Opinion
NO. 2014 CU 0358
03-17-2015
MARIANA DE LA CRUZ NEZAT v. RAFAEL A. GUZMAN
Jerri G. Smitko Catherine R. Gauthier Houma, LA Attorneys for Plaintiff-Appellee, Mariana de la Cruz Nezat Angela Cox Williams Slidell, LA Attorney for Defendant-Appellant, Rafael A. Guzman
NOT DESIGNATED FOR PUBLICATION On Appeal from the Thirty-Second Judicial District Court, In and for the Parish of Terrebonne, State of Louisiana
Trial Court No. 157,601
Honorable Randall J. Bethancourt, Judge Presiding
Jerri G. Smitko
Catherine R. Gauthier
Houma, LA
Attorneys for Plaintiff-Appellee,
Mariana de la Cruz Nezat
Angela Cox Williams
Slidell, LA
Attorney for Defendant-Appellant,
Rafael A. Guzman
BEFORE: WHIPPLE, C.J., McCLENDON, AND HIGGINBOTHAM, JJ. WHIPPLE, C.J.
In this child custody and support case, the father, Mr. Rafael Guzman, appeals the judgment of the district court, which awarded sole custody of the parties' minor child to the mother, Ms. Mariana de la Cruz Nezat, ordered him to pay child support, and addressed other incidental matters. For the following reasons, the judgment is affirmed in part, amended in part, reversed in part, rendered in part, and remanded with instructions.
FACTS AND PROCEDURAL HISTORY
Mr. Guzman and Ms. Nezat were married on June 21, 1995, in the Bolivarian Republic of Venezuela. Two children were born of their marriage, IG, born November 3, 1994, and GG, born May 15, 1997. On May 23, 2001, the parties were divorced in Venezuela. "Guardianship" of the children was awarded to the parties jointly. Ms. Nezat was awarded primary physical custody of the children, and Mr. Guzman was awarded "open visitation." Mr. Guzman was also ordered to pay child support. Eventually, both parties and the children relocated to the United States.
Subsequently, Ms. Nezat moved to Slidell, Louisiana. Mr. Guzman, who was living in Texas, filed a petition in the Twenty-Second Judicial District Court in the Parish of St. Tammany, Louisiana, initially seeking a specific visitation schedule. Following a hearing in the Twenty-Second Judicial District Court, the district court rendered judgment on July 20, 2009, granting "liberal visitation" to Mr. Guzman, including each summer from June 15 to July 31, and allowing him to travel with his children to Venezuela.
During the pendency of the proceedings filed by Mr. Guzman, Ms. Nezat moved to Terrebonne Parish, and on June 18, 2009, filed a rule to show cause in the Thirty-Second Judicial District Court, requesting a joint custody plan, an increase in child support, private school tuition, and the tax dependency deduction. Mr. Guzman responded to the suit with exceptions raising the objections of lis pendens, res judicata, lack of subject matter jurisdiction, and lack of personal jurisdiction. Mr. Guzman's exceptions were sustained, and Ms. Nezat's pending rule was dismissed by a judgment signed February 22, 2010.
Ms. Nezat then appealed to this court from the February 22, 2010 judgment. On May 6, 2011, this court reversed the judgment of the district court and. remanded the matter to the district court. Nezat v. Guzman, 2010-1833 (La. App. 1st Cir. 5/6/1 l)(unpublished opinion). After the matter was remanded, on October 27, 2011, Ms. Nezat filed a rule to show cause requesting that all issues raised in her June 18, 2009, rule be set for hearing and that the joint custody and visitation schedules be modified.
These matters initially came back before the district court on July 18, 19, and 20, 2012. At the conclusion of the hearing, the record remained open to allow Mr. Guzman to depose his expert and Ms. Nezat to obtain an expert. The matter remained open until the trial finally concluded, over a year later, on September 24, 2013. After the trial concluded, judgment was rendered on October 29, 2013, granting sole custody of GG to Ms. Nezat with visitation to Mr. Guzman "as stipulated to by the parties," and ordering Mr. Guzman to pay to Ms. Nezat $2,364.90 per month in child support retroactive to June 18, 2009, subject to a credit for amounts actually paid. Additionally, the judgment ordered Mr. Guzman to pay to Ms. Nezat $40,284.00 in private school expenses for the 2009 through 2012 school terms and 90% of the tuition and registration expenses for future school years. Mr. Guzman was also ordered to pay $4,483.10 in past medical expenses, 90% of future medical expenses, and $7,903.27 for the costs incurred in providing insurance for the minor children since August 30, 2010. Mr. Guzman's claim for reimbursement for past travel expenses was denied in its entirety, and he was held in contempt for failure to comply with a previous court order.
Mr. Guzman then filed the instant appeal, alleging eleven assignments of error.
DISCUSSION
Evidentiary Challenges to Expert Testimony
(Assignment of Error No. 10)
In his tenth assignment of error, Mr. Guzman asserts that the district court erred in allowing Ms. Nezat's expert to testify and in accepting and relying on her expert's testimony. If a trial court commits evidentiary error that interdicts its fact-finding process, this court is required to conduct a de novo review. Thus, because this assignment of error raises an evidentiary challenge, we will address this assignment of error first, inasmuch as a finding of error may affect the applicable standard of review. Penton v. City of Hammond Police Department, 2007-2352 (La. App. 1st Cir. 5/2/08), 991 So. 2d 91, 95.
