Hoyt Oliver Ponder v. Julie S. Ponder

Opinion

NOT DESIGNATED FOR PUBLICATION

STATE OF LOUISIANA

COURT OF APPEAL

FIRST CIRCUIT

2019 cu 1151

H.O.P.

VERSUS

J.S.P.

Consolidated With

2019 cu 1152

J.S.P.

VERSUS

H.O.P.

JUN o5 2020

Judgment Rendered: ____ _

APPEALED FROM THE TWENTY-FIRST JUDICIAL DISTRICT COURT IN AND FOR THE PARISH OF TANGIPAHOA STATE OF LOUISIANA

DOCKETNUMBER2018-0003015 C/W 2018-0003037, DIVISION "K"

HONORABLE JEFFERY T. OGLESBEE, JUDGE

A. Bradley Bemer Attorney for Plaintiff/Appellant Hammond, Louisiana H.O.P.

Sherman Q. Mack Attorneys for Defendant/Appellee C. Glenn Westmoreland J.S.P. Emily Guidry Jones Albany, Louisiana

BEFORE: McDONALD, WELCH, THERIOT, HOLDRIDGE and CHUTZ, JJ.

McDonald, J.

This is an appeal from a trial court judgment awarding child custody, child

support, and interim spousal support. After review, we affirm in part; vacate in

part; amend in part, and as amended, affirm.

FACTS AND PROCEDURAL HISTORY

H.O.P. ( husband) and J.S.P. ( wife) were married in Tangipahoa Parish on

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October 14, 2007 and had one child, C.H.P., born January 14, 2010. On

September 21, 2018, H.O.P. filed a petition for divorce in Tangipahoa Parish. On

September 25, 2018, J.S.P. filed a petition for divorce pursuant to La. C.C. art. 102,

custody, support, and incidental matters in Tangipahoa Parish.

The matter went to a trial on the merits on February 28, 2019. After the

witness testimony, introduction of evidence, and arguments of counsel, the trial

court granted the parties 20 days to find out the status of their 2015, 2016, and

2017 tax returns, which had not been available at the time of trial, and granted

J.S.P. 20 days to " explore" the possibility of full-time rather than part-time work.

The trial court noted that "I can't accurately set a number on child support and/or a

claim for spousal support without having an accurate financial picture of what

those two numbers are unless you want me to make a decision based upon what I

heard here today which is vague to say the least." Neither party supplemented the

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record after the trial.

Thereafter, the parties were awarded joint custody with J.S.P. designated as

the domiciliary parent. H.0.P. was awarded custody on alternating weekends

during the school year from Friday at 5:00 p.m. until Sunday at 5:00 p.m. and

every Tuesday after school until returning the child to J.S.P. the next morning for

her to transport the child to school. Further, H.O.P. was awarded one-half of the

1 In order to protect the identity of the minor child, we refer to the parents and the minor child by their initials throughout this opinion. See Uniform Rules - Courts of Appeal, Rule 5-1 and 5-2.

2 H.O.P.'s 2018 W-2 was introduced into the record during the trial.

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holidays each year, and the first and third weeks in June and July each year.

Child support in the amount of $635.00 per month was awarded to J.S.P.

from H.0.P., retroactive to the date of demand, with credit given for payments

made. H.O.P. was ordered to pay 60% of childcare costs, health insurance

premmms, the child's extraordinary medical expenses, and other agreed-upon

expenses. H.O.P. was also ordered to pay 60% of the expenses of tuition,

registration, books, supply fees for C.H.P. attending Holy Ghost Catholic School,

and extracurricular activity fees that C.H.P. was participating in. H.O.P. was

awarded the right to claim the child for tax purposes in odd years, and J.S.P. was

awarded the right to claim the child for tax purposes in even numbered years.

H.O.P. was also ordered to pay J.S.P. $ 1,630.00 per month in interim spousal

support, retroactive to date of demand, with credit for payments made, and

terminating 180 days from the rendition of the judgment of divorce. J.S.P. 's claim

for final spousal support was pretermitted to a later date. The judgment was signed

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onApril 1, 2019. Ajudgment of divorce was signed on the same day.

H.O.P. appealed the judgment awarding custody, child support, spousal

support, and incidental matters. He makes three assignments of error on appeal.

First, he maintains that the trial court erred in awarding interim spousal support to

J.S.P., and by finding that he has the ability to pay the interim spousal support

awarded. Second, he maintains that the trial court erred in its allocation of

physical custody of the minor child to him pursuant to La. R.S. 9:335. Third, he

asserts that the trial court erred in calculating J.S.P. 's income for purposes of

determining his child support obligation.

ASSIGNMENT OF ERROR NO. 2

In this assignment of error, H.O.P. maintains that the trial court erred in its

allocation of physical custody of the minor child pursuant to La. R.S. 9:335.

