STATE OF LOUISIANA COURT OF APPEAL, THIRD CIRCUIT
15-297
CHRISTOPHER CLOUD
VERSUS
EMILY DEAN
**********
APPEAL FROM THE NINTH JUDICIAL DISTRICT COURT PARISH OF RAPIDES, NO. 249,752 HONORABLE THOMAS M. YEAGER, DISTRICT JUDGE
PHYLLIS M. KEATY JUDGE
Court composed of Elizabeth A. Pickett, Phyllis M. Keaty, and David Kent Savoie, Judges.
AFFIRMED IN PART, REVERSED IN PART, AND REMANDED WITH INSTRUCTIONS. Susan Ford Fiser Attorney at Law Post Office Box 12424 Alexandria, Louisiana 71315-2424 (318) 442-8899 Counsel for Plaintiff/Appellee: Christopher Cloud
Eugene P. Cicardo, Jr. Joseph M. Reynolds Law Office of Eugene P. Cicardo, Jr. Post Office Box 1128 Alexandria, Louisiana 71309-1128 (318) 445-2097 Counsel for Defendant/Appellant: Emily Dean KEATY, Judge.
Defendant, Emily Dean, appeals the trial court’s two judgments denying her
Exceptions of No Cause of Action, Prescription, and Res Judicata, vacating her
pauper status, and dismissing her Motion for Contempt as well as the trial court’s
ruling in favor of Plaintiff, Christopher Cloud, with respect to his Rule for
Decrease in Child Support. For the following reasons, the trial court’s judgments
are affirmed in part, reversed in part, and remanded with instructions.
FACTS AND PROCEDURAL BACKGROUND
This appeal arises from a child custody dispute concerning Dean and
Cloud’s young child, Jonathon. Cloud, who was never married to Dean, filed a
Petition to Establish Custody on March 27, 2014. Dean filed an Answer to Petition
and Reconventional Demand, alleging that Cloud physically abused her and asking
for sole custody and child support. In connection therewith, Dean filed an In
Forma Pauperis Affidavit. After a hearing on May 5, 2014, the trial court orally
ruled in favor of Dean, later reducing that ruling to a written Judgment Considered
Decree on May 20, 2014. In its written judgment, the trial court found that the
Post-Separation Family Violence Relief Act, La.R.S. 9:361-369, was applicable
given Cloud’s history of physical abuse and that Dean was an abused parent as
defined therein. The trial court also granted Dean sole custody and ordered Cloud
to pay $777.00 per month in child support.
On July 22, 2014, Cloud filed a Rule for Decrease in Child Support and for
Other Relief,1 alleging that the attorney who represented him during the May 5,
1 This “Other Relief” refers to Cloud’s request that the trial court issue a subpoena duces tecum commanding Dean to produce the following at the hearing on his Rule for Decrease in Child Support: a copy of her filed and/or unfiled 2012 and 2013 state and federal income tax returns; her income records from January 1, 2014 through the date of the hearing; and all 2014 hearing 2 failed to advise the trial court that he no longer received the
$1,300.00 monthly annuity payments arising from his previous traumatic brain
injury, and that amount was used to establish the child support amount. In his
pleading, Cloud alleged that he sold his annuity for $130,600.00 in order to
purchase a home for $100,000.00. He claims, therefore, that since he was no
longer receiving monthly annuity payments and also considering that Jonathon was
receiving Cloud’s monthly Social Security benefits in the amount of $345.00, he
should not have to pay $777.00 per month because the original child support award
was based upon erroneous information.
Dean responded on August 14, 2014, by filing an Opposition to Motion for
New Trial, Exception of No Cause of Action, Exception of Res Judicata, Exception
of Unauthorized Use of Summary Proceeding, and Prescription with Incorporated
Memorandum. Attached to it was another In Forma Pauperis Affidavit executed
by her on August 13, 2014. The trial court allowed Dean to proceed without
paying costs in advance or as they accrue by an Order filed on August 18, 2014.
One day later on August 19, 2014, Cloud filed a Rule to Traverse Pauper Status
Pursuant to La.Code Civ.P. art. 5184, alleging that Dean was untruthful and
incomplete when filling out her In Forma Pauperis Affidavit.
A hearing took place on September 8, 2014, wherein the trial court orally
denied all of Dean’s exceptions. The trial court set the hearing on Cloud’s Rule for
Decrease in Child Support and his Rule to Traverse Pauper Status for October 6,
2014. The trial court signed a judgment reflecting same on September 18, 2014.
documentation showing that she receives $345.00 per month in Social Security benefits for Jonathon. 2 The attorney representing Cloud during the May 5, 2014 hearing is not the same attorney representing him in this instant appeal.
