Opinion
No. 11–CA–526.
2011-12-28
Reynold Paul HERNANDEZ v. Nicole Mary HERNANDEZ.
Maria M. Chaisson, Attorney at Law, Destrehan, LA, for Plaintiff/Appellee. Joel A. Levy, Attorney at Law, Marrero, LA, for Defendant/Appellant.
Maria M. Chaisson, Attorney at Law, Destrehan, LA, for Plaintiff/Appellee. Joel A. Levy, Attorney at Law, Marrero, LA, for Defendant/Appellant.
Panel composed of Judges MARION F. EDWARDS, WALTER J. ROTHSCHILD, and JUDE G. GRAVOIS.
JUDE G. GRAVOIS, Judge.
Nicole Hernandez appeals from a judgment granting her former husband, Reynold Hernandez's, motion to decrease and modify child support, arguing that the trial court erred in finding that Reynold bore his burden of proof that there was a change in circumstances warranting a modification of his child support obligation. Nicole also argues on appeal that the trial court erred in not including the expenses of private school in the child support calculations. For the reasons that follow, we affirm the judgment of the trial court.
FACTS AND PROCEDURAL HISTORY
On July 31, 2009, Reynold Hernandez filed a petition for divorce against Nicole Hernandez. Nicole answered the petition and filed a reconventional demand against Reynold, seeking a divorce from him. In their respective pleadings, both Reynold and Nicole also sought relief for incidental matters pertaining to the dissolution of their marriage. On November 2, 2009, Reynold and Nicole entered into a Consent Judgment regarding the issues of custody and support of their two minor children born of the marriage. By judgment rendered and signed on November 6, 2009, Reynold was granted an absolute divorce from Nicole.
In the Consent Judgment, Reynold and Nicole agreed to equally share physical custody of the children, with both of them being designated as co-domiciliary parents. The judgment also reflected that neither Reynold nor Nicole would pay child support to the other, but that each would respectively provide for the children's needs during their respective physical custody periods. They agreed to equally share all tuition, registration fees, supply fees, uniform costs, summer camp costs and aftercare costs for the children. Further, Reynold agreed to maintain health and hospitalization insurance coverage on the children, while Nicole agreed to maintain dental and vision insurance coverage on the children. They also agreed to be equally responsible for any uninsured medical bills incurred on behalf of the children.
On October 7, 2010, Reynold filed a Motion to Decrease and to Modify Child Support, alleging that there had been a “significant change in circumstances” which warranted a decrease in Reynold's child support obligation and a modification of the parties' child support obligations. Specifically, Reynold alleged that the children's expenses had increased, as had Nicole's income. He also alleged that he had exhausted his savings and could no longer afford private school tuition and expenses for the children, and that Nicole had been overcharging him for the children's expenses. He prayed that his support obligation be decreased, and that the parties' child support obligations be modified and set in accordance with the Louisiana Child Support Guidelines for shared custody arrangements.
On November 12, 2010, the trial court held a hearing on the motion. It heard testimony from the parties and received evidence regarding their finances and expenses. After taking the matter under advisement, the trial court rendered a judgment on November 16, 2010 finding that there had been a change in circumstances supporting the granting of Reynold's motion. The court noted that the income of both parties had increased, but also that there had been an increase in school tuition and related costs, as well as transportation and health care costs. The parties were allowed to continue enjoying joint physical custody of the children on a shared custody basis, but Nicole was ordered to pay child support to Reynold in the amount of $209.96 per month, beginning in January of 2011. The judgment also stated that after January of 2011, “tuition and registration fees shall not be shared between the parties, but as to all matters, the judgment remains unchanged.” This timely appeal followed.
On appeal, Nicole argues that the trial court erred in finding that there was a change in the parties' circumstances, and in not including the expenses of private school in the calculation of child support.
ANALYSIS
In Hall v. Hall, 11–60 (La.App. 5 Cir. 5/24/11), 67 So.3d 635, at 638, this Court set forth the applicable standard of review in child support actions:
Generally, the standard of appellate review of factual findings in a civil action is a two-part test: (1) the appellate court must find from the record there is a reasonable factual basis for the finding of the fact finder, and (2) the appellate court must further determine the record establishes the finding is not clearly wrong (manifestly erroneous). Mart v. Hill, 505 So.2d 1120, 1127 (La.1987). Factual findings should not be reversed on appeal absent manifest error. Rosell v. ESCO, 549 So.2d 840, 844 (La.1989). If the trial court's “findings are reasonable in light of the record reviewed in its entirety, the court of appeal may not reverse....” Sistler v. Liberty Mutual Ins. Co., 558 So.2d 1106, 1112 (La.1990). Consequently, when there are two permissible views of the evidence, the fact finder's choice between them cannot be manifestly erroneous. Stobart v. State, DOTD, 617 So.2d 880, 883 (La.1993).
