Glorioso v. Glorioso

776 So. 2d 536, 2000 WL 1716528
CourtLouisiana Court of Appeal
DecidedNovember 15, 2000
Docket99-CA-3222
StatusPublished
Cited by3 cases

This text of 776 So. 2d 536 (Glorioso v. Glorioso) 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
Glorioso v. Glorioso, 776 So. 2d 536, 2000 WL 1716528 (La. Ct. App. 2000).

Opinion

776 So.2d 536 (2000)

Barbara B. GLORIOSO
v.
Angelo GLORIOSO, III.

No. 99-CA-3222.

Court of Appeal of Louisiana, Fourth Circuit.

November 15, 2000.
Rehearing Denied January 31, 2001.

*537 Harry F. Connick, District Attorney Orleans, Elizabeth D. Chatelain, Assistant District Attorney, New Orleans, LA, Counsel for Plaintiff/Appellee.

Richard M. Ireland, Jr., Richard M. Ireland, Jr., A.P.L.C., Metairie, LA, Counsel for Defendant/Appellant.

(Court composed of Judge JOAN BERNARD ARMSTRONG, Judge STEVEN R. PLOTKIN, Judge PATRICIA RIVET MURRAY).

PLOTKIN, Judge.

This case requires us to interpret the standard and procedure for a reduction or increase of child support based on La. R.S. 9:311.

The trial court, at the request of the State of Louisiana, increased Angelo Glorioso's monthly child support from $216.00 plus health insurance to $242.00 plus health insurance, based on his alleged change of circumstances. Mr. Glorioso appeals, arguing that the modification was in violation of La. R.S. 9:311 and that the State failed to prove the amount and time of change of his circumstances.

FACTS AND PROCEDURAL HISTORY

By Consent Decree, dated May 1, 1996, defendant/appellant Angelo Glorioso's child support obligation was established at $216.00 per month, plus health insurance coverage, for the minor child. On March 24, 1997, the State of Louisiana filed a Rule to Show Cause for an increase in child support payments from defendant.

On September 10, 1997, the trial court conducted a hearing on the motion. At that hearing, the State requested that the appellant's child support payments be increased to $272.00 per month, plus health insurance coverage. The State based its claim on the appellant's monthly gross income of $1614.00 and the monthly imputed gross income of complainant, Barbara Brocato (Glorioso), which was $163.67.

Ms. Jeanette Ward, Assistant District Attorney of Orleans Parish District Attorney's Office, Child Support Division, testified that she had reviewed the files in this matter twice. Ms. Ward testified that Ms. Glorioso was not presently working. Ms. Ward calculated Ms. Glorioso's income from imputed income information from the Department of Labor, based on the second quarter of 1996 and the third quarter of 1997. Ms. Ward then averaged the figures during that six-month period to $163.67 per month.

Ms. Glorioso testified that she was not working because she was taking care of her dying mother on a full time basis. She further testified that she is physically capable of working, as she has in the past, at a supermarket. Ms. Glorioso stated that her son is not under five years of age.

Mr. Glorioso testified that the last time his child support obligation was computed was in May 1996. He stated that since that time, each month he has regularly paid $216.00, plus $60.67 for health insurance, *538 plus $84.00 towards arrears. Mr. Glorioso stated that since May 1996, he has never missed a child support payment, but on one occasion informed the District Attorney's Office that he would make the payment two days late.

Since May 1996, Mr. Glorioso has been with the same employer and has received an increase in pay to $9.50 per hour. Mr. Glorioso stated that he very rarely receives overtime pay. His monthly income is $1614.00.

At the conclusion of the hearing, the trial court orally stated that Ms. Glorioso was voluntarily unemployed. The court imputed income to her at minimum wage and awarded an increase in child support to $242.00 plus health insurance.

On February 24, 1999, the trial court rendered a written judgment increasing defendant's child support payments to $242.00 per month, plus continuation of the child's health insurance at $60.67 per month, effective retroactively to September 10, 1997. Defendant now appeals the trial court's judgment.

DISCUSSION

On appeal, Mr. Glorioso argues that the trial court erred in modifying his monthly child support obligation absent a change in circumstances. Appellant contends that the State did not meet its burden of proof under La. R.S. 9:311, specifically, the State did not prove: (1) that a change in circumstance "would result in at least a twenty-five percent change in the existing child support award," under La. R.S. 9:311(C); (2) the amount of change of income under La. R.S. 9:311(A); and (3) the time of change of income under La. R.S. 9:311(A). Mr. Glorioso argues that due to the State's failure to meet its burden, the judgment of the trial court should be reversed.

The relevant portions of La. R.S. 9:311 provide:

(A) An award for support shall not be reduced or increased unless the party seeking the reduction or increase shows a change in circumstances of one of the parties between the time of the previous award and the time of the motion for modification of the award.
. . . .
(C) For purposes of this Section, in cases wherein the Department of Social Services is providing support enforcement services: (1) A change in circumstance exists when a strict application of the child support guidelines, Part I-A of this Chapter, would result in at least a twenty-five percent change in the existing child support award. A change in circumstance does not exist under this Paragraph if the amount of the award was the result of the court's deviating from the guidelines pursuant to R.S. 9:315.1 and there has not been a change in the circumstances which warranted the deviation.

AMOUNT AND TIME OF CHANGE IN CIRCUMSTANCE

Mr. Glorioso claims that there is not sufficient proof of a "substantial increase" and the time of the increase required to effect a change in circumstances under La. R.S. 9:311(A).

According to the State, the fact that Mr. Glorioso received a raise is sufficient to prove a change in circumstances. The State argues that a finding of a "substantial change" in circumstances is no longer required to increase a child support award. The State contends that the trial court should determine a change in circumstances on a case by case basis.

La. R.S. 9:311(A) provides:

An award of child support should not be modified unless the party seeking the modification shows a change of circumstances of one of the parties between the time of rendition of the previous award and the time of the motion for modification.

The Louisiana Supreme Court, in the case of Stogner v. Stogner, 98-3044 *539 (La.7/7/99), 739 So.2d 762, determined that "the Legislature has provided that the burden of proving a change in circumstances does not require proof of a substantial change ... In evaluation of these cases, there is no bright line rule as to what constitutes a change of circumstances to warrant modification." Id. at 769. Furthermore, the Court found that the determination of what constitutes a change in circumstances must be made by the trial court on a case by case basis. See id.

Here, the State proved that Mr. Glorioso received an increase in his salary of $3.00 per hour, since the prior determination of the child support award. Mr. Glorioso testified as to the amount of the raise.

The previous award of child support was made on May 1, 1996. The State filed its motion for modification of the award on March 24, 1997. In order to prove a change in circumstances under La. R.S. 9:311(A), the State must show that Mr. Glorioso received the increase in income between May 1, 1996 and March 24, 1997.

Mr. Glorioso's paycheck stub for the pay period ending April 20, 1996, states that Mr.

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Cite This Page — Counsel Stack

Bluebook (online)
776 So. 2d 536, 2000 WL 1716528, Counsel Stack Legal Research, https://law.counselstack.com/opinion/glorioso-v-glorioso-lactapp-2000.