Clinton v. Clinton

598 So. 2d 711, 1992 La. App. LEXIS 1329, 1992 WL 96131
CourtLouisiana Court of Appeal
DecidedApril 28, 1992
DocketNo. 91-CA-894
StatusPublished
Cited by3 cases

This text of 598 So. 2d 711 (Clinton v. Clinton) 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
Clinton v. Clinton, 598 So. 2d 711, 1992 La. App. LEXIS 1329, 1992 WL 96131 (La. Ct. App. 1992).

Opinions

WICKER, Judge.

This appeal arises from a judgment making past due child support executory in the amount of $7,000.00. The parties stipulated this amount was owed only if the child support award were to be applied retroactively to the date of judicial demand rather than from the date of the judgment awarding child support. The trial court in addressing this issue concluded the prior judgment rendered by a different trial judge had retroactive effect. We affirm.

The original judgment awarding child support was rendered October 24, 1990 by Judge Charles Cusimano. The matter was originally heard October 9, 1990 and the judgment stated in pertinent part:

IT IS ORDERED, ADJUDGED AND DECREED THAT:

Ann Leslie Clinton Lavin be and she is hereby ordered to pay to John L. Clinton child support in the sum of THREE HUNDRED FIFTY AND NO/100 ($850.00) DOLLARS per month payable on the first day of each month.

The judgment was silent as to the effective date. In this case the date of judicial demand was February 23, 1989. It is Mr. Lavin’s contention that a judgment silent as to the commencement date is retroactive to the date of judicial demand. Ms. Lavin filed an exception of res judicata. Counsel for Mr. Clinton stated at the hearing:

I entirely agree with that exception except that it doesn’t bar the action. What I am seeking to do is an enforcement of the judgment and a proper understanding of the judgment pursuant to the statute [La.R.S. 9:310].

The trial judge evidently took the position the present action was not barred. We agree since the previous judgment only awarded child support; the action for ar-rearages was not litigated nor determined and the cause of action did not exist at the time. La.R.S. 13:4231.

Appellant raises the following specifications of error:

1. The trial court erred in holding that the child support judgment signed October 24, 1990, should be made retroactive, and
2. The trial court erred in granting judgment to appellee making child support executory in the amount of $7,000.00 plus interest and attorney’s fees.

Appellee argues the wording of La.R.S. 9:310 automatically makes a child support order retroactive to the date of judicial demand when that judgment is silent as to the effective date.

La.R.S. 9:310 A provides:

An order for child support or alimony shall be retroactive to the filing date of the petition for child support or alimony granted in the order.

La.R.S. 9:310 C provides:

In the event the court finds good cause for not making the award retroactive, the court may fix the date such award shall become due.

In Tobin v. Thompson, 485 So.2d 553 (La.App. 5th Cir.1986) we considered an appeal from a judgment awarding child support which had not been made retroactive to the date of filing. The appellant in Tobin argued under La.R.S. 9:310:

that the trial judge must find and state good cause, otherwise the reduction must be retroactive to the filing date of the motion[.]

Id. at 554.

We disagreed with that assertion and explained:

First of all, when the trial judge does not make the reduction retroactive to the motion’s filing date, it is presumed that he found good cause to do otherwise. Here, it is likely that the trial judge felt that a reduction going back to the motion’s filing day would act as a severe [713]*713burden on the mother. Also, the trial judge may have considered the effective date of the reduction in arriving at the new child support amount.
In any event, appellant did not ask the trial judge to provide the statutory “good cause,” a right a litigant has under LSA-C.C.P. art. 1917, which in pertinent part says:
“In all appealable contested cases, other than those tried by a jury, the court when requested to do so by a party shall give in writing its findings of fact and reasons for judgment, provided the request is made not later than ten days after the signing of the judgment.”
Accordingly, we hold (1) that R.S. 9:310 does not make it mandatory for the trial judge to give, either orally or in the formal judgment, his reasons for finding good cause and therefore not making the reduction retroactive to the filing date of the motion to reduce, (2) that a finding of good cause is presumed if the reduction is not retroactive to the motion to reduce filing date and (3) that if reasons are not given for not making the reduction fully retroactive, an affected litigant should request that the trial judge articulate his good cause findings if he or she wishes to later assert on appeal that good cause was not adequately shown and that the trial judge erred in finding to the contrary.

Id. at 554-555. See also Cantillo v. Cantillo, 503 So.2d 55 (La.App. 5th Cir.1987).

In Fleishmann v. Fleishmann, 562 So.2d 464 (La.App. 5th Cir.1990) we applied the Tobin presumption that when the trial judge does not make the award retroactive he is presumed to have good cause to so deviate. Writs were granted by the Supreme Court in that case in Fleishmann v. Fleishmann, 567 So.2d 601 (La.1990) wherein the court stated at 601:

Remanded to the court of appeal for reconsideration of the effective date of commencement of the increase in child support in light of Hogan v. Hogan, 549 So.2d 267 (La.1989). Otherwise, denied.

On remand, we continued to follow the Tobin, supra presumption and writs were denied on the remand. Fleishmann v. Fleishmann, 570 So.2d 166 (La.App. 5th Cir.1990), writ denied, 573 So.2d 1121 (La.1991). On remand we explained at 167-168:

In Hogan v. Hogan, supra, the Supreme Court discussed the applicability of LSA-R.S. 9:310 to an appellate court order modifying or replacing a trial court’s support order. The court stated, at 270-271:
“La.R.S. 9:310 provides that an order for child support or alimony shall be retroactive to the filing date of the petition therefor, unless the court finds good cause for not making the award retroactive, in which case the court may fix the date such award shall become due. These principles apply directly and fully to an appellate court order modifying or replacing a trial court’s support order.
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The exercise of this power [to decide factual issues de novo ] by an appellate court is limited, however, by the jurisprudential rule of practice that a trial court’s alimony or child support order will not be reversed except for abuse of discretion.... But when the Court of Appeal decides that the trial court abused its discretion, it is required to assess the evidence anew from the record and render judgment on the merits as if it were a trial court, rather than to remand the case for further proceedings below....

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Bluebook (online)
598 So. 2d 711, 1992 La. App. LEXIS 1329, 1992 WL 96131, Counsel Stack Legal Research, https://law.counselstack.com/opinion/clinton-v-clinton-lactapp-1992.