Burnette v. Burnette

720 So. 2d 757, 1998 WL 790692
CourtLouisiana Court of Appeal
DecidedOctober 21, 1998
Docket98-CA-0498
StatusPublished
Cited by8 cases

This text of 720 So. 2d 757 (Burnette v. Burnette) 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
Burnette v. Burnette, 720 So. 2d 757, 1998 WL 790692 (La. Ct. App. 1998).

Opinion

720 So.2d 757 (1998)

Judith Dickson BURNETTE
v.
Jacques T. BURNETTE.

No. 98-CA-0498.

Court of Appeal of Louisiana, Fourth Circuit.

October 21, 1998.

*758 Wiley J. Beevers, Ronald S. Hagan, Beevers & Hagan, L.L.P., Gretna, for defendant/appellant Jacques T. Burnette.

Jeffrey S. Winder, Metairie, for plaintiff/appellee Judith Dickson Burnette.

Before SCHOTT, C.J., and BYRNES and MURRAY, JJ.

MURRAY, Judge.

Jacques T. Burnette appeals a judgment ordering him to pay his ex-wife $38,213.21, representing child support owed through April 1997, legal interest on all arrearages, and $2,500.00 in attorney fees. We amend the judgment in part and affirm as amended for the reasons that follow.

FACTS AND PROCEEDINGS BELOW

Judith Dickson[1] and Jacques T. Burnette were divorced in January 1983. Ms. Dickson was granted custody of their two minor children, and Mr. Burnette was ordered to pay $430.00 per month in child support. Subsequent proceedings resulted in a June 20, 1990 consent judgment that reduced Mr. Burnette's monthly support obligation to $300.00, but made executory $7,310.00 in past-due payments, with legal interest until paid. It was further specified that Mr. Burnette was to pay an additional $150.00 per month until the arrearages were paid in full.[2]

*759 On March 17, 1997, Ms. Dickson moved to hold Mr. Burnette in contempt, alleging that he had paid only $1,300.00 in child support since June 1990. After obtaining service on Mr. Burnette's counsel of record in the 1990 proceedings, a default judgment was entered on April 16, 1997. This judgment specified that Mr. Burnette was found in contempt for his failure to pay $42,205.19 in past-due support, and ordered him to be incarcerated in Orleans Parish Prison. Two attachments were subsequently issued for Jefferson and St. John Parishes.

On May 5,1997, Mr. Burnette moved for a new trial and for rescission of the attachments, contending that service of the rule on his former counsel was improper and invalid. He additionally claimed that the amount of past-due support was inaccurate, both because of errors in calculation and because "the minor child [sic] resided with defendant for extended periods of time since September 1994." The court granted his motion for rescission and recalled the attachments, and a contradictory hearing was set on his motion for new trial.

Mr. Burnette's motion for new trial was granted without opposition on May 28, 1997, and the court heard testimony from Judith Dickson, Jacques Burnette, and Sheila Burnette, the defendant's wife since 1984. This testimony established that the couple's daughter, Jamie, had always lived with her mother. Jamie entered her senior year in high school in Fall 1993, and attained majority in August 1995. Jacques, Jr., who would not be eighteen until July 1997, had lived with his father from September 1992 to February 1993 and from September 1993 to April 1996. In addition, Mr. Burnette paid for their son to attend private school during this period.

Mr. Burnette claimed that a written agreement confected in 1986, when his ex-wife had to be hospitalized, allowed him to reduce his payments because the letter included the statement that "Child support payments will be suspended during the time that [the children] are in my physical control." Both he and his second wife also testified that when Jacques, Jr. first moved, Ms. Dickson had agreed during a phone conversation that the support payments would be reduced to $150 per month. They stated that in September 1993, when Jacques, Jr. again joined their household, it was agreed that since each parent had one child with them, no support would be due. According to Mr. and Mrs. Burnette, the boy's grades "went from straight F's to straight A's" because of the change in custody.

During the trial, Mr. Burnette gave his exwife a check for $6,000.00, and presented evidence of the following payments since June 1990:

June 1,1992        $260.00
June 15,1992       $250.00
July 1,1992         250.00
Sept. 5,1992        250.00
Sept. 23, 1992      150.00
Oct. 18, 1992       150.00
Oct. 31,1992        150.00
Nov. 18,1992        200.00
Dec. 12,1992        150.00
Jan. 18,1993        100.00
Oct. 1,1993          75.00
Apr. 27, 1994        20.00
June 1, 1994        200.00

According to Mr. Burnette, the later payments were made solely because he had agreed in early 1994 to pay off $20,000.00 in arrearages at $200.00 per month.

Ms. Dickson testified that she "sent [Jacques, Jr.] to his dad's because I was concerned that he was getting involved with a bad group of kids." While she said that her son "went back and forth" between her home and his father's, she agreed that Mr. Burnette was probably correct as to the dates Jacques, Jr. had lived with him. She admitted that a reduction in support had been discussed, "but he was not in agreement *760 with the terms that I was willing to work with," so she had rejected his proposal. Ms. Dickson denied that there was any discussion of Mr. Burnette paying tuition in lieu of support, indicating that she had not been consulted about what school Jacques, Jr. would attend while residing with his father.

At the close of the hearing, the trial court ruled that because there had been an intervening child support judgment, the 1986 agreement could have no bearing on Ms. Dickson's present claim for arrearages. The court then pronounced Mr. Burnette to be in contempt of court for his failure to pay the 1990 judgment, and further stated:

In addition to that, I find as a result of the 1990 judgment, he was cast in judgment for the amount of $300.00 a month which accumulates to some $24,000.00. He is in arrears approximately $31,310.00.... [After credit for payments since 1990,] he's in arrears $29,110.00 plus judicial interest from the date of judicial demand.
....
Mr. Burnette, I'm not going to send you back to jail today. I've got to tell you that you have a pattern of not paying your obligations for your children.... [S]ince 1989 you have consistently fallen behind in your child support obligations which causes me to question whether there was ever any follow-up oral agreement with your ex-wife to reduce your child support obligation.

The court thus decreed that the defendant was liable for $300.00 per month for the entire period since June 1990, with credit only for amounts actually paid.

The written judgment at issue was signed June 11, 1997, casting Mr. Burnette to pay his ex-wife the following amounts:

$22,490.00 representing $300.00/month child support from June 1990 through April 1997, less payments totalling $2,210.00;
$ 7,499.80 representing judicial interest on the above past-due amounts;
$ 7,310.00 representing the unpaid balance on the 1990 judgment;
$ 4,313.41 representing legal interest since June 1990 on the unpaid judgment;
$ 2,500.00 in attorney fees;
LESS the $6,000.00 delivered to Ms. Dickson at trial.

The judgment was made executory, and Mr. Burnette was ordered to pay $38,213.21[3] within 120 days.

DISCUSSION

Mr. Burnette first contends that the trial court clearly erred in rejecting the "uncontroverted evidence" of a mutual agreement to reduce, then suspend entirely, his monthly support obligation while his son lived with him. He argues that, as in Roberts v. Roberts, 474 So.2d 471 (La.App. 4th Cir.), writ denied,

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Bluebook (online)
720 So. 2d 757, 1998 WL 790692, Counsel Stack Legal Research, https://law.counselstack.com/opinion/burnette-v-burnette-lactapp-1998.