Lanclos v. Lanclos

614 So. 2d 170, 1993 WL 25632
CourtLouisiana Court of Appeal
DecidedFebruary 3, 1993
Docket91-1424
StatusPublished
Cited by7 cases

This text of 614 So. 2d 170 (Lanclos v. Lanclos) 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
Lanclos v. Lanclos, 614 So. 2d 170, 1993 WL 25632 (La. Ct. App. 1993).

Opinion

614 So.2d 170 (1993)

Donald W. LANCLOS, Plaintiff-Appellee,
v.
Sandra T. LANCLOS, Defendant-Appellant.

No. 91-1424.

Court of Appeal of Louisiana, Third Circuit.

February 3, 1993.

*171 Guy O. Mitchell, Ville Platte, for plaintiff-appellee.

Privat & Regan, Thomas K. Regan, Crowley, for defendant-appellant.

Before LABORDE, THIBODEAUX and WOODARD, JJ.

THIBODEAUX, Judge.

This is an action for child support involving a proper determination of support under LSA-R.S. 9:315 et seq. The defendant, Sandra Lanclos, appeals a trial court judgment which failed to award child support in the amount specified by the Louisiana Child Support Guidelines and found the plaintiff, Donald Lanclos, self-employed. The trial court ordered Donald to pay $450.00 per month, or $225.00 per child for the two children of the marriage, April Marie and Shawn Wayne.

Sandra appeals and asserts that the trial court erred:

(1) in finding that Donald's income was $27,350.00 per year;
(2) in finding that Donald was self-employed and entitled to a deduction for ordinary and necessary expenses of his business;
(3) in failing to apply the Louisiana Child Support Guidelines;
(4) in deviating from the Louisiana Child Support Guidelines without a determination that the deviation was in the best interests of the children or inequitable to the parties; and,
(5) in failing to determine which factors required a deviation from the guidelines.

We affirm the trial court judgment regarding Donald's self-employed status and reverse its judgment on child support and award $580.00 in child support.

FACTS

On August 29, 1991, Donald filed for divorce from Sandra. A hearing was fixed for and held on October 14, 1991 on various ancillary issues, including child support. The parties were awarded joint custody and Sandra was named the custodial parent by stipulation. Donald's child support obligation was set at $450.00 per month, or $225.00 per child. The trial judge calculated this amount on the basis of $7.50 per child per day and commented in his oral reasons for judgment that the application of the Louisiana Child Support Guidelines would result in an "excessive" award of $501.00.

Sandra contends Donald is not self-employed but an employee of several companies. Donald argues he is a self-employed welder who contracts his services to several companies. The issue is whether or not Donald is a self-employed welder thereby allowing him to deduct certain expenses from his income tax which lowers the amount of his gross income for purposes of *172 determining the amount of his child support obligation by use of the guidelines. The trial judge decided that Donald earned in excess of $27,000.00 in 1990. Inherent in that finding is that Donald was self-employed since his income would have been otherwise considerably higher. Sandra contends some of Donald's employers used a 1099 rather than a W-2 form to avoid paying taxes on the wages paid to Donald.

LAW AND DISCUSSION

On these assignments of errors, our review is limited to whether the trial judge committed manifest error or was clearly wrong. Arceneaux v. Domingue, 365 So.2d 1330 (La.1979), Rosell v. Esco, 549 So.2d 840 (La.1989). Whether Donald was self-employed and therefore entitled to deduct his business expenses from his gross receipts is a factual finding to be made by the trial judge. Rosell at 844-845 teaches that:

Where documents or objective evidence so contradict the witness's story, or the story itself is so internally inconsistent or implausible on its fact, that a reasonable fact finder would not credit the witness's story, the court of appeal may well find manifest error or clear wrongness even in finding purportedly based upon a credibility determination. But where such factors are not present, and a factfinder's finding is based on its decision to credit the testimony of one of two or more witnesses, that finding can virtually never be manifestly erroneous or clearly wrong. (citations omitted)

Robert R. Hicks, accountant for Donald, produced Donald's income tax return which was prepared by Mr. Hicks in 1990. Mr. Hicks also produced Donald's W-2 forms and 1099 forms. Mr. Hicks testified that for income tax purposes, Donald had gross receipts from two different items or groups of items from the companies for whom he worked. The 1099 forms came from companies for which Donald did contract welding work and reflect self-employment on the tax schedule. Mr. Hicks further testified Donald's business expenses were listed on a separate schedule and deducted only from the total income as reflected on the 1099 forms which would equal Donald's taxable income. Mr. Hicks determined Donald's net profit for the year 1990 to be $27,371.00. On cross examination, Mr. Hicks testified that a lot of companies which do not want to pay employee benefits use the 1099 form and call it contract work.

Donald's testimony supported Mr. Hicks' testimony in that he stated he was a self-employed welder who owned his own torch and did welding work for various companies. Moreover, Sandra testified on direct examination and cross examination that Donald was self-employed.

Our review of the record convinces us that the trial judge committed no error in accepting, rejecting or in weighing the testimony and documentary evidence. Thus, the finding by the trial court that Donald was self-employed is not clearly wrong.

ASSIGNMENTS OF ERRORS NOS. 3, 4, AND 5

Sandra contends, in the event this court finds the trial judge was correct in finding Donald was a self-employed welder, that the trial judge incorrectly deviated from the Louisiana Child Support Guidelines in awarding as child support $225.00 per month per child for a total of $450.00 per month and in failing to give a proper explanation for the deviation. The trial court was required to apply the child support guidelines in LSA-R.S. 9:315.14 since this statutory standard was in effect on the date this action was filed. Absent proper reasons for deviation, Sandra was entitled to the monthly amount specified in the schedule. Donald asserts that the deviation was proper because LSA-R.S. 9:315.1(C)6 allows the court to consider factors not listed in this section that would make the application of the guidelines inequitable.

The correct statutory provision is LSA-R.S. 9:315.1(C)7. Regardless of the factors considered by the trial judge in determining Donald's child support obligation, the trial judge is required to articulate those factors. The issue on appeal is whether the trial court abused its discretion *173 in deviating from the guidelines to award $450.00 per month in child support.

LSA-R.S. 9:315.1(A) creates a rebuttable presumption that the amount calculated under the guidelines is the proper amount of child support to be awarded. The court may deviate from the guidelines if their application would be inequitable to the parties or not in the best interests of the child or children. LSA-R.S. 9:315.1(B). This rule of deference to the guidelines is in accord with prior jurisprudence concerning the standard of review which an appellate court should exercise over a trial court's determinations regarding child support. We have previously defined this standard as leaving the trial court "much discretion." Abbott v. Dunlop, 597 So.2d 1212 (La.App. 3d Cir.1992).

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Cite This Page — Counsel Stack

Bluebook (online)
614 So. 2d 170, 1993 WL 25632, Counsel Stack Legal Research, https://law.counselstack.com/opinion/lanclos-v-lanclos-lactapp-1993.