With respect to this case, a district court's order of child support is entitled to great weight. Carmouche v. Carmouche, 03–1106 (La.App. 5 Cir. 2/23/04), 869 So.2d 224. “[A]n appellate court will not disturb a child support order unless there is an abuse of discretion or manifest error.” State, D.S.S. ex rel. D.F. v. L.T., 05–1965, p. 6 (La.7/6/06), 934 So.2d 687, 690. Deviations by the district court from the child support guidelines shall not be disturbed on appeal absent a finding of manifest error. La. R.S. 9:315.17.
The Louisiana Child Support Guidelines set forth the method for implementation of the parental obligation to pay child support. La. R.S. 9:315, et seq. The guidelines are to be used in any proceeding to establish or modify child support. La. R.S. 9:315.1(A).
The standard for modification of a child support award is set forth in La. C.C. art. 142 and La. R.S. 9:311(A)(1). La. C.C. art. 142 provides, “An award of child support may be modified if the circumstances of the child or of either parent materially change and shall be terminated upon proof that it has become unnecessary.” La. R.S. 9:311(A)(1) provides, “An award for support shall not be modified unless the party seeking the modification shows a material change in circumstances of one of the parties between the time of the previous award and the time of the rule for modification of the award.”
The trial court found that Reynold bore his burden of proving a material change in circumstances since the previous Consent Judgment. Specifically, the trial court found that both parties' individual incomes had increased, but also that the children's private school tuition and related expenses had increased, as well as Reynold's transportation costs and the cost of the children's health insurance, which this Court notes is borne 100% by Reynold according to the Consent Judgment. The trial court proceeded to calculate the support award pursuant to La. R.S. 9:315.9, the guidelines for shared custody arrangements, as evidenced by the trial court's worksheet in the record.
Reynold's testimony at the hearing showed that the family health care premiums increased by $60 per month. Reynold also testified that his transportation costs increased by $150 to $180 per month. Previously, when the children were in his custody, he transported them each morning from his home in LaPlace to their school in Metairie in his company van. However, as a result of objections made by Nicole, he is now required to transport the children to school in Metairie in his personal vehicle, and then return home to LaPlace to get his company van before proceeding to work in Metairie.
Nicole objected to the children riding to Metairie each morning in Reynold's company van, which did not have seats equipped with seatbelts for each child. Only the front seat had a seatbelt; apparently, the second child sat in a seat in the back of the van that did not have safety restraints.
Reynold testified that Nicole “overcharged” him regarding the children's school expenses, specifically stating that she overestimated the costs of uniforms, school supplies, and other related expenses that she would be required to pay, and then improperly billed him for his share in an “average” monthly fashion. However, Reynold presented no documentation to support this. Nicole testified that whereas some of the expenses were lower than she originally had estimated, the discrepancy was much lower than claimed by Reynold and he had a “credit” with her of less than $100 at the time he stopped paying her for these expenses. The record further reflected that tuition costs increased by approximately $300 per year. Aftercare and summer camp costs also increased. Reynold also testified that when he had physical custody of the children, he picked them up before aftercare; accordingly, they were only in aftercare while they were with Nicole, something she didn't challenge or dispute. Reynold explained, however, that the actual day-to-day living expenses for the children had not changed.
Reynold claimed that he had just about exhausted his savings trying to meet his part of the children's expenses, that his personal vehicle was old and in need of repairs, and that he could no longer afford private school tuition for the children. Reynold submitted his bank statements into evidence. Besides showing that Nicole's W–2 income was substantially higher than his (according to the trial court's worksheet calculations, approximately $14,000 higher per year), he claimed that she also made at least $1,500 per month in a cake business she owned, though she disputed this amount, claiming that she had closed her business and only made cakes on an occasional basis for friends. His supporting documentation consisted of several order forms for cakes in 2009 and some entries that Nicole made in 2009 on her Facebook page describing some of the activities of her cake business.
Reynold also claimed that Nicole had inherited $30,000 after the parties' divorce, which was reflected in her bank statements that were entered into evidence. Nicole explained that she used this money for a down-payment on a house in Metairie, and as well as for other expenses related to establishing a new household. (Reynold received the former family home in the property settlement.)
We find that the evidence presented by the parties, taken as a whole, supports the trial court's finding that Reynold's child support obligation should be decreased by the amount calculated in the trial court's worksheet. Nicole does not dispute any of the figures used to calculate the award. Instead, she argues that Reynold failed to show a “material” change in his circumstances. We disagree. Reynold presented sufficient proof of the increase in expenses he bore 100% of (transportation and health insurance), increases in the expenses they shared jointly tuition and school related expenses), plus a depletion of his savings relative to meeting his obligations under the Consent Judgment. The record likewise showed that Nicole's income was greater than his by approximately $14,000 per year, although some income disparity between the parties did exist prior to rendition of the Consent Judgment.
Upon thorough review of the record, we find that there is a reasonable factual basis for the trial court's child support ruling, and that the record establishes that this ruling is not clearly wrong or manifestly erroneous. We thus decline to disturb the trial court's award of child support from Nicole to Reynold in the amount of $209.96 per month, beginning in January of 2011.
