Opinion
2012 CA 1736
07-18-2013
KEVIN T. MIKESELL v. KRISTINA BINNEY
Mark D. Plaisance Thibodaux, Louisiana Attorney for Plaintiff/Appellant Kevin T. Mikesell Shandy Arguelles Slidell, Louisiana Attorney for Defendant/Appellee Kristina Binney
NOT DESIGNATED FOR PUBLICATION
APPEALED FROM THE TWENTY-SECOND JUDICIAL DISTRICT COURT
IN AND FOR THE PARISH OF ST. TAMMANY
STATE OF LOUISIANA
DOCKET NUMBER 2010 - 17524
HONORABLE DAWN AMACKER, JUDGE
Mark D. Plaisance
Thibodaux, Louisiana
Attorney for Plaintiff/Appellant
Kevin T. Mikesell
Shandy Arguelles
Slidell, Louisiana
Attorney for Defendant/Appellee
Kristina Binney
BEFORE: KUHN, PETTIGREW, AND McDONALD, JJ.
McDONALD , J .
This is a companion case to Mikesell v. Binney, 2012 CA 1399 (La. App. 1 Cir. 7/18/13) (unpublished), handed down this same date. Kevin T. Mikesell and Knstina Binney are the parents of Hailey M. Binney, born on December 7, 2008. The parties were never married.
On December 7, 2010, Mr. Mikesell filed a petition for judicial declaration of paternity, to establish custody and visitation, and other related matters. Mr. Mikesell asked for joint custody with visitation, and asked for the yearly tax exemption for Hailey beginning in 2010, as he had voluntarily paid child support consistently through the date of filing his petition.
Ms. Binney filed an answer and reconventional demand on January 20, 2011, conceding that Mr. Mikesell was Hailey's biological father and that he had made child support payments. She also asked for joint custody, domiciliary status, child support, and the yearly tax dependency exemption.
On February 8, 2012, Ms. Binney tiled a motion to appoint a parenting coordinator pursuant to La. R.S. 9:358.1, et seq., asserting that the parties were unable to communicate effectively regarding child rearing issues.
On March 2, 2012, Mr. Mikesell filed a motion to decrease his child support and for contempt. Mr. Mikesell asserted: that pursuant to a May 10, 2011 judgment, he had been ordered to pay child support in the amount of $756.00 per month, however, his income was incorrectly calculated; that he had been involuntarily demoted by his employer in December 2011; that support payments for another child and psychological therapy were not deducted from his income; that Ms. Binney had moved, increasing his expenses for visitation transportation; that she had refused to file for childcare assistance to mitigate expenses; that her child care expenses were less than what she reported to the hearing officer; and that since he had physical custody almost fifty percent of the time, and thus, child support should be calculated based on shared custody. Further, Mr. Mikesell asserted that Ms. Binney was in contempt of court for: failing to apply for the Federal Child Care Assistance Program; contacting his fiancee rather than himself; taking vacations with Hailey without providing him with thirty-days notice; arbitrarily denying him visitation by changing dates and times; refusing to provide him with personal information regarding Hailey (including her social security number) which prevented him from filing his taxes; failing to provide him with her work schedule; and failing to communicate through the Our Family Wizard program.
After a hearing, the trial court granted Ms. Binney's motion to appoint a parenting coordinator, denied Mr. Mikesell's rule to decrease child support, found no material change in circumstances since the date of the original judgment (which rendered all other issues of child support calculation moot) ordered Mr. Mikesell to pay any amounts due and owing to Ms. Binney within 30 days, and decreed that Mr. Mikesell's motion for contempt had been voluntarily dismissed. The trial court signed the judgment on July 12, 2012.
Mr. Mikesell appealed that judgment, and makes three assignments of error. Mr. Mikesell asserts that the trial court erred in denying a reduction in child support since he was involuntarily demoted and received a reduction in pay; that the trial court's time limit on the presentation of evidence denied him his right to a full and complete trial; and that the trial court erred by denying his right to proffer evidence. ASSIGNMENT OF ERROR NO. 1
In this assignment of error, Mr. Mikesell asserts that the trial court erred in denying a reduction in his child support payments, as he was involuntarily demoted from his job as general manager at Wendy's in Gulfport making $56,000.00 to $58,000.00 a year to a position as an assistant manager at Wendy's in a different location with a salary of $38,200.00 per year. He points out that the hearing officer in the case found that he was involuntarily demoted.
If a party is voluntarily unemployed or underemployed, child support shall be calculated based on a determination of his or her income earning potential, unless the party is caring for a child of the parties under the age of five years. La. R.S. 9:315.11. 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. La. R.S. 9:315(C)(5)(b). Voluntary unemployment or underemployment for purposes of calculating child support is a question of good faith of the obligor-spouse. In virtually every case where a parent's voluntary unemployment or underemployment was found to be in good faith, courts have recognized extenuating circumstances beyond that parent's control which influenced or necessitated the voluntary change in employment. Aguillard v. Aguillard, 2008-1131 (La.App. 1 Cir. 12/23/08), 9 So.3d 183, 186-187.