2 Dean subsequently filed a Motion for Contempt on September 29, 2014, alleging
that Cloud failed to make child support payments in accordance with the trial
court’s May 20, 2014 judgment.
Following the October 6, 2014 hearing on Cloud’s Rule for Decrease in
Child Support and his Rule to Traverse Pauper Status, the trial court set aside the
original child support award as provided in its May 20, 2014 judgment and ordered
that Dean was not owed child support. The trial court also vacated and set aside
Dean’s second In Forma Pauperis Order. Additionally, the trial court dismissed
Dean’s Motion for Contempt, indicating in its Order that it was “DENIED for oral
reasons stated on October 6, 2014.” The foregoing was memorialized in the trial
court’s written judgment dated October 21, 2014.
Dean subsequently appealed both the September 18, 2014 and the
October 21, 2014 judgments. On appeal, Dean asserts seven assignments of error
and one alternative assignment of error which we have summarized as follows:
(1) The trial court legally erred when it denied Dean’s Exception of No Cause of Action;
(2) The trial court legally erred when it denied Dean’s Exception of Prescription;
(3) The trial court legally erred when it denied Dean’s Exception of Res Judicata;
(4) The trial court legally erred when it removed Dean’s pauper status since she was not served with Cloud’s Rule to Traverse Pauper Status;
(5) The trial court legally erred when it granted Cloud’s Motion for a New Trial without a contradictory hearing and without a ruling allowing the new trial to take place;
(6) The trial court legally erred when it denied Dean’s Motion for Contempt regarding the May 20, 2014 judgment without a hearing;
3 (7) Alternatively, if this Court finds that the October 6, 2014 hearing was proper, the trial court legally erred in ruling that Cloud, a non-custodial parent, owes less support than required by Louisiana’s uniform child support guidelines, La.R.S. 9:315- 315.20; and
(8) The trial court erred in annulling the May 20, 2014 judgment since there was no pending nullity action. If there was, however, the Exception of Improper Use of Summary Proceedings should have been granted.
Dean asks this court to reverse the trial court’s judgments signed on
September 18, 2014 and October 21, 2014; sustain her exceptions of No Cause of
Action, Res Judicata, and Prescription; reinstate the May 20, 2014 judgment; order
the trial court to set her September 29, 2014 Motion for Contempt for an
evidentiary hearing; and assess Cloud with all costs of these proceedings.
Cloud has not filed an answer or appellate brief in connection with this
appeal.
DISCUSSION
I. First and Fifth Assignments of Error
In her first assignment of error, Dean contends that the trial court legally
erred when it denied her Exception of No Cause of Action. The peremptory
exception of no cause of action is provided for in La.Code Civ.P. art. 927(A)(5).
“An exception of no cause of action tests ‘the legal sufficiency of the petition by
determining whether the law affords a remedy on the facts alleged in the
pleading.’” Moreno v. Entergy Corp., 10-2268, p. 3 (La. 2/18/11), 64 So.3d 761,
762 (quoting Everything on Wheels Subaru, Inc. v. Subaru S., Inc., 616 So.2d 1234,
1235 (La.1993)). When a question of law is raised upon an exception of no cause
of action, an appellate court reviews a trial court’s judgment utilizing the de novo
standard of review. Castille v. Louisiana Med. Mut. Ins. Co., 14-519 (La.App. 3
4 Cir. 11/5/14), 150 So.3d 614. “The pertinent question is whether, in the light most
favorable to plaintiff and with every doubt resolved in plaintiff’s favor, the petition
states a valid cause of action for the requested relief.” Id. at 617-18.
A valid cause of action for modification of a child support award is asserted
upon a showing that “the circumstances of the child or of either parent materially
change[d] and shall be terminated upon proof that it has become unnecessary.”
La.Civ.Code art. 142. Additionally, “[a]n award for support shall not be modified
unless the party seeking the modification shows a material change in circumstances
of one of the parties between the time of the previous award and the time of the
rule for modification of the award.” La.R.S. 9:311(A)(1). “The party seeking to
increase or decrease the amount of child support . . . bears the burden of proving a
change of circumstances since the rendition of the prior judgment fixing the
amount of support.” Preis v. Preis, 610 So.2d 163, 164 (La.App. 3 Cir. 1992), writ
denied, 612 So.2d 103 (La.1993). The trial court is afforded great discretion when
considering the modification of child support decrees, and we should not disturb its
decision absent a clear abuse of discretion. Young v. Young, 95-1154 (La.App. 3
Cir. 4/17/96), 673 So.2d 1154; La.R.S. 9:311(A).