In support of this assignment of error, Mr. Guzman first argues that the district court erred because Ms. Nezat did not list an expert witness in her discovery responses and did not timely provide to his attorney the name of her expert. Mr. Guzman acknowledges that the district court gave Ms. Nezat the opportunity to obtain an expert at the close of the hearing. Mr. Guzman asserts that the district court ordered Ms. Nezat to give notice of her expert within ten days after Mr. Guzman's expert's deposition. However, the record reflects that although Ms. Nezat's attorney stated she thought it would take ten days to schedule her expert's deposition, she was not ordered by the district court to do so within that time period. The district court has broad discretion in ruling on discovery matters. Lab urre v. East Jefferson General Hospital, 555 So.2d 1381, 1385 (La. 1990). On review, we are unable to find that the district court abused its discretion in this regard.
As a second evidentiary challenge, Mr. Guzman asserts that the district court erred in sua sponte reopening the case after the close of evidence when both sides had rested. The record shows that at the conclusion of trial in July 2012, the matter was held open for submission of the previously scheduled deposition of Mr. Guzman's expert. The record was also held open to allow Ms. Nezat to include an expert witness. The district court ordered that post-trial memoranda be submitted thirty days from receipt of the last deposed expert's deposition. Both parties filed post-trial memoranda, and Mr. Guzman's expert's deposition was entered into the record.
Mr. Guzman filed a motion to strike her post-trial memorandum, objecting to certain documents in Ms. Nezat's post-trial memorandum. The district court took the matter under advisement and on January 25, 2013, issued a ruling denying the motion to strike, ordering that the case be reopened "for the limited purpose of permitting both parties to present their expert testimony and exhibits." The district court issued extensive reasons for re-opening the case, stating, in part:
Justice is not dispensed in a vacuum. It is often delayed by factors beyond the control of the court and beyond the parties' control, such as those involved in this case. Both sides have delayed this case... Reopening the case to give both sides the opportunity [to] present expert testimony and exhibits will level the play and eliminate any real or imagined disadvantages to the parties.
Louisiana Code of Civil Procedure Article 191 provides: "A court possesses inherently all of the power necessary for the exercise of its jurisdiction even though not granted expressly by law." Louisiana Code of Civil Procedure Article 1631(A) provides: "The court has the power to require that the proceedings shall be conducted with dignity and in an orderly and expeditious manner, and to control the proceedings at the trial, so that justice is done."
On review, we find no error. The trial judge has great discretion in the manner in which proceedings are conducted before his court, and it is only upon a showing of a gross abuse of discretion that appellate courts will intervene. Pino v. Gauthier, 633 So.2d 638, 648 (La. App. 1st Cir. 1993), writs denied, 94-0243, 94-0260 (La. 3/18/94), 634 So.2d 858, 859; In re State in Interest of Brecheen, 264 So.2d 779, 782 (La. App. 1st Cir.), writ refused, 262 La. 1175, 266 So.2d 450 (La. 1972). As reflected in the jurisprudence, LSA-C.C.P. art. 1632 gives the trial judge the authority to deviate from the normal order of proceedings, when justice so requires. This authority includes the power of the judge to keep open or reopen the proceedings for the reception of additional testimony or documentary evidence. The reopening of a case is within the discretion of the district court and will not be interfered with by the reviewing court absent manifest error. Hall v. Hall, 588 So.2d 172, 174 (La. App. 5th Cir. 1991), writ denied, 590 So.2d 596 (La. 1992). Considering the record and these precepts, we find no abuse of discretion in the district court's decision to reopen this case to give both parties the opportunity to present expert testimony. Moreover, we find no error by the district court in relying on the testimony of Mr. Charles Theriot, a CPA who was qualified and accepted as an expert in financial forensic accounting. As the district court specifically noted in its reasons for judgment, based on the records provided, Mr. Guzman's finances were difficult to decipher. Accordingly, we find no merit to these portions of Assignment of Error No. 10.
CHILD SUPPORT
The standard of review in a child support case is manifest error. Generally, an appellate court will not disturb a child support order unless there is an abuse of discretion or manifest error. In re Touchet, 2013-0815 (La. App. 1st Cir. 9/13/13), 135 So. 3d 30, 34.
Calculation of Income
(Assignments of Error Nos. 10 and 4)
In addition to the evidentiary challenges noted above, Mr. Guzman next contends in related assignments of error that the district court erred in its underlying findings and calculation of the parties' income for purposes of child support.
Mr. Guzman contends that the district court's determination of his income is unsupported where the record shows that he only makes $50,000.00 per year at his current job. However, Mr. Theriot testified that the records showed that Mr. Guzman had approximately $18,000.00 per month in income. Mr. Theriot testified that he analyzed Mr. Guzman's bank account statements and reviewed all of the deposits and withdrawals from December 2010 through June 2012. According to Mr. Theriot, during that period, $522,894.74 was deposited into Mr. Guzman's accounts. Of that amount, Mr. Theriot identified $157,186.69 as transfers from one bank account to another and $19,992.07 as income from Mr. Guzman's current wife. According to Mr. Theriot, this left roughly $345,000.00 in deposits during that 19-month period, resulting in more than $18,000.00 per month in income. Based on the bank account records furnished to him, Mr. Theriot was able to identify the source of many of the deposits. He carefully categorized the other deposits as "unidentified deposits" and candidly admitted during cross examination that he did not know the source from which the "unidentified deposits" derived.
During Mr. Guzman's testimony, he offered explanations regarding the basis of some of the "unidentified deposits" that had been made into his accounts and attempted to reconcile these based on his explanation as to how the banking system works in his native Venezuela. He stated that he "moves money" for clients and contended that some of the funds reflected in his accounts did not actually belong to him and that these funds should not have been considered as part of his income when calculating his child support obligation. He also identified certain deposits that he claimed were merely interbank transfers. However, the district court apparently did not believe his explanation.
