STATE OF LOUISIANA COURT OF APPEAL, THIRD CIRCUIT
09-219
DERONZA THOMAS FOBBS
VERSUS
LARRY MARVELL FOBBS
**********
APPEAL FROM THE THIRTIETH JUDICIAL DISTRICT COURT PARISH OF VERNON, NO. 63,002 HONORABLE VERNON B. CLARK, DISTRICT JUDGE
OSWALD A. DECUIR JUDGE
Court composed of Ulysses Gene Thibodeaux, Chief Judge, Sylvia R. Cooks, Oswald A. Decuir, Marc T. Amy, and J. David Painter, Judges.
Painter, J., dissents and assigns written reasons.
REVERSED.
Elvin C. Fontenot, Jr. Attorney at Law 110 East Texas Street Leesville, LA 71446 (337) 239-2684 Counsel for Plaintiff/Appellee: Deronza Thomas Fobbs
Andrew L. Randall, Jr. Attorney at Law 6128 Masters Drive Shreveport, LA 71129 (318) 347-2701 Counsel for Defendant/Appellant: Larry Marvell Fobbs Larry Marvell Fobbs In Proper Person P. O. Box 37921 Shreveport, LA 71133 DECUIR, Judge.
Deronza T. Fobbs and Larry M. Fobbs were married in 1989 and divorced in
2000. The couple had two children, both of whom have now reached the age of
majority. After the youngest child reached age eighteen, Larry, in proper person, filed
a motion to terminate child support payments. In response, Deronza filed a rule for
contempt. At the contempt hearing in which Larry represented himself, the trial court
found him in contempt and ordered him to pay to Deronza the sum of $12,350.90,
plus all costs and $750.00 in attorney fees. Larry has appealed, and for the following
reasons, we reverse the judgment rendered against him.
In June of 1999, Larry was ordered to make monthly child support payments
in the amount of $903.00 retroactive to February 1, 1999. He was also required to
maintain medical and dental insurance on the children during their minority and pay
50% of all medical and dental expenses not covered by such policies. Prior to Larry
obtaining employment with the U.S. Post Office, a judgment of arrearage was
rendered against him in December of 1999. Subsequent thereto, Larry’s paychecks
were subject to an income assignment, and he purchased insurance coverage for his
children through the Post Office.
The Fobbs’ older daughter reached the age of majority in September of 2004.
One year later, Larry obtained a judgment reducing his child support obligation to
$540.00 per month. On August 6, 2007, the Fobbs’ younger daughter turned
eighteen. In February 2008, Larry filed a rule to terminate his support obligation, but
he continued paying support until November 2008. In the meantime, Deronza
responded to the February rule to terminate support by filing a rule for contempt in
which she alleged that Larry failed to provide medical and dental insurance for the
children for an unspecified period of time after the divorce and failed to reimburse
50% of her out-of-pocket medical expenses from 2001 through 2008. Deronza’s contempt pleadings, however, did not allege a total amount of arrearages and did not
include an itemization of any past due payments.
The child support termination and contempt proceedings were heard at separate
hearings in which Larry represented himself. At the contempt hearing, Deronza
testified that Larry had not provided insurance on the children for perhaps two or two
and a half years, offering no documentation of her claim that she incurred the
insurance expense for some period of time. She also vaguely remembered that the
children’s portion of the premiums she paid was probably about $140.00 per month;
again, no verification was offered. Deronza also testified that Larry had never paid
a judgment of arrearage which had been rendered against him in 1999, an issue which
had not been raised in her rule for contempt or at any time between 1999 and 2008.
The documentary evidence submitted in support of Deronza’s claim for
unreimbursed medical expenses was likewise unreliable. It consisted of uncertified
medical bills. One of the bills had handwritten additions, while others indicated
insurance payments were pending and nothing was owed by the insured. A number
of the bills listed services for Deronza rather than the children. Several of the
invoices were clearly duplicitous. Bills for emergency transport, ER visits, and other
services are dated after both children reached the age of majority. Some bills for
dental services failed to show the name of the office or provider, and one in
particular, showing an amount in excess of $6,000.00, appeared to be merely an
estimate of proposed dental work. Most telling of all, no document submitted showed
definitively that any amount had actually been paid by Deronza.
