Gebhard v. Gebhard

60 So. 3d 717, 2010 La.App. 4 Cir. 1412, 2011 La. App. LEXIS 225, 2011 WL 543523
CourtLouisiana Court of Appeal
DecidedFebruary 16, 2011
DocketNo. 2010-CA-1412
StatusPublished
Cited by6 cases

This text of 60 So. 3d 717 (Gebhard v. Gebhard) 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
Gebhard v. Gebhard, 60 So. 3d 717, 2010 La.App. 4 Cir. 1412, 2011 La. App. LEXIS 225, 2011 WL 543523 (La. Ct. App. 2011).

Opinion

CHARLES R. JONES, Judge.

bln this appeal, Sean Gebhard seeks review of the district court judgment denying his motion to modify child and spousal support. Specifically, Mr. Gebhard argues that a material change in circumstances justifies a modification of the amount of child and spousal support provided in the parties’ consent judgment. For the following reasons, we affirm.

Mr. Gebhard and Ms. Shannon Gebhard married in 1987. During the marriage, two children were born: Samantha (d.o.b. July 11,1989) and Sean Michael, Jr. (d.o.b. April 6, 1993). Also during the marriage, Mr. Gebhard incorporated his construction [719]*719company and formed Gebhard Enterprises, Inc. Ms. Gebhard testified that she worked at Gebhard Enterprises during the marriage.

The parties separated on June 4, 2006, and received a judgment of divorce on August 28, 2007. On August 28, 2007, the parties additionally entered into a consent judgment regarding spousal support and child support, among other things. The consent judgment-bears the signatures of Mr. Gebhard and his counsel, Ms. Gebhard and her counsel, as well as the district court judge. The consent judgment provides that Mr. Gebhard is to pay spousal support to Ms. Gebhard in the amount of $2,000.00 per month, as both interim and permanent spousal support, for a period of ten years, beginning September 1, 2007. Beginning'July 1, 2017, Mr. Gebhard is to pay $1,500 for an additional ten years, with the last payment on July 1, 2027. The consent judgment 12provides that Mr. Geb-hard is to pay child support to Ms. Geb-hard in the amount of $2,000 per month for the support of Samantha and Sean. Further, the consent judgment states that “[t]he $2,000[.00] per month child support will remain in effect and is not subject to reduction until the youngest child, Sean Michael, Jr., reaches the age of 18 years and graduation from secondary school.” In addition to child support, Mr. Gebhard agreed to pay for Sean Michael, Jr.’s secondary educational expenses, as well as college expenses for both children.

On September 17, 2009, Ms. Gebhard filed a rule for contempt, attorneys’ fees, motion and order for judgment for past due spousal support and incidental obligations, motion and order to transfer community property for satisfaction of judgment of community property obligations and other incidental obligations. For purposes of this appeal, the relevant allegations in Ms. Gebhard’s rule are that Mr. Gebhard failed to pay spousal and child support, as well as tuition, as ordered.

In response, Mr. Gebhard filed a motion to rescind and/or modify consent judgment. Mr. Gebhard testified that Ms. Gebhard threatened to bring the children to court and “drag his name through the mud” if he did not sign the August 23, 2007 consent judgment. Mr. Gebhard averred the only reason he entered into the ^consent judgment was to protect his children. As his consent was vitiated by duress, Mr. Gebhard argued the consent agreement should be rescinded.

Alternatively, Mr. Gebhard argued that a severe decrease in his earnings justified a modification of the August 23, 2007 consent judgment. Mr. Gebhard testified that at the time of the consent judgment, he was earning $200,000 per year through Gebhard Enterprises. Mr. Gebhard testified that 2007 started out okay for Geb-hard Enterprises, but that business tapered off in the middle or end of 2007. Mr. Gebhard stated that in 2008, Gebhard Enterprises was just barely getting by and in 2009, fell on its face. Mr. Gebhard testified that Gebhard Enterprises is basically dormant, although the accounts receivable amount is about $200,000 and there are bids on jobs that he is hoping to be awarded. Mr. Gebhard noted that some of the’ equipment used by Gebhard Enterprises is owned outright and that other equipment is burdened by a note thereon. Mr. Gebhard also testified that he owes approximately $140,000 on a line of credit for the business. Mr. Gebhard stated that a decline in the industry forced him to take a project manager position with Carubba, Inc. Mr. Gebhard testified that Gebhard Enterprises had done business with Garubba for the past fifteen years. Mr. Gebhard acknowledged that key former Gebhard Enterprises employees were working at Icon Enterprises, a [720]*720company formed by his current wife, Nikki. Mr. Gebhard testified that he was trying to hang on to his key employees. He stated that Icon Enterprises was securing jobs up to $50,000, though he was accustomed to $500,000-$2,000,000.