In its written reasons for judgment, the district court noted it had considered Mr. Theriot's testimony regarding the deposits and withdrawals, the money Mr. Guzman purportedly received from his mother, and Mr. Guzman's testimony that he previously earned $70,000.00 per year and is capable of earning $80,000.00 to $90,000.00 per year. The district court concluded that Mr. Guzman's income should be fixed at $15,767.38 per month for purposes of calculating his child support obligation. On review, we find no error in this determination, which is amply supported by the record.
Mr. Guzman testified that he received $140,000.00 from his mother in 2010 as a loan to open a restaurant. In its reasons for judgment, the district court specifically rejected Mr. Guzman's contention that these funds were a loan.
Specifically, in determining Mr. Guzman's average monthly salary the district court averaged, over a fifty-two-month period, the money Mr. Guzman received from his mother in 2010, the amount he testified he was capable of earning per month and the average of the total deposits and total withdrawals of record, excluding his and his wife's salary from December 1, 2010 to June 30, 2012, the time period which Mr. Theriot had analyzed.
A court of appeal may not set aside a district court's finding of fact in the absence of "manifest error" or unless it is "clearly wrong," and where there is conflict in the testimony, reasonable evaluations of credibility and reasonable inferences of fact should not be disturbed upon review, even though the appellate court may feel that its own evaluations and inferences are as reasonable. Rosell v. ESCO, 549 So.2d 840, 844 (La. 1989). The appellate review of fact is not completed by reading only so much of the record as will reveal a reasonable factual basis for the finding in the trial court, but if the trial court or jury findings are reasonable in light of the record reviewed in its entirety, the court of appeal may not reverse even if convinced that had it been sitting as the trier of fact, it would have weighed the evidence differently. Rosell v. ESCO, 549 So.2d at 844. Where there are two permissible views of the evidence, the factfinder's choice between them cannot be manifestly erroneous or clearly wrong. Rosell v. ESCO, 549 So.2d at 844. When findings are based on determinations regarding the credibility of witnesses, the manifest error-clearly wrong standard demands great deference to the trier of fact's findings; for only the factfinder can be aware of the variations in demeanor and tone of voice that bear so heavily on the listener's understanding and belief in what is said. Rosell v. ESCO, 549 So.2d at 844. Thus, we find no error in the determination of Mr. Guzman's income.
In his fourth assignment of error, Mr. Guzman asserts that the district court erred when determining the parties' respective child support obligations because it failed to consider Ms. Nezat's current husband's income and expense-sharing. In support, Mr. Guzman cites LSA-R.S. 9:315(C)(5)(c), which provides:
The court may also consider as income the benefits a party derives from expense-sharing or other sources; however, in determining the benefits of expense-sharing, the court shall not consider the income of another spouse, regardless of the legal regime under which the remarriage exists, except to the extent that such income is used directly to reduce the cost of a party's actual expenses. [Emphasis added.]The language of the statute is permissive, not mandatory. Moreover, it is within the district court's discretion to include or disallow alleged expense-sharing benefits, and such determinations will not be disturbed absent an abuse of that discretion. Hutto v. Kneipp, 627 So.2d 802, 808 (La. App. 2nd Cir. 1993). Mr. Guzman asserts that the district court erred in failing to consider Ms. Nezat's husband's income and that her actual expenses were reduced, considering the expert testimony he presented at trial.
In written reasons for judgment, the district court reviewed the different incomes that Ms. Nezat had between the date of judicial demand and the date of the hearing and used her highest recorded salary ($1,709.00 per month) as her income for the child support calculation. In doing so, the district court specifically stated that it was using her highest salary to "account for the fact that she was under/unemployed as well as take into account some expense sharing." Accordingly, after review of the record, we find no error or abuse of the district court's discretion in its determining of Ms. Nezat's income and its consideration of expense sharing for the purposes of child support.
Having found no error on these bases, we likewise find no error in the district court's ultimate determination that the parties' respective share of the child support obligation was 90% attributable Mr, Guzman and 10% to Ms. Nezat.
Error Based on Inclusion of Both Children
(Assignment of Error No. 3)
In his third assignment of error, Mr. Guzman asserts that the district court erred by computing his child support obligation as being owed for two children, where IG turned 18 on November 3, 2012, and graduated from high school in May of 2013. He notes that at the time the final judgment was signed, IG was a major and had graduated from high school. We agree that Mr. Guzman's obligation to pay support for IG expired upon her graduation from high school in May 2013. For purposes of retroactive support, child support as determined by the district court for two children was correct until May 31, 2013. However, in determining the retroactive support due after May 31, 2013, and for prospective support, Mr. Guzman is correct that only one child should have been included in the district court's child support calculation. Thus, we affirm the portion of the October 29, 2013 judgment computing the child support obligation based on two children for the period of June 18, 2009 through May 31, 2013, and amend the portion of the October 29, 2013 judgment computing child support after May 31, 2013, and prospectively, to reflect that the child support computation shall be based on one child only.
Louisiana Revised Statute 9:315. 22(C) provides, in part:
An award of child support continues with respect to any unmarried child who attains the age of majority...as long as the child is a full-time student in good standing in a secondary school or its equivalent, has not attained the age ot nineteen, and is dependent upon either parent.
We note that when an in globo award of child support is made for two or more children, the award generally terminates automatically and without any action by the obligor only when the youngest child for whose benefit the award was made attains the age of majority. LSA-R.S. 9-315 92(B). However, in this case, we find merit to Mr. Guzman's argument that the determination of his child support obligation was made and covered a period after which he was no longer required to pay support for IG; therefore, the district court erred in that the judgment should not have been rendered fixing the child support obligation as an in globo award.
