Jade McCann Barnes v. Paul D. Barnes

• Court: Louisiana Court of Appeal
• Decided: May 2, 2007
• Docket: CA-0007-0027
• Status: Unknown

Opinion

STATE OF LOUISIANA COURT OF APPEAL, THIRD CIRCUIT

07-0027

JADE M. BARNES

VERSUS

PAUL D. BARNES

************

APPEAL FROM THE TWELFTH JUDICIAL DISTRICT COURT, PARISH OF AVOYELLES, NO. 2005-8187-A HONORABLE MARK A. JEANSONNE, DISTRICT JUDGE

JIMMIE C. PETERS JUDGE

Court composed of John D. Saunders, Jimmie C. Peters, and Glenn B. Gremillion, Judges.

AFFIRMED IN PART, REVERSED IN PART, AND RENDERED.

Melissa Moreau Attorney at Law Post Office Box 1200 Marksville, LA 71351 (318) 253-9107 COUNSEL FOR PLAINTIFF/APPELLEE: Jade McCann Barnes

Gregory R. Aymond Attorney at Law Post Office Box 5503 Alexandria, LA 71307 (318) 445-3618 COUNSEL FOR DEFENDANT/APPELLANT: Paul Dewayne Barnes PETERS, J.

This child support matter is before us on appeal filed by Paul Dewayne Barnes

from judgments rendered in jointly tried actions he filed against the State of

Louisiana, Department of Social Services (department), and in a rule to show cause

against his former wife, Jade McCann Barnes. For the following reasons, we affirm

in part, reverse in part, and render judgment in his favor setting aside an income

assignment order granted by the trial court.

DISCUSSION OF THE RECORD

Paul Dewayne Barnes (Paul) and Jade McCann Barnes (Jade) were divorced

by consent decree dated June 22, 2006. Among other things, the consent decree

designated Jade as the domiciliary parent of the two children born of the marriage,

Alayna and Michael; ordered Paul to pay Jade $359.02 per month as child support

and $188.50 per month as daycare expenses; and provided for adjustments in Paul’s

monthly child support and daycare payments in the form of a deduction for the time

the children spent with him during the summer.1 The consent judgment did not

provide for a specific date of the month on which monthly payments were due, nor

did it provide for an income assignment of Paul’s child support.

Barely two months later, on August 30, 2006, the department2 sought and

obtained from the trial court an ex parte order amending the child support decree by

requiring that Paul make all support payments to the department through the issuance

of an immediate income assignment order. The department attached to its motion

seeking ex parte relief an affidavit signed by Jade wherein she asserted under oath

1 The consent judgment provided that Paul was to pay Jade one-half of the monthly child support obligation during the month of June and relieved him of any payment during July of each year. 2 The Office of the District Attorney for Twelfth Judicial District in Avoyelles Parish represented the department in these proceedings. “that [she] desire[d] the services of the Department of Social Services for the State

of Louisiana and that support enforcement services [were] being provided [her] under

Louisiana Revised Statute 46:236.1, et seq.” The ex parte order issued by the trial

court decreed that “an Immediate Income Assignment pursuant to Louisiana Revised

Statutes 46:236.[2]A(2),(3),(4) and (5) be issued for collection of current child

support and arrears as reflected in the [judgment of June 22, 2006].”

Paul responded to the department’s action by filing, on September 7, 2006, a

petition to annul the August 30 ex parte order. On that same day, Paul filed a

separate rule to show cause directed at Jade seeking, among other things, a judgment

against her for $252.00—an amount Paul claimed was due him as reimbursement for

Jade’s share of daycare expenses during the months of July and August of 2006, when

Paul had custody of the children.

The trial court heard both the petition for annulment filed against the

department and Paul’s rule to show cause filed against Jade in a single hearing, held

on September 25, 2006. The evidence presented at the hearing established that there

exists little or no dispute concerning the underlying facts in the litigation.

