Guillory v. Ventre

610 So. 2d 1056, 1992 WL 364353
CourtLouisiana Court of Appeal
DecidedDecember 9, 1992
Docket91-1225
StatusPublished
Cited by7 cases

This text of 610 So. 2d 1056 (Guillory v. Ventre) 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. Ventre, 610 So. 2d 1056, 1992 WL 364353 (La. Ct. App. 1992).

Opinion

610 So.2d 1056 (1992)

Susan GUILLORY, Plaintiff-Appellant,
v.
Robert VENTRE, Defendant-Appellee.

No. 91-1225.

Court of Appeal of Louisiana, Third Circuit.

December 9, 1992.
Writ Denied March 12, 1993.

*1057 Susan Theall, Opelousas.

Wm. A. Brinkhaus, Opelousas.

Before DOMENGEAUX, C.J., and KNOLL and SAUNDERS, JJ.

*1058 KNOLL, Judge.

This appeal concerns an increase in child support payments under the guidelines of LSA-R.S. 9:315, et seq.

Susan Guillory (Guillory) and Robert Ventre (Ventre) were divorced in January of 1983. Guillory was granted the sole custody of Jill, two and one-half years of age at the time of the divorce, and Ventre was ordered to pay $200 monthly child support together with Jill's reasonable medical, dental, and pharmaceutical expenses.

On August 29, 1990, Guillory filed this rule to increase child support. Ventre answered, seeking an award of joint custody, expanded visitation rights, an amendment to his obligation to pay for Jill's medical expenses, and an order granting him the dependency exemption for income tax purposes.

The trial court increased the child support award owed by Ventre from $200 to $361.50, retroactive to January 1, 1991. In addition, the trial court awarded Ventre the dependency income tax exemption and ordered him to continue payment of insurance premiums for Jill's medical coverage.

Guillory appeals, contending that the trial court erred in: (1) its computation of her monthly income; (2) failing to consider the incomes of her new spouse as well as Ventre's; (3) failing to cast Ventre with an additional monthly expense for Jill's attendance at a parochial school; (4) deviating from the guidelines without just cause; (5) granting Ventre the dependency tax exemption; (6) casting Ventre only with responsibility for the cost of Jill's medical insurance coverage; and, (7) failing to make the judgment retroactive to the date of filing. We amend to increase the amount of monthly child support Ventre owes, retroactive to the date of filing, and order Guillory to sign the required dependency tax exemption forms. In all other respects, we affirm the trial court.

TRIAL COURT'S COMPUTATION OF GUILLORY'S MONTHLY INCOME

Guillory first contends that the trial court erred in using her potential monthly income rather than her actual monthly income in the calculation of her pro rata obligation for Jill's monthly child support. She argues that her actual monthly income should have been used because her physical condition did not permit her to work additional hours.

On appellate review, great weight must be accorded the trial court's determinations of fact. Where testimony conflicts, reasonable evaluations of credibility and reasonable inferences of fact should not be disturbed. Conner v. Conner, 594 So.2d 1039 (La.App. 3rd Cir.1992).

LSA-R.S. 9:315(6)(b) provides in pertinent part:

"(6) `Income' means:
* * * * * *
(b) Potential income of a party, if the party is voluntarily unemployed or underemployed. A party shall not be deemed voluntarily unemployed or underemployed if he or she is absolutely unemployable or incapable of being employed, or if the unemployment or underemployment results through no fault or neglect of the party."

Guillory testified that she worked part-time at A & P, earning $3.80 per hour. The record shows that in 1989 she worked less than 20 hours per week, and that her 1989 federal income tax return showed that she had total earnings of $2,062.41. This equates to a monthly average of $171.87.

The trial court based its calculation of Guillory's child support contribution on a monthly income of $329.08. Even though the trial court did not state that it based its computation on Guillory's earning potential, it is obvious from the trial court's final determination that it considered that Guillory was able to work at least 20 hours per week at an hourly salary of $3.80.

*1059 Guillory asserts that her physical condition prevents her from working more than what the record shows she actually earned. We find that the record does not support her contention. Dr. Joseph Y. Bordelon, Jr., Guillory's treating physician, opined that although Guillory suffers from back pain, rapid heartbeat, asthma, bursitis, and nervousness, her physical condition should not prevent her from working 40 hours per week. Thus, it follows that Guillory's physical condition would not prohibit her from working up to 20 hours per week.

Guillory next contends that she may not be able to obtain medical insurance coverage with a new employer. Although this may be a legitimate concern, the record neither shows that Guillory attempted to secure additional or new employment nor that any potential employer would not have provided her with medical insurance coverage.

Therefore we cannot say that the trial court abused its discretion in considering Guillory's potential income in its computation of Guillory's pro rata share of Jill's child support.

SECOND SPOUSES' INCOMES

Guillory next contends that the trial court erred when it failed to consider the incomes of each parent's new spouse.

At the time that this rule was heard, LSA-R.S. 9:315(6)(c) provided: "The court may also consider as income the benefits a party derives from remarriage, expense-sharing, or other source."

Consideration of the income from remarriage and the accompanying expense-sharing falls within the trial court's discretion. Therefore we may not reverse the trial court's decision absent an abuse of discretion. Matherne v. Matherne, 571 So.2d 888 (La.App. 5th Cir.1990).

In Matherne, the Fourth Circuit found that the income earned by the second wife of Mr. Matherne increased his monthly household income by approximately 38%. The court held that the trial court erred in failing to consider this significant amount of additional income in calculating the amount of child support.

In the case sub judice, the trial court mentions the incomes of Jill's stepparents, and testimony was elicited which evidences their incomes. However, the trial court did not formulate the parents' respective child support obligations using their spouses' incomes. The trial court did not state any reasons for not including the spouses' incomes.

It is undisputed that in 1989 Guillory's present husband, Kent, earned $574.75 monthly. When combined with Guillory's potential income of $329.08, their total monthly income was $903.83.

Ventre's income was $3,016.93 monthly. His present wife, Deborah, earned a monthly salary of $1,922.04; thus, the Ventres' total monthly income was $4,938.97. We have arrived at the Ventres' monthly income by including as income those "expenses" shown on their affidavits for deductions used to fund their 401K pension plans and Robert Ventre's savings account. These items should be considered as income in the context of child support.

An income and expense sheet introduced into the record and the testimony of Deborah Ventre indicated that the Ventres shared an indeterminate amount of expenses. Similar testimony was adduced regarding the Guillory household.

We find that the trial court should have considered the earnings of the second spouse of the support obligor which are being used for some of the expenses incidental to the second family. See Lustig v. Lustig, 552 So.2d 516 (La.App. 2nd Cir. 1989). Therefore we find that the trial court abused its discretion when it excluded the income of Jill's parents' spouses.

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