Insurance Costs Improperly
Included in the Child Support Obligation
And Reimbursement for Medical Expenses
(Assignment of Error No. 5)
Mr. Guzman contends that the district court erred in ordering him to pay $4,483.10 in past medical expenses and $7,903.27 in past insurance costs. Specifically, Mr. Guzman contends that the district court erred "in failing to require Mrs. Nezat to pay the children's 'ordinary' annual medical expenses pursuant to [LSA-R.S.] 9:315.5" and in "assessing" him with $4,483.10 in past medical expenses. He contends that "it is unknown where such figures derived, as they are clearly not supported in the record or law, . . . in light of Mrs. Nezat's conflicting and confusing testimony regarding her payment of medical expenses for the children." He further argues that the judgment is improper because the judgment does not indicate what expenses were accepted by the district court or "what credits (if any) were allocated to Mr. Guzman for his payments." Thus, he contends, the award was improper because it failed to account for $1,750.00 of "ordinary" medical expenses, consisting of $250.00 per child per year for three and a half years for which she was otherwise responsible by operation of law. He further argues that this award was improper because "Mrs. Nezat failed to prove, by any standard, the amounts she was seeking [as] reimbursement or that she timely submitted receipts to Mr. Guzman." We find no merit to any of these arguments.
Louisiana Revised Statute 9:315.5 provides that "[b]y agreement of the parties or order of the court, extraordinary medical expenses incurred on behalf of the child shall be added to the basic child support obligation. Extraordinary medical expenses are unreimbursed medical expenses which exceed two hundred fifty dollars per child per calendar year."
As reflected in the record and set forth in the district court's reasons for judgment, the orthodontic expenses alone amounted to $7,499.00. Moreover, as conceded by Mr. Guzman in his brief, Ms. Nezat testified that although she was not aware that she was responsible, by statute, as the domiciliary parent for a "required $250 yearly threshold per child," she stated, regarding dental, orthodontic, vision and medical expenses, "No, I didn't know that but I'm always responsible for the kids' bills. If he pays or he doesn't pay, it doesn't make a difference, I always pay the bills." Clearly, the district court deemed her testimony credible in this regard. We note that the majority, but not all, of the extraordinary medical expenses involved orthodontic expenses incurred for the children. Moreover, as reflected in its reasons, the district court granted Mr. Guzman a credit of $2,266.00 against the monies owed to her (even though she believed, as per her testimony, he had only paid $1,000.00 and "some more" directly to the medical providers).
After careful review of the record in its entirety, and mindful of the deference due the trial court's factual findings, we conclude that based on the record, including, in particular, the medical payment summaries, Mr. Guzman's email to Ms. Nezat of April 13, 2011, and Ms. Nezat's testimony, the district court's award of $4,483.10 in past medical expenses was proper and is supported by the record. Even though Ms. Nezat may have failed to request on-going reimbursements for the orthodontic and related medical expenses, as the record reflects, Mr. Guzman not only acquiesced in the decision to have the children receive orthodontic treatment, but specifically requested that she continue with their appointments, even after she explained the various costs to him. Thus, we find no error in the trial court's determination that Mr. Guzman owed $4,483.10 in reimbursements to her for orthodontic and other expenses for both children that were due and owing even after considering the threshold $250.00 amount per child per year that was otherwise non-reimbursable, pursuant to LSA-R.S. 9:315.5. Accordingly, we find no merit to this portion of the assignment of error and affirm this portion of the judgment.
With regard to the issue of insurance costs that he was ordered to pay, Mr. Guzman contends that the district court erred as he provided insurance for the children until he changed jobs in March 2012. However, we note that Ms. Nezat testified that he dropped the insurance on the children twice; therefore, she obtained insurance for the children. The district court herein ordered Mr. Guzman to pay the amount of $7,903.27, representing 90% of all insurance premiums paid by Ms. Nezat. However, as properly noted by Mr. Guzman, the district court also included the cost of the children's insurance when calculating the child support obligation. In doing so, the district court clearly erred. Therefore, the portion of the judgment ordering Mr. Guzman to pay the additional sum of $7,903.27 for past insurance expenses (which were already included and accounted for in calculating the child support obligation) is reversed. Further, in determining the amount of retroactive support due Ms. Nezat, for the period of the date of judicial demand (June 18, 2009) until the date she actually obtained insurance for the minor children (August 30, 2010) the insurance premiums should not have been included in calculating the child support obligation.
For these reasons, the portion of the judgment ordering Mr. Guzman to pay $4,483.10 in past medical expenses is affirmed. The portion awarding Ms. Nezat $7,903.27 for past insurance costs is reversed. Further, when determining the actual net amount due as retroactive child support, the amount of the premiums for June 18, 2009 (the date of judicial demand) through August 30, 2010 (the date she actually obtained insurance), shall not be included.
Private School Tuition
(Assignment of Error No. 6)
Mr. Guzman next contends that the district court erred in its underlying finding that private school was in the best interest of the children and in assessing him with 90% of the tuition costs. In her rule filed on June 18, 2009, Ms. Nezat requested that Mr. Guzman pay his percentage of IG and GG's private school tuition. As demonstrated in the record, GG has attended private school since the 2009 school year, and IG attended from 2009 until she graduated in 2013.
Louisiana Revised Statute 9:315.6(1) provides that expenses of tuition, registration, books, and supply fees required for attending a private school to meet the needs of the child may be added to the basic child support obligation, either by agreement of the parties or by order of the court. The needs of the child met by the private school need not be particular educational needs; rather, they may include such needs of the child as the need for stability or continuity in the child's educational program. See official comment to LSA-R.S. 9:315.6 subsequent to its amendment by La. Acts 2001, No. 1082, § 1. The district court's decision to add private school expenses to the basic child support obligation is subject to the abuse-of-discretion standard of review. Valure v. Valure, 96-1684 (La. App. 1st Cir. 6/20/97), 696 So.2d 685, 687.
