NOT DESIGNATED FOR PUBLICATION
STATE OF LOUISIANA COURT OF APPEAL, THIRD CIRCUIT
CA 19-917
CAMILLE WILSON CHARRIER
VERSUS
JOHN MICHAEL CHARRIER
**********
APPEAL FROM THE SEVENTH JUDICIAL DISTRICT COURT PARISH OF CATAHOULA, NO. 29,151 HONORABLE JOHN C. REEVES, DISTRICT JUDGE
ELIZABETH A. PICKETT JUDGE
Court composed of John D. Saunders, Elizabeth A. Pickett, and Billy H. Ezell, Judges.
AMENDED AND AFFIRMED AS AMENDED.
Wilson & Wilson Donald R. Wilson Christie C. Wood Post Office Box 1346 Jena, LA 71342 (318) 992-2104 COUNSEL FOR PLAINTIFF/APPELLANT: Camille Wilson Charrier E. Grey Burnes Talley 711 Washington Street Alexandria, LA 71301 (318) 442-5231 COUNSEL FOR DEFENDANT/APPELLEE: John Michael Charrier Pickett, Judge.
Husband appeals the trial court’s judgment ordering him to pay $2,000 per
month in child support and $12,500 per month in interim spousal support. For the
following reasons, we amend both awards and the retroactivity of the awards and
affirm the awards as amended.
FACTS
Camille and John Michael Charrier were married in January 2004. In March
2005, Eli, their only child, was born. Camille filed a petition for divorce on March
18, 2018, in which she requested awards for child support and interim spousal
support. She alleged that John Michael moved out of the family home in early
March 2018. Camille, Eli, and Camille’s daughter continued living in the family
home. John Michael began living with a girlfriend and contributed to the payment
of her expenses in exchange for not paying rent.
In January 2019, John Michael closed the community bank account that he
and Camille had continued to use after she filed her petition for divorce. He closed
the account without notifying Camille which led to insufficient funds being
available for Camille to pay their recurring community expenses, and she had to
borrow money to pay community and personal expenses. John Michael began
providing money to Camille for some of the expenses and also began paying some
of the expenses himself. He also made purchases of a new truck, a new boat, and a
new car.
On June 18 and 20, 2019, the trial court conducted a hearing on Camille’s
claims. The trial court allowed the parties time to file post-trial briefs and left the
record open for additional evidence to be filed into the record. However, no post-
trial briefs or additional evidence was filed in the record. After receiving the parties’ post-trial briefs, the trial court issued a judgment awarding Camille $2,000
in child support and $12,500 in interim spousal support. The trial court ordered
that the awards were retroactive to the date of judicial demand and that the parties
were to conduct an accounting between themselves to “account for any amounts
made and/or received during the pendency of this rule[.]” John Michael appealed.
ASSIGNMENTS OF ERRORS
John Michael assigns the following errors with the trial court’s awards:
1. It was error for the Trial Court to award child support in the amount of $2,000.00 per month and to not order Camille to maintain the current policy of healthcare insurance covering Eli (through her employment, if available).
2. It was error for the Trial Court to deviate from the child support guidelines without giving “specific oral or written reasons for the deviation, including a finding as to the amount of support that would have been required under a mechanical application of the guidelines and the particular facts and circumstances that warranted a deviation from the guidelines” and “ma[king] the reasons a part of the [r]ecord.” R.S. 9:315.1 B(1).
3. It was error for the Trial Court to make its award of child support retroactive to the date of judicial demand.
4. It was error for the Trial Court to not grant John the right to claim the federal and state income tax dependency deduction on Eli in all years and to not require Camille to timely execute all forms required by the IRS authorizing John to claim such deductions.
