Opinion
2016 CA 1629
09-08-2017
Mary E. Heck Barrios Denham Springs, LA Counsel for Plaintiff/Appellee, Crystal Rende Mark D. Boyer Maryanna B. Haynes Rhonda S. Smith Denham Springs, LA Counsel for Defendant/Appellant, Amado Enamorado
NOT FOR PUBLICATION On Appeal from the Twenty-First Judicial District Court In and for the Parish of Livingston State of Louisiana
No. 109970
Honorable Jeffrey C. Cashe, Judge Presiding
Mary E. Heck Barrios
Denham Springs, LA Counsel for Plaintiff/Appellee,
Crystal Rende Mark D. Boyer
Maryanna B. Haynes
Rhonda S. Smith
Denham Springs, LA Counsel for Defendant/Appellant,
Amado Enamorado BEFORE: WHIPPLE, C.J., GUIDRY, AND McCLENDON, JJ. WHIPPLE, C.J.
This matter is before us on appeal from a judgment of the trial court granting a motion for involuntary dismissal of a rule to decrease child support and a reconventional demand to fix child support arrears and for contempt, For the following reasons, we affirm.
BACKGROUND FACTS AND PROCEDURAL HISTORY
Amado Enamorado and Crystal Enamorado were married in 1989, and subsequently divorced in 2007. Four children were born of the marriage, namely: Adam, Erick, and twin daughters, Hannah, and Hailey. On December 14, 2005, the parties entered into the record a stipulated judgment, which awarded custody of the minor children to Crystal and ordered Amado to pay child support in the amount of $2,800.00 per month and pay interim spousal support in the amount of $700.00 per month.
The dates of birth of the children are as follows: Adam (12/31/91), Erick (12/26/94), and Hannah and Hailey (2/24/03).
In response to a rule to show cause filed by Amado in April of 2008, the parties again entered into a stipulated judgment, on May 1, 2008, reducing Amado's child support obligation to $2,300.00 per month effective October 15, 2006. On January 13, 2009, a third stipulated judgment was entered into by the parties, which further reduced Amado's child support obligation to $1,450.00 per month.
On May 24, 2013, Amado filed a "Rule to Decrease Child Support" seeking another reduction in his child support obligation based on Adam and Erick attaining the age of majority and an alleged involuntary material change in Amado's income. Crystal filed an answer to Amado's rule to decrease child support, as well as a reconventional demand for arrearages and contempt. Therein, Crystal sought a judgment fixing child support arrears in the amount of $12,686.59, as well as judgment making such arrearages executory immediately, holding Amado in contempt of court, and ordering Amado to pay attorney's fees and costs. Crystal further sought judgment fixing arrearages in healthcare expenses for the minor children in the amount of $15,773.03 and making such arrearages executory immediately.
Following a hearing on the matter, the parties entered into a stipulated judgment: further reducing Amado's child support obligation for the two remaining minor children to $1,100.00 per month effective June 1, 2013; fixing the amount of arrearages in health and dental insurance premiums owed to Crystal by Amado at $10,903.23; fixing the amount of arrearages for medical expense reimbursement owed to Crystal by Amado at $14,884.09; fixing the amount of arrearages for accrued unpaid child support owed to Crystal by Amado for the period of June 1, 2013 through December 11, 2013, at $2,950.00, bringing the total arrearages of accrued unpaid child support to $28,737.32; ordering Amado to pay $100.00 per month on the arrears balance; and ordering Amado to pay attorney's fees in the amount of $1,500.00 and court costs in the amount of $270.00. The consent judgment was subsequently signed by the trial court on January 7, 2014.
On January 6, 2016, Amado filed another "Rule to Decrease Child Support." Therein, Amado averred that on January 28, 2015, he was involved in a work-related automobile accident causing him to sustain injury. Amado further averred that since the accident, he was unable to work and had applied for workers' compensation benefits; however, due to his lack of income and continued medical expenses, he was unable to pay child support, child support arrearages, health and dental insurance premiums, and past due medical expenses as ordered. Amado contended that his circumstances constituted an involuntary material change in his income since the previous stipulated judgment signed on January 7, 2014, and that this purported change warranted a decrease in his child support obligation.
At the time of the accident, Amado was employed by Attaboy Plumbing.
In response, Crystal filed an answer and reconventional demand to fix arrearages. Noting that Amado's child support arrearages totaled $33,810.32, plus any unpaid support that accrued prior to trial, and citing Amado's failure to pay the court-ordered arrearages and attorney's fees and costs for which he was previously cast prior to the auto accident causing his purported injuries, Crystal sought judgment fixing and making executory any additional arrearages, holding Amado in contempt of court, and assessing attorney's fees and costs.
