and (3) in formulating a joint custody plan that reduces his time with the children.
Opinion
Assignment of Error No. 1
Louisiana Revised Statutes 9:315.11(A) provides in part: "If a party is voluntarily unemployed or underemployed, child support shall be calculated based on a determination of his or her income earning potential, unless the party . . . is caring for a child of the parties under the age of five years." (Emphasis added.) In its written reasons, the trial court specifically cited this statute in refusing to assign any income potential to Joe Ann because she is caring for a child under five years of age. Rick argues the trial court erred in not assigning any income to Joe Ann based upon this statute because their youngest child, who is under five years old, is in a fulltime pre-K program. We disagree, finding the cases Rick cites in support of this argument to be distinguishable.
In Settle v. Settle, 25,643 (La.App. 2 Cir. 3/30/94), 635 So.2d 456, writ denied, 94-1340 (La. 9/16/94), 642 So.2d 194, the court refused to impute a full-time salary to a mother who was working part-time as a teacher while caring for a four-year old child, although her part-time earnings were apparently included in the child support calculation. Similarly, in Palacios v. Palacios, 608 So.2d 243 (La.App. 5 Cir. 1992), writ denied, 613 So.2d 1000 (La. 1993), the court affirmed the use of the mother's actual earnings while she was enrolled in law school, as opposed to her potential earnings, in calculating the basic child support obligation for a child under five years of age. In Romanowski v. Romanowski, 03-124 (La.App. 1 Cir. 2/23/04), 873 So.2d 656, the court did impute some earning potential, although not full-time wages, to the mother of a child under five years of age, where the court ordered a "50/50"shared custody plan with the father as the domiciliary parent.
In the present case, the record contains no evidence of any actual earnings because Joe Ann was not working at the time of trial, although Rick proffered evidence of competitive nursing salaries. Additionally, the parties are not in a shared custody arrangement, and Joe Ann was named the children's domiciliary parent. Accordingly, we do not find either Settle or Palacios to be persuasive, as those cases concerned actual income, and we decline to apply Romanowski beyond its facts. We cannot conclude that Joe Ann, as the domiciliary parent with the majority of physical custody time, is not "caring" for a child under five years simply because that child attends a pre-K program. Further, we note that the present case does not involve a strict application of the child support guidelines, as the parties' adjusted gross monthly income exceeds $20,000.00; hence, Joe Ann's actual earnings may not have the significance that they would in the cases cited by Rick. Based upon the record before us, we find no error in the trial court's application of La.R.S. 9:315.11(A).
Assignment of Error No. 2
Rick next argues that a child support award of $5,200.00 per month is excessive, as it does not consider the household expenses of the parties, the interim support that Rick has paid to Joe Ann, and the reasonable expenses of the children.
The parties stipulated that Rick's monthly adjusted gross income is $28,000.00, which exceeds the highest specified income level in the child support guidelines. Accordingly, the trial court applied La.R.S. 9:315.13(B) in awarding child support. That statute provides:
If the combined adjusted gross income of the parties exceeds the highest level specified in the schedule contained in R.S. 9:315.19, the court shall use its discretion in setting the amount of the basic child support obligation in accordance with the best interest of the child and the circumstances of each parent as provided in Civil Code Article 141 , but in no event shall it be less than the highest amount set forth in the schedule.
The highest income level in the child support guidelines is $20,000.00, which would result in the maximum award of $3,112.00 for three children at that level. La.R.S. 9:315.19.
(Emphasis added.)
Additionally, the Comments to La.R.S. 9:315.13 provide that, under the principles of La.Civ. Code art. 141, "child support is to be determined based upon the needs of the child as measured by the standard of living enjoyed by the child while living with his intact family and upon the ability to pay of each of the parents." (Emphasis added.)
In applying La.R.S. 9:315.13(B), the court in Jones v. Jones, 38,790, p. 8 (La.App. 2 Cir. 6/25/04), 877 So.2d 1061, 1068 (citations omitted), stated:
The amount of child support in a specific matter is to be judged on a case-by-case basis; there is no mathematical formula. A parent's ability to pay and the lifestyle that the children would have enjoyed had the parents not separated are important considerations. The overriding factor in determining the amount of support is the best interest of the children. Under the clear provisions of La.R.S. 9:315.13, the trial court must use its discretion in setting the amount of the basic child support obligation when the gross income of the parties exceeds the highest figure provided by the schedule, and its judgment in such matters will not be disturbed in the absence of a showing of an abuse of discretion.