5. It was error for the Trial Court to award interim spousal support in the amount of $12,500.00 per month.
6. It was error for the Trial Court to make its award of interim spousal retroactive to the date of judicial demand.
DISCUSSION
Support Awards
The trial court signed a judgment awarding child support and alimony to
Camille without stating reasons or making any findings of fact. Camille contends
2 that without findings of fact, this court cannot find that the trial court abused its
great discretion in making its awards. She argues that because the parties’ child
support worksheets1 submitted to the trial court are not in the record, we cannot
find error with the trial court’s child support award. John Michael urges that we
remand the matter to allow for additional testimony and fairer awards.
Trial courts have great discretion in decisions concerning child support
awards. Gary v. LeBlanc, 16-1054 (La.App. 3 Cir. 6/7/17), 222 So.3d 784.
Appellate courts “review child support determinations using the manifest error
standard of review, and we will not disturb the trial court’s support order unless it
committed manifest error or an abuse of discretion in its determination.” Bergeron
v. Bergeron, 11-130, p. 4 (La.App. 3 Cir. 10/5/11), 75 So.3d 537, 540, writ denied,
11-2466 (La. 1/20/12), 78 So.3d 144. The same is true of interim spousal support
awards. Molony v. Harris, 09-1529 (La.App. 4 Cir. 10/14/10), 51 So.3d 752.
Financial documentation is necessary to determine child support obligations.
La.R.S. 9:315; Collins v. Collins, 12-726 (La.App. 3 Cir. 12/5/12), 104 So.3d 771.
Here, although the parties’ worksheets are not in the record, “there is sufficient
other evidence in the record for the trial court to have determined the parties’ gross
monthly earnings and to render a child support award in accordance with the
guidelines.” Id. at 774. Financial information is also necessary to determine
awards for interim spousal support. La.R.S. 9:326. The parties introduced
financial records and testified regarding their finances to support their claims at
trial. Accordingly, remand is not necessary.
1 Louisiana Revised Statutes 9:315.2(A) provides, in pertinent part: “Each party shall provide to the court a verified income statement showing gross income and adjusted gross income, together with documentation of current and past earnings.”
3 Child Support
We begin with John Michael’s complaint that the trial court erred in
awarding Camille $2,000 per month in child support. John Michael’s stipulated
monthly gross income is $18,776. He pays child support in the amount of $4932
per month for his daughter which must be deducted from his gross income.
La.R.S. 9:315(C)(1)(a). John Michael argues the trial court erred in failing to
reduce his gross income by the reasonable and ordinary expenses associated with
his self employment, such as his truck note and other work-related expenses as
provided by La.R.S. 9:315(C)(3)(c).
In March 2018, John Michael owned a Dodge truck that he used to travel to
and from work sites. His truck note was $815. In April, John Michael bought a
used Ford F250 to replace the older truck He testified that his new truck note is
$800 to 1,000 per month but did not establish the amount of the note. He now
asserts that he pays a $1,000 monthly note. His bank records show a payment on
May 7, 2019, in the amount of $899 to Bank of the West, which may be his truck
note. Due to the timing of the new purchase as compared to the time Camille’s
request for support was pending, we find it would be reasonable for the trial court
to conclude that it was most equitable to allow John Michael a reduction of $815
for his truck note, rather than $899.
The parties paid insurance in the amount of $1,008 per month for three
vehicles, Camille’s, John Michael’s, and Camille’s daughter’s. There is no
evidence regarding the premium paid for each of the three vehicles insured under
2 For ease of reading and calculations, amounts with cents are rounded up or down to the nearest dollar.
4 the policy. Accordingly, we compute $336 as John Michael’s pro-rata share for his
vehicle.
John Michael did not present evidence of other vehicle expenses at trial, but
now seeks to extrapolate Camille’s testimony regarding her gas usage and claimed
gas expense to calculate his fuel expenses for work. This argument lacks merit for
two reasons: (1) it was not made to the trial court and (2) it is not supported by the
record. Based on this evidence, the trial court could have determined that John
Michael failed to satisfactorily prove the amount of monthly fuel expenditures.
Hensgens v. Hensgens, 19-485 (La.App. 3 Cir. 12/18/19), 287 So.3d 795.