Since Cloud seeks to modify the child support decree in his Rule for
Decrease in Child Support, he carries the burden of proving that a change in
circumstances occurred since the rendition of the May 20, 2014 judgment. He
alleges a change in circumstances by indicating that the May 20, 2014 child
support award was based upon erroneous information such that it should be
corrected to state that no money is due. Specifically, in paragraph four of his Rule
for Decrease in Child Support, Cloud contends:
5 That although [Cloud] had all of his financial documentation and was able to testify, his attorney [at the May 5, 2014 hearing] did not bring out the fact that he no longer receives his annuity for his traumatic brain injury, but he sold his annuity for $130,600.00, which was deposited in his checking account on April 29, 2013, and he purchased a home for $100,000.00 on June 12, 2013, which sale is recorded in the Conveyance Records at the Rapides Parish Clerk of Court’s office, Conveyance Book 1956, Page 516.
Cloud’s Rule for Decrease in Child Support further states that he “only receives
$831.00 per month in Social Security benefits,” and that Jonathon receives his
monthly Social Security benefits in the amount of $345.00.
Accepting the foregoing allegations in Cloud’s Rule for Decrease in Child
Support as true, and utilizing the legal principles set forth above, we find that there
was a material change in circumstances in that both Jonathan and Cloud had a
change in income with Social Security benefits. The trial court did not abuse its
discretion in denying Dean’s Exception of No Cause of Action and setting Cloud’s
Rule for Decrease in Child Support for a hearing. Dean’s first assignment of error
is without merit, and there was merit for recalculating child support at the
October 6, 2014 hearing.
Dean further alleges in her fifth assignment of error that Cloud’s Rule for
Decrease in Child Support is a disguised Motion for a New Trial which fails to
contain facts supporting the granting of a new trial. Dean takes issue with Cloud’s
characterization of it as a Rule for Decrease in Child Support rather than a Motion
for a New Trial. “The characterization of a pleading by the litigant is not
controlling. Pleadings are taken for what they actually are and not for what their
authors designate them. A court should not reject a justiciable cause ‘merely
because it is dressed in the wrong coat.’” State, Dep’t of Children & Family Servs.
6 ex rel. A.L. v. Lowrie, 14-1025, p. 6 (La. 5/5/15), 167 So.3d 573, 578 (quoting
Succession of Smith, 247 La. 921, 928, 175 So.2d 269, 271 (1965)).
Cloud’s Rule for Decrease in Child Support asks for recalculation of his
child support obligation based upon facts that were in existence, although not
disclosed, at the May 5, 2014 hearing. The trial court stated at the September 8,
2014 hearing that, “The New Trial, I’m going to trial.” We, therefore, find that
Cloud’s Rule for Decrease in Child Support was considered as a disguised Motion
for a New Trial and subject to the rules regarding same. As an appellate court, we
review the trial court’s decision to grant a new trial under the abuse of discretion
standard. Boudreaux v. Wimberley, 02-1064 (La.App. 3 Cir. 4/2/03), 843 So.2d
519, writ denied, 03-1251 (La. 9/5/03), 852 So.2d 1037.
A peremptory ground supporting the granting of a new trial occurs “[w]hen
the party has discovered, since the trial, evidence important to the cause, which he
could not, with due diligence, have obtained before or during the trial.” La.Code
Civ.P. art. 1972(2). In this case, Cloud knew about the selling of his annuity
before and during the May 5, 2014 hearing and the subsequently written judgment
setting the child support award, even though such information was not disclosed by
his attorney at that time. We find that Cloud’s Rule for Decrease in Child Support,
therefore, did not state peremptory grounds which would warrant the granting of a
new trial effectively vacating the prior judgment, and the trial court abused its
discretion to the extent it granted a new trial on this basis.
Dean also contends that there were no discretionary grounds which would
warrant a new trial under La.Code Civ.P. art. 1973, which provides for the granting
of a new trial when there “is good ground therefor[.]” Since Cloud knew about his
suspended annuity payments at the time of the May 5, 2014 hearing and
7 subsequent judgment, we find that his attorney’s failure to disclose same is not a
good ground for granting a new trial, and the trial court abused its discretion to the
extent it granted a new trial on this basis.
