Judgment rendered August 17, 2022. Application for rehearing may be filed within the delay allowed by Art. 2166, La. C.C.P.
No. 54,734-CA
COURT OF APPEAL SECOND CIRCUIT STATE OF LOUISIANA
*****
LISA JEAN VOGLER Plaintiff-Appellant
versus
VERNON GERVIS Defendant-Appellee AYRES, JR.
Appealed from the Twenty-Sixth Judicial District Court for the Parish of Bossier, Louisiana Trial Court No. 139,177
Honorable Robert Lane Pittard, Judge
DAVID L. WHITE Counsel for Appellant
SOCKRIDER, BOLIN, ANGLIN & Counsel for Appellee BATTE, LLC By: D. Rex Anglin
Before MOORE, THOMPSON, and ROBINSON, JJ. ROBINSON, J.
Vernon Gervis Ayres, Jr. (“Ayres”) filed a rule to show cause on June
14, 2021, seeking to enforce a judgment dated October 23, 2014, which, in
part, partitioned the former matrimonial domicile previously owned in
indivision by him and Lisa Jean Vogler (“Vogler”), adjudicating ownership
to Ayres and ordering that he refinance the property to remove Vogler from
the mortgage. Ayres petitioned that Vogler be ordered to sign a deed
transferring title to the property to Ayres and to cancel the notice of lis
pendens filed by Vogler on May 3, 2021, because he could not sell or
refinance the property without showing clear title.
Vogler filed an answer and reconventional demand on July 30, 2021,
denying any obligation to facilitate clear title prior to Ayres’ refinancing of
the property, and claiming that the October 2014 judgment was null and void
based on an impermissible waiver of child support.
Judgment rendered by the trial court on August 16, 2021, ordered
Vogler to execute a quitclaim deed conveying all her interest in the property
to Ayres in accordance with the October 2014 judgment, and directed the
clerk of court to cancel the notice of lis pendens recorded by Vogler.
Vogler appeals the August 2021 judgment.
For the following reasons, we affirm the trial court and remand to the
trial court with instructions.
FACTS AND PROCEDURAL HISTORY
Vogler filed a petition for divorce on June 4, 2012, including a
demand that child support be fixed. A consent judgment was entered on August 2, 2012, awarding Vogler primary, domiciliary custody of their two
minor children, ages 11 and 13 at the time. The parties stipulated that the
children could move to Michigan with Vogler and provided for Ayres’
reasonable visitation with the children in Louisiana, with all travel expenses
to be paid by Vogler. Vogler’s demand that child support be set by the court
was reserved. The August 2012 judgment also divided separate and
community assets and included an order that the separate, jointly owned
marital residence be sold, with Vogler receiving a reimbursement for the
down payment she made on the home and the parties splitting the remaining
proceeds from the net equity.
Vogler filed a rule to show cause on January 6, 2014, asserting that
Ayres failed to cooperate with the sale of the home and to divide a SEP IRA
that the parties had acquired and contributed to during the existence of the
marriage, pursuant to the August 2012 judgment, and that child support had
not been set. Ayres filed an answer and reconventional demand on April 24,
2014, seeking to change custody of the minor children and requesting that
child support be set, as well as requesting to purchase Vogler’s interest in
the marital domicile by refinancing and paying the existing debt and
repaying Vogler the down payment and the remaining net equity.
Vogler filed a petition asserting that Michigan has subject matter and
personal jurisdiction over the children and was the appropriate court for
issues related to custody. An evidentiary hearing was conducted on July 14,
2014, and the trial court held that Louisiana had jurisdiction. Vogler filed a
supervisory writ to this Court, which was denied.
2 A hearing was held on August 8, 2014, and the parties ultimately
reached an agreement, forgoing the need for trial. The issues settled
included: Vogler’s continued custody of the minor children; satisfaction of
any past due child support owed by Ayres to Vogler; no ongoing child
support due to Vogler in exchange for Ayres’ relinquishment of all child-
related tax credits and deductions and Ayres’ payment of all visitation
expenses, including transportation costs; an award to Ayres of Vogler’s
entire share in the separate and community assets that had originally been
divided by stipulation in the August 2012 judgment, including Vogler’s
interest in the marital residence; and Ayres’ refinancing of the marital
residence to remove Vogler from the mortgage.
