Anderson v. Anderson

96 So. 3d 1278, 11 La.App. 5 Cir. 864, 2012 WL 1957584, 2012 La. App. LEXIS 754
CourtLouisiana Court of Appeal
DecidedMay 31, 2012
DocketNo. 11-CA-864
StatusPublished
Cited by5 cases

This text of 96 So. 3d 1278 (Anderson v. Anderson) is published on Counsel Stack Legal Research, covering Louisiana Court of Appeal primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Anderson v. Anderson, 96 So. 3d 1278, 11 La.App. 5 Cir. 864, 2012 WL 1957584, 2012 La. App. LEXIS 754 (La. Ct. App. 2012).

Opinion

CLARENCE E. McMANUS, Judge.

| gWarren Anderson appeals the trial court’s judgment denying his request to decrease child support and granting his request to decrease interim spousal support by $674.00. For the reasons which follow, we affirm the judgment of the trial court.

[1280]*1280 STATEMENT OF THE CASE

Warren and Anne Anderson were married and had three children. Ms. Anderson filed a petition for divorce on March 30, 2009. In her petition, Ms. Anderson sought spousal support and child support. Mr. Anderson filed an answer and reconventional demand on April 21, 2009. On May 7, 2009, the parties went before a hearing officer to determine child support. The hearing officer recommended Mr. Anderson pay $2,404.00 per month in child support, health insurance for the children, uncovered medical expenses, private school tuition, registration fees and mandatory school fees. Mr. Anderson did not file an objection to this recommendation, however, Ms. Anderson did file an objection.

On May 18, 2009, the hearing officer issued additional recommendations including a recommendation that Mr. Anderson also pay for dance and music lessons for the children. The hearing officer also calculated child support based on a gross monthly income for Mr. Anderson of $12,429.00 per month and a gross |Rmonthly income of $0.00 for Ms. Anderson. At the time, Ms. Anderson was unemployed and the domiciliary parent with a child under the age of 5. Mr. Anderson was employed as a nurse anesthetist. The hearing officer recommended that Mr. Anderson pay Ms. Anderson interim spousal support of $3,025.00 per month. Mr. Anderson objected to these recommendations and argued that after he paid child support and child expenses, he had no remaining money to also pay the interim spousal support.

On September 4, 2009, Mr. Anderson filed a rule to reduce interim spousal support and child support alleging a change in his circumstances since he had lost his employment due to a relapse in drug abuse. Mr. Anderson was employed as a nurse anesthetist in Alabama and as a result of his drug use, his license was suspended.

On January 21, 2010, the hearing officer recommended a decrease in interim spousal support from $3,025.00 to the amount of the monthly mortgage on the community home. The hearing officer recommended denying the request to decrease child support because Mr. Anderson was voluntarily unemployed. On February 25, 2010, the parties executed a consent judgment, which was signed by the Court on April 19, 2010, in which Mr. Anderson agreed to pay the reduced amount of interim spousal support of $2,650.00 per month.

In April 2010, Mr. Anderson became employed as a nurse earning $24.00 per hour and the youngest child turned 5 years old. On August 12, 2010, Mr. Anderson filed a rule to reduce child support and interim spousal support based on his reduction in income and arguing that some income should be imputed to Ms. Anderson since they no longer had children under 5 years of age. These matters were heard before the hearing officer on November 12, 2010. The hearing officer recommended that the motion to terminate or reduce interim spousal support be |4 gran ted and spousal support should be reduced to $1,976.00 per month to reflect $674.00 per month Ms. Anderson was receiving in social security benefits. The hearing officer further recommended that the motion to reduce child support be denied because Mr. Anderson had failed to show a change in circumstances and the issue of his job loss due to substance abuse had been previously raised and denied. Further, the hearing officer recommended that no income be attributed to Ms. Anderson because she was disabled and her disability benefits are not income for the calculation of child support. The hearing officer also recommended that Ms. Anderson submit [1281]*1281to a vocational rehabilitation expert, that the change in terms of drug testing for Mr. Anderson be granted, and the motion to modify visitation be granted to allow supervised visitation for Mr. Anderson every other weekend.

On November 17, 2010, Mr. Anderson filed an objection to the hearing officer’s recommendations. A hearing was held before the trial court on January 6, 2011 and the trial court issued a judgment January 12, 2011. The trial court denied Mr. Anderson’s request to decrease child support. The trial court did grant his request to decrease interim spousal support and decreased the monthly amount by $674.00, which represented the amount of social security disability Ms. Anderson was receiving monthly. The trial court also denied Mr. Anderson’s request for unsupervised travel with the children and ordered that Mr. Anderson be drug tested until the drug test was resumed by the Alabama Board of Nursing.

Mr. Anderson now appeals this judgment arguing the trial court erred in denying his motion to decrease child support and by only decreasing his interim spousal support by $674.00. For the reasons which follow, we affirm the trial court’s judgment.

\ .DISCUSSION

On appeal, Mr. Anderson argues that the trial court erred in denying his motion to decrease child support and in only decreasing his interim spousal support by $674.00. He argues he is not voluntarily underemployed, therefore, the actual income he is earning as a nurse, $24.00 per hour, should have been used to determine that his monthly income is $4,160.00 per month and not $12,429.00. He also argues that the trial court should have imputed more income to Ms. Anderson because she is able to work and is voluntarily unemployed. And finally, Mr. Anderson argues on appeal that the trial court should have included all sources of income that Ms. Anderson received, even money received from her parents, in calculating her income.

In order to determine the correct amount of interim spousal support and child support, we must first determine whether or not the trial court applied the correct amount of income to both Ms. Anderson and Mr. Anderson. First, the trial court determined child support and spousal support using Mr. Anderson’s income as a nurse anesthetist of $12,429.00 per month, and not his income as a nurse of $4,160.00 per month. Thus, the court determined Mr. Anderson is voluntarily underemployed.

LSA-R.S. 9:315(C)(6)(b) provides that for child support calculations, income includes the potential income of a party that is voluntarily unemployed or underemployed. LSA-R.S. 9:315.11(A) provides that if a party is voluntarily underemployed, child support shall be calculated based on a determination of 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. Whether a party is voluntarily underemployed with respect to calculating child support is a question of good faith of the party to be cast with paying the child support obligation. |6Saacks v. Saacks, 05-365 (La.App. 5 Cir. 9/26/06), 942 So.2d 1130, Stephenson v. Stephenson, 37,323 (La.App. 2 Cir. 5/14/03), 847 So.2d 175. Voluntary underemployment is a fact-driven consideration. The trial court has wide discretion in determining the credibility of witnesses and its factual determination will not be disturbed on appeal absent a showing of manifest error. Saacks, supra, Schuler v. Schuler, 04-91 (LaApp. 5 Cir. 5/26/04), 876 So.2d 196.

[1282]*1282Mr.

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Bluebook (online)
96 So. 3d 1278, 11 La.App. 5 Cir. 864, 2012 WL 1957584, 2012 La. App. LEXIS 754, Counsel Stack Legal Research, https://law.counselstack.com/opinion/anderson-v-anderson-lactapp-2012.