This case comes before us in an unusual procedural posture, in that Ms. Nezat requested on June 18, 2009, that Mr. Guzman pay his percentage of IG and GG's private school tuition, but the final judgment was not rendered until October 29, 2013. At this point, IG had actually already graduated from private school, and GG had been in private school for five years, doing very well.
Nonetheless, when questioned by the district court as to whether he would be willing to pay for private school, considering how well the children were doing, Mr. Guzman said "of course, yes." Mr. Guzman's chief complaint relative to their attendance at a private school apparently was centered on his frustration that Ms. Nezat changed the children's schools without consulting him.
In its reasons for judgment, the district court specifically noted that both children have excelled in private school and further, that it would be in GG's best interest to maintain that educational setting. Even considering the unusual delays that occurred herein in concluding these matters, based on Mr. Guzman's testimony and the record in its entirety, we find no abuse of the district court's discretion in its decision to order Mr. Guzman to pay his percentage share of private school tuition.
Retroactive Increase in Child Support
(Assignment of Error No. 9)
In a related assignment of error, Mr. Guzman argues that the district court erred in making the increase in child support retroactive to the date of judicial demand, where good cause existed to not do so. In support, he points out the extended amount of time this case has been pending and some of the difficulties encountered in determining retroactive support.
Louisiana Revised Statute 9:315.21(A) provides, "Except for good cause shown, a judgment awarding, modifying, or revoking an interim child support allowance shall be retroactive to the date of judicial demand." While we do not condone the delays that occurred herein, which are attributable in part to all involved, we are unable to say that the district court abused its discretion in ultimately concluding that the child support award should be made retroactive.
Extracurricular Expenses and Travel Expenses
(Assignment of Error No. 8)
Mr. Guzman argues that the district court erred in failing to offset his basic child support obligation by travel expenses he incurred for the children, pursuant to LSA-R.S. 9:315.6(2), and in requiring him to pay 90% of all future travel expenses. Further, he contends that the district court erred in denying his request for reimbursement for expenses he incurred for the children's extracurricular activities.
Louisiana Revised Statute 9:315.6 provides, in pertinent part:
By agreement of the parties or order of the court, the following expenses incurred on behalf of the child may be added to the basic child support obligation:
***
(2) Any expenses for transportation of the child from one party to the other.
(3) Special expenses incurred for child rearing intended to enhance the health, athletic, social, or cultural development of a child, including but not limited to camp, music or art lessons, travel, and school sponsored extracurricular activities. [Emphasis added.]
Mr. Guzman testified that he has paid $11,448.00 in travel expenses for the children since he filed his petition requesting that Ms. Nezat pay her percentage share of travel expenses. The district court ordered that Ms. Nezat pay 10% of future travel expenses, for trips between New Orleans and Florida for scheduled visits, but did not make her obligation for this percentage of travel expenses retroactive. In its reasons for judgment, the district court stated that the money that Mr. Guzman testified he spent on travel expenses was for lavish vacations and it would not allow "Mr. Guzman's decisions and standard of living to work to the detriment of Ms. Nezat." However, it was undisputed that Mr. Guzman had paid 100% of the children's travel expenses. Mr. Guzman testified that the cost of the trip to Cancun was about $1,000.00 per child, but that other than this trip, the travel expenses were incurred for trips for the children to visit him.
On review, we agree with the district court that the costs of the trip to Cancun should not have been included in his claim for reimbursement or offset for travel expenses. However, the district court should have considered the amounts Mr. Guzman paid for the children to travel to visit him. Considering that all of the awards Mr. Guzman was ordered to pay Ms. Nezat were ordered to be retroactive, the offset due him for her share of such expenses should be retroactive as well. Because the trial court erred, in part, by denying Mr. Guzman's claim for reimbursement of the travel expenses (other than the trip to Cancun) and in failing to order that such reimbursement be retroactive, the judgment will be amended accordingly to reflect that Ms. Nezat owes him 10% of $9,448.00 ($11,448.00 minus the approximately $2,000.00 amount that was incurred for the Cancun vacation trip).
The district court did not order reimbursement for the summer camps and extracurricular activities that were paid for by Mr. Guzman. Instead, the district court determined that each party would be responsible for the cost of nonschool-based extracurricular activities that they choose for the children. On review, we find no error in the district court's decision that each party should bear expenses incurred for the extracurricular activities each chose for the children.
Tax Dependency
(Assignment of Error No. 7)
Mr. Guzman argues that the district court erred in failing to award him the tax dependency deduction, where Ms. Nezat has had only a limited amount of income and would not benefit from the tax dependency.
Although the reasons for judgment refer to and specifically deny Mr. Guzman's request that he be allowed to claim the tax dependency deduction (which at this point, would offset any retroactive awards due), we note that the judgment is actually silent on this issue. Silence in a judgment regarding a claim is deemed to be a rejection of that claim or demand. See Hoooer v. Wisteria Lakes Subdivision, 2013-0050 (La. App. 1st Cir. 9/13/13), 135 So. 3d 9, 20, n.14. writ not considered, 2013-2433 (La. 1/27/14) 130 So. 3d 954.
Louisiana Revised Statute 9:315.18 provides, in pertinent part:
A. The amounts set forth in the schedule in R.S. 9:315.19 presume that the custodial or domiciliary party has the right to claim the federal and state tax dependency deductions and any earned income credit. However, the claiming of dependents for federal and state income tax purposes shall be as provided in Subsection B of this Section.