A form and content hearing was held on October 23, 2014. The
parties discussed the method for transferring the property, i.e., the timing of
executing a quitclaim deed in conjunction with the refinancing or sale of the
property, but no specific “vehicle” for the transfer was included in the
judgment. Vogler also raised the issue of whether the child support “waiver”
was contrary to Louisiana law, but the court found the particular issue to
have been already resolved at the August 2014 hearing and outside the scope
of a form and content hearing. With the exception of revising the judgment
to correctly reflect the marital residence as separate, jointly owned property
rather than community property, a judgment was entered on October 23,
2014, reflecting the issues settled upon by the parties at the August 2014
hearing, including directing Ayres to refinance the mortgage within 90 days.
On December 9, 2014, Ayres filed a petition seeking a judgment
ordering Vogler to execute a deed transferring title of the subject property to
3 Ayres, alleging that he could not refinance the property without having a
deed in his name. Two hearings were set, but the matter was ultimately
abandoned. Ayres filed the October 2014 judgment in the conveyance
records on June 14, 2018.
Ayres filed a petition on June 14, 2021, seeking a judgment ordering
Vogler to sign a deed transferring her interest in the subject property to
Ayres pursuant to the terms of the October 2014 judgment, because that
judgment alone was insufficient to transfer title to a prospective buyer. He
also requested the cancellation of a notice of lis pendens filed by Vogler on
May 3, 2021.
Vogler filed an answer and reconventional demand on July 30, 2021,
denying any obligation to facilitate clear title prior to Ayres’ refinancing of
the property and claiming that the October 2014 judgment was null and void
The trial court rendered a judgment on August 16, 2021, ordering
Vogler to execute a quitclaim deed conveying all her interest in the property
to Ayres in accordance with the October 2014 judgment and directing the
clerk of court to cancel the notice of lis pendens. Vogler appeals the
judgment.
DISCUSSION
Absolute Nullity
Vogler claims that the trial court erred in failing to address the past,
present, and future waiver of child support contained in the October 2014
consent judgment that permanently relieved Ayres of his support obligation
4 to his minor children, and in failing to find that the waiver is a violation of
public policy and an absolutely nullity and void from its inception.
Vogler further asserts that since the child support waiver is absolutely
void, the entire agreement is tainted and all other provisions in the October
2014 judgment are also void, such that the trial court had no authority upon
which to order her to sign a quitclaim deed in the September 2021 judgment.
Parents have a legal duty to provide support to their children that
cannot be permanently renounced or suspended. Dubroc v. Dubroc, 388 So.
2d 377 (La. 1980). Thus, the courts of our state have long recognized that a
judgment wherein a parent is permanently relieved of his obligation to
support his minor children is an absolute nullity because it contravenes the
public policy of this state. Hebert v. Hebert, 96–2155 (La. App. 1 Cir.
9/19/97), 700 So. 2d 958; see also Walder v. Walder, 159 La. 231, 105 So.
300 (1925); Dubroc, supra; Pierce v. Pierce, 397 So. 2d 62 (La. App. 2 Cir.
1981); Richardson v. Richardson, 427 So. 2d 518 (La. App. 3 Cir.
1983), writ denied, 433 So. 2d 182 (La. 1983); Macaluso v. Macaluso, 509
So. 2d 201 (La. App. 1 Cir. 1987). The public policy behind a parent’s duty
of support is to ensure, both for the sake of the child and the sake of the
general public that might otherwise have to provide his support, that each
child receives support sufficient for his maintenance and upbringing.
Macaluso, supra.
Absolutely null judgments may be attacked collaterally, at any time,
by rule or by any other method. Hebert, supra, citing Garnett v. Ancar, 203
So. 2d 812 (La. App. 4 Cir. 1967). See also La. C.C.P. art. 2002; Nethken v.
Nethken, 307 So. 2d 563 (La. 1975); Bass v. LaPorte, 95–0867 (La. App. 1
5 Cir. 2/14/97), 691 So.2d 138, writ denied, 97–0646 (La. 4/25/97), 692 So. 2d
1088; Webster v. Boh Brothers Constr. Co., 603 So. 2d 761 (La. App. 4 Cir.