Next, Nicole argues that the trial court erred in not adding the costs of school tuition and school related expenses to the basic child support obligation, and in decreeing that these expenses would no longer be shared by the parties as per the Consent Judgment. Her argument is basically that the trial court erred in this regard because the parties agreed, when they were married, to send the children to private school, and the children should continue to attend their school for continuity and to meet their emotional needs. She also argues that the increase in tuition, aftercare, and summer camp were “nominal.”
Formerly, under the Consent Judgment, the parties shared these expenses equally despite some disparity in their incomes. La. R.S. 9:315.6 provides that by agreement of the parties or order of the court, the expenses of tuition, registration, books, and supply fees required for attending a special or private elementary or secondary school to meet the needs of the child incurred on behalf of the child may be added to the basic child support obligation. This language is permissive and not mandatory. Therefore, failure to include it in the child support calculations is not per se error.
It is noted that although the judgment in question does not require that the children change schools, it does appear by default to require that Nicole bear the children's tuition and registration fees in full effective January, 2011 (assuming the children remain in private school). This Court has already found above that Reynold sufficiently proved a material change in circumstances so as to allow an award of child support to him from Nicole. All things considered, particularly the overall changes in the circumstances of the parties since rendition of the Consent Judgment as detailed above, we find that there is a reasonable factual basis for the trial court's ruling that the children's tuition and registration fees would no longer be shared by the parties, and further that the record does not establish that the trial court abused her broad discretion or was manifestly erroneous in this ruling. Accordingly, we also find no error in this portion of the judgment.
CONCLUSION
For the foregoing reasons, we affirm the judgment of the trial court.
AFFIRMED
ROTHSCHILD, J., dissents in part.
ROTHSCHILD, J., dissents in part.
I must respectfully dissent from the decision of the majority insofar as it upholds the trial court's decision to exclude the expenses of private school in the child support calculation. Based on a review of the record and applicable law, I find that the trial court abused its discretion in ruling that the private school expenses would no longer be shared by the parties after January of 2011.
The parties in this case were divorced by judgment rendered in November 2009 and at that time consented to share custody and expenses for the children, including to equally share all tuition, registration fees, supply fees, uniform costs, and aftercare costs. One year later, in October of 2010, Mr. Hernandez filed a motion to decrease and to modify child support. Specifically, Mr. Hernandez alleged that Mrs. Hernandez' income had increased, that the children's expenses had increased, and that Mr. Hernandez could no longer afford private school tuition.
By judgment rendered on November 16, 2010, the trial court found that although both parties experienced an increase in income, there was an increase in school tuition and other expenses for the children. The trial court ordered Mrs. Hernandez to pay child support in the amount of $209 per month, and also held that Mr. Hernandez was no longer required to share in expenses of private school tuition. Although I have no disagreement with the increase in the child support award, I find that the record fails to support the trial court's ruling on the issue of private school tuition.
A trial court may award child support for expenses of tuition, registration, books, and supply fees required for attending a special or private elementary or secondary school to meet the needs of the child. La. R.S. 9:315.6(1). This statute was amended in 2001, removing the language requiring that a “particular educational need” to attend the special or private school be shown. As stated in the comments following the statute, the needs of the child include needs for stability or continuity in the child's educational program. A trial court's determination of whether to include private school tuition in a basic child support obligation will not be disturbed absent an abuse of discretion. The court's decision must be based on consideration of the best interest of the children.
At the hearing in this matter, Mr. Hernandez stated that he was unable to afford to continue to contribute to private school tuition for his children. However, Mr. Hernandez admitted that his income had increased during the year since the divorce. Further, the record indicates that the school tuition for the 2010 school year only increased in the amount of $300 over the 2009 school year, and that registration fees, supply fees and uniform fees were not increased at all.
Mrs. Hernandez testified that at the time of the hearing the children were 9 and 10 years old, and that they had attended St. Angela Merici school for 6 and 8 years, respectively. She stated they enjoyed the school and that it was “the most stable constant wonderful thing in their lives right now.” Mrs. Hernandez stated that she and Mr. Hernandez selected the school together, and that both she and Mr. Hernandez attended Catholic school and always intended to send their children to Catholic school. She testified that Mr. Hernandez spoke to the children about leaving the school, and “they were crushed at the thought of being moved from their current school.”
In the present case, the record indicates that both parties' income was increased during the previous year, and the school expenses only sustained a moderate increase. The adjustment in the child support amounts adequately covers any additional expenses sustained by Mr. Hernandez in supporting the children. More importantly, the record clearly shows that the children's needs for stability and continuity would be best served by remaining in the school their parents chose for them and that they have attended for years. Considering these circumstances, I find the trial court abused its discretion in failing to include private school tuition in the child support calculations. I would therefore reverse this part of the judgment, and apportion the payment of the tuition based on the parties' respective incomes.