B. (1) The non-domiciliary party whose child support obligation equals or exceeds fifty percent of the total child support obligation shall be entitled to claim the federal and state tax dependency deductions if, after a contradictory motion, the judge finds both of the following:
(a) No arrearages are owed by the obligor.
(b) The right to claim the dependency deductions or, in the case of multiple children, a part thereof, would substantially benefit the non-domiciliary party without significantly harming the domiciliary party.
Mr. Guzman argues that he is entitled to the tax dependency deductions for the children for the years 2009 and 2010 because he satisfied the elements of LSA-R.S. 9:315.18(B) in that his child support obligation exceeds fifty percent of the total child support obligation and there was no finding by the court that Mr. Guzman owed arrearages. He contends that the awards of the tax deduction for those years would substantially benefit him without harming Ms. Nezat, given her limited income for those years. See LSA-9:315.18(B). Mr. Guzman's expert, Ms. Susan Brown, testified that if allocated the tax dependency in 2009 and 2010, the dependency deductions would have benefited him in the amount of $3,926.00 each year, for which he sought a credit in the amount of $7,852.00. Mr. Guzman argues that based on this testimony, the district court erred in refusing to grant him the tax dependency deductions.
In 2009, Ms. Nezat earned $407.00, and in 2010, she earned $5,347.00.
We disagree. In rendering its award, the district court clearly considered the questionable nature of Mr. Guzman's testimony and his tax returns, including issues as to accuracy of the number of dependents he was claiming and the discrepancies in his records and testimony as to his actual income, as well as the evidence presented regarding the expense-sharing arrangement of Mr. and Ms. Nezat. We agree with Ms. Nezat that at a minimum, where the district court considered Mr. Nezat's income for the purpose of expense sharing when calculating the child support obligation, the Nezats were entitled to claim the tax exemptions for the children.
Further, considering the questionable nature of much of the records and underlying data which Mr. Guzman's expert had to rely on in rendering her opinion, we are unable to say that the district court erred in ultimately rejecting Mr. Guzman's claim. These figures urged by Mr. Guzman in support of his right to a specific credit for these sums are only justified if we accept as true all of the supporting data Mr. Guzman furnished to his expert. Considering the district court's rejection of this claim, the court obviously found that her conclusions were unsupported as based on unproven or erroneous data.
It is well settled in Louisiana that the trier of fact is not bound by the testimony of an expert, but such testimony is to be weighed the same as any other evidence. Thus, the trier of fact may accept or reject in whole or in part the opinion expressed by an expert. Goza v. Parish of West Baton Rouge, 2008-0086 (La. App. 1st Cir. 5/5/09), 21 So. 3d 320, 333, writ denied, 2009-2146 (La. 12/11/09), 23 So. 3d 919, cert. denied, 560 U.S. 904, 130 S.Ct. 3277, 176 L.Ed.2d 1184 (2010). The manifest error standard of review requires that even where the reviewing court may believe that its own evaluations and inferences are more reasonable than the fact finder's, reasonable evaluations of credibility and reasonable inferences of fact should not be disturbed on appeal where the record merely demonstrates conflicting testimony as to the facts at issue, and the fact finder chooses to believe one version rather than the other. Salvant v. State, 2005-2126 (La. 7/6/06), 935 So. 2d 646, 658.
Mindful of these precepts, we specifically find no error in the district court's ruling rejecting Mr. Guzman's request for the tax dependency deduction for the years 2009 and 2010. Moreover, with reference to the tax dependency deduction for 2011, we note that the record shows that Ms. Nezat's income increased in 2011 and that Mr. Guzman's expert acknowledged that in 2011, it is "conceivable" that Ms. Nezat would have benefited from the tax dependency. On that basis alone, the elements of LSA-R.S. 9:315.18(B) were not satisfied. Thus, considering the record in its entirety, we find no manifest error or abuse of discretion by the district court in its refusal to award the tax exemption to Mr. Guzman from 2009 to present and prospectively.
Custody
(Assignment of Error No. 1)
Mr. Guzman contends that the district court erred in awarding sole custody of GG to Ms. Nezat. Louisiana Civil Code article 132 provides in pertinent part that "[i]n the absence of agreement, or if the agreement is not in the best interest of the child, the court shall award custody to the parents jointly; however, if custody in one parent is shown by clear and convincing evidence to serve the best interest of the child, the court shall award custody to that parent."
At the time of trial, the parties stipulated that IG was quickly approaching majority, and they were not going to address custody of her. Further, by the time judgment was finally rendered, IG was a major.
Initially, we note that sole custody was never requested by either party nor raised during the trial. Instead, Ms. Nezat requested that the court order a custody evaluation and that "[t]he Joint Custody Implementation Plan addressing the custody and visitation schedules, together with the entire parenting plan" be modified. During the trial, Ms. Nezat requested that the district court "modify Mr. Guzman's visitation with the children" and testified regarding the reasons she wanted to modify Mr. Guzman's visitation. She described two incidents in which Mr. Guzman used poor judgment during his custodial time with the children. First, he allowed the children, neither of whom had a driver's license, to drive him home from a party because he was intoxicated. Second, he grabbed GG by the neck during a confrontation in an airport. Nonetheless, Ms. Nezat stated that she "would love" for GG to have a relationship with his father and acknowledged that GG needs to have a relationship with him.
GG testified that he has a good relationship with his dad and wants to be around him. GG did acknowledge that the incident in the airport scared him, but stated that it had never happened before and had not happened since. Mr. Guzman likewise testified that he and his son were "ok" after the incident and that he would not be opposed to a court order prohibiting physical punishment.