These matters were heard on June 28, 2016. At the conclusion of Amado's case, Crystal made an oral motion for involuntary dismissal based on Amado's failure to establish that he was incapable of working at that time, which was granted by the trial court. The trial court further granted Crystal's reconventional demand, making all child support arrearages in the amount of $37,010.32 executory, finding Amado in contempt of court for his failure to abide by the provisions of the January 7, 2014 stipulated judgment, and assessing Amado attorney's fees in the amount of $500.00 and all court costs incurred in the prosecution of Crystal's reconventional demand. A judgment conforming to same was signed by the trial court on July 11, 2016.
Amado now appeals from the July 11, 2016 judgment, contending that the trial court erred in: (1) finding that he was not entitled to a decrease in child support; and (2) finding that he owed $1,100.00 per month in arrearages for the months following his claim for a decrease in child support.
DISCUSSION
Assignment of Error Number One
Child support is a continuous obligation of both parents; children are entitled to share in the income of both parents, and children should not be the economic victims of divorce. LSA-R.S. 9:315(A). "Income" means the actual gross income of a party, if the party is employed to full capacity. LSA-R.S. 9:315(C)(5)(a). However, "income" means the potential income of a party, if the party is voluntarily unemployed or underemployed; in such a case, his gross income shall be determined as set forth in LSA-R.S. 9:315.11. LSA-R.S. 9:315(C)(5)(b) and LSA-R.S. 9:315.2(B).
A party shall not be deemed voluntarily unemployed or underemployed if he or she is absolutely unemployable or incapable of being employed, or if the unemployment or underemployment results through no fault or neglect of the party. LSA-R.S. 9:315(C)(5)(b). 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 physically or mentally incapacitated or is caring for a child of the parties under the age of five years. LSA-R.S. 9:315.11(A). Voluntary unemployment or underemployment for purposes of calculating child support is a question of good faith on the obligor-spouse. Romanowski v. Romanowski, 2003-0124 (La. App. 1st Cir. 2/23/04), 873 So.2d 656, 660.
Louisiana law provides that a child support award may be modified if there is a material change in the circumstances of the child or either party. LSA-C.C. art. 142. The party seeking the modification must show a material change of 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. Thus, in this case, Amado, as the plaintiff-in-rule seeking modification, had the burden of proving that a material change in circumstances had occurred since the time of the previous award.
Louisiana Code of Civil Procedure article 1672(B) provides that in an action tried by the court without a jury, any party, without waiving his right to offer evidence in the event the motion is not granted, may move for involuntary dismissal at the close of plaintiff's case-in-chief on the ground that upon the facts and law, the plaintiff has not shown a right to relief. In determining whether involuntary dismissal should be granted, the appropriate standard is whether the plaintiff (here, plaintiff-in-rule) has presented sufficient evidence in his case-in-chief to establish his claim by a preponderance of the evidence. Perret v. Louisiana Department of Public Safety and Corrections, Office of Motor Vehicles, 2008-1693 (La, App. 1st Cir. 2/13/09), 6 So.3d 262, 264. Proof by a preponderance simply means that, taking the evidence as a whole, the evidence shows the existence of the fact or cause sought to be proved is more probable than not. Perret v. Louisiana Department of Public Safety and Corrections, Office of Motor Vehicles, 6 So.3d at 264. When considering a motion for involuntary dismissal, a plaintiff is entitled to no special inferences in his favor. Perret v. Louisiana Department of Public Safety and Corrections, Office of Motor Vehicles, 6 So.3d at 264.
An involuntary dismissal should not be reversed by an appellate court in the absence of manifest error. Phillips v. Phillips, 95-2043 (La. App. 1st Cir. 5/10/96), 673 So. 2d 333, 334. Moreover, voluntary unemployment or underemployment is a fact-driven consideration. Romanowski v. Romanowski, 873 So. 2d at 661. Whether a parent is in good faith in ending or reducing his or her income is a factual determination which will not be disturbed on appeal absent manifest error. Romanowski v. Romanowski, 873 So. 2d at 660.
