Chad Michael Tremie v. Christa Gail Lejeune Tremie

• Court: Louisiana Court of Appeal
• Decided: December 17, 2014
• Docket: CA-0014-0733
• Status: Unknown

Opinion

STATE OF LOUISIANA COURT OF APPEAL, THIRD CIRCUIT

14-733 CHAD MICHAEL TREMIE

VERSUS

CHRISTA GAIL LEJEUNE TREMIE

********** APPEAL FROM THE FOURTEENTH JUDICIAL DISTRICT COURT PARISH OF CALCASIEU, DOCKET NO. 2010-4203 HONORABLE LILYNN A. CUTRER, DISTRICT JUDGE **********

SYLVIA R. COOKS JUDGE

**********

Court composed of Ulysses Gene Thibodeaux, Chief Judge, Sylvia R. Cooks, and J. David Painter, Judges.

REMANDED.

John E. Fitz-Gerald Law Offices of John E. Fitz-Gerald One Lakeshore Drive, Suite 1230 Lake Charles, LA 70629 (337) 494-1200 ATTORNEYS FOR PLAINTIFF/APPELLANT Chad Michael Tremie

Brad Guillory 940 Ryan Street Lake Charles, LA 70601 (337) 433-5297 ATTORNEY FOR DEFENDANT/APPELLEE Christa Gail Tremie COOKS, Judge.

FACTS AND PROCEDURAL HISTORY

Chad Michael Tremie (hereafter Chad) and Christa Gail Lejeune Tremie

(hereafter Christa) were married on September 11, 1999. Three children were born

of their marriage: Christopher Michael, born on January 26, 2000; Addy Mil, born

on February 18, 2002; and Elizabeth Kate, born on July 22, 2003.

Chad filed for divorce on August 16, 2010, and the parties were divorced by

judgment dated November 4, 2011. The parties filed a Joint Stipulation wherein

they agreed to share joint custody, with Christa named as domiciliary parent,

subject to specified visitation for Chad. It was also agreed that Chad would pay

Christa child support in the amount of $1,200.00 per month. The parties further

agreed that beginning in 2010, Christa would have the state and federal income tax

dependency exemption for Christopher and Chad would have the same for Addy.

They also agreed the exemptions for Elizabeth would be alternated.

On May 9, 2012, Chad filed a Rule for Contempt, Change of Custody and

Modification of Visitation. On May 23, 2012, Christa filed her own Rule for

Contempt and a Rule to Increase Child Support. Through mediation, Chad and

Christa were able to resolve all issues, except for Christa’s request for an increase

in child support.

A trial on the child support increase request was held on October 29, 2013,

after which the trial court ordered Chad to produce various items previously

requested to help determine his true income. The trial court noted Chad is self-

employed. It was acknowledged that, along with paying himself $1,000.00 per

week, Chad often would pay personal expenses out of his business account. After

trial on the merits was concluded, the trial court determined it would need certain

documents which Chad failed to produce to determine his true income and

ultimately, the appropriate award for child support. The trial court ordered these

2 documents produced and took the matter under advisement. After reviewing the

evidence and testimony adduced at trial, as well as the additional information

produced by Chad, the trial court rendered written reasons for judgment on March

28, 2014.

Christa was awarded child support in the amount of $1,619.00 per month

from May 23, 2012 until December 31, 2012, and then $1,615.00 per month

beginning January 1, 2013. The trial court also determined medical expenses of

the children not covered by insurance would be paid 69% by Chad and 31% by

Christa. The state and federal tax dependency exemptions were maintained as

previously determined. Costs of the proceedings were assessed against Chad. This

appeal followed, wherein Chad alleges the trial court’s judgment is contrary to the

law and evidence and should be reversed.

ANALYSIS

In his first assignment of error, Chad contends the trial court erred in failing

to submit the post-trial credit card statements, personal and business cancelled

checks, and 2012 tax returns into the record of these proceedings. Chad asserts

this court cannot properly conduct an appellate review of the trial court’s decision

without these documents, which were relied upon by the trial court in reaching its

judgment.

The trial court’s written reasons for judgment clearly indicate its reliance on

certain documents submitted to the trial court by Chad, following the trial on the

merits:

The trial was held on October 29, 2013, after which the Court ordered Chad to produce various items. Despite previous requests for information, Chad had continued to fail to produce the information. The Court ordered those items produced in order to accurately determine his child support obligation. After receiving the additional information submitted, the Court took the matter under advisement to review all of the evidence and now renders the following written reasons for judgment.

3 ....

The challenges with accurately computing Chad’s child support obligation up until trial were due to Chad’s failure to produce documents ordered to be produced. Chad testified that he is paid $1,000 a week from the business. In addition, he acknowledges that he pays personal expenses out of his business account. However, he did not produce the documents necessary to determine his true income until the Court ordered those items produced at the conclusion of trial. The Court ordered him to produce his American Express Statements for 2012-2013, the 2012 cancelled checks for his personal and business accounts and a copy of the documents that he gave to his CPA for his 2012 taxes (or his return if it was completed).

It is clear the trial court’s judgment increasing Chad’s child support

obligation was based, at least in part, on the post-trial submissions of the

documents listed above. However, the record submitted to this court does not

include those documents. In his assignments of error, Chad asserts the trial court

erred, not only in failing to submit these documents into the record, but also in its

use and interpretation of the documents.1

In order to determine whether a trial court’s interpretation and ultimate

conclusions regarding the evidence is correct or reasonable, the evidence must be

available to the reviewing court. Louisiana Code of Civil Procedure Article 2132

allows the correction of an appellate record which omits a material part of the trial

record; however, that article does not permit introduction of new evidence after the

transcript of the appeal is filed in the appellate court. Sutton v. Montegut, 544

So.2d 1181 (La.App. 5 Cir. 1989) (on rehearing). Further, a court of appeal has no

jurisdiction to receive new evidence. Bullock v. Commercial Union Ins. Co., 397

So.2d 13 (La.App. 3 Cir. 1981); Sutton, 544 So.2d 1181. Pursuant to La.Code

Civ.P. art. 2161, we cannot dismiss an appeal because the trial court record is

missing, incomplete, or in error, no matter who is responsible; however, we can

remand the case for retrial or for correction of the record. Bamma Leasing Co.,

1 Chad asserts the trial court erred in “incorrectly calculating [his] income” and in “failing to identify with specificity which certain expenses, either from the American Express statements or the cancelled checks submitted post-trial, which the trial court used to calculate income for years 2012 and 2013.” 4 Inc. v. State, 556 So.2d 149, 151 (La.App. 5th Cir. 1990). In this case, the record

cannot be corrected to include the missing exhibits, because neither party properly

moved the exhibits into the record before the trial court. Accordingly, this matter

will be remanded to the trial court for a retrial.

DECREE

For the foregoing reasons, this matter is remanded to the trial court for

retrial.