With regard to payments made by Paul to Jade, the record established that

Paul’s employer paid him on a weekly basis and he generally paid his support

obligation on a weekly basis as well. Although the June 22, 2006 consent judgment

did not specify when the monthly obligation was to begin, Paul had begun making

weekly payments of $82.85 on June 2 and continued to do so through June 23.3 Thus,

for the month of June, Paul had overpaid Jade in the amount of $151.89.4 On August

3 The parties obviously concluded that the payments were to begin the first of June. 4 By paying weekly, Paul paid Jade $331.40 for the month of June (4 x 82.85). However, because his obligation for the month of June under the consent judgment was for one-half of the normal monthly child support payment, he overpaid Jade for that month by $151.89 [331.40 !

2 10, 2007, Paul paid Jade $207.13, which satisfied his obligation for that month.5 At

the September 25 hearing, Paul tendered $359.02 to Jade for his September

obligation. Additionally, the evidence established that pursuant to the terms of the

consent judgment, Jade owed Paul $252.00 as reimbursement for daycare expenses

accrued during the summer months.

With regard to the issue of the department’s involvement, the evidence

established that despite the assertions in her affidavit in support of the ex parte order,

prior to filing the August 30 rule the department had provided no support

enforcement services to Jade. In fact, Jade’s involvement with the department arose

when she went to the district attorney’s office, not to obtain support enforcement

services, but for advice because she was dissatisfied with the lack of a specific

payment date in the original consent decree.

Following the September 25 hearing, the trial court rendered judgment denying

Paul’s request for annulment of the ex parte order and stay of the income assignment

order; granted Paul judgment against Jade for $252.00 as reimbursement for child

daycare expenses; and ordered that Paul pay his child support obligation in two equal

monthly payments, or alternatively weekly, based on his employer payment policy.

The trial court signed a written judgment to this effect on October 30, 2007. Paul

appealed the October 30 judgment, asserting that the trial court erred in refusing to

grant him relief from its ex parte order and in refusing to hold Jade in contempt of

court for not timely reimbursing him for the child daycare expenses.

(359.02 ÷ 2)]. 5 The amount paid in August, together with the overpayment from June, equaled the amount due for August [151.89 + 207.13 = 359.02]. Pursuant to the consent judgment, Paul owed nothing for the month of July.

3 OPINION

For the reasons that follow, we find that the trial court erred in failing to grant

Paul the relief he demanded in his opposition to the department’s intervention action.

The ex parte orders requiring payments directly to the department should have been

set aside, and the order effectuating the income assignment should have been stayed.

The department’s involvement in this matter is based on the fact that Jade

collects Medicaid benefits on behalf of the two children. Louisiana Revised Statutes

46:236.1.2(A) authorizes the department to “develop and implement a program of

family support” in a number of situations, including the situation where Medicaid

benefits are involved. Among other things, the department is authorized to

“[e]nforce, collect, and distribute the support obligation owed by any person to his

child or children and to his spouse or former spouse with whom the child is living if

a support obligation has been established with respect to such spouse or former

spouse” and to “[o]btain and modify family and child support orders.” La.R.S.

46:236.1.2(A)(1) and (4).

There is no dispute that Paul’s support obligation to his children had been

established by the June 2006 consent decree. However, it is also undisputed that Paul

was current in his obligation to his children, making enforcement or collection

services totally unnecessary. Nonetheless, the department argues that providing

Medicaid services is equivalent to providing enforcement services and, thus, that

Jade’s affidavit and its certification of its petition were both correct. We reject this

argument as the distinction is elementary. “Support services” in the sense that the

department is supplying Medicaid for the children and “support enforcement

services” in the sense that it is supplying enforcement of the support obligation owed

4 by the parent to his children are two different things. Thus, because the department

was not supplying support enforcement services to Jade when she sought help from

the district attorney’s office, it cannot rely on La.R.S. 46:236.1.2(A)(1) to justify its

ex parte order.

For the same reason, the department cannot rely on La.R.S. 46:236.1.2(A)(4)

as authority for its action. Louisiana Revised Statutes 46:236.2(A)(1) relates to the

authority of the department to amend support orders and provides:

The department or district attorney may, by a written motion together with a written certification from the department that support enforcement services are being furnished to the individual, to the caretaker of any individual receiving support benefits, or to the payor of any support benefits for such individual, obtain an order to require any person under an order to support such individual or caretaker to make such support payments payable to the department.