Here, Amado based his January 6, 2016 rule to decrease his child support obligation on his contention that he had been involved in an auto accident a year earlier on January 28, 2015, and that since the accident, he "has been unable to work." In support, Amado offered the medical records of his treating physician, Dr. F. Allen Johnston. Dr. Johnston's records established that he first treated Amado on February 25, 2015, approximately a month after the accident. At that visit, Amado presented with complaints of neck pain, lower back pain, headaches, and pain in his right arm and knee. At that time, Dr. Johnston recommended physical therapy for his neck and lower back, prescribed anti-inflammatory and pain medication, and placed Amado on light-duty work restrictions. After several months of conservative treatment with light-duty work restrictions and virtually normal MRI findings, except for mild disc bulging at C5-6 and C6-7 due to degenerative disc disease, on September 25, 2015, Dr. Johnston recommended that Amado return for a recheck in one month "to discuss return to work full-duty without restrictions."
Amado testified that he had a personal injury claim as a result of the January 28, 2015 auto accident and that he also filed a workers' compensation claim arising from the accident for which he only received weekly benefits in February and March of 2015.
However, on his next visit on October 2, 2015, Amado presented with purported lumbar pain, for which Dr. Johnston recommended an epidural steroid injection at L5-S1 and restricted Amado from work until his next visit in two to four weeks. Following the steroid injection, Amado had a return visit with Dr. Johnston on October 27, 2015, where he reported an 80% decrease in pain after the steroid injection. Considering that Amado received relief of his symptoms following the injection, Dr. Johnston recommended a second steroid injection and continued Amado on no-work restrictions. Amado continued to follow up with Dr. Johnston intermittently and remained off of work pending workers' compensation approval of the second steroid injection.
His last visit with Dr. Johnston prior to the hearing in this matter was on April 11, 2016. At that time, Dr. Johnston again restricted him from work, but only until his next appointment, which was scheduled for May 9, 2016. Importantly, at trial, Amado could not recall whether he attended the May 9, 2016 visit with Dr. Johnston and did not provide any records to establish or confirm that he attended the scheduled visit.
On appeal, Amado contends that he met his burden to show that a material change in circumstances has occurred since the stipulated judgment was rendered. Amado argues that he suffered an injury that caused his treating physician to order that he stop working and contends that the certified medical records of Dr. Johnston substantiate his claim that he was off work on doctor's orders. Amado avers that he only sought a reduction in his child support obligation after his physician ordered that he cease working completely. Regarding his finances and how he was able to support himself, Amado asserts that without him working or receiving indemnity benefits, he had no pay stubs or income verification to submit in evidence. Amado contends that illness is recognized as an involuntary change in circumstance, and he thus met his burden to show that a material change in circumstances has occurred since the stipulated judgment was entered.
At trial and on appeal in opposition, Crystal points out that the inconsistencies in Amado's reporting completely discredited his subjective complaints of pain made to his treating physician, and in turn, his physician's recommendation that Amado not work. Specifically, Crystal notes although Amado alleged in the rule to reduce support that he had not worked since the accident, Amado admitted at the hearing that he performed light duty work for months post-accident and that Dr. Johnston had recommended light duty work for him for more than seven months post-accident. Crystal also notes that on Dr. Johnston's initial intake form, Amado did not report losing consciousness, but only that he was temporarily dazed. At the hearing on the rule to reduce support, however, Amado claimed that he "lost consciousness for a second... When I came to I called 911 and they had to take me out of the van because I was not able to stand, I was in pain."
Crystal further notes that his claim was unsupported because it was only after almost eight months of treatment that Amado first complained of memory loss issues to Dr. Johnston. Crystal notes that despite his claims of debilitating injuries, Amado had multiple MRIs performed, including one of the brain, which showed "no acute intracranial abnoramalities." Additionally, according to the medical evidence presented, Amado never sought evaluation or treatment of any head injury. Noting that the trial court's findings required and were based on credibility determinations, Crystal concludes that it was this type of inconsistent testimony that caused the trial court to disbelieve Amado, and to some extent, reject as unsupported, the recommendations of his treating physician that Amado not return to work.
Amado testified that he did treat with a neurologist, who performed a "five minute interview... trying to detect... how my memory was working." However, Amado could not recall the neurologist's name nor were any records of such produced or introduced into evidence.
After listening to Amado's testimony and reviewing the medical records, the trial court granted Crystal's motion for involuntary dismissal and dismissed Amado's rule for reduction of his child support obligation, finding that his testimony and the medical records he relied on were insufficient to establish his claim by a preponderance, as follows:
I am going to grant the dismissal. I mean, I don't think these records even come close. I have been through the medical records and ... there is nothing in here. He has got a disk bulge and I see he has got some—it says a rotator cuff or pain associated with [h]is shoulder. But I don't think a record from Doctor Johnston that says he is going to put him on no work is enough to satisfy me that - being that he does work around the house and cut his own grass that he can't even do a sedentary job. ... [Y]ou don't have enough here to satisfy me that Mr. Enamorado cannot work. I understand he is trying to do the best he can to pump up his personal injury case and I don't know if Mrs. Enamorado is going to have a claim to that.
