Harrington v. Harrington

989 So. 2d 838, 2008 WL 3394788
CourtLouisiana Court of Appeal
DecidedAugust 13, 2008
Docket43,373-CA
StatusPublished
Cited by9 cases

This text of 989 So. 2d 838 (Harrington v. Harrington) 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
Harrington v. Harrington, 989 So. 2d 838, 2008 WL 3394788 (La. Ct. App. 2008).

Opinion

989 So.2d 838 (2008)

Polly Passman HARRINGTON, Plaintiff-Appellee
v.
Samuel "Sonny" HARRINGTON, Defendant-Appellant.

No. 43,373-CA.

Court of Appeal of Louisiana, Second Circuit.

August 13, 2008.

*839 The Boles Law Firm by Robert W. Kostelka, Monroe, for Appellant.

Hammonds & Sills by Linda K. Ewbank, Baton Rouge, for Appellee.

Before GASKINS, PEATROSS, and DREW, JJ.

GASKINS, J.

The defendant, Samuel Guy "Sonny" Harrington, appeals from a trial court judgment increasing the amount he is to pay for child support. The plaintiff, Polly Passman Harrington, now Bryant, answered the appeal. For the following reasons, we affirm in part and amend in part the trial court judgment.

*840 FACTS

Polly Passman Harrington Bryant (Polly) and Samuel Guy "Sonny" Harrington (Sonny) were married in May 1989; they had two daughters, Hannah and Holly. In January 1997, Polly filed a petition for divorce. In April 1997, the trial court entered a judgment granting the parties joint custody of their children and ordering Sonny to pay $666 per month in child support. He was also to maintain insurance for the children. Polly was allowed to claim Holly on her income tax return and Sonny was allowed the income tax credit for Hannah. The divorce decree was entered in September 1997. The parties later agreed jointly to modify their child support judgment to allow Sonny to satisfy his obligation by paying for Holly's special education at a private school called Learning Tech. He also insured the children through his new wife's employment.

In November 2004, Polly filed a rule to increase child support. Polly alleged a material change in circumstances, claiming that Holly's medical and education needs had increased, requiring an increase in child support.

In March 2005, a hearing officer conference was held in which the parties agreed to upset the trial of the matter without date, subject to refixing upon the motion of either party. The parties and children were to be evaluated and/or counseled by a psychologist.

In September 2006, Polly sought to move forward with her petition for an increase in child support. She filed a motion and order to reset the hearing officer conference, stating that the psychologist they had been ordered to see had closed his practice. Sonny answered, arguing that there was no procedure for resetting a hearing officer conference when there is no demand for relief to be granted. Sonny outlined the amounts he had spent in support of the children.

In January 2007, Sonny filed an exception of no cause or no right of action, claiming that Polly had recently delivered Holly to him and requested that he assume principal custody of the child. He maintained that Polly abandoned her claim for an increase in child support. Trial on the matter was set for January 2007. Sonny sought to have the hearing dismissed.

Polly argued that Holly was with Sonny due to a behavioral problem and it was expected that the arrangement was temporary. Therefore, she urged that the exception of no cause/no right of action should be denied.

On February 12, 2007, the trial court rendered a judgment denying the exception of no cause/no right of action. Joint custody was maintained. Recognizing the parties' actions in splitting primary custody of the children, the court ordered that Polly had the primary custody of Hannah and Sonny had the primary custody of Holly, with liberal visitation to each parent. The child support issue was passed until March 2007.

A hearing on the child support issue was held on March 26, 2007.[1] In July 2007, the trial court filed its reasons for judgment. The court recognized the split custody arrangement of February 2007, with one child living mainly with each parent. The court observed that Sonny was somewhat evasive regarding his income and had testified that he had a gross income of $15,000 in 2006. The court also noted Sonny's affidavit to the hearing officer *841 in 2005 in which he reported grossing $3,494 per month, or a total of $41,928 per year. However, the court remarked that Sonny's own CPA did not know his true income. The court determined that both parties failed to provide sufficient facts and information to convince the court that it should add to or deduct from the representation of Sonny's gross income in 2005, with one exception. The trial court considered that $1,692 of Sonny's spouse's income should be included in the child support calculations. This was the amount by which the income of Sonny's current spouse contributed to his expenses. Considering these factors, the court found that Sonny's monthly income was $5,184.

The trial court then calculated the child support obligation. Based on Sonny's gross monthly income of $5,184, and Polly's of $1,733, the court determined that Sonny is responsible for 75 percent of the child support obligation and Polly is responsible for 25 percent. The court calculated that the amount of child support due is $1,361 plus $542, the extraordinary cost of Holly's schooling. The court concluded that Sonny owed Polly $1,427.25 in child support, minus the $542 he pays for the school, for the period of time that both children lived with Polly. Therefore, Sonny owed Polly $885.25 per month in child support, through December 2006. Considering the record of delays in this case and Sonny's "faithful" payments under the agreed modified support plan, the court found that it would be unfair to make the new award retroactive to the date of the filing of the petition for an increase in support. The court made the award retroactive for 10 months, finding that Sonny owed an arrearage of $8,852.25.[2] This amount was to be paid at a rate of $350 per month beginning on July 15, 2007. The arrearage amount was in addition to the new child support award outlined below.

In ruling on the future child support obligation, the court considered that the parties had split custody of the children, with Polly having primary custody of Hannah and Sonny having primary custody of Holly. Accordingly, the court found that Sonny's share for Hannah is $510.38 and Polly's share for Holly is $305.63. Based on these figures, the court found that Sonny owes Polly a difference of $204.75 per month from January 15, 2007 forward. Sonny owed an arrearage of $1,228.50 for the period of time from January 15, 2007, until June 15, 2007.

In supplemental reasons for judgment, the court allowed Polly to claim the tax exemption for Hannah. The court found that Sonny's income is approximately three times that of Polly and if Polly had no tax exemption, she would likely have to pay a small amount of income tax. According to the court, Polly might be entitled to an earned income credit, which would be more of a benefit to her than to Sonny. For those reasons, the court found that it would be in the best interest of Hannah to allow Polly to claim her on her income tax, while Sonny is entitled to claim the exemption for Holly.

The trial court also specified that Sonny would maintain insurance on the children and that the parties are to share uncovered medical and dental expenses with Sonny to pay 75 percent and Polly to pay the remaining 25 percent.

On August 15, 2007, the trial court rendered a judgment incorporating its reasons *842 for judgment and supplemental reasons for judgment.

In July 2007, after the court filed its reasons for judgment, but before the judgment was signed, Sonny filed a motion for new trial, asking that the trial court reconsider its reasons for judgment and/or set aside any judgment rendered therein.

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Cite This Page — Counsel Stack

Bluebook (online)
989 So. 2d 838, 2008 WL 3394788, Counsel Stack Legal Research, https://law.counselstack.com/opinion/harrington-v-harrington-lactapp-2008.