(Emphasis added).

Intervention by the department or the district attorney’s office requires a showing that

support enforcement services have actually been provided. State ex rel. Jones v.

Mallett, 98-1051 (La.App. 3 Cir. 2/3/99), 737 So.2d 810, writ denied, 99-639 (La.

7/2/99), 747 So.2d 14. Mere certification is insufficient. Even if there exists a

written certification with the pleadings filed, failure to establish that certification as

correct in subsequent proceedings defeats the right of the department to intervene.

Id.

Having found that the department had no statutory right to intervene in this

support litigation, we also find that the trial court erred in granting the income

assignment order. In reaching this conclusion, we begin our analysis with an

evaluation of the June 22, 2006 consent decree and the application of La.R.S.

9:303(A) to that judgment. That statute provides:

5 In all new child support orders after January 1, 1994, that are not being enforced by the Department of Social Services, the court shall include as part of the order an immediate income assignment unless there is a written agreement between the parties or the court finds good cause not to require an immediate income assignment.

The June 22, 2006 consent decree was not originally being enforced by the

department, conforms to the definition of “written agreement” contemplated by

La.R.S. 9:303(A),6 and did not include an immediate income assignment. Thus, the

trial court’s approval of that written agreement established that the it found no good

cause for an immediate assignment order at the time of the consent judgment, a matter

which is within the trial court’s discretion. See La.R.S. 9:303(B)(2)(d). Furthermore,

the record contains evidence that Paul had already begun making his payments, was

not delinquent in his efforts, and was not likely to become so. The absence of any

evidence in the record indicating that Paul is likely to become delinquent constitutes

good cause for rejecting an income assignment order. Curtis v. Curtis, 34,317

(La.App. 2 Cir. 11/1/00), 773 So.2d 185. Therefore, the record clearly establishes

that La.R.S. 9:303(A) did not mandate the inclusion of an income assignment order

in the initial consent decree rendered on June 22, 2006.

The department’s intervention asserted that it sought modification and

subsequent enforcement of the June 22, 2006 support decree by an immediate income

assignment order “for collection of current child support and arrears.” (Emphasis

added). At the hearing on Paul’s motion, the department acknowledged that there

existed no change of circumstances between June 22, 2006, and its intervention filed

6 Louisiana Revised Statutes 9:303(B)(1) defines a written agreement as “a written alternative arrangement signed by both parents, reviewed by the court, and entered into the record of the proceedings.”

6 on August 23, 2006. Specifically, the department was required to acknowledge that

Paul was not in arrears when its intervention was filed.

Louisiana Revised Statutes 46:236.3 provides the department’s authority to

seek child support enforcement by income assignment. In that regard, La.R.S.

46:236.3(B)(1) provides:

Upon entry of any court order for the establishment or modification of support, the court shall order an immediate income assignment, which shall be effectuated immediately by providing a written notice to the payor or payors of income, unless there is a written agreement between the parties or the court finds good cause not to require immediate income assignment. This income assignment may be effectuated by providing a written notice to any payor or payors of income, advising the payor to withhold an amount for current support, plus an additional amount, to be determined by the obligee, toward any arrearage.

Louisiana Revised Statutes 46:236.3(B)(2)(b) provides that “good cause” as

used in La.R.S. 46:236.3(B)(1) “exists if the court or the department finds that

implementing an immediate income assignment would not be in the best interests of

the child or finds proof of timely payment of previous support awards within the

immediate past twelve consecutive months.”7 In this matter, the trial court made the

following statement concerning implementation of the income assignment order:

Now, efficiency and equity favor income assignment orders. In this particular case the Department of Social Services has deemed Mrs. Barnes to be eligible for their assistance. We’ve talked about medicaid, her being a recipient. If there’s a pattern of late payments or partial payments, not any specific date or concerning contempt. Obviously, Mr. Barnes is not in contempt. What the claimant or what the recipient

7 Louisiana Revised Statutes 46:236.3(D)(1) statutorily provides a method for securing an immediate income assignment order “[i]n any case in which the department is providing services and in which an immediate income assignment has not been issued.” In such a situation, “the case shall be subject to an immediate income assignment upon a delinquency of an amount equal to one month’s support.” The problem for the department in this case is that, as we previously determined, the department was not providing support enforcement services. Additionally, Paul was not delinquent in an amount equal to one month’s support obligation. See La.R.S. 46:236.3(A)(1).

