Aydelott v. Aydelott

957 So. 2d 350, 2007 WL 1345367
CourtLouisiana Court of Appeal
DecidedMay 9, 2007
Docket42,161-CA
StatusPublished
Cited by7 cases

This text of 957 So. 2d 350 (Aydelott v. Aydelott) 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
Aydelott v. Aydelott, 957 So. 2d 350, 2007 WL 1345367 (La. Ct. App. 2007).

Opinion

957 So.2d 350 (2007)

Daniel P. AYDELOTT, Plaintiff-Appellant
v.
Lisa Burch AYDELOTT, Defendant-Appellee.

No. 42,161-CA.

Court of Appeal of Louisiana, Second Circuit.

May 9, 2007.

*351 Loomis & Dement, by Albert E. Loomis, III, Monroe, for Appellant.

Jill Binford Goudeau, Monroe, for Appellee.

Before BROWN, STEWART and PEATROSS, JJ.

STEWART, J.

At issue in this appeal by Daniel Aydelott is the trial court's judgment ordering his ex-wife, Lisa Aydelott, to pay child support in the amount of $266 per month for their three daughters. Because the trial court failed to follow the mandates of the Child Support Guidelines in setting the amount of support, we reverse the judgment and render in favor of appellant.

FACTS

Daniel and Lisa were married on October 24, 1992. Three daughters were born during the marriage. A judgment of divorce was signed on June 6, 2003. Thereafter, the parties shared equal custody of their daughters under a week-to-week arrangement. By stipulation of the parties and approval of the court, Daniel initially paid Lisa child support in the amount of $811. This amount was reduced to $736 by judgment rendered November 5, 2003.

On May 3, 2004, Daniel filed a rule for change of custody and modification of child support. He alleged that a material change in circumstances since the last judgment warranted a change in custody. He also alleged that the amount of support he was ordered to pay was not in compliance with the support guidelines.

In a written ruling and order signed on December 23, 2005, the trial court determined that the week-to-week arrangement produced "instability" in the lives of the three children. Attached to the ruling was a check sheet used by the court to weigh the factors of La. C.C. art. 134.[1] The *352 court discontinued the week-to-week arrangement, named Daniel the domiciliary parent with primary custody of the three children, granted Lisa reasonable visitation, and ordered her to pay child support in the amount of $266 per month retroactive to the date of filing. A separate judgment in accordance with the ruling was signed January 18, 2006.

Lisa requested findings of fact and reasons for the court's ruling and judgment. She also filed a motion for a new trial. In a ruling on March 27, 2006, the trial court explained its weighing of the La. C.C. art. 134 factors which led to the custody ruling. With regard to the award of child support, the court explained that it found "the amount of $266 per month to be proper. . . ." The trial court denied the motion for a new trial as it pertained to the award of custody, but granted it insofar as to issue a joint custody implementation plan. The trial court also granted a new trial to address the amount of child support owed by Lisa and the date to which the award should be retroactive. A judgment in accordance with the ruling was signed May 2, 2006.

After some additional testimony, the trial court ordered the parties to submit briefs on the support issue. Daniel complied with the order, but Lisa, who was changing counsel at the time, failed to do so. On September 15, 2006, the trial court signed a judgment that again set child support owed by Lisa at $266 per month but made it retroactive to January 1, 2006. The trial court ordered that the judgment could be "traversed" by any "new counsel" within fifteen days of the judgment.

Neither Daniel nor Lisa's new counsel filed to traverse the judgment. However, Daniel filed this appeal to assert error in the trial court's award of only $266 per month in child support. He argues that the trial court did not follow the child support guidelines and failed to give any reasons for the deviation.

DISCUSSION

Review of Trial Court's Judgment

Guidelines for the determination of child support are set forth in 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 guidelines are mandatory and provide limits and structure to the trial court's discretion in setting the amount of support. James v. James, 34,567 (La.App.2d Cir.4/6/01), 785 So.2d 193. The trial court's child support judgment will not be disturbed absent a clear abuse of discretion. Curtis v. Curtis, 34,317 (La.App.2d Cir.11/1/00), 773 So.2d 185.

There is a rebuttable presumption that the amount of child support obtained by use of the guidelines is proper and in the child's best interest. La. R.S. 9:315.1(A); Guillot v. Munn, 99-2132 (La.3/24/00), 756 So.2d 290. However, the trial court may deviate from the guidelines if it finds that application of the guidelines would not be in the child's best interest or would be inequitable to the parties. Liles v. Liles, 37,251 (La.App.2d Cir.6/25/03), 850 So.2d 879; State ex rel. Metcalf v. Samuels, 34,402 (La.App.2d Cir.2/20/00), 775 So.2d 1162. La. R.S. 9:315.1(B) mandates that the trial court give specific oral or written reasons for a deviation and include specific findings as to the amount of support that would have been required under a mechanical application of the guidelines and as to the particular facts and circumstances that warranted the deviation. Liles, supra. This information is *353 required to be made part of the record of the proceedings. La. R.S. 9:315.1(B).

Deviations from the guidelines shall not be disturbed absent a finding of manifest error. La. R.S. 9:315.17. However, the record must include oral or written reasons that support the deviation and that are based on the record. Montou v. Montou, 96-1463 (La.App. 3d Cir.4/2/97), 692 So.2d 705. If the trial court fails to follow the mandatory procedure for deviation set forth in La.R.S. 9:315.1, it is legal error and precludes review of the deviation under the manifest error standard.

Here, the trial court's judgment ordering Lisa to pay only $266 per month in child support for her three daughters is a clear deviation from the guidelines considering the parties' combined income, which will be addressed herein. In making this child support determination, the trial court explained only that it found the amount of $266 per month to be "proper." The trial court failed to follow the mandates of La. R.S. 9:315.1 in determining the amount of support. Specifically, the trial court failed to calculate the child support due under the guidelines, to give specific reasons for the deviation, and to state the particular facts and circumstances that warranted the deviation. The trial court's failure to follow the applicable law in determining child support in this matter is legal error.

Where the record contains adequate information, this court may apply the guidelines and render a child support judgment rather than remand to the trial court for further proceedings. James, supra; State v. Flintroy, 599 So.2d 331 (La. App. 2d Cir.1992). Daniel asserts that the record contains adequate information to allow us to render a judgment; Lisa asserts that the record is lacking in information, particularly as to additional income allegedly made by Daniel. We note that the issue of child support has been in litigation since Daniel filed a rule for change of custody and modification of support on May 3, 2004. Our review of the record of these proceedings convinces us that any deficiencies in the record are attributable to both parties. Although the record is not perfect, it contains enough information to allow us to render a child support judgment that fairly reflects the parties' combined income and comports with the guidelines.

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Cite This Page — Counsel Stack

Bluebook (online)
957 So. 2d 350, 2007 WL 1345367, Counsel Stack Legal Research, https://law.counselstack.com/opinion/aydelott-v-aydelott-lactapp-2007.