Opinion
No. 2009 CA 0464.
October 23, 2009.
ON APPEAL FROM THE 21ST JUDICIAL DISTRICT COURT IN AND FOR THE PARISH OF LIVINGSTON STATE OF LOUISIANA TRIAL COURT NO. 113,520 HONORABLE ZORRAINE M. WAGUESPACK, JUDGE PRESIDING.
Jane Arieux Thomas, Baton Rouge, LA, Attorney for Plaintiff-Appellee, Karen Price.
Russell W. Beall, Baton Rouge, LA, Attorney for Defendant-Appellant, Steven F. Price.
BEFORE: CARTER, C.J., GUIDRY AND PETTIGREW, JJ.
In this child support matter, the father appeals a trial court judgment that awards prospective and retroactive child support to the mother based upon the statutory worksheet for joint custody. In a separate stipulated judgment, the trial court awarded joint custody of the parties' two children and designated the mother as the domiciliary parent with the father having supervised visitation every other weekend. The father appeals from the judgment awarding final child support, arguing that the trial court erred in calculating the retroactive child support award. Ms. Price did not appeal nor has she answered the appeal. We affirm the trial court judgment in all respects.
Karen Price, the mother, contends in her brief that this court should dismiss the suspensive appeal of the father, Steven Price, or find that the appeal is frivolous and award her damages. However, because Ms. Price did not file an appeal or answer the appeal filed by Mr. Price, her claim for damages for frivolous appeal is not properly before this court and will not be considered. Schulingkamp v. Schulingkamp, 96-2680 (La. App. 1 Cir. 12/29/97), 706 So.2d 1005, 1007, writ denied, 98-0279 (La. 3/20/98), 715 So.2d 1219. Furthermore, another panel of this court previously considered and denied Ms. Price's motion to dismiss Mr. Price's suspensive appeal from a judgment establishing child support arrearages. Price v. Price, 09-0464 (La. App. 1 Cir. 5/13/09)(unpublished). Pursuant to the law of the case doctrine, and considering the fact that Ms. Price has not filed an appeal nor answered the appeal by Mr. Price, we decline reconsideration of the suspensive appeal issue. See Spine Diagnostics Center of Baton Rouge, Inc. v. Louisiana State Bd. of Nursing ex rel. Louisiana Dept. of Health and Hospitals, 08-0813 (La. App. 1 Cir. 12/23/08), 4 So.3d 854, 861-862, writs denied, 09-0144, 09-0188 (La. 4/13/09), 5 So.3d 163.
FACTS
Steven F. Price and Karen Price were married June 14, 1997, and their twin girls were born on November 29, 2001. On October 4, 2006, Ms. Price filed a petition for divorce. An interim order signed on October 18, 2006, awarded shared custody to the parties on a week-to-week basis, but there was no interim child support award. Pursuant to a stipulated judgment signed on August 8, 2007, the parties were granted another interim custody order, continuing shared joint custody, with Mr. Price having physical custody of the two children for four days on alternating weeks, but not overnight custody until he obtained a residence of his own. Still, there was no interim child support ordered by the trial court. A judgment of divorce was signed on October 29, 2007.
On August 26, 2008, pursuant to another stipulated judgment, the trial court ordered that the parties continue joint custody with Ms. Price designated as the primary domiciliary parent. Mr. Price was granted supervised visitation every other weekend, without overnight visitation, until three specifically named therapists unanimously agreed that shared equal custody with unsupervised and overnight visitation would be appropriate. Additionally, the stipulated judgment referenced child support for the first time, ordering that "Child Support Worksheet 'A"' was effective, without specifying a dollar amount.
The trial court also signed a separate judgment on August 26, 2008, outlining the specific child support award and ordering Mr. Price to pay Ms. Price interim child support "in the amount of $750.00 per month, retroactive to October 14, 2006, until May 14, 2008" for a total child support arrearage in the amount of $14,250.00 payable at the rate of $500.00 per month in equal semi-monthly installments of $250.00. The trial court further ordered a final child support award to Ms. Price in the amount of $1,101.00 per month, payable in equal semi-monthly installments of $550.50, retroactive to May 14, 2008.