Therefore, we reduce John Michael’s monthly gross income by $493, $815, and
$336 per month for an adjusted gross income of $17,132.
Camille’s year-to-date statement of earnings ending June 1, 2019, shows her
average gross monthly income for January through May 2019 was $5,783.
Camille includes $250 as “other gross monthly income” on her income and
expense sheet, which she testified was child support for her daughter. It is not
included in her gross monthly income for purposes of child support. La.R.S.
9:315(C)(1)(d)(i).
Camille testified that in 2019, she began working more than she had
previously after John Michael closed their checking account and she no longer had
adequate funds to pay community expenses and support herself and Eli. She
explained that she also utilized paid time off that she had accrued to obtain
additional funds. Additionally, she testified that various adjustments were made to
her base pay according to what shifts she worked and if she worked weekends;
however, she did not show that these pay adjustments were due solely to her
additional shifts. Based on this evidence, we find the trial court reasonably could
5 have subtracted $185 per month for Camille’s overtime pay when calculating her
monthly gross income. See La.R.S. 9:315(C)(3)(d)(iii), which provides that gross
income does not include “[e]xtraordinary overtime . . . when, in the court’s
discretion, the inclusion thereof would be inequitable to a party.” After subtracting
overtime, we calculate Camille’s adjusted gross monthly income to be $5,598.
Camille testified that she, Eli, John Michael, and his daughter are provided
health and dental insurance through her employer at a total cost of $561 per
month.3 She did not show there is a difference in the cost of the insurance with
regard to the principal insured and dependents. Accordingly, we calculate Eli’s
health insurance cost as $140.
John Michael and Camille’s monthly income total $22,730. Based on the
child support schedule, the basic child support award is $1,968. La.R.S. 9:315.19.
The monthly cost of Eli’s health insurance and his private school tuition, $262,
must be added to this amount, resulting in a total child support obligation of
$2,370. John Michael’s monthly gross income represents 75% of his and Camille’s
combined monthly gross income. Accordingly, his monthly child support
obligation is $1,778.
The trial court’s $2,000 award exceeds this amount. Courts are allowed to
deviate from the child support guidelines but must specify in writing or orally why
the deviation is warranted. La.R.S. 9:315.1(B)(1). Moreover, the party seeking the
deviation must prove the need for a deviation. Carter v. Carter, 49,517 (La.App. 2
Cir. 11/26/14), 155 So.3d 81. With no reasons given by the trial court for 3 John Michael contends Camille testified that five people were insured under this insurance. Camille testified that the insurance “covers myself, Eli, John Michael, his daughter Alexis, and him.” In our view, this testimony indicates she meant to say “John Michael’s daughter” or “his daughter.” Therefore, “and him” refers to John Michael, not another insured. As a result, Camille’s insurance provides coverage for four people, not five.
6 deviating from the child support or proof of the need for such deviation, we find
the $2,000 award for child support constitutes an abuse of the trial court’s
discretion and reduce it to $1,778.
John Michael next argues the trial court erred in not ordering that he has the
right to claim Eli as tax deduction. Louisiana Revised Statutes 9:315.18(A)
provides a presumption that the domiciliary party has the right to claim the federal
and state tax dependency deductions and any earned income credit. However,
La.R.S. 9:315.18(B)(1) provides:
The non-domiciliary party whose child support obligation equals or exceeds fifty percent of the total child support obligation shall be entitled to claim the federal and state tax dependency deductions if, after a contradictory motion, the judge finds both of the following:
(a) No arrearages are owed by the obligor.
(b) The right to claim the dependency deductions or, in the case of multiple children, a part thereof, would substantially benefit the non-domiciliary party without significantly harming the domiciliary party.
The record does not reflect that this issue was addressed to the trial court.