7 perceives as being partial payments, late payments it can be destructive to that person’s income and planning and use of funds for the children.

To the extent that the trial court’s finding of “partial payments, late payments” may

be regarded as a finding of delinquency, it was manifestly erroneous. The evidence

clearly reveals that there were no delinquent support payments either as defined by

the statute or as required by the consent decree.

In State ex rel. Jones, 704 So.2d at 960, this court opined that “the legislature

intended to provide public enforcement of private child support only in cases of

delinquency, where one of the types of public support set forth in La.R.S. 46:236.1

[now, R.S. 46:236.1.2] is concerned, or perhaps where the recipient might otherwise

be imperilled.”8 The court added that it was inconceivable that the legislature would

have intended to permit the department or the district attorney’s office to utilize their

limited resources to intervene in cases of child support where their intervention was

not warranted by need or pronounced public policy. Id. The trial court, in its October

judgment in the present case, seemingly saw a need to provide, for Jade’s sake, a

specific date every month for support payments and avoid payments by the week, to

which Jade had objected, but in actual fact its judgment effectuated almost no

practical changes in the consent decree. Paul was ordered to make the payments

“one-half (½) on the 1st and one-half (1/2/)[sic] on the 15th of each month or

alternatively weekly if the defendant is paid by his employer as such.”

8 Effective July 2, 2003, former La.R.S. 46:236.1 was repealed, and the new La.R.S. 46:236.1.1, et seq. took its place. Acts 2003, No. 1068. No changes occurred in the definition of delinquent. The June 3, 2003, minutes of the Senate Judiciary “A” Committee considering House Bill No. 1227 reveal that Lisa Woodruff-White, Department of Social Services, Child Support Enforcement, appeared before the committee and explained that the bill added subtitles throughout the various statutes and that the definition of delinquent was also made the same throughout the child support provisions.

8 We find that the order effectuating the income assignment should have been

stayed, and we will render judgment accordingly.

We turn now to Paul’s single assignment of error, involving the disposition of

his rule to show cause filed against Jade. As observed earlier, he asked primarily for

enforcement of the consent decree regarding apportionment of daycare expenses and

that Jade be found indebted to him for reimbursement of $252.00 in daycare expenses

which he had paid in the summer of 2006. The trial court granted him that relief. His

complaint on appeal is that the trial court did not hold Jade in contempt of court for

not paying her share of those expenses.

This assignment is without merit. “Contempt, in the setting of delinquent child

support requires the trial judge to determine that a party’s disobedience of the court's

support order constitutes a parent’s willful or deliberate refusal to perform an act

which was within the power of the parent to perform.” Fink v. Bryant, 01-987, p. 7

(La. 11/28/01), 801 So.2d 346, 350. A trial court is vested with great discretion to

determine whether a party should be held in contempt for willfully disobeying a trial

court judgment. Id. The consent decree’s formula for calculating the parents’

respective shares of fluctuating daycare expenses during the summer months was

complicated (so much so, in fact, that Paul sought modification of that formula in his

rule to show cause). There was no abuse of the trial court’s discretion in its finding

that Jade was not in contempt.

DISPOSITION

For the reasons assigned above, we reverse and set aside the judgment of the

trial court maintaining its ex parte order requiring that Paul Dewayne Barnes make

his child support payments directly to the State of Louisiana, Department of Social

9 Services. We also reverse and set aside the judgment of the trial court maintaining

its ex parte order denying Paul Dewayne Barnes’s petition to stay the trial court’s

order effectuating an immediate income assignment. Judgment is rendered staying

the latter order. In all other respects, including the denial of the rule for contempt, the

judgment is affirmed. We assess all costs of this appeal to the State of Louisiana,

Department of Social Services, pursuant to La.R.S. 13:5112(A). We establish the

amount of the costs, pursuant to that statute, at $806.00.