On review, we find no error in the trial court's finding that Amado failed to satisfy his evidentiary burden of presenting sufficient evidence to establish, by a preponderance of the evidence, his claim of a material change in circumstances.
Amado testified that after the accident, he was "dismissed or fired" from Attaboy Plumbing and began employment with Louisiana Environmental Company, where he was able to perform "maintenance and operation for sewer plants." He also admitted that during the same time that he was placed on light duty and no work restrictions, he was able to cut the grass in his yard at home and perform his own housekeeping chores, which included mopping and vacuuming. While Amado claims he experienced pain while performing these tasks, he conceded that as of the time of trial, he had no scheduled appointments with any physician, he had no scheduled medical procedures ordered by any physician, and he was not being prescribed pain medication, and was only taking over-the-counter medication for pain. Moreover, because Amado failed to appear for his May 9, 2016 appointment with Dr. Johnston, the last medical record indicating his status is from April 11, 2016, over two months prior to the hearing. Thus, we agree that on the record presented, Amado failed to submit any medical records to establish his current work abilities as of the time of the hearing.
Moreover, Amado's testimony at trial was not consistent with statements in his medical records. Amado testified at trial that, after the accident, "he lost consciousness;" however, on the "New Patient/New Injury Form" he completed, he indicated that he did not lose consciousness, but instead, that he "was temporarily dazed." Further, while Amado admitted at trial that he had returned to light-duty employment after the accident, on a November 30, 2015 visit with Dr. Johnston, Amado represented that he had been off of work since his injury.
As an appellate court, we will not second guess factual findings and credibility determinations of the trial court and will not reverse an involuntary dismissal in the absence of manifest error by the trial court. On review, we find no error in the trial court's rulings, which were obviously based on credibility determinations. The conclusion that Amado's testimony was not consistent or credible is amply support by the record. As the plaintiff-in-rule, Amado had the burden of establishing a material change of circumstances warranting reduction and failed to do so. Thus, we find no error in the trial court's grant of Crystal's motion for involuntary dismissal and dismissal of Amado's rule to decrease child support.
Assignment of Error Number Two
In Amado's second assignment of error, he contends that the trial court erred in finding that he owed $1,100.00 per month in child support arrearages for the months following his claim for a decrease in child support. We note that all assignments of error and issues presented for review must be briefed. This court may consider any assignment of error that has not been briefed as abandoned. Uniform Rules, Courts of Appeal, Rule 2-12.4(B)(4). Thus, as Amado has not briefed the issues of these arrearages as required by Rule 2-12.4(B)(4), we consider this issue abandoned on appeal.
CONCLUSION
For the following reasons, the trial court's July 11, 2016 judgment is hereby affirmed. Costs of this appeal are assessed to the appellant, Amado Enamorado.
AFFIRMED. McClendon, J., dissenting.
Given that this record is not fully developed, I must respectfully disagree with the majority's conclusion. Absent circumstances in the record casting suspicion on the reliability of the testimony and sound reasons for its rejection, uncontroverted evidence should be taken as true to establish a fact for which it is offered. Perret v. Louisiana Dep't of Public Safety and Corrections, Office of Motor Vehicles, 08-1693 (La.App. 1 Cir. 2/13/09), 6 So.3d 262, 264. Perret, 6 So.3d at 264.
While the court might have questioned Amado's veracity, nothing in the record indicates that Dr. Johnston's opinion that Amado was unable to return to work was based solely or partially on Amado's subjective complaints. Clearly, a more fully developed record may indicate that the patient's subjective complaints were a part of Dr. Johnston's diagnosis. However, the record is devoid of any such evidence. Dr. Johnston was not deposed, nor was he called to testify at the hearing. Any inference, therefore, that Dr. Johnston relied on Amado's credibility in reaching his determination and that he would have altered his opinion is speculation at best.
The record shows that Amado was involved in an automobile accident, that he sought treatment with Dr. Johnston following the accident, that Dr. Johnston was aware of Amado's work history, that an MRI indicated bulging discs as found by the trial court, and that Dr. Johnston, prior to trial, had restricted Amado to no work. No one contests these facts.
Therefore, I would reverse the trial court's grant of an involuntary dismissal and remand the matter for Crystal to present her case.