Under Rule 1–3 of the Uniform Rules, Courts of Appeal, we “review only issues
which were submitted to the trial court and which are contained in specifications or
assignments of error, unless the interest of justice clearly requires otherwise.” We
find the issue is not properly before this court and the interests of justice would not
be served by our consideration of this argument for the first time on appeal;
therefore, we do not consider it.
John Michael next argues the trial court erred in ordering him to pay child
support retroactive to the date Camille filed her petition. Camille counters again
that this issue is not properly before this court. Pointing to La.R.S. 9:321(A) which
7 provides, “Except for good cause shown, a judgment awarding . . . interim child
support allowance shall be retroactive to the date of judicial demand,” she also
argues that the trial court did not err in making its award retroactive.
Camille testified that she had full access to her and John Michael’s
combined monthly incomes until December 31, 2018, and that she maintained her
own account where she deposited her income. Based on this evidence and in the
interest of justice, we will consider John Michael’s request that his child support
award not be retroactive.
When the court finds good cause for not making the award retroactive to the date of judicial demand, the court may fix the date on which the award shall commence. La.R.S. 9:315.21(E). The burden is on the obligor parent to show good cause for not making the award retroactive to the date of judicial demand. The trial court is vested with much discretion in fixing awards of child support. The court’s reasonable determinations shall not be disturbed unless there is a clear abuse of discretion.
Harrington v. Harrington, 43,373, pp. 10-11 (La.App. 2 Cir. 8/13/08), 989 So.2d 838, 844. . . .
In Welborne [v. Welborne, 29,479 (La.App. 2 Cir. 5/7/97), 694 So.2d 578, writs denied, 97-1800 (La.10/13/97), 703 So.2d 621, 97- 1850 (La.10/13/97 ), 703 So.2d 623], the court refused to find good cause when the trial was suspended for over a year due to procedural delays and joint continuances. The court stated that to “demonstrate ‘good cause’ for not making a child support award retroactive, [the obligor] is required to show that [the child] was not in need of the increased support or that he was unable to pay the increased amount from the date of demand.” Id. at 584.
Ricardi v. Moreau, 13-515, p. 1 (La.App. 3 Cir. 11/6/13) (unpublished opinion)
(emphasis added) (case citations omitted).
There is no evidence on this issue in the record. Finding Camille’s
continued, uninterrupted use of community funds to be good cause for John
Michael’s child support obligation to not be retroactive to March 20, 2018, we
8 amend the trial court’s order to provide that the award of child support is
retroactive to January 1, 2019.
John Michael next argues his child support obligation should be recalculated
to take into account that Eli no longer attends private school. Camille testified that
Eli would no longer attend private school after May 2019 because the private
school he attended went only to the eighth grade and that he would attend public
high school in September 2019. We agree with John Michael that his child support
obligation should be recalculated for the period beginning June 2019. Taking into
account the $262 private school tuition reduction, John Michael’s child support
obligation is reduced to $1,581 per month effective June 1, 2019.
Interim Spousal Support
John Michael next assigns error with the trial court’s award of $12,500 in
monthly interim spousal support and ordering the award retroactive to March 20,
2018. Louisiana Civil Code Article 113 provides for an award of interim spousal
support. An award of interim spousal support is based on the needs of the spouse,
the ability of the other spouse to pay, and the standard of living the couple enjoyed
during their marriage. Id. The intent of interim spousal support is to allow the
spouse seeking assistance to maintain a standard of living pending the outcome of
the divorce equal to that maintained during the marriage. Smoloski v. Smoloski,
01-485 (La.App. 3 Cir. 10/3/01), 799 So.2d 599.
“[I]nterim spousal support is grounded in the statutorily imposed duty on
spouses to support each other during marriage, and thus, provides for the spouse
who does not have sufficient income for his or her maintenance during the period
of separation” prior to divorce. Brar v. Brar, 01-370, p. 5 (La.App. 3 Cir.
10/3/01), 796 So.2d 810, 813. It also serves to maintain the equality of the
9 spouse’s maintenance and support and to avoid “unnecessary financial dislocation
until a final determination of support can be made.” Jones v. Jones, 38,790, p. 15
(La.App. 2 Cir. 6/25/04), 877 So.2d 1061, 1072.
