Guillory v. Guillory

702 So. 2d 1079, 1997 WL 671665
CourtLouisiana Court of Appeal
DecidedOctober 29, 1997
Docket97-354
StatusPublished
Cited by4 cases

This text of 702 So. 2d 1079 (Guillory v. Guillory) 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
Guillory v. Guillory, 702 So. 2d 1079, 1997 WL 671665 (La. Ct. App. 1997).

Opinion

702 So.2d 1079 (1997)

Sandra GUILLORY, Plaintiff-Appellee,
v.
Rodlin James GUILLORY, Defendant-Appellant.

No. 97-354.

Court of Appeal of Louisiana, Third Circuit.

October 29, 1997.

*1081 Nathan A. Cormie, Lake Charles, for Sandra Guillory,

Kathleen Kay, Lake Charles, for Rodlin James Guillory.

Before YELVERTON, COOKS and GREMILLION, JJ.

GREMILLION, Judge.

The defendant, Rodlin James Guillory, appeals the judgment of the trial court finding him in contempt and ordering him to pay the plaintiff, Sandra Guillory, $11,311.00 in past due child support and alimony, and attorney's fees. After reviewing the record, we reverse for the following reasons and render judgment in favor of Rodlin.

FACTS

Rodlin and Sandra were married in Jefferson Davis Parish on November 27, 1976. Two children were born of their marriage, Romaine and Ronotta. Following a separation, a judgment of divorce was granted to the Guillorys on December 11, 1992. In a joint stipulation, the parties agreed to joint custody of the minor children, with Sandra named the domiciliary parent. They further agreed that Rodlin would pay child support of $550.00 per month, until Ronotta graduated from college, and $250.00 per month in alimony until September 1996.

On January 10, 1996, Sandra filed a rule for contempt against Rodlin, seeking arrearages of $10,400.00 in child support and attorney's fees. Rodlin answered, asserting six affirmative defenses: that he and Sandra agreed that the child support would be $400.00 per month per child; that beginning in January 1993, Romaine lived with him, and that they agreed to reduce the child support to $400.00 per month; that in May 1993, they agreed that the child support and alimony would be paid in full by a lump sum payment of $10,000.00; in the alternative, that in May 1993, he delivered $10,000.00 to Sandra, that she had not returned that amount, and that he was entitled to an offset against any past, present, or future child support or alimony obligation; and, in the alternative, that in January 1993, they agreed, either expressly or impliedly, to reduce the child support to $250.00 per month and to reduce the alimony to $150.00 per month.

A hearing was held on the rule on July 9, 1996, following which the matter was taken under advisement. The trial court issued written reasons on November 19, 1996, finding that Romaine began living with Rodlin in February 1993, and, as a result, Rodlin was entitled to a credit thereafter towards the amount of child support he was originally ordered to pay. The trial court determined that from February 1993, through September 1996, Rodlin's child support obligation totaled $275.00 per month along with the $250.00 per month in alimony for a total of $11,311.00 in arrearages through the date its written reasons were issued. With regards to the $10,000.00 payment, the trial court held that this was a gift to Sandra and the children, thus, Rodlin was not entitled to a credit against his arrearages. Finally, the trial court awarded Sandra $1,500.00 in attorney's fees. A judgment was signed on December 16, 1996. Rodlin filed a motion for a new trial, which was denied. This appeal followed.

ISSUES

On appeal, Rodlin asserts five assignments of error:

*1082 1) The trial court erred in finding the $10,000.00 payment a gift.
2) The trial court erred in refusing to give him a credit for the $10,000.00.
3) The trial court erred in refusing to give him credit for cash payments he made to Sandra.
4) The trial court erred in accumulating the arrearages for the child support through the date of the written reasons, thus accumulating payments which would have become due after the date of the trial.
5) The trial court erred in awarding Sandra attorney's fees.

LAW

On review, an appellate court will not set aside a trial court's finding of fact in the absence of manifest error, or unless the finding is clearly wrong. Rosell v. ESCO, 549 So.2d 840 (La.1989). The issue before the court is not whether the trier of fact was right or wrong but, rather, whether its conclusions were reasonable. Stobart v. State Through DOTD, 617 So.2d 880 (La.1993). Thus, in order to reverse a trial court's finding of facts, an appellate court must first determine, after reviewing the record in its entirety, that a reasonable factual basis does not exist for the finding and that the record establishes that it is clearly wrong. Mart v. Hill, 505 So.2d 1120 (La.1987). Even if the court feels that its own evaluations and inferences are more reasonable than the factfinder's, reasonable evaluations of credibility and reasonable inferences of fact should not be disturbed upon review if conflict exists in the testimony. Id. Where two permissible views of evidence exist, the trial court's choice between them cannot be manifestly erroneous or clearly wrong. Canter v. Koehring Co., 283 So.2d 716 (La.1973). However, if the appellate court determines that a "reversible error of law or manifest error of material fact was made in the trial court, it is required, whenever possible, to redetermine the facts de novo from the entire record and render a judgment on the merits." Ferrell v. Fireman's Fund Ins. Co., 94-1252, p. 4 (La.2/20/95); 650 So.2d 742, 745, on remand, 92-2116 (La.App. 4 Cir. 7/31/96); 680 So.2d 690.

ASSIGNMENTS OF ERROR NUMBER ONE AND TWO

In reviewing the record, we find that the trial court erred in finding the $10,000.00 payment a gift. In its findings, the trial court stated that it was "not convinced the parties's (sic) actions or testimony that they intended to alter this Court's order of 1992. This Court can only conclude this amount was a gift to petitioner and the children. This amount will not be considered in any credit due defendant." We find this conclusion by the trial court was manifestly erroneous since there was no evidence indicating that the money was intended as a gift. Rodlin testified that the amount was intended as a lump sum payment for child support, while Sandra claimed it was intended to pay off community debts. As a result of this manifest error, we will conduct a review of the record and render a judgment on the merits.

A parent's duty of support is a legal duty which cannot be renounced or suspended. Dubroc v. Dubroc, 388 So.2d 377 (La.1980). However, the general rule is that a judgment awarding child support remains in effect until the party ordered to pay support has the judgment modified or terminated by a court, or until the parties have entered into a conventional obligation which extrajudicially modifies the child support award. Goss v. Goss, 95-1406 (La.App. 3 Cir. 5/8/96); 673 So.2d 1366. In order to prove a modification through an agreement, the party claiming such must clearly prove that the agreement meets the requisites of a conventional obligation, and that it does not interrupt the child's maintenance or upbringing or otherwise work to his/her detriment at the time it was made. Trisler v. Trisler, 622 So.2d 730 (La.App. 1 Cir.1993).

In order to decide this issue, we feel that a review of the circumstances and testimony presented at the hearing on the rule is necessary. A complete recital follows.

Prior to filing for a divorce, Rodlin testified that he and Sandra sought legal advice from a family friend, Gene Thibodeaux.[1]*1083

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702 So. 2d 1079, 1997 WL 671665, Counsel Stack Legal Research, https://law.counselstack.com/opinion/guillory-v-guillory-lactapp-1997.