Bullock v. Bullock

719 So. 2d 113, 1998 WL 564594
Louisiana Court of Appeal·Decided August 19, 1998·No. 98-CA-0263·Published·Cited by 8 cases

Opinion

719 So.2d 113 (1998)

Thomas W. BULLOCK
v.
Sue Ellen BULLOCK.

No. 98-CA-0263.

Court of Appeal of Louisiana, Fourth Circuit.

August 19, 1998.

*114 Terence L. Hauver, Lowe, Stein, Hoffman, Allweiss & Hauver, New Orleans, for Plaintiff-Appellant.

R. Scott Buhrer, Flanders, Flanders & Buhrer, Metairie, for Defendant-Appellee.

Before KLEES, LOBRANO and LANDRIEU, JJ.

*115 LOBRANO, Judge.

The father appeals a trial court judgment which denied his rule to decrease child support and granted the mother's rule to increase.

Thomas Bullock and Sue Ellen Bullock entered into a consent judgment on November 3, 1994 for the support of their three children, all of whom were minors at the time. The judgment also included a provision that when the eldest child, Elizabeth, reached majority, child support would be $2,396.00 per month, plus health insurance premiums for Joseph and James who were still minors. On May 30, 1997 Mr. Bullock filed a rule to decrease and on August 26, 1997, Mrs. Bullock filed a rule to increase. Mr. Bullock asserted that circumstances changed because school tuition had decreased, while Mrs. Bullock asserted additional medical expenses and an increase in Mr. Bullock's income.

A hearing on both rules was held on December 11, 1997. The parties stipulated that there was a change of circumstances, although neither party elaborated.[1] The trial judge heard testimony and received evidence relative to both parties' income and the needs of the two children.[2] In oral reasons, the court concluded that Mr. Bullock's monthly income was approximately $22,700.00 per month "taking into account his income from Equitable, other interest that he receives and also looking at his business expenses" and that Mrs. Bullock's income was approximately $2,800.00 per month. Based on those findings, the court raised the child support award to $3,000.00 per month, and continued the maintenance of health insurance. The Court also awarded the dependency exemptions to Mr. Bullock although the written judgment, signed December 6, 1997, is silent in this regard. Mr. Bullock perfects this appeal asserting seven assignments of error which we consolidate as follows:

1) The trial court erred in concluding his monthly income was $22,700.00;
2) The trial court erred in its computation of Mrs. Bullock's monthly income;
3) The trial court failed to consider, and Mrs. Bullock failed to prove, the children's actual needs.
4) The trial court erred in not providing in the written judgment that Mr. Bullock be awarded the dependency exemptions.

DISCUSSION:

A change in circumstances from the time of the previous award is necessary to support a reduction or increase in child support. La. R.S. 9:311. Where the combined adjusted gross income of both parents is $10,000.00 per month or less, "[t]he court shall determine the basic child support obligation from the schedule in R.S. 315.14." La. R.S. 9:315.2. However, if the combined adjusted gross income exceeds $10,000.00 per month "the court shall use its discretion in setting the amount of the basic child support obligation...." La. R.S. 9:315.10. The court's discretion in that regard includes consideration of a child's standard of living, as well as the child's needs. Langley v. Langley, 96-0414 (La.App. 4 Cir. 9/18/96), 681 So.2d 25, writ denied, 96-2489 (La.12/6/96), 684 So.2d 935. "Children are entitled to the same standard of living that they would enjoy *116 if they lived with their father if their father's financial circumstances are sufficient to permit this." Hector v. Raymond, 96-972 (La.App. 3 Cir. 4/2/97), p. 5, 692 So.2d 1284, 1287, writ denied, 97-1134 (La.6/13/97), 695 So.2d 978. Deviations from the guidelines shall not be disturbed on appellate review absent manifest error. La. R.S. 9:315.12.1.

MR. BULLOCK'S INCOME

First Mr. Bullock argues that the trial court erred by concluding that he had a monthly income of approximately $22,700.00. His argument is predicated on the assertions that: (1) his detailed documentation for the first nine months of 1997 show business expenses of $4,434.64 per month; (2) that he will not receive the same bonus (termed a "Growth Payment") that was received in January, 1997; and (3) that the court should have taken into account his income tax obligations. We address each contention separately.

a) Business expenses:

The child support guidelines (hereinafter referred to simply as "the guidelines") include within its definition of "adjusted gross income" a deduction for ordinary and necessary expenses required to produce income where a party is self-employed or a sole proprietor of a business. La. R.S. 9:315(4)(c). Mr. Bullock is the agency manager of Equitable Life Insurance Society for the State of Mississippi. He receives a salary and commissions which he admits, for the nine months of 1997, totaled $199,124.28 or $22,124.92 per month. He argues, however, that he has business expenses which the trial court failed to consider, and thus there is no support in the record for the court's $22,700.00 a month finding.

Even though the monthly income of the parties exceeds the guidelines, we see no reason why the guidelines' definition of adjusted gross income should not be considered by a trial judge in determining the monthly income of a party. In oral reasons, the trial judge stated that she considered Mr. Bullock's business expenses, although there is no articulation by the court of any details. In brief, Mr. Bullock argues the particular expenses of business meals, legal fees, auto use and tax preparation. Mrs. Bullock argues that an extrapolation of Mr. Bullock's nine month salary over the entire year of 1997 would show a gross income such that deducting reasonable expenses would result in an adjusted gross income figure comparable to that found by the trial court.

Mr. Bullock's legal position that ordinary and necessary business expenses should be considered in cases such as this one is correct. However, without knowing the trial judge's thinking which led to her conclusions, our review considers the whole record. In Mr. Bullock's favor is his 1996 income tax return, in evidence, wherein Schedule C itemizes his expenses. His total income after expenses for 1996 was $244,764.00 or $20,397.00 per month, or approximately $2,000.00 per month less than the trial judge's determination. While Mr. Bullock seeks a $4,400.00 per month reduction for business expenses from his asserted gross of $22,124.92 per month, weighing against that assertion is the extrapolation of his 1997 W-2 for wages and commissions from Equitable Life for the full twelve months which results in a substantial increase ($16,000.00) from 1996.[3] In addition, Mr. Bullock did not include any interest payments in his nine months of 1997 earnings. In 1996, his return showed $5,462.00 of interest. Thus, taking all these various factors into consideration we cannot say the trial court ignored Mr. Bullock's business expenses or abused her discretion in that regard.

b) Bonus Payments:

In January of 1997, Mr. Bullock received what is termed a "Growth Payment," *117 in the amount of $35,837.44. That amount is included in the $188,000.00 for 9 months of wages and commissions from Equitable Life. Mr. Bullock argues it is a one time extraordinary item of income and should not have been included in his gross income, citing La. R.S 9:315(4)(d)(iii).

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Bullock v. Bullock, 719 So. 2d 113, 1998 WL 564594 (La. Ct. App. 1998).

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