Cole v. Cole

139 So. 3d 1225, 13 La.App. 3 Cir. 1442, 2014 WL 2515142, 2014 La. App. LEXIS 1475
CourtLouisiana Court of Appeal
DecidedJune 4, 2014
DocketNo. 13-1442
StatusPublished
Cited by6 cases

This text of 139 So. 3d 1225 (Cole v. Cole) 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
Cole v. Cole, 139 So. 3d 1225, 13 La.App. 3 Cir. 1442, 2014 WL 2515142, 2014 La. App. LEXIS 1475 (La. Ct. App. 2014).

Opinion

CONERY, Judge.

pin this child support case, the father, Craig Wilson Cole, appeals the trial court’s judgment increasing the child support award for their minor child from $288.00 to $872.12 per month, finding a material change of circumstances from the last time the child support award was set. The trial court based its ruling on evidence presented that Craig’s custody of the minor child was no longer a shared custody arrangement, but a de facto joint custody arrangement. Support was set pursuant to statute using the joint custody guidelines required by the application of Worksheet A and not Worksheet B, shared custody, for a proper determination of the child support award. The trial court also found that Craig’s income increased due to regular and consistent overtime earnings. Finding no abuse of discretion, we affirm.

FACTS AND PROCEDURAL HISTORY

Joy Teressa Bonnette Cole and Craig Wilson Cole were married on December 5, 1998, and are the parents of one minor child, a son born August 30, 2005. There is a history of disputes between the parties concerning the terms of both the custody arrangement and the amount of child support.

On August 4, 2008, the parties filed a joint petition for divorce seeking joint custody and a designation as co-domiciliary status. A consent judgment was signed by the trial court appointing Joy as the domiciliary parent and awarding Craig visitation privileges. Craig agreed to and was ordered to pay Joy $500.00 a month in child support for their minor child.

Since the original consent judgment in 2008, the parties have entered into four other consent judgments relating to both custody and child support. On October 18, 2012, the parties agreed to the last of the four consent judgments. The |aOctober 18, 2012 Consent Judgment allowed Craig additional time with the minor child, including extended alternating four-day weekends, two weekdays per week, and additional time during the summer. The addition of these days changed the custody of the minor child from joint to shared custody, requiring coordination with the “father’s work schedule so that each parent enjoys an equal amount of time with the child.” Craig’s monthly child support award was reduced from $774.04 to $288.00 using the child support guidelines for shared custody contained in Worksheet B.

Following the entry of the October 18, 2012 Consent Judgment, Joy filed a motion asking that an evidentiary hearing be re-fixed to address a change in circumstances. Joy claimed that the October 18, 2012 Consent Judgment was no longer in the best [1227]*1227interests of the minor child and sought a hearing to address “custody, visitation and support.” The trial court held a hearing on February 15, 2013, and issued oral reasons from the bench. On March 19, 2013, a considered decree was signed. However, the record of the February 15, 2013 hearing only addressed the issue of custody. There is no evidence in that record of any testimony relating to the issue of child support.

In the March 19, 2013 Considered Decree, the trial court determined that custody between the parents remain shared. However, the trial court modified the October 18, 2012 Consent Judgment by increasing Craig’s every other weekend schedule to five days, beginning on Thursday at 10:00 a.m. and concluding on Tuesday at 5:00 p.m. The weekday schedule was reduced to “One two-day, one night block each and every month commencing at 10:00 a.m. and ending at 5 p.m. the next day.” The trial court also ordered Craig to choose the two days and one | .¡¡night upon receiving his work schedule each month and to notify Joy immediately of the time he wished to exercise custody.

The March 19, 2013 Considered Decree provided that “all other provisions contained in any previous judgment that are not in conflict with this Judgment shall remain in force and effect.” Per the provisions of the March 19, 2013 Considered Decree, the $288.00 award for monthly child support remained “in force and effect” as ordered in the October 18, 2012 Consent Judgment.

Two months later, on May 21, 2013, Joy filed a rule to increase child support on the basis that the modification of visitation in the March 19, 2013 Considered Decree changed the child custody arrangement from shared back to joint custody, and justified an increase in the child support award. Additionally, Joy also sought an increase in child support due to an increase in Craig’s income from regular overtime pay.

On August 19, 2013, the trial court held a hearing to address the issues raised in Joy’s May 21, 2013 rule. The trial court issued a ruling on September 4, 2013, and assigned written reasons for judgment. The trial court found that the actual time that the minor child was in Craig’s physical custody did not conform with the custodial times set forth in either the March 19, 2013 Considered Decree or the October 18, 2012 Consent Judgment and, therefore, no longer met the statutory and/or jurisprudential definition of shared custody. The $288.00 per month child support award had been calculated premised on a shared custody plan where each party would have the child equally. In its September 4, 2013 ruling, the trial court found factually that a defacto joint custody scheme was in effect between the parties and not a shared custody plan. The actual time the minor child was in the parents’ custody was found to be 61% with Joy and 39% with Craig Rand, therefore, was commensurate with the statutory definition of joint custody. This finding resulted in a material change in circumstances. The trial court exercised its considerable discretion and applied Worksheet A, rather than Worksheet B, for a determination of Craig’s child support obligation under the de facto joint custody plan then existing between the parties.

The trial court then considered the issue of Craig’s overtime pay as an additional basis for a material change in circumstances. Craig testified that his income had increased since the October 18, 2012 Consent Judgment based on his overtime work schedule. Craig testified that he consistently worked overtime and was expected to continue to do so for the foreseeable future.

[1228]*1228The trial court found that based on Craig’s new income figures, the “payment of $288.00 is not fair or adequate for the child.” The trial court ruled Craig’s increase in income, based on his pay for consistent overtime work, provided another basis for a material change in circumstances.

The trial court ordered that Craig’s child support obligation be modified using Worksheet A, “because joint custody instead of shared custody is applied between the parties in the amount of the time that each parent has physical custody of the child” and “to reflect a material change in circumstances due to an increase in Craig’s income, from the time the previous child support judgment was rendered.” The modification based on joint custody and the use of Worksheet A, coupled with Craig’s increase in income, resulted in an increase in the child support award from $288.00 based on shared custody using Worksheet B to $872.12 per month, and was more in line with the $774.04 amount that Craig was paying prior to the October 18, 2012 Consent Judgment.

IfiThe trial court’s September 4, 2013 ruling is memorialized in its October 9, 2013 judgment, which is the source of Craig’s one assignment of error on appeal wherein he alleges that “The trial court erred in increasing support.”

LAW AND ANALYSIS

Standard of Review

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Cite This Page — Counsel Stack

Bluebook (online)
139 So. 3d 1225, 13 La.App. 3 Cir. 1442, 2014 WL 2515142, 2014 La. App. LEXIS 1475, Counsel Stack Legal Research, https://law.counselstack.com/opinion/cole-v-cole-lactapp-2014.