Mr. Price filed an appeal concerning only that portion of the trial court's judgment that awarded child support arrearages, raising one assignment of error and arguing that the trial court erred in calculating the retroactive child support based upon joint custody — Worksheet "A" pursuant to LSA-R.S. 9:315.8E(5) — rather than shared custody — Worksheet "B" pursuant to LSA-R.S. 9:315.9B.
LAW AND ANALYSIS
An award of child support shall be retroactive to the date of judicial demand, except for good cause shown. LSA-R.S. 9:315.21A. The burden is on the obligor parent to show good cause for not making the award retroactive to the date of judicial demand. McKenzie v. Thomas, 95-2226 (La. App. 1 Cir. 6/28/96), 678 So.2d 42, 46, writ denied, 96-1855 (La. 10/25/96), 681 So.2d 372; Rutledge v. Rutledge, 41,792 (La. App. 2 Cir. 12/13/06), 945 So.2d 307, 316-317. The trial court is vested with much discretion in fixing awards of child support. The trial court's reasonable determinations shall not be disturbed unless there is a clear abuse of discretion. Rutledge, 945 So.2d at 317.
Mr. Price argues that the trial court erred in using the joint custody statutory Worksheet "A," pursuant to LSA-R.S. 9:315.8E(5), in its determination of his retroactive child support obligation. He maintains that during the time period that he owes for arrearages, he enjoyed shared custody according to the terminology of the stipulated judgments in the record. However, while the language of some of the interim child custody judgments may have used the words "shared custody," Ms. Price argues that the parties have never exercised equal shared custody.
"Shared custody" is defined as "a joint custody order in which each parent has physical custody of the child for an approximately equal amount of time." LSA-R.S. 9:315.9A(1) (emphasis added). The statute mandates an "approximately equal amount of time." The trial court has vast discretion in determining whether a particular arrangement constitutes "shared custody," justifying application of LSA-R.S. 9:315.9. Martello v. Martello, 06-0594 (La. App. 1 Cir. 3/23/07), 960 So.2d 186, 196.
Mr. Price does not dispute that Ms. Price has always been the designated domiciliary parent, and that he exercised visitation with the children. The transcript of the May 14, 2008 hearing, which was set to resolve the child custody status, reflects that the parties offered a joint stipulation indicating that Ms. Price was the primary domiciliary parent, and Mr. Price exercised supervised visitation every other weekend without overnight visitation until three named therapists unanimously agreed that supervised visitation was no longer necessary.
After considering the parties' joint stipulation and argument, the trial court ordered each party to file supplemental memoranda addressing the parties' exercise of visitation and whether there is good cause for not making the child support award retroactive to the date of judicial demand. We find no error or abuse of the trial court's apparent conclusion that the joint custody implemented in this case was not a true shared custody arrangement, because in reality, each parent did not have physical custody of the children for an "approximately equal" amount of time. Therefore, the trial court did not abuse its great discretion or legally err in computing the retroactive child support award in accordance with the formula in Worksheet "A" of LSA-R.S. 9:315.8 and the parties' joint stipulation. We also note that because there was no interim order of child support,
Mr. Price was not ordered to pay any child support from the time of the parties' separation in October 2006 until the final child support award was made on August 26, 2008. However, a parent's obligation of support and upbringing is a legal duty owed to the child, and it cannot be renounced or suspended. Dubroc v. Dubroc, 388 So.2d 377, 380 (La. 1980). Since there was no interim child support order in effect on the date that the judgment awarding final child support was rendered, LSA-R.S. 9:315.21B(2) mandates that the award of final child support be retroactive to the date of demand except in those cases where good cause is demonstrated. See Moran v. Moran, 02-1562 (La. App. 1 Cir. 6/27/03), 858 So.2d 581, 584, writ denied, 03-2124 (La. 11/7/03), 857 So.2d 502. Mr. Price has not demonstrated any good cause for not making the support award retroactive. Thus, the trial court did not abuse its discretion in determining that the child support arrearage award be retroactive under these facts. See McKenzie, 678 So.2d at 46.
CONCLUSION
For the foregoing reasons, we affirm the judgment of the trial court in all respects. Costs of this appeal are assessed to defendant-appellant, Steven F. Price.