Finally, Dean contends that the trial court failed to comply with the hearing
requirements of La.Code Civ.P. art. 1977 which provides that, “[w]hen a new trial
is granted, it shall be assigned for hearing in accordance with the rules and practice
of the court.” There is no evidence contained in the record showing that a hearing
took place. We, therefore, find that the trial court abused its discretion in granting
a new trial.
According to its written judgment dated October 21, 2014, and subsequent
Written Reasons for Judgment dated May 20, 2015, the trial court vacated and set
aside its May 5, 2014 oral ruling and its May 20, 2014 written judgment by relying,
in part, on the fact that Cloud sold part of his annuity in April of 2013 which
suspended his monthly annuity payments until 2020. The trial testimony and
evidence, however, shows that the foregoing factual information was known,
although not disclosed, prior to the May 5, 2014 hearing. As such, we find that the
foregoing fails to constitute a basis for a new trial which would warrant a cause of
action to vacate the child support award ordered on May 5, 2014 and signed on
May 20, 2014. Accordingly, we find that the trial court abused its discretion in
setting aside the child support owed based on Cloud’s suspended monthly annuity
payments.
The trial court also based its vacating and setting aside of its May 20, 2014
judgment on the fact that Dean began receiving $345.00 of Cloud’s Social Security
benefits for Jonathan in June 2014. Louisiana Revised Statutes 9:315.7(D)
provides: “[S]ocial security benefits received by a child due to the earnings of a
8 parent shall be credited as child support to the parent upon whose earning record it
is based, by crediting the amount against the potential obligation of that parent.”
Application of this credit was discussed in Genusa v. Genusa, 09-917
(La.App. 1 Cir. 12/23/09), 30 So.3d 775, wherein the mother asked the trial court
to hold the father in contempt for failing to pay child support. In response, the
father filed a rule to modify child support, requesting that his monthly support
obligation be offset by the monthly Social Security disability benefits he paid to
the mother on behalf of their children. In its judgment, the trial court limited
application of this Social Security credit by applying it to only his basic child
support obligation owed beginning on June 29, 2006. The trial court refused to
grant an immediate credit against his existing obligation at the beginning of the
mother’s receipt of the Social Security benefits in January of 2005.
On appeal in Genusa, the father alleged that the trial court’s failure to give
him full credit violated La.R.S. 9:315.7(D). In response, the mother argued that
the trial court’s application of the credit was proper in light of La.R.S. 9:315.7(A),
which provides: “Income of the child that can be used to reduce the basic needs of
the child may be considered as a deduction from the basic child support
obligation.” In ruling for the father, the first circuit explained that, although his
Social Security benefits were considered income of the children under La.R.S.
9:315.7(A), such income was not to be applied as a deduction but rather as a credit.
It explained that the “credit is not simply to be applied to the amount of the basic
child support owed, but ‘shall be credited . . . against the potential obligation of
that parent’ for whose disability the children are receiving social security benefits.
(Emphasis added.)” Id. at 780 (quoting La.R.S. 9:315.7(D)). The first circuit
found that the Social Security benefits the mother began receiving in January 2005
9 should have been credited against the father’s monthly child support obligation at
that time rather than beginning on June 29, 2006.
Accordingly, we reverse the trial court’s judgment signed October 21, 2014,
as to the vacating of the May 20, 2014 judgment, reinstate the May 20, 2014
judgment, and remand this matter instructing the trial court to calculate Cloud’s
child support arrearages by crediting his child support obligation with the amount
of Social Security benefits that Dean received on behalf of Jonathan in accordance
with La.R.S. 9:315.7(D).
II. Second Assignment of Error
In her second assignment of error, Dean contends that the trial court erred
when it denied her Exception of Prescription on Cloud’s Rule for Decrease in
Child Support, i.e., disguised Motion for a New Trial. “When evidence is
introduced and evaluated at the trial of a peremptory exception, an appellate court
must review the entire record to determine whether the trial court manifestly erred
with its factual conclusions.” Davis v. Hibernia Nat’l Bank, 98-1164, p. 2 (La.App.
4 Cir. 2/24/99), 732 So.2d 61, 63, writ denied, 99-897 (La. 9/3/99), 747 So.2d 536
(citation omitted). “The delay for applying for a new trial shall be seven days,
exclusive of legal holidays. The delay for applying for a new trial commences to
run on the day after the clerk has mailed, or the sheriff has served, the notice of
judgment as required by Article 1913.” La.Code Civ.P. art. 1974.
