Crefasi v. Crefasi

628 So. 2d 1274, 1993 WL 503766
CourtLouisiana Court of Appeal
DecidedDecember 8, 1993
Docket92-1100
StatusPublished
Cited by20 cases

This text of 628 So. 2d 1274 (Crefasi v. Crefasi) 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
Crefasi v. Crefasi, 628 So. 2d 1274, 1993 WL 503766 (La. Ct. App. 1993).

Opinion

628 So.2d 1274 (1993)

Wanda Allred CREFASI, Plaintiff-Appellee,
v.
Nicholas Shelby CREFASI, Defendant-Appellant.

No. 92-1100.

Court of Appeal of Louisiana, Third Circuit.

December 8, 1993.

*1275 Brent Stafford Gore, Ferriday, for Wanda Allred Crefasi.

Anthony Louis Glorioso, Metairie, for Nicholas Shelby Crefasi.

Before DOMENGEAUX, C.J., and STOKER and THIBODEAUX, JJ.

STOKER, Judge.

Nicholas Shelby Crefasi appeals a judgment rendered by the Honorable Leo Boothe, District Judge, which, among other things, set his child support obligation at $450 per month, ordered him to provide hospitalization insurance on all of the minor children, ordered him to pay $500 in attorney fees and all past and present court costs in this matter, and held defendant in contempt of court. We reverse in part, affirm in part, and remand.

BACKGROUND

By judgment rendered on February 29, 1988, by Judge Boothe's predecessor in office, Nicholas Shelby Crefasi and Wanda Allred Crefasi were divorced; the parties were awarded joint custody of the three minor children of the marriage with Wanda Crefasi designated as the primary custodian.

By judgment rendered March 14, 1988, pursuant to the divorce, Judge Boothe's predecessor set child support at 25% of Nicholas's monthly income and required him to keep Wanda apprised of his financial status and give her a quarterly accounting of all income received by him from any source. The trial court did not intend for this to be a determinate amount. Rather, it appears that the trial court intended that if Nicholas received income, he was required to pay Wanda 25% of whatever he received, as his child support obligation. The record contains the following letter from the trial judge (Judge Boothe's predecessor) to plaintiff's counsel in this regard:

"I have received your memoranda [sic] in the form of a letter dated February 29th in the captioned matter.
"I have examined the cases cited in your letter, and I do not believe that any of them require, as a matter of law, that on the record of this case, the Court fix child support in a determinate amount, particularly one which the record indicates could not be paid.
"I recognize the percentage of income is not a favored method of paying child support, and that specific amounts are preferred. However, on facts such as are present in this case, it appears to be the only alternative to an award of no support.
"I intend to enforce whatever Orders that are issued by this Court, and if I have the slightest evidence of deception or malingering on the part of Mr. Crefasi, would not hesitate to take appropriate measures. On the other hand, I could not issue a Judgment ordering a specific amount of support one month on a record which shows inability to pay it and then when he predictably fails to pay the next month be faced with the prospect of jailing him for contempt.
"Accordingly, your request that a specific sum be designated as support in this case is denied as of this time."

On February 23, 1988, Nicholas testified before the court that he was unemployed and had not received income in 1988. (The judgment *1276 was rendered in March of 1988). Nicholas also testified that he had not received income in 1987. The record does not reveal that Nicholas was ill, disabled, or in some other condition which rendered him involuntarily unemployable. Indeed, at that time, Nicholas testified that he had worked for or with his sister (without salary) for about a month and a half, had applied for a government school/work program, and had a job prospect. However, it appears to us that the trial court set the award at 25% of Nicholas's monthly income due to his lack of employment.

By judgment rendered January 9, 1989, the court ordered, among other things, that Nicholas and Wanda each pay one-half of any and all medical and dental expenses not covered by hospitalization insurance on all the minor children. Nicholas was not ordered to provide hospitalization insurance on the children; Wanda obtained this through her employer.

All proceedings outlined above were conducted before Judge Boothe's predecessor, and the judgments and orders referred to were issued by him.

On June 14, 1991, Wanda Crefasi (hereinafter plaintiff) filed the rule that is presently before us on appeal by Nicholas Crefasi (hereinafter defendant). In her rule, plaintiff alleged, among other things, that "[t]he percentage of defendant's income is not a basis for child support and is not working.... Plaintiff desires that defendant be ordered to pay a set amount each month for the support and maintenance of his children. Plaintiff desires that the defendant be ordered to pay child support as per L.R.S. 9:315."

The plaintiff's rule was heard and acted on by Judge Boothe as the judge of the trial court. He set child support at $450 per month and ordered defendant to provide hospitalization insurance on all of the minor children. Additionally, among other things, the court ordered defendant to pay $500 in attorney fees and all past and present court costs in this matter and held defendant in contempt of court. Defendant appeals. We note that the judgment refers to oral reasons, but they were apparently not recorded or transcribed as we have found none in the record.

DISCUSSION

Child Support

Defendant basically contends that it was improper for the trial court to amend the previous judgment in that plaintiff failed to prove a substantial change in circumstances. Defendant submits that even if the modification is allowed by this court, the trial court improperly determined the amount of the award.

It is true that the party seeking to increase or decrease the amount of child support or alimony bears the burden of proving a change of circumstances since the rendition of the prior judgment fixing the amount of support. LSA-R.S. 9:311A; Preis v. Preis, 610 So.2d 163 (La.App. 3d Cir.1992), writ denied, 612 So.2d 103 (La.1993). In addition, the courts of appeal in Louisiana have continued to demand the showing of a substantial change in circumstances as a prerequisite for modifying child support judgments. Crowder v. Crowder, 595 So.2d 810 (La.App. 2d Cir.), writ denied, 598 So.2d 358 (La.1992); Peltier v. Peltier, 617 So.2d 201 (La.App. 3d Cir.1993).

We agree with defendant that, on the record before us, the plaintiff has failed to prove a substantial change in circumstances necessary to trigger application of the Child Support Guidelines (LSA-R.S. 9:315 et seq.). However, the initial child support award of 25% of defendant's monthly income is not of such a nature that we are bound in the present circumstances to the change in circumstances rule and for the following reasons.

First, the judgment is indefinite and uncertain. A judgment must be certain and not based on any contingency. McCall v. Henry, 539 So.2d 819 (La.App. 3d Cir.1989); Key v. Key, 519 So.2d 319 (La.App. 2d Cir.1988); *1277 Pepe v. Tournage, 128 So.2d 56 (La.App. 1st Cir.1961). In Russo v. Fidelity & Deposit Co., 129 La. 554, 56 So. 506, 508 (La.1911) the court quoted:

"Again, a judgment must be definitive. It must purport to be the actual and absolute sentence of the law, as distinguished from the finding that one of the parties is entitled to a judgment.

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Bluebook (online)
628 So. 2d 1274, 1993 WL 503766, Counsel Stack Legal Research, https://law.counselstack.com/opinion/crefasi-v-crefasi-lactapp-1993.