In Falterman v. Falterman, 97-192 (La.App. 3 Cir. 10/8/97), 702 So.2d 781, writ not considered, 98-76 (La. 3/13/98), 712 So.2d 863, this court noted that the trial court set the reasonable expenses of the children at an amount in excess of the expenses shown by the mother's canceled checks. In affirming the child support awarded based upon that amount, however, this court stated that "the trial judge was required to also consider the lifestyle the children would enjoy if in the care of their father, and [their father's] ability to support them." Id. at 784. In Piccione v. Piccione, 01-1086, p. 7 (La.App. 3 Cir. 5/22/02), 824 So.2d 427, 431, this court affirmed a monthly award of $6,000.00 for two children, based upon the father's adjusted gross monthly income of $26,000.00, noting that "the trial court carefully considered not only the reasonable and necessary expenses, but also what was necessary to maintain the children's lifestyle at the same level it had been and would have continued to be had the father been living in the home."
In the present case, the parties presented vastly different amounts for the children's monthly expenses. Joe Ann represented that their expenses totaled $7,039.90 per month, not including private school tuition, whereas Rick fixed the children's monthly expenses at $5,156.26, which amount included the private school tuition. Noting that Rick's income exceeded the highest guidelines amount and that Joe Ann's earning potential would not be considered because of her care of their youngest child under five, the trial court continued:
The Court notes that the Daltons lived an upper socio-economic lifestyle taking frequent and sometimes expensive vacations. The Court also notes that the parties have a 4900 square foot home with a swimming pool currently being occupied by Mr. Dalton. He drives an $80,000.00 Cadillac, he has a Toyota Tundra truck, 4-wheelers, and a Harley Davidson Motorcycle. He took a trip to Spain the day after the divorce. He is restoring a Corvette and purchases expensive gifts for the children. He spent $1,100 on a parrot and accessories for the children. He has also purchased collectibles for himself for his personal enjoyment.
Based upon the record before us, we find no error in the trial court setting a child support award in line with Joe Ann's estimation of expenses. We further note that the record reflects ongoing proceedings that will allow Rick to present his claim for a modification of the award based upon Joe Ann's alleged actual earnings. Although Rick argues that the award overcompensates Joe Ann for the months that she received interim spousal support, we note that Rick's child support payments before trial were less than the minimum amount of $3,112.00 per month under the guidelines based upon his stipulated gross monthly income of $28,000.00.
Assignment of Error No. 3
In his final assignment of error, Rick argues that the trial court erred in implementing a plan of custody that reduced the time he had been spending with the children pursuant to an interim custody order, considering that Dr. Bouillion, the court-appointed expert, recommended a week-to-week split with both parties as co-domiciliary parents and that Rick had demonstrated his ability to act as a primary caretaker.
In its written reasons for judgment, the trial court thoroughly discussed all the factors of La.Civ. Code art. 134. The trial court found that Rick and Joe Ann were on equal footing on several factors, including their love, affection, and emotional ties with the children; their capacity to offer spiritual guidance and to continue education of the children; the length of time the children have lived in a stable environment; their moral fitness, insofar as it affects the children; and the home, school, and community history of the children. The trial court noted that Rick's greater earning capacity and his continued occupation of the family home favored him insofar as the capacity to provide for the children's material needs and the permanence of the existing custodial homes, but it also noted that the parties' positions in these factors should be equalized once child support and community property issues were settled. The trial court found that both parties were mentally and physically healthy, but it noted Dr. Bouillion's opinion that Rick had difficulty dealing with the divorce, leading him to involve Christian in adult issues by having the child report on his mother's activities, to threaten to move away, and to attempt to remove the youngest child, JaLena, from her pre-K program without first notifying Joe Ann. The trial court also found that Joe Ann had been the primary caretaker of the children throughout the marriage and that Rick had opportunities to participate more in their upbringing but he chose not to. Although the trial court acknowledged Christian's preference to spend equal time with both parents, it also cited Dr. Bouillion's testimony that children his age tended to be fair to both parents.
Louisiana Civil Code Article 134 provides:
The court shall consider all relevant factors in determining the best interest of the child. Such factors may include:
(1) The love, affection, and other emotional ties between each party and the child.
(2) The capacity and disposition of each party to give the child love, affection, and spiritual guidance and to continue the education and rearing of the child.