In this case, the record contains the Notice and Certificate of Signing of
judgment which shows that the May 20, 2014 judgment was mailed by the Clerk of
Court to the parties on May 22, 2014. Cloud’s Rule for Decrease in Child Support
was filed on July 22, 2015, which was more than seven days after the judgment
10 was mailed. The trial court, therefore, manifestly erred in denying Dean’s
Exception of Prescription, and its judgments are reversed in this regard.
III. Fourth Assignment of Error
In her fourth assignment of error, Dean contends that the trial court erred in
removing her pauper status since she was not served with Cloud’s Rule to Traverse
Pauper Status. Service of process is discussed in La.Code Civ.P. art. 2594 which
provides:
Citation and service thereof are not necessary in a summary proceeding. A copy of the contradictory motion, rule to show cause, or other pleading filed by the plaintiff in the proceeding, and of any order of court assigning the date and hour of the trial thereof, shall be served upon the defendant.
In this case, the record contains correspondence dated September 10, 2014,
from the Rapides Parish Sheriff’s Office showing its failure to serve Dean with the
Rule to Traverse Pauper Status. The requirements provided by La.Code Civ.P. art.
2594, therefore, were not satisfied. Accordingly, the trial court erred in removing
her pauper status, and its judgment of October 21, 2014 regarding Dean’s pauper
status is reversed.
IV. Sixth Assignment of Error
In her sixth assignment of error, Dean contends that the trial court erred
when it denied her Motion for Contempt without a hearing. “[A] person charged
with committing a constructive contempt of court may be found guilty thereof and
punished therefor only after the trial by the judge of a rule against him to show
cause why he should not be adjudged guilty of contempt and punished
accordingly.” La.Code Civ.P. art. 225(A). “Review of the trial court’s
determination as to whether behavior rises to the level of contempt is subject to a
11 manifest error standard of review.” Caldarera v. Caldarera, 14-41, p. 2 (La.App.
3 Cir. 5/21/14), 140 So.3d 1224, 1226.
The transcript of the October 6, 2014 hearing shows that an evidentiary
hearing took place only on Cloud’s Rule for Decrease in Child Support and his
Rule to Traverse Pauper Status. At the end of that hearing, however, the transcript
shows that Cloud’s counsel advised the trial court of Dean’s previously filed
Motion for Contempt and asked the trial court to dismiss it. In response, the trial
court stated, “I was holding on to it until we had this hearing, but I will. I’ll
dismiss it ex parte.” The trial court subsequently denied Dean’s Motion for
Contempt in its October 6, 2014 Order “for oral reasons stated on October 6,
2014[,]” further indicating that it was dismissed in its October 21, 2014 judgment.
The trial court failed to give reasons for its dismissal in its May 20, 2015 Written
Reasons for Judgment. We find that the trial court’s dismissal of the Motion for
Contempt was in error since it occurred without a “trial by the judge of a rule
against [Cloud] to show cause why he should not be adjudged guilty of contempt
and punished accordingly.” La.Code Civ.P. art. 225(A).
In light of the foregoing, we hold that the trial court erred in dismissing
Dean’s Motion for Contempt without a hearing, and its October 21, 2014 judgment
is reversed. This matter is remanded with instructions that an evidentiary hearing
be set on the motion.
V. Additional Assignments of Error
Given our holdings above, we decline to address Dean’s other assignments
of error.
12 DECREE
That portion of the trial court’s judgment rendered on September 8, 2014
and signed on September 18, 2014 denying Emily Dean’s Exception of No Cause
of Action and setting Christopher Cloud’s Rule for Decrease in Child Support is
hereby affirmed. The remainder of the September 18, 2014 judgment with respect
to the trial court’s denial of Emily Dean’s Exceptions of Prescription and Res
Judicata is reversed.
The portion of the trial court’s judgment rendered on October 6, 2014, and
signed on October 21, 2014, vacating the May 20, 2014 judgment is reversed. The
portion of the October 21, 2014 judgment regarding vacating Emily Dean’s In
Forma Pauperis status and dismissing her Motion for Contempt is hereby reversed.
The Motion for Contempt is remanded with instructions that it be set for an
evidentiary hearing. The trial court is further instructed to calculate Christopher
Cloud’s child support arrearages by crediting his child support obligation as
ordered in its May 20, 2014 judgment with the amount of Social Security benefits
received by Emily Dean on behalf of Jonathan in accordance with La.R.S.
9:315.7(D).
Christopher Cloud is assessed with all costs of this appeal.
AFFIRMED IN PART, REVERSED IN PART, AND REMANDED WITH INSTRUCTIONS.