Voluntary unemployment or underemployment is a fact-driven consideration. The trial court has wide discretion in determining the credibility of witnesses, and its factual determinations will not be disturbed on appeal absent a showing of manifest error. Whether a spouse is in good faith in ending or reducing his or her income is a factual determination that will not be disturbed absent manifest error. We cannot substitute our findings for the reasonable factual findings of the trial court. See Stobart v. State, Department of Transportation and Development, 617 So.2d 880, 882-83 (La. 1993); Aguillard, 2008-1131, 9 So.3d at 187.
Mr. Mikesell testified that he was demoted because sales had dropped at the Wendy's that he was managing in Gulfport. He attributed the drop in sales to nearby road work by the State of Mississippi that resulted in the closing of numerous businesses and less overall traffic through the area. He also testified that an oil spill in the Gulf had resulted in less traffic through the area and the Gulfport store was largely dependent upon tourist traffic. He further attributed the drop in sales to the economy.
Mr. Mikesell was questioned about the six write-ups he was given by Wendy's management in the ten months prior to his demotion. He admitted that he had gotten no write-ups from management in the two years previous to that period. Also, he admitted that his efforts to find a higher paying job after his demotion were limited to posting his resume on the Job Builders website. The only response to his posting was an inquiry from McDonald's, which he testified would not be a good career move because Wendy's restaurants were all owned by one large company, Wendy's International, which could offer better benefits than McDonald's restaurants, because McDonald's restaurants were owned by different franchisers.
After hearing testimony on the issue, the trial court determined that Mr. Mikesell failed to prove that he was demoted for any reason other than his own fault. The trial court found that Mr. Mikesell had not made sufficient efforts to find a better paying job after his demotion, and further, noted that it found it suspicious that in the very first year in which child support was set in this matter, he experienced complaints about his performance after a long history as a general manager. The trial court also noted that Mr. Mikesell did not present any witnesses, such as another employee from Wendy's, to corroborate his explanation for his demotion.
We note that the trial court's determination that Mr. Mikesell was voluntarily underemployed is harsh. Notably, reasonable persons frequently disagree regarding factual issues in a particular case. Where there are two permissible views of the evidence, the fact finder's choice between them cannot be manifestly erroneous or clearly wrong. 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. An appellate court on review must be cautious not to re-weigh the evidence or to substitute its own factual findings just because it would have decided the case differently. McGlothlin v. Christus St. Patrick Hosp., 2010-2775 (La. 7/1/11), 65 So.3d 1218, 1231.
While this court might have decided the matter differently, we cannot say that the trial court committed manifest error in its determination that Mr. Mikesell was voluntarily underemployed. ASSIGNMENT OF ERROR NO. 2
In this assignment of error, Mr. Mikesell asserts that the trial court erred by placing a time limitation on the presentation of evidence, which denied his due process rights to a full and complete trial.
The court has the power to require that the proceedings be conducted with dignity and in an orderly and expeditious manner, and to control the proceedings at trial, so that justice is done. La. C.C.P. art. 1631. At the start of the hearing, the trial court stated that it would be limited to two hours based upon the Twenty-Second Judicial District Court's local rules, which provided that hearings which take more than two hours would be set on a trial docket or special setting. Mr. Mikesell points out that as of the date of his hearing, this rule had not yet gone into effect.
While the local rule was not yet in effect, we still find the trial court's action in limiting the time for the hearing to two hours falls clearly within its great discretion to control the proceedings at trial, and we cannot say that the trial court committed an abuse of its great discretion. ASSIGNMENT OF ERROR NO. 3
In this assignment of error, Mr. Mikesell asserts that the trial court erred by denying his right to proffer evidence under La. C.C.P. art. 1636. Louisiana Code of Civil Procedure article 1636 provides that when the court rules against the admissibility of any evidence, it shall either permit the party offering such evidence to make a complete record thereof, or permit the party to make a statement setting forth the nature of the evidence.
We find that the trial court erred in not allowing Mr. Mikesell to proffer his evidence. However, we find that this was harmless error, as we conclude that this error was minor in relation to the entirety of the evidence adduced and surely did not affect the outcome of the trial. See Citgo Petroleum Corp. v. Yeargin, Inc., 95-1574 (La.App. 3 Cir. 2/19/97), 690 So.2d 154, 174, writs denied, 97-1223, 97-1245 (La. 9/19/97), 701 So.2d 169, 170.
For the foregoing reasons, the trial court judgment is affirmed. Costs are assessed against Mr. Mikesell.
AFFIRMED.