3 Other ancillary matters decided in the custody and support judgment are not before us on appeal.

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H.O.P. maintains that the trial court erred by not awarding physical custody to him

at least three weekends per month during the school year. H.O.P. was awarded

custody on alternating weekends during the school year, and every Tuesday after

school until H.O.P. brought the child to J.S.P. the following Wednesday morning

for transport to school.

In a proceeding for divorce or thereafter, the court shall award custody of a

child in accordance with the best interest of the child. La. C.C. art. 131. Every

child custody case is to be viewed on its own peculiar set of facts and the

relationships involved, with the paramount goal of reaching a decision which is in

the best interest of the child. A trial court's determination regarding child custody

will not be disturbed absent a clear abuse of discretion. Ehlinger v. Ehlinger,

2017-1120 (La. App. 1 Cir. 5/29/18), 251 So.3d 418, 422.

In awarding H.0.P. custody every Tuesday afternoon through Wednesday

morning, in additional to alternate weekends, the trial court gave H.O.P. more

custody time per month than an additional weekend per month would provide. We

find no clear abuse of discretion by the trial court in not awarding H.O.P. three

weekends per month during the school year. This assignment of error has no merit.

ASSIGNMENT OF ERROR NO. 1

In this assignment of error, H.O.P. maintains that the trial court erred in

awarding interim spousal support to J.S.P. and erred in finding that he has the

ability to pay the interim spousal support awarded.

The spouse seeking interim spousal support bears the burden of proving his

or her entitlement to such. Romanowski v. Romanowski, 2003-0124 (La. App. 1

Cir. 2/23/04), 873 So.2d 656, 663-64. A claimant demonstrates the need for

interim spousal support if the claimant establishes that he or she lacks sufficient

income or the ability to earn a sufficient income to sustain the style or standard of

living that he or she enjoyed while residing with the other spouse. Lambert v.

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Lambert, 2006-2399 (La. App. 1 Cir. 3/23/07), 960 So.2d 921, 928-929. The trial

court is afforded much discretion in determining whether to make an award of

interim spousal support, and such a determination will not be disturbed absent a

clear abuse of discretion. Martello v. Martello, 2006-0594 ( La. App. 1 Cir.

3/23/07), 960 So.2d 186, 193.

J.S.P. is a women's health nurse practitioner with a master's degree in

nursing. She has worked part-time since the birth of C.H.P. C.H.P. was nine years

old and attending school at the time of trial. At the time oftrial, J.S.P. was working

an average of 24 hours per week and earned $45.00 per hour. She testified that she

worked every Tuesday and Wednesday, and a half-day every other Friday. J.S.P.

testified that her gross income was $ 3,352.00 per month and her net income was

2,926.19 per month. J.S.P.'s pay stub for October 14 through October 27, 2018,

indicated that she had earned $ 34,006.05 for the year through October 27, 2018,

which would mean she earned approximately $40,800.00 in 2018.

J.S.P. also had a side business marketing and selling vitamins and health

supplements. She testified that she could not recall how much profit she made in

2016 and 2017, but that she made less in 2018 than in 201 7 and that the business

had " dwindled down."

On cross-examination, J.S.P. agreed that if she worked full-time as a nurse,

she could earn around $ 93,000.00 to $ 94,000.00 per year. She also testified that

her side business could pay her residual income, but that it was not guaranteed.

J.S.P. testified that she was looking into the possibility of working a half-day every

Friday instead of a half-day every other Friday, as well as picking up one 12-hour

shift on the alternating weekends that she did not have custody of C.H.P.

H.O.P. works as a high school teacher. H.O.P. grossed $ 53,372.64 from his

teaching job in 2018. His pay stub shows that he earned gross monthly wages of

4,972.00 per month and netted wages of $ 3,567.44 per month. H.O.P. also earned

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200.00 per month in rental income.

H.O.P. had an interest in a family timber business and testified that he made

a small amount of money from it, but no evidence ofthe income from that business

was presented. H.O.P. had an interest in a real estate development business but

testified that it was a losing investment. H.O.P. had a bulldozer business, but he

testified that it did not tum a profit. H.O.P. also had a cattle business but testified

that it was more of a hobby and did not tum a profit either. H.O.P. testified that he

had depleted his separate savings accounts, which had made up the difference

between the family's expenses and income prior to the divorce, as well as the

difference between his expenses and income after the divorce. H.O.P. testified that

he had to borrow money from his father to help pay his expenses during the

divorce proceedings.

J.S.P. asked for interim spousal support, claiming necessitous circumstances.

At the time of trial, J.S.P. worked an average of 24 hours per week, for a total of96

hours per month. If J.S.P. worked half-days every Friday ( as opposed to every

other Friday) and picked up one 12-hour shift each weekend that she did not have

custody, as she testified she was looking into doing, she could work approximately

32.5 hours per week, totaling 130 hours per month. This would bring her monthly

income from $3,352.00 to $5,850.00, or $70,200 annually.