(3) The capacity and disposition of each party to provide the child with food, clothing, medical care, and other material needs.
(4) The length of time the child has lived in a stable, adequate environment, and the desirability of maintaining continuity of that environment.
(5) The permanence, as a family unit, of the existing or proposed custodial home or homes.
(6) The moral fitness of each party, insofar as it affects the welfare of the child.
(7) The mental and physical health of each party.
(8) The home, school, and community history of the child.
(9) The reasonable preference of the child, if the court deems the child to be of sufficient age to express a preference.
(10) The willingness and ability of each party to facilitate and encourage a close and continuing relationship between the child and the other party.
(11) The distance between the respective residences of the parties.
(12) The responsibility for the care and rearing of the child previously exercised by each party.
The trial court then discussed the two custody recommendations given by Dr. Bouillion at trial. Dr. Bouillion first recommended a "7/7" sharing arrangement with both parties as co-domiciliary parents as a "therapeutic" option that would address balance of power between the parties with the goal of securing Rick's cooperation on boundary issues. The second recommendation was a traditional "60/40" Thursday to Monday split with Joe Ann as the domiciliary parent. Dr. Bouillion explained that the first recommendation would increase Rick's time with the children by one day, and the second recommendation would decrease his time by one day. When asked about how the children would react to a reduction in Rick's time with them, Dr.
Bouillion replied: "Reducing his time would probably have more of an effect on him in terms of lowering his level of cooperation and motivation. And the children . . . can likely deal with either schedule when push comes to shove."
In finding that equal sharing of custody would not be in the best interest of the children, the trial court stated: "This Court will not engage in what it views as a strategy of appeasement so that Mr. Dalton will do right by his children in supporting them in an appropriate manner and in controlling his inappropriate behavior towards Mrs. Dalton and Christian." Although acknowledging that Rick had arranged his law practice so that he could spend more time with the children, the trial court nonetheless observed:
Throughout the proceeding, Mr. Dalton was constantly on his cell phone, often stepping out or coming in late during the proceedings to take calls. The Court also noticed from the tapes that he often took other telephone calls while speaking to Christian on the telephone. Mr. Dalton is a busy lawyer with an excellent income. While Mr. Dalton may have a play room at his office and has many diversions for the children at his home, the Court believes that if he had equal custody, though he might be physically present, he often would be occupied with business matters.
Therefore, the Court finds that it would serve the children's best interest if he spent quality time with them so that the children and their activities had his total focus.
This court summarized the principles governing the standard of review in child custody cases in Bergeron v. Clark, 02-493, p. 3 (La.App. 3 Cir. 10/16/02), 832 So.2d 327, 329, writ denied, 03-134 (La. 1/29/03), 836 So.2d 54 (quoting State ex rel. AR, 99-813, p. 8 (La.App. 1 Cir. 9/24/99), 754 So.2d 1073, 1077-78) (citations omitted) (emphasis added), as follows:
In cases involving the custody of children, the trial court is vested with a vast amount of discretion. The trial court is in a better position to evaluate the best interest of a child because of its superior opportunity to observe the parties and the witnesses who testified at the trial. As an appellate court, we must afford great deference to the trial court's decision, not only because of that court's better capacity to evaluate witnesses, but also because of the proper allocation of trial and appellate functions between the respective courts. Thus, the trial court's decision will not be disturbed on review except in the clearest case of abuse of the trial court's great discretion.
In Bergeron, 832 So.2d 327, this court went on to reverse the trial court's ruling, after pointing out that the trial court failed to mention whether it considered any of the factors of La.Civ. Code art. 134, failed to identify which factors in a "home study" that it relied upon in favoring one parent over the other, and failed to discuss how the testimony at trial related to the best interest of the child. In the present case, however, the trial court conducted a detailed analysis of Article 134, as it applied to the facts of this case, and fully explained why it rejected some, but not all, of Dr. Bouillion's recommendations. We decline to disturb the trial court's ruling, finding that the record amply supports its factual and legal conclusions.
Decree
For the above reasons, the judgment of the trial court is affirmed in all respects. Costs of this appeal are assessed to Plaintiff/Appellant, Richard Collins Dalton.
AFFIRMED.
This opinion is NOT DESIGNATED FOR PUBLICATION.
Uniform Rules — Courts of Appeal. Rule 2-16.3.