Representing himself, Larry attempted to cross-examine Deronza. His attempt
failed, as the trial court granted opposing counsel’s objections as to the relevancy of
most of his questions. Larry testified on his own behalf, admitting that he failed to
2 provide insurance for the children for a ten-month period. He also agreed that he had
not reimbursed Deronza for out-of-pocket medical expenses, explaining that he had
never received any medical bills for the children and had never been sent a request
for payment by Deronza, a fact which she admitted in her testimony. Nevertheless,
Larry’s testimony indicated that because he realized he had not paid Deronza all that
he owed her since their divorce, he chose to continue making child support payments
after his youngest child turned eighteen. He asked the court to give him a credit for
those payments against any amount he would be found responsible for at the
contempt hearing.
The trial court considered Larry’s testimony to be an admission of his
knowledge of unpaid medical expenses and insurance premiums. Therefore, the court
held Larry in contempt and ordered the continuation of the $540.00 per month
payments to Deronza until all amounts claimed by Deronza were paid.
An action to recover past due child support in a contempt of court proceeding
“requires the trial judge to determine that a party’s disobedience of the court’s support
order constitutes the parent’s willful or deliberate refusal to perform an act which was
within the power of the parent to perform.” Fink v. Bryant, 01-0987, p. 7 (La.
11/28/01), 801 So.2d 346, 350. Alleging arrearages and unreimbursed medical
expenses in her rule for contempt, Deronza had the burden of proving her claims by
a preponderance of the evidence. “‘Proof by a preponderance of the evidence means
that the evidence, taken as a whole, shows that the fact or cause sought to be proven
is more probable than not.’ Crowell v. City of Alexandria, 558 So.2d 216, 217 (La.
1990).” Rathborne v. Rathborne, 06-1518, 07-0870, p. 9 (La.App. 4 Cir. 12/3/08),
999 So.2d 816, 822. In determining whether Deronza met her burden of proof, we
3 are compelled to review the trial court’s credibility determinations and factual
findings under the standard of manifest error.
Given the numerous deficiencies in the evidence submitted by Deronza, we
find manifest error in the trial court’s decision. First, the amount in arrears from the
1999 judgment was not properly prayed for and was not proven with specificity. In
fact, Deronza ultimately testified, “I would have to calculate it and see if he has paid
that in full.” Second, the unreimbursed medical expenses were not proven, as the
evidence submitted in support thereof was unreliable and inconclusive, and no
expenses were presented to Larry for payment.
Free access — add to your briefcase to read the full text and ask questions with AI
STATE OF LOUISIANA COURT OF APPEAL, THIRD CIRCUIT
09-219
DERONZA THOMAS FOBBS
VERSUS
LARRY MARVELL FOBBS
**********
APPEAL FROM THE THIRTIETH JUDICIAL DISTRICT COURT PARISH OF VERNON, NO. 63,002 HONORABLE VERNON B. CLARK, DISTRICT JUDGE
OSWALD A. DECUIR JUDGE
Court composed of Ulysses Gene Thibodeaux, Chief Judge, Sylvia R. Cooks, Oswald A. Decuir, Marc T. Amy, and J. David Painter, Judges.
Painter, J., dissents and assigns written reasons.
REVERSED.
Elvin C. Fontenot, Jr. Attorney at Law 110 East Texas Street Leesville, LA 71446 (337) 239-2684 Counsel for Plaintiff/Appellee: Deronza Thomas Fobbs
Andrew L. Randall, Jr. Attorney at Law 6128 Masters Drive Shreveport, LA 71129 (318) 347-2701 Counsel for Defendant/Appellant: Larry Marvell Fobbs Larry Marvell Fobbs In Proper Person P. O. Box 37921 Shreveport, LA 71133 DECUIR, Judge.
Deronza T. Fobbs and Larry M. Fobbs were married in 1989 and divorced in
2000. The couple had two children, both of whom have now reached the age of
majority. After the youngest child reached age eighteen, Larry, in proper person, filed
a motion to terminate child support payments. In response, Deronza filed a rule for
contempt. At the contempt hearing in which Larry represented himself, the trial court
found him in contempt and ordered him to pay to Deronza the sum of $12,350.90,
plus all costs and $750.00 in attorney fees. Larry has appealed, and for the following
reasons, we reverse the judgment rendered against him.
