Carter v. Carter

155 So. 3d 81, 2014 La. App. LEXIS 2845, 2014 WL 6677568
CourtLouisiana Court of Appeal
DecidedNovember 26, 2014
DocketNo. 49,517-CA
StatusPublished

This text of 155 So. 3d 81 (Carter v. Carter) 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
Carter v. Carter, 155 So. 3d 81, 2014 La. App. LEXIS 2845, 2014 WL 6677568 (La. Ct. App. 2014).

Opinion

DREW, J.

Lin this child support case, Matthew Wade Carter (“Carter”), pro se, appeals a judgment of the trial court modifying a child support obligation.

Finding no abuse of discretion, we affirm.

FACTS

Carter and his former spouse, Stefanie Carter Kilcullen (“Kilcullen”),. are the parents of three children.1 The parties divorced in 2000. Custody and child support have been frequently adjusted by the court. Kilcullen requested modifications of a May 1, 2012, judgment which provided:

• Kilcullen remained as domiciliary parent of the minor in Lubbock, Texas;
• Carter became domiciliary parent of Aaron in Bossier City, Louisiana;
• Each parent was allowed to claim one dependent yearly for taxes;
• Carter’s support obligation was set at $330.002 per month;
• Carter was responsible for health and dental insurance premiums for the minor children; and
• Each parent was responsible for half of any medical or dental expenses not covered by insurance.

On May 10, 2013, Kilcullen3 filed a rule to increase child support and to request other relief, alleging these material changes in circumstances:

• Shared or split custody arrangement no longer existed as Aaron had reached the age of majority, graduated [83]*83from high school, and no longer lived in his father’s residence;
• Increased expenses were necessary for the minor, now in his teens; |2and
• Carter’s income had greatly increased, due to change in employment.

After a hearing at which each party testified and introduced documentary evidence, the trial court rendered judgment in open court on February 20, 2014, and signed a judgment on March 20, 2014, which:

• Awarded Kilcullen $1,334.81 per month as child support for the minor;
• Awarded Kilcullen $7,033.67 in net ar-rearage child support;
• Reduced Carter’s support obligation for the months of June and July of each year by $444.94 per month conditioned upon the minor being in Carter’s actual physical custody during those months;
• Ordered Carter to continue to provide health and dental insurance coverage for the minor with each parent responsible for half of any health related expenses not covered by insurance; and
• Directed the parents to alternate years in claiming the federal and state income tax dependency exemption (Kilcullen allowed 2013 tax year exemption and succeeding odd numbered years; Carter allowed 2014 exemption and succeeding even numbered years).

The trial court found that a material change in circumstance had taken place since the rendition of the 2012 plan. In particular, the parties no longer shared a split custody arrangement as to Aaron, who had reached the age of majority and graduated from high school. In calculating the parties’ support obligations, the trial court found Carter’s income to be $12,522.52 per month and imputed $2,500.00 per month to Kilcullen. Carter appealed.

DISCUSSION

Standard of ReviewIChange in Circumstances

The determination or modification of child support is governed by the guidelines contained in La. R.S. 9:315 et seq. The trial court has great discretion in establishing and modifying child support awards and its | ¡Judgment will not be disturbed on appeal absent a clear abuse of discretion.4

Income Tax Dependency

Carter asserts the trial court erred in alternating annually the dependency deduction between the parties. As Kilcullen is unemployed, Carter submits that he is entitled to the deduction each year per La. R.S. 9:315.18(B)(1).5 Kilcullen responds [84]*84that $2,500.00 in monthly income was in fact imputed to her and Carter failed to introduce any evidence that the right to claim the deduction would substantially benefit him without significantly harming her as the nondomiciliary party. Additionally, the issue arose only during the trial court’s oral in-court ruling.6

Kilcullen submits that, as in Bickham v. Bickham, 46,264 (La.App.2d Cir.3/2/11), 58 So.3d 950, the trial court crafted a solution of rotating the tax credit in an attempt to be equitable to both parties where no evidence was presented on the issue of substantial benefit to the nondomiciliary party 14versus significant harm to the domiciliary party.

Both elements of La. R.S. 9:315.18(B)(1) must be satisfied in order for the nondomiciliary party to be entitled to the tax dependency deduction. Bick-ham, supra. Where there is no evidence to prove that the income tax deduction would significantly benefit the nondomicili-ary parent without significantly harming the domiciliary parent, the nondomiciliary parent has not proven entitlement. Skipper v. Skipper, 46,935 (La.App.2d Cir.2/1/12), 86 So.3d 707; Semmes v. Semmes, 45,006 (La.App.2d Cir.12/16/09), 27 So.3d 1024. Under these circumstances, with a record devoid of evidence on the issue, we find no abuse of the trial court’s discretion in allowing the parties to alternate years in which to claim the tax deduction.

VA Disability Income

Carter argues the trial court erred in its calculation of child support by imputing to him additional, nonexistent income of $622.00 in monthly VA disability payments. He contends that his income tax returns, bank statements, and VA award letter show that the sum was already included in his total military retirement income and is subject to a “tax break.” In response to questioning from the trial court, Carter testified that his total military retirement pay, which he asserted totaled approximately $3,000 a month, included the $622 “tax credit” VA award.

Kilcullen submits the trial court did not err in imputing to Carter an additional $622 in monthly income. Carter’s VA disability benefits are separate nontaxable payments not reported as taxable income on his various IRS filings. She contends that when a military retiree is entitled to a VA disability rating due to injuries sustained on active duty, a percentage of his | ¿retirement pay, corresponding to that percentage of disability, is deducted and converted to nontaxable VA disability benefits. She asserts that community property partition case law can be of assistance in understanding that VA disability pay is nontaxable.7

[85]*85In ruling, the trial court specifically referred to Carter’s VA. Service Connected compensation award letter, and states:

Mr. Carter, here’s what I do know, that you receive a payment which benefits you in some shape, form, or fashion, whether or not it’s through a tax exemption or whether or not it’s a direct payment. ... But what I do have, Mr. Carter, is a sheet that shows that that is a payment made and that it began in April — in fact, April 1, if I’m not mistaken, of 2012. So I have added that $622 in.

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155 So. 3d 81, 2014 La. App. LEXIS 2845, 2014 WL 6677568, Counsel Stack Legal Research, https://law.counselstack.com/opinion/carter-v-carter-lactapp-2014.