Hernandez v. Hernandez

83 So. 3d 168, 11 La.App. 5 Cir. 526, 2011 WL 6821387, 2011 La. App. LEXIS 1634
CourtLouisiana Court of Appeal
DecidedDecember 28, 2011
DocketNo. 11-CA-526
StatusPublished
Cited by4 cases

This text of 83 So. 3d 168 (Hernandez v. Hernandez) 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
Hernandez v. Hernandez, 83 So. 3d 168, 11 La.App. 5 Cir. 526, 2011 WL 6821387, 2011 La. App. LEXIS 1634 (La. Ct. App. 2011).

Opinions

JUDE G. GRAVOIS, Judge.

| .¿Nicole Hernandez appeals from a judgment granting her former husband, Rey-nold Hernandez’s, motion to decrease and modify child support, arguing that the trial court erred in finding that Reynold bore his burden of proof that there was a change in circumstances warranting a modification of his child support obligation. Nicole also argues on appeal that the trial court erred in not including the expenses of private school in the child support calculations. For the reasons that follow, we affirm the judgment of the trial court.

FACTS AND PROCEDURAL HISTORY

On July 31, 2009, Reynold Hernandez filed a petition for divorce against Nicole Hernandez. Nicole answered the petition and filed a reconventional demand against Reynold, seeking a divorce from him. In their respective pleadings, both Reynold and Nicole also sought relief for incidental matters pertaining to the dissolution of their marriage. On November 2, 2009, Reynold and Nicole entered into a Consent Judgment regarding the issues of custody and | ¿support of their two minor children born of the marriage. By judgment rendered and signed on November 6, 2009, Reynold was granted an absolute divorce from Nicole.

In the Consent Judgment, Reynold and Nicole agreed to equally share physical custody of the children, with both of them being designated as co-domiciliary parents. The judgment also reflected that neither Reynold nor Nicole would pay child support to the other, but that each would respectively provide for the children’s needs during their respective physical custody periods. They agreed to equally share all tuition, registration fees, supply fees, uniform costs, summer camp costs and aftercare costs for the children. Further, Reynold agreed to maintain health and hospitalization insurance coverage on the children, while Nicole agreed to maintain dental and vision insurance coverage on the children. They also agreed to be equally responsible for any uninsured medical bills incurred on behalf of the children.

On October 7, 2010, Reynold filed a Motion to Decrease and to Modify Child Support, alleging that there had been a “significant change in circumstances” which warranted a decrease in Reynold’s child support obligation and a modification of the parties’ child support obligations. Specifically, Reynold alleged that the children’s expenses had increased, as had Nicole’s income. He also alleged that he had exhausted his savings and could no longer afford private school tuition and expenses for the children, and that Nicole had been [170]*170overcharging him for the children’s expenses. He prayed that his support obligation be decreased, and that the parties’ child support obligations be modified and set in accordance with the Louisiana Child Support Guidelines for shared custody arrangements.

|4On November 12, 2010, the trial court held a hearing on the motion. It heard testimony from the parties and received evidence regarding their finances and expenses. After taking the matter under advisement, the trial court rendered a judgment on November 16, 2010 finding that there had been a change in circumstances supporting the granting of Rey-nold’s motion. The court noted that the income of both parties had increased, but also that there had been an increase in school tuition and related costs, as well as transportation and health care costs. The parties were allowed to continue enjoying joint physical custody of the children on a shared custody basis, but Nicole was ordered to pay child support to Reynold in the amount of $209.96 per month, beginning in January of 2011. The judgment also stated that after January of 2011, “tuition and registration fees shall not be shared between the parties, but as to all matters, the judgment remains unchanged.” This timely appeal followed.

On appeal, Nicole argues that the trial court erred in finding that there was a change in the parties’ circumstances, and in not including the expenses of private school in the calculation of child support.

ANALYSIS

In Hall v. Hall, 11-60 (La.App. 5 Cir. 5/24/11), 67 So.3d 685, at 638, this Court set forth the applicable standard of review in child support actions:

Generally, the standard of appellate review of factual findings in a civil action is a two-part test: (1) the appellate court must find from the record there is a reasonable factual basis for the finding of the fact finder, and (2) the appellate court must further determine the record establishes the finding is not clearly wrong (manifestly erroneous). Mart v. Hill, 505 So.2d 1120, 1127 (La.1987). Factual findings should not be reversed on appeal absent manifest error. Rosell v. ESCO, 549 So.2d 840, 844 (La.1989). If the trial court’s “findings are reasonable in light of the record reviewed in its entirety, [fithe court of appeal may not reverse.... ” Sistler v. Liberty Mutual Ins. Co., 558 So.2d 1106, 1112 (La.1990). Consequently, when there are two permissible views of the evidence, the fact finder’s choice between them cannot be manifestly erroneous. Stobart v. State, DOTD, 617 So.2d 880, 883 (La.1993).
With respect to this case, a district court’s order of child support is entitled to great weight. Carmouche v. Carmouche, 03-1106 (La.App. 5 Cir. 2/23/04), 869 So.2d 224. “[A]n appellate court will not disturb a child support order unless there is an abuse of discretion or manifest error.” State, D.S.S. ex rel. D.F. v. L.T., 05-1965, p. 6 (La.7/6/06), 934 So.2d 687, 690. Deviations by the district court from the child support guidelines shall not be disturbed on appeal absent a finding of manifest error. La. R.S. 9:315.17.

The Louisiana Child Support Guidelines set forth the method for implementation of the parental obligation to pay child support. La. R.S. 9:315, et seq. The guidelines are to be used in any proceeding to establish or modify child support. La. R.S. 9:315.1(A).

The standard for modification of a child support award is set forth in La. C.C. art. 142 and La. R.S. 9:311(A)(1). La. C.C. art. 142 provides, “An award of child support may be modified if the circumstances of the child or of either parent materially [171]*171change and shall be terminated upon proof that it has become unnecessary.” La. R.S. 9:311(A)(1) provides, “Am award for support shall not be modified unless the party seeking the modification shows a material change in circumstances of one of the parties between the time of the previous award and the time of the rule for modification of the award.”

The trial court found that Reynold bore his burden of proving a material change in circumstances since the previous Consent Judgment. Specifically, the trial court found that both parties’ individual incomes had increased, but also that the children’s private school tuition and related expenses had increased, as well as Reynold’s transportation costs and the cost of the children’s health insurance, which this Court notes is borne 100% by Reynold according to the Consent [fiJudgment. The trial court proceeded to calculate the support award pursuant to La. R.S. 9:315.9, the guidelines for shared custody arrangements, as evidenced by the trial court’s worksheet in the record.

Reynold’s testimony at the hearing showed that the family health care premiums increased by $60 per month. Reynold also testified that his transportation costs increased by $150 to $180 per month.

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Bluebook (online)
83 So. 3d 168, 11 La.App. 5 Cir. 526, 2011 WL 6821387, 2011 La. App. LEXIS 1634, Counsel Stack Legal Research, https://law.counselstack.com/opinion/hernandez-v-hernandez-lactapp-2011.