To prove a claim for interim spousal support, a wife must show that she
lacks sufficient income or the ability to earn such income “to sustain the style or
standard of living that [s]he enjoyed” while residing with her husband. January v.
January, 94-882, 94-883, p. 3 (La.App. 3 Cir. 2/1/95), 649 So.2d 1133, 1136. She
must also show her need for such support, which has been held to be “the total
amount sufficient to maintain her in a standard of living comparable to that
enjoyed by her prior to the separation, limited only by the husband’s ability to
pay.” Hitchens v. Hitchens, 38,339, p. 2 (La.App. 2 Cir. 5/12/04), 873 So.2d 882,
884. The party must further show that her expenses are reasonable. Derouen v.
Derouen, 04-1137 (La.App. 3 Cir. 2/2/05), 893 So.2d 981.
Upon close review of the parties’ testimony and the documentary evidence,
we find some of Camille’s claimed monthly expenses are overstated in some
instances, some expense amounts are reported differently in different places, and
Camille was unsure as to what some reported expenses represented. For example,
a review of itemized expenditures Camille documented for the period December
2017 through May 2019 shows the amounts paid for utilities, which include
electricity, water, and propane, were much less than the $910 per month she
claims. She explained that her reported amounts were based on three years of past
records that she had maintained.
Finding the documented expenses appropriate for determining utility
expenses, we observe that the highest monthly total for electricity, water, and
propane for the period December 2017 through May 2019 was $889. During that
10 time period, the utilities averaged $119 per month for water, $247 per month for
electricity, and $36 per month for propane gas. John Michael suggests that a
reasonable amount for utilities is $567. We agree.
We have eliminated Camille’s monthly expenses in the amount of $1,945
listed as “Credit Cards (10% of balance).” On cross-examination, Camille
admitted that she did not know what the amount represented. Finding this claimed
expense unsupported by the evidence, we deleted it.
At the time of the trial, Camille proved the following expenses:
House note $1,545 Utilities, water, electricity, and propane 567 Cable/Satellite 130 AT&T 540 Vehicle, maintenance, oil, and gas 1,900 Daughter’s car 570 Out-of-pocket medical expenses 290 Health insurance (excludes Eli’s portion) 321 Student loan incurred during marriage 559 Student loans incurred before marriage (2) 241 Sam’s Club 300 Capital One 100 Sears 86 Home maintenance 300 Food and household supplies 400 Laundry and cleaning 100 Entertainment 400 Vacations 300 Personal and grooming 150 $8,799
We have not included any amount for vehicle insurance because Camille
testified John Michael is paying that expense. Camille’s net income is $4,835, her
average gross monthly income of $5,783, plus $250 child support for her daughter,
less itemized deductions totaling $1,198. We do not include the deduction for
medical insurance because it is included as an expense herein. After deducting
Camille’s average net monthly income of $4,835, Camille has $3,964 in expenses.
11 John Michael argues that expenses Camille paid on behalf of her mother and
her daughter are not her “needs” and should not be included in this calculation.
Generally, such expenses are not included in the calculation of interim spousal
support because the payor spouse is not responsible for them. In this case,
however, John Michael consented to purchasing a car for Camille’s daughter and
to providing her mother a phone and paid those expenses before Camille filed for
divorce. Additionally, he did not prove what portion of the phone expense is
attributable to her mother’s phone. As a result, there is no basis for such reduction
of that expense. Under these circumstances, we find these expenses represent the
lifestyle Camille enjoyed during the marriage and are properly considered in
determining interim spousal support. We also consider Camille’s expenses for
entertainment totaling $400, vacations in the amount of $300, and student loans
incurred before the marriage properly considered as lifestyle factors for
consideration when calculating interim spousal support. Short v. Short, 11-1084
(La.App. 5 Cir. 5/22/12), 96 So.3d 552.