In June of 1999, Larry was ordered to make monthly child support payments
in the amount of $903.00 retroactive to February 1, 1999. He was also required to
maintain medical and dental insurance on the children during their minority and pay
50% of all medical and dental expenses not covered by such policies. Prior to Larry
obtaining employment with the U.S. Post Office, a judgment of arrearage was
rendered against him in December of 1999. Subsequent thereto, Larry’s paychecks
were subject to an income assignment, and he purchased insurance coverage for his
children through the Post Office.
The Fobbs’ older daughter reached the age of majority in September of 2004.
One year later, Larry obtained a judgment reducing his child support obligation to
$540.00 per month. On August 6, 2007, the Fobbs’ younger daughter turned
eighteen. In February 2008, Larry filed a rule to terminate his support obligation, but
he continued paying support until November 2008. In the meantime, Deronza
responded to the February rule to terminate support by filing a rule for contempt in
which she alleged that Larry failed to provide medical and dental insurance for the
children for an unspecified period of time after the divorce and failed to reimburse
50% of her out-of-pocket medical expenses from 2001 through 2008. Deronza’s contempt pleadings, however, did not allege a total amount of arrearages and did not
include an itemization of any past due payments.
The child support termination and contempt proceedings were heard at separate
hearings in which Larry represented himself. At the contempt hearing, Deronza
testified that Larry had not provided insurance on the children for perhaps two or two
and a half years, offering no documentation of her claim that she incurred the
insurance expense for some period of time. She also vaguely remembered that the
children’s portion of the premiums she paid was probably about $140.00 per month;
again, no verification was offered. Deronza also testified that Larry had never paid
a judgment of arrearage which had been rendered against him in 1999, an issue which
had not been raised in her rule for contempt or at any time between 1999 and 2008.
The documentary evidence submitted in support of Deronza’s claim for
unreimbursed medical expenses was likewise unreliable. It consisted of uncertified
medical bills. One of the bills had handwritten additions, while others indicated
insurance payments were pending and nothing was owed by the insured. A number
of the bills listed services for Deronza rather than the children. Several of the
invoices were clearly duplicitous. Bills for emergency transport, ER visits, and other
services are dated after both children reached the age of majority. Some bills for
dental services failed to show the name of the office or provider, and one in
particular, showing an amount in excess of $6,000.00, appeared to be merely an
estimate of proposed dental work. Most telling of all, no document submitted showed
definitively that any amount had actually been paid by Deronza.
Representing himself, Larry attempted to cross-examine Deronza. His attempt
failed, as the trial court granted opposing counsel’s objections as to the relevancy of
most of his questions. Larry testified on his own behalf, admitting that he failed to
2 provide insurance for the children for a ten-month period. He also agreed that he had
not reimbursed Deronza for out-of-pocket medical expenses, explaining that he had
never received any medical bills for the children and had never been sent a request
for payment by Deronza, a fact which she admitted in her testimony. Nevertheless,
Larry’s testimony indicated that because he realized he had not paid Deronza all that
he owed her since their divorce, he chose to continue making child support payments
after his youngest child turned eighteen. He asked the court to give him a credit for
those payments against any amount he would be found responsible for at the
contempt hearing.
The trial court considered Larry’s testimony to be an admission of his
knowledge of unpaid medical expenses and insurance premiums. Therefore, the court
held Larry in contempt and ordered the continuation of the $540.00 per month
payments to Deronza until all amounts claimed by Deronza were paid.
An action to recover past due child support in a contempt of court proceeding
“requires the trial judge to determine that a party’s disobedience of the court’s support
order constitutes the parent’s willful or deliberate refusal to perform an act which was
within the power of the parent to perform.” Fink v. Bryant, 01-0987, p. 7 (La.
11/28/01), 801 So.2d 346, 350. Alleging arrearages and unreimbursed medical
expenses in her rule for contempt, Deronza had the burden of proving her claims by
a preponderance of the evidence. “‘Proof by a preponderance of the evidence means
that the evidence, taken as a whole, shows that the fact or cause sought to be proven
is more probable than not.’ Crowell v. City of Alexandria, 558 So.2d 216, 217 (La.
1990).” Rathborne v. Rathborne, 06-1518, 07-0870, p. 9 (La.App. 4 Cir. 12/3/08),
999 So.2d 816, 822. In determining whether Deronza met her burden of proof, we
3 are compelled to review the trial court’s credibility determinations and factual
findings under the standard of manifest error.