We note that throughout the trial, the evidence presented, the discussions between the lawyers, and the testimony of the witnesses contemplated only a modification of the custody plan. Sole custody was not discussed. Moreover, Ms. Nezat not only did not ask for sole custody in her pleadings, she did not establish by clear and convincing evidence that sole custody is in GG's best interest. See Griffith v. Latiolais, 2010-0754 (La. 10/19/10), 48 So.3d 1058, 1071. Thus, we reverse the portion of the judgment of the district court awarding sole custody to Ms. Nezat and hereby award custody jointly to Ms. Nezat and Mr. Guzman.
Mr. Guzman also contends that the district court erred by ordering him to submit a judgment in accordance with the parties' stipulation for visitation, when no such stipulation existed. The judgment provides that Mr. Guzman shall be entitled to periods of physical custody with GG "as stipulated to by the parties." However, there is no stipulation in the record regarding any stipulated schedule for Mr. Guzman's custodial periods. Instead, the record reveals that although the parties discussed a possible stipulation, they could not come to a final agreement. Thus, there is no custodial schedule for Mr. Guzman of record. Considering that over two years have passed since the trial began, we find the best way to resolve this matter is to remand the case to the district court with instructions to expeditiously set a custodial schedule for Mr. Guzman.
Contempt
(Assignment of Error No. 2)
Mr. Guzman contends that the district court erred in finding him in contempt, where there was no contempt action pending. In her brief to this court, Ms. Nezat acknowledges that on March 2, 2012, both parties dismissed certain pending motions, including the contempt motion against Mr. Guzman. Thus, the motion for contempt was no longer pending before the district court at the time of its ruling. Accordingly, the district court erred in rendering judgment on a matter not before it. Thus, the portion of the judgment finding Mr. Guzman in contempt is reversed.
Court Costs
(Assignment of Error No. 11)
In his final assignment of error, Mr. Guzman contends that the district court erred in taxing 80% of the court costs to him, including Mr. Theriot's fee. Louisiana Code of Civil Procedure 1920 states in pertinent part that "[e]xcept as otherwise provided by law, the court may render judgment for costs, or any part thereof, against any party, as it may consider equitable." The district court has great discretion in awarding costs, including expert witness fees, deposition costs, exhibit costs and related expenses. Simpson v. Goodman, 97-2675 (La. App. 1st Cir. 12/28/98), 727 So.2d 555, 563. The district court's award of costs will not be disturbed upon review in absence of abuse of discretion. Barrilleaux v. Franklin Foundation Hospital, 96-0343 (La. App. 1st Cir. 11/8/96), 683 So.2d 348, 361, writ denied, 96-2885 (La. 1/24/97), 686 So.2d 864. After review of the record, we find no abuse of discretion by the district court in ordering Mr. Guzman to pay 80% of the court costs.
CONCLUSION
For the above and foregoing reasons, the portion of the October 29, 2013 judgment awarding sole custody of GG to Ms. Nezat is REVERSED, and judgment is hereby RENDERED awarding the custody of GG jointly to the parties, with Ms. Nezat designated as the domiciliary parent. This matter is REMANDED to the district court, with instructions to preferentially consider this matter and expeditiously implement a specific custodial schedule for Mr. Guzman.
The portion of the October 29, 2013 judgment finding Mr. Guzman in contempt of court is hereby REVERSED.
The portion of the district court's October 29, 2013 judgment, determining the parties' respective incomes and fixing the child support obligation in accordance with its determination of each party's respective income is AFFIRMED.
The portion of the October 29, 2013 judgment fixing the child support obligation for two minor children for the period of June 18, 2009 through May 31, 2013 and ordering Mr. Guzman to pay child support to Ms. Nezat, is hereby AFFIRMED. The portion of the October 29, 2013 judgment fixing child support after May 31, 2013, and prospectively, is AMENDED to reflect that the child support computation shall be based on one child.
The portion of the October 29, 2013 judgment ordering that the child support obligation owed by Mr. Guzman shall be retroactive to the date of judicial demand, i.e., June 18, 2009, is AFFIRMED. The judgment is hereby AMENDED to provide that the award due by Mr. Guzman as retroactive support for June 18, 2009 until August 30, 2010 (when Ms. Nezat was erroneously credited for medical insurance premiums although not paying or providing such coverage) is fixed at $2,156.92 per month. The portion of the judgment fixing Mr. Guzman's child support obligation for monthly child support as $2,364.90, for the period of August 30, 2010, until May 31, 2013, is AFFIRMED. The judgment is hereby AMENDED to provide that from May 31, 2013, to present and prospectively, Mr. Guzman's child support obligation due Ms. Nezat for the minor child, GG, is fixed at $1,737.08 per month.
This figure was derived as follows: $2,364.90 (the monthly child support award) - $207.98 (Mr. Guzman's 90% share of the health insurance costs) = $2,156.92.
This figure was derived as follows: $1,699.00 (the guideline award for one child) + $231.09 (the cost of health insurance) = $1,930.09 x 90% (Mr. Guzman's share of the support obligation) = $1,737.08. These amounts were determined using the same income and insurance figures as used by the district court in calculating child support, but adjusting for the period when Ms. Nezat was not paying insurance, and the period when child support should have been calculated based on one child only.
The portion of the October 29, 2013 judgment ordering Mr. Guzman to pay Ms. Nezat the sum of $4,483.10 in past medical expenses is AFFIRMED. The portion of the October 29, 2013 judgment ordering Mr. Guzman to pay Ms. Nezat the sum of $7,903.27 as reimbursement for the costs incurred by Ms. Nezat in providing health insurance for the minor children since August 30, 2010 is REVERSED.
The portion of the October 29, 2013 judgment ordering Mr. Guzman to pay Ms. Nezat the sum of $40,284.00 as reimbursement for tuition expenses for the 2009 through 2012 school terms and further ordering him to pay 90% of the tuition and registration expenses for 2013 and future school years is AFFIRMED.