With regard to his expenses, John Michael testified, and Camille agreed, that
in 2019, he began paying the vehicle insurance $1,008, camper trailer note $365,
state and federal taxes, and child support for his daughter. John Michael also
contends he is entitled to reduce his gross monthly income by the amount of
$3,098, which represents current tax deposits and payment toward past due taxes.
His 2019 bank records show he made payments to the IRS in March, April, and
May in the amount of $1,615 each, one payment to the Louisiana Department of
Revenue in the amount of $157, and three payments to the Louisiana Department
12 of Justice in the amount of $342 each.4 He testified the $1,615 and $342 payments
are monthly payments for taxes but did not explain the one-time payment. With no
evidence that the $157 payment will be a recurring payment, we do not consider it
as a recurring expense. Accordingly, we find that John Michael is entitled to
reduce his income by $1,615 per month for federal taxes and $342 per month for
state taxes.
In 2019, John Michael began paying other community debts, such as, Best
Buy, Credit Care, and two bank loans and paid those debts in full. Before trial, he
also began paying Camille child support and additional sums for community
expenses. He incurred additional debts as well: he purchased a newer model
$65,000 truck for work, a new $60,000 boat, and a car. He made improvements on
his girlfriend’s home where he was living and paid for social outings with his
girlfriend and her children.
We have reviewed John Michael’s claimed expenses and find he proved the
following monthly business and personal expenses for purposes of interim spousal
support:
Truck note $ 815 ATV insurance 21 Camping trailer 365 Vehicle insurance 1,008 Child support for his daughter 493 Federal taxes 1,615 State taxes 342 Food and home expenses 300 Car note 833 $5,792
John Michael includes food and home expenses in the amount of $300 and
vehicle maintenance and gas expenses in the amount of $1,000. He did not testify
4 These are the only bank records in the record for John Michael’s account.
13 about these expenses or identify payments for these items in his bank records. He
did, however, testify that he bought a car, and his bank records show that he pays
$833 per month to Wells Fargo Auto. John Michael explained that in exchange for
not paying rent or utilities to live with his girlfriend, he allows her to drive his car.
We find it reasonable for John Michael to include this expense in these amounts
because he has no other living expenses. We further note that although John
Michael argued the amounts Camille assigns for some of her expenses are
unreasonably high, we did not reduce those amounts finding them reasonable and
in line with the monthly expenditures and lifestyle maintained by the parties during
the marriage.
The child support award, as amended by this court, has the effect of
providing Camille with $6,613 per month ($4,835 + 1,778) until May 31, 2019,
then $6,416 ($4,835 + 1,581) to cover her and Eli’s expenses and has the effect of
providing John Michael with living expenses of $11,206 per month ($18,776 -
5,792 - 1,778) until May 31, 2019, then $11,403 ($18,776 - 5,792 - 1,581)
thereafter. Based on these calculations, we find the trial court’s award of interim
spousal support excessive and reduce it to $2,250 for the period January 1 through
May 29, 2019, and increase it to $2,500 thereafter.
As with his child support obligation, John Michael urges that the trial court
erred in ordering its award of interim spousal support be retroactive to March 20,
2018. For the reasons discussed previously, good cause exists for not making the
award for interim spousal support retroactive to March 20, 2018, but to January 1,
2019.
14 DISPOSITION
The trial court’s judgment is amended to reduce Camille Charrier’s award
for child support to $1,778 beginning January 1, 2019, which amount is reduced to
$1,581 beginning June 1, 2019, and to reduce Camille’s Charrier’s award for
interim spousal support to $2,250 beginning January 1, 2019, then increased to
$2,500 as of June 1, 2019. The parties are to account to each other for any
amounts made and/or received beginning January 1, 2019. Costs are divided
equally between the parties.
This opinion is NOT DESIGNATED FOR PUBLICATION. Uniform Rules—Courts of Appeal, Rule 2–16.3.