Given the numerous deficiencies in the evidence submitted by Deronza, we
find manifest error in the trial court’s decision. First, the amount in arrears from the
1999 judgment was not properly prayed for and was not proven with specificity. In
fact, Deronza ultimately testified, “I would have to calculate it and see if he has paid
that in full.” Second, the unreimbursed medical expenses were not proven, as the
evidence submitted in support thereof was unreliable and inconclusive, and no
expenses were presented to Larry for payment. Third, regarding the cost of insurance
premiums allegedly incurred by Deronza, we again find the evidence inconclusive.
While Larry admitted that he failed to provide insurance for a ten-month period,
Deronza only vaguely remembered paying for insurance for more than two years. Her
claim was easily verifiable had she presented the appropriate records as evidence.
Finally, we find the trial court erred in failing to give Larry a credit for
overpaid child support. Louisiana law allows a parent to unilaterally cease paying
support when “the youngest child for whose benefit the award was made attains the
age of majority or is emancipated relieving the child of the disabilities attached to
minority. La. R.S. 9:315.22(B).” Chambers v. Saucier, 06-1290, p. 5 (La.App. 3 Cir.
2/7/07), 949 So.2d 662, 666. In this case, Larry’s youngest child reached the age of
majority on August 7, 2007. Unrefuted evidence in the record shows that Larry
continued to make monthly payments in the amount of $540.00 through November
2008. “When child support arrearages are alleged by a spouse, the burden of proving
a credit against the obligation is upon the spouse alleging the credit.” Bourgeois v.
Bourgeois, 2009 WL 1752808, 09-106 (La.App. 5 Cir. 6/23/09), p. 5. Larry met his
burden of proof.
4 In summary, the evidence in the record before us does not support the contempt
ruling against Larry. The trial court erred in finding Larry in contempt, in continuing
child support payments, in denying Larry a credit for payments made in excess of his
obligation, and in ordering Larry to pay attorney fees and all costs of the proceedings
below.
Accordingly, the judgment appealed from is reversed in all respects. Costs of
this appeal are assessed to Deronza T. Fobbs.
5 DO NOT PUBLISH
PAINTER, J., dissenting.
I respectfully dissent from the decision of the majority herein.
The majority finds that the evidence submitted by Deronza was insufficient to
support the contempt ruling against Larry. Specifically, it finds that she did not prove
the amount of arrears from the 1999 support judgment with specificity, that she did
not show either the amount of time that Larry failed to have insurance coverage on
the children or the amount she spent on either insurance or their medical expenses.
It further finds that the trial court erred in failing to give Larry credit for payments
made after the children reached the age of majority.
I disagree and would defer to the trial court’s credibility based findings of fact.
When findings are based on determinations regarding the credibility of witnesses, the manifest error-clearly wrong standard demands great deference to the trier of fact’s findings; for only the factfinder can be aware of the variations in demeanor and tone of voice that bear so heavily on the listener’s understanding and belief in what is said.
Rosell v. ESCO, 549 So.2d 840, 844 (La.1989) (citations omitted).
The trial court found that although Deronza did not show the period of time for
which Larry failed to provide insurance for the children, Larry admitted that he did not have insurance for a period of ten months. Since Larry did not contest Deronza’s
testimony that it cost her $140.00 per month to add the children to her health
insurance coverage, I would find that the trial court did not err in awarding her an
amount representing ten months of premiums at $140.00 per month. Further with
regard to the medical expenses claimed, Larry had the opportunity at the hearing to
question Deronza about those bills. He did not object to the bills or question Deronza
about them. He admitted that he knew that he owed Deronza for medical bills.
Larry further admitted that he had not made any payments on the 1999
contempt judgment because he felt he did not owe it.
Additionally, Larry failed to introduce copies of the checks made after the
second child reached the age of majority. Therefore, it is impossible to know to know
whether checks were actually sent, to whom they were made out, how many such
checks were sent, and whether there was any notation on the checks of the purpose
for which they were sent. Larry had the burden of proving these payments, and, the
trial court continued a prior hearing in order to give him time to obtain records, but
he failed to do so. Under the circumstances, this court cannot while giving the trial
court’s findings the deference required by the manifest error standard of review, say
that the trial court erred in finding that Larry failed to carry his burden of showing
payments.
Accordingly, I would affirm the judgment of the trial court.