The district court's denial of Mr. Guzman's request to be awarded the state and federal tax dependency exemptions and to thereby offset his child support obligation for the minor children from 2009 to present and prospectively is AFFIRMED.
The portion of the October 29, 2013 judgment denying Mr. Guzman's claims for reimbursement of all past travel expenses is REVERSED IN PART. The judgment is AMENDED to reflect that Ms. Nezat shall owe Mr. Guzman $944.80 (10% of $9,448.00) as her proportionate share of the children's past travel expenses. That portion of the October 29, 2013 judgment ordering that Ms. Nezat thereafter be responsible for 10% of future travel expenses is AFFIRMED. The district court's determination that each party shall be responsible for the costs of nonschool-based extracurricular activities that each party chooses to provide for the children is AFFIRMED.
The portion of the October 29, 2013 judgment ordering that Mr. Guzman is taxed with 80% of the costs and Ms. Nezat is taxed with 20% is AFFIRMED. In all other respects, the October 29, 2013 judgment of the district court is hereby AFFIRMED.
It is further ordered, adjudged and decreed that given the nature of these proceedings and the desirability that judgments clearly express, in decretal language, the precise sums due after applicable credits, on remand, in addition to preferentially and expeditiously setting a custodial visitation schedule, the trial court shall also determine the precise amounts due for retroactive awards and any applicable interim credits that have accrued in the interim of these proceedings in accordance with our rulings herein.
All costs of the appeal are assessed equally to Mr. Guzman and Ms. Nezat.
AFFIRMED IN PART; AMENDED IN PART; REVERSED IN PART; RENDERED IN PART; AND REMANDED. HIGGINBOTHAM, J., DISSENTS IN PART AND ASSIGNS REASONS. HIGGINBOTHAM, J.
I respectfully dissent in part from the opinion of the majority regarding reimbursements for extraordinary medical expenses and the tax dependency deduction for the years of 2009 and 2010.
First, the evidence does not support the trial court's award of reimbursement for extraordinary medical expenses. Louisiana Revised Statute 9:315.5 provides "[b]y agreement of the parties or order of the court, extraordinary medical expenses incurred on behalf of the child shall be added to the basic child support obligation. Extraordinary medical expenses are unreimbursed medical expenses which exceed two hundred fifty dollars per child per calendar year." The district court signed the proposed judgment provided by counsel for Ms. Nezat without making any changes. It appeared from review of the record that Ms. Nezat's attorney determined the amount of reimbursement in the judgment based on evidence that was not submitted into the record and the district court accepted that amount. With that in mind, it was impossible to decipher where the numbers used in the judgment were derived. The numbers were not supported by the record. Ms. Nezat testified that some expenses regarding orthodontics were due, but it was unclear what Mr. Guzman had paid and what portion was still due. Ms. Nezat testified that she believed Mr. Guzman paid a "thousand dollars directly" and "he paid some more" but she did not remember how much more. Ms. Nezat did not prove the amount she was seeking reimbursement for and did not show any timely submitted receipts that she submitted to Mr. Guzman. Further, Mr. Guzman correctly notes that the district court did not consider the $250.00 per year per child. For these reasons, considering the negligible evidence in the record, there was no basis to support the district court's award of $4,483.10 in past extraordinary medical expenses.
Second, in his seventh assignment of error, Mr. Guzman argues that the district court erred in awarding the tax dependency to Ms. Nezat because she has had a limited income and would not benefit from the tax dependency.
Louisiana Revised Statute 9:315.18 provides in pertinent part:
A. The amounts set forth in the schedule in R.S. 9:315.19 presume that the custodial or domiciliary party has the right to claim the federal and state tax dependency deductions and any earned income credit. However, the claiming of dependents for federal and state income tax purposes shall be as provided in Subsection B of this Section.
B. (1) The non-domiciliary party whose child support obligation equals or exceeds fifty percent of the total child support obligation shall be entitled to claim the federal and state tax dependency deductions if, after a contradictory motion, the judge finds both of the following:
(a) No arrearages are owed by the obligor.
(b) The right to claim the dependency deductions or, in the case of multiple children, a part thereof, would substantially benefit the non-domiciliary party without significantly harming the domiciliary party.
Mr. Guzman's argument has merit in part as he satisfies the elements of La. R.S. 9:315.18 (B) for the years 2009 and 2010. Mr. Guzman's child support obligation exceeds fifty percent of the total child support obligation and there was no finding by the court that Mr. Guzman owed arrearages. Mr. Guzman's expert, Ms. Susan Brown, testified that if he had been allocated the tax dependency in 2009 and 2010 it would have benefited him in the amount of $3,926 each year. This is a substantial benefit to Mr. Guzman. In 2009, Ms. Nezat made $407.00 and in 2010, made $5,347.00. Ms. Brown noted that if Ms. Nezat was single, her income would not have been sufficient to file a tax return. Because of Ms. Nezat's limited income in those years, she would not be significantly harmed by not receiving the tax exemption. Therefore, Mr. Guzman met his burden of proof under La. R.S. 9:315.18 and should have been given credit for the tax dependency deduction during the years of 2009 and 2010. Ms. Brown acknowledged that in 2011 Ms. Nezat's income increased and it was conceivable that Ms. Nezat would have benefited from the tax dependency. Therefore, I agree with the majority that the district court did not abuse its discretion in awarding Ms. Nezat the dependency from 2011 to present.
For these reasons, I dissent from the decision of the majority in affirming the district court's award of extraordinary medical expenses and in affirming the district court's award of the tax dependency deduction to Ms. Nezat in the years 2009 and 2010. In all other respects, I agree with the decision of the majority.