[4Nikki Gebhard testified that she went to work for Gebhard Enterprises in 2005, after Hurricane Katrina. As of 2007, Nikki received a salary of $300 per week. Nikki testified that in December of 2007 or January of 2008, she received a $30,000 bonus from Gebhard Enterprises. Nikki stated that half of the proceeds of the bonus were used as a down payment on the house she currently shares with Mr. Gebhard. Nikki noted that another employee, William LeBouef, received a $75,000 bonus in 2007.

Nikki testified that she and Mr. Geb-hard married in October of 2009 in Panama City Beach, Florida. Shortly after the wedding, Nikki utilized $8,000 from cash wedding gifts and opened Icon Enterprises, a construction company that performs small jobs. Nikki testified that Icon Enterprises was opened to bring money into their home. Nikki testified that Mr. Geb-hard does not work at Icon Enterprises, but noted that he does supply her with knowledge and guidance. Nikki stated that Icon Enterprises has one employee, Anthony Bryan. Nikki testified that Icon Enterprises put down a slab for Carubba. She also testified that she also works as a nurse at St. Tammany Parish Hospital and receives money for picking up a friend’s child from school.

Roy Carubba testified that he hired Mr. Gebhard near the end of 2009 at a salary of $52,000 per year. Mr. Carubba testified that his practice is mainly in commercial buildings and that there has been a decline in that market since 2007.

At the close of the hearing, the district court denied Mr. Gebhard’s motion to rescind and/or modify consent judgment and took Ms. Gebhard’s rule for contempt 15under advisement. Thereafter, the court granted Ms. Gebhard’s rule for contempt. The district court found Mr. Gebhard in arrears in the amount of $79,226.81 on child and spousal support. The district court sentenced Mr. Gebhard to serve thirty days in the parish prison unless Mr. Gebhard discharged the arrearage amount within thirty days. This appeal followed.

DISCUSSION

The trial court has great discretion in decisions concerning modification of support decrees, and such decrees will not be disturbed on appeal absent a clear abuse of discretion. Hansel v. Hansel, 2000-1914, p. 4 (La.App. 4 Cir. 11/21/01), 802 So.2d 875, 879. (Citations omitted). An appellate court must not base its determination on whether it considers the trier of fact’s conclusion to be right or wrong, but on whether the fact finder’s conclusion was reasonable. Durfee v. Dwrfee, 44,281, p. 3 (La.App. 2 Cir. 5/13/09), 12 So.3d 984, 987.

Mr. Gebhard argues the district court erred in denying his motion for modification. Mr. Gebhard avers that a change in circumstances occurred between the time of the consent judgment and the time of the motion in that his income changed. He argued that at the time of the consent judgment, he earned $200,000 per year, and that he was forced to take a job working for Carubba at a salary of $52,000 per year. Ms.

Free access — add to your briefcase to read the full text and ask questions with AI

Related

Jack H. Shannon v. Julia Westrich Shannon
Louisiana Court of Appeal, 2024
Johnson v. Johnson
272 So. 3d 49 (Louisiana Court of Appeal, 2019)
Ella Walker Johnson v. Glenn R. Johnson, Sr.
Louisiana Court of Appeal, 2019
Toups v. Kauffman
204 So. 3d 1044 (Louisiana Court of Appeal, 2016)
Brossett v. Brossett
195 So. 3d 471 (Louisiana Court of Appeal, 2015)
Rigaud v. DeRuise
141 So. 3d 917 (Louisiana Court of Appeal, 2014)

Cite This Page — Counsel Stack

Bluebook (online)
60 So. 3d 717, 2010 La.App. 4 Cir. 1412, 2011 La. App. LEXIS 225, 2011 WL 543523, Counsel Stack Legal Research, https://law.counselstack.com/opinion/gebhard-v-gebhard-lactapp-2011.