We find that the trial court abused its discretion in not finding that J.S.P. was

voluntarily underemployed for purposes of determining interim spousal support.

Further, we find that the trial court abused its discretion in determining that J.S.P.

demonstrated the need for interim spousal support by showing that she lacked

sufficient income or the ability to earn sufficient income to sustain the style or

standard of living that she enjoyed while she resided with H.O.P. See Lambert,

960 So.2d at 928. Thus, we vacate the award of interim spousal support.

ASSIGNMENT OF ERROR NO. 3

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In this assignment of error, H.O.P. asserts that the trial court erred in

calculating the income of J.S.P. for purposes of determining his child support

obligation, as she was voluntarily underemployed.

In a proceeding for divorce or thereafter, the court may order either or both

parents to provide an interim allowance or final support for a child based on the

needs of the child and the ability of the parents to provide support. La. C.C. art

141. The manifest error standard of review applies to the trial court's conclusions

of fact regarding financial matters underlying an award of child support.

Romanowski, 873 So.2d at 662.

Louisiana Revised Statutes 9:315 .11 provides in part:

A.( 1) If a party is voluntarily unemployed or underemployed, child support shall be calculated based on a determination of income earning potential, unless the party is physically or mentally incapacitated, or is caring for a child of the parties under the age of five years.

There is no evidence in the record that J.S.P. suffers from any mental or

physical incapacity which prevents her from obtaining full-time employment, and

the parties' only child is over five years old and attends school. As previously

stated, J.S.P. was only working an average of 24 hours per week at the time of trial

but had the potential to pick up more hours and increase her income.

For purposes of determining child support, we find that the trial court

manifestly erred by not calculating child support based upon J.S.P.'s earning

potential due to her voluntary unemployment. Thus, we vacate the award of child

support and we recalculate the child support award using J.S.P.'s earning potential.

H.O.P.'s gross monthly income is $ 4,972.00. J.S.P.'s imputed gross monthly

income is $ 5,850.00. Their combined grossly monthly income is $ 10,822.00.

Thus, H.O.P.'s portion of their combined gross monthly income is 46% and J.S.P.'s

portion of their monthly adjusted gross income is 54%. The basic child support

obligation is $ 1,219.00. H.O.P.'s 46% of $1,219.00 equals a child support

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obligation of$560.74. See La. R.S. 9:315.19.

In addition to the basic child support obligation, the other expenses outlined

in the trial court judgment are adjusted so that H.O.P. shall be responsible for 46%

of any childcare costs, extraordinary medical expenses for C.H.P., and other

agreed-upon expenses. Also, H.O.P. shall be responsible for 46% of the expenses

of tuition, registration, books, and supply fees required for C.H.P. attending Holy

Ghost Catholic School, as well as 46% of fees for those extracurricular activities

that the minor child is participating in.

As H.O.P. is paying for I 00% of C.H.P. 's $ 74.00 health insurance premium

by payroll deduction, for which he is responsible for only 46%, he gets a credit for

paying J.S.P.'s 54% of the $ 74.00, or $ 39.96. See La. R.S. 9:315.4(A). Thus,

H.O.P.'s monthly child support obligation of $560.74, minus a credit of $39.96,

equals a monthly child support obligation of $520. 78. Accordingly, H.O.P. 's

monthly child support obligation is amended to $ 520. 78, and as amended,

affirmed.

DECREE

For the foregoing reasons, the child custody award is affirmed, the interim

spousal support award is vacated, and the monthly child support award is amended

to $520. 78, and as amended, affirmed. Costs of this appeal are assessed one-half

against H.O.P. and one-half against J.S.P.

AFFIRMED IN PART, VACATED IN PART, AMENDED IN PART, AND AS AMENDED, AFFIRMED.

NOT DESIGNATED FOR PUBLICATION

STATE OF LOUISIANA

COURT OF APPEAL

FIRST CIRCUIT

2019cu1151

H.O.P.

VERSUS

J.S.P.

Consolidated With

2019cu1152

J.S.P.

VERSUS

H.O.P.

THERIOT, J., dissenting in part with reasons.

I agree with the majority to affirm the child custody award and to amend the

child support award.

I disagree with vacating the trial court's judgment. I would simply affirm the

trial court's decision. I do not believe the trial court abused its authority or

committed manifest error, since neither party supplemented the record to provide the

court with a clearer picture oftheir financial situation when given the opportunity to

do so. I find both husband and wife are under reporting their income. I do not wish

to "punish" the wife for being underemployed when the husband refuses to provide

the court with the financial activity of his dozer business and the family timber

business. As such, I find both parties to be in bad faith. As a result, the judge did

the best he could do with the information provided.