1992). Estoppel or laches cannot arise against an absolute nullity. Wilson v.
King, 227 La. 546, 79 So. 2d 877 (1955).
The applicable provision regarding child support in the October 2014
judgment reads as follows:
IT IS FURTHER ORDERED, ADJUDGED AND DECREED that all pending actions of LISA JEAN VOGLER seeking an award of child support and/or accrual of allegedly past due child support are dismissed, with prejudice. Pursuant to the stipulation of the parties and their transaction and compromise, it is the order of this Court that VERNON GERVIS AYRES, JR. will not owe LISA JEAN VOGLER for any child support payments allegedly due as of the date of this judgment nor any prospective child support payments. This provision of this judgment excluding an obligation of child support on behalf of VERNON GERVIS AYRES, JR. is specifically approved by the Court in view of the other consideration expressed and contained herein including, by way of example, MS. VOGLER’S exclusive right to claim both minor children as dependents and exemptions every year and MR. AYRES’ assumption of the cost of transporting the children for his Spring Break visitation every year as set forth in the Joint Custody Plan attached hereto.
The record indicates that a lump sum payment was made in
consideration for the satisfaction of arrearages as of the date of the
judgment. Therefore, only the portion of the judgment as it applies to
prospective support is at issue in this case. It is clear that the terms of the
judgment indicate the parties’ agreement that Ayres would owe no child
from the date of the judgment going forward, providing that Ayres “will not
owe LISA JEAN VOGLER for any child support payments allegedly due as
of the date of this judgment nor any prospective child support payments,”
and “[t]his provision of this judgment excluding an obligation of child
support on behalf of VERNON GERVIS AYRES, JR.”
6 The release of his obligation to provide child support following the
October 2014 judgment amounted to a full and complete waiver of
prospective child support, making this provision null and void as against
public policy.
However, this Court rejects Vogler’s argument that the entire October
2014 judgment is absolutely null and void due to the flawed provision
regarding waiver of prospective child support. There is ample case law
supporting that only the provision itself – not the entire agreement – is
absolutely null and void.
The court in Macaluso, supra, held that the portion of a judgment
making the payment of child support contingent on full compliance with the
visitation ordered was an absolute nullity.
In Walder, supra, the wife filed suit to annul that portion of the
judgment which relieved the husband of any future obligations to support the
children. The court stated in its ruling that “[I]t should be observed that
plaintiff is not suing to annul the agreement, made by her, to support her
minor children, but the purpose of the suit … is to have the decree in the
partition proceedings annulled or declared void, in so far as it purports to
relieve defendant of all legal obligations to support his minor children…
Hence the validity vel non of the agreement entered into between plaintiff
and defendant does not enter into the case, but only the decree in said
judgment“[.]” [Emphasis added.] Id.
In Pierce, supra, the plaintiff contended that her agreement to waive
future child support contained in the community property settlement was
7 contrary to public policy, and for that reason unenforceable. The court in
Pierce held that the mother had a valid cause of action for child support. Id.
In Richardson, supra, the court held that the portion of the judgment
recognizing the waiver of future child support by the wife upon the
acceptance of a certain lump sum payment from the husband, was null and
void as against public policy. The case was remanded for a hearing solely
on the issue of child support. Id.
Vogler cites Hebert when arguing for the nullity of the entire consent
judgment. In Hebert, the consent judgment disposed of the issues of
custody, use of the family home, health insurance, alimony, and child
support, much like the case at hand. The defendant was to commence
payment of child support only upon the parties paying off all community
debts as specified in the judgment. Hebert, supra. The plaintiff filed a
motion to rescind the consent judgment in its entirety because the judgment
abrogated defendant’s obligation to support his children and because her
consent thereto had been vitiated by an error of fact concerning the principal
cause, but she asked the court to then rule on the issues of child support,
alimony, and use of the family home after the original consent judgment was
rescinded. Id. The court found the provision to be clearly repugnant to
defendant’s obligation to support his children, thus absolutely null and void
as against public policy. Id. It seemed to find the judgment itself to be
absolutely null, but the ruling appeared to merely grant the plaintiff’s motion
to rescind the judgment in its entirety. We find this matter distinguishable
because the plaintiff in Hebert had argued an error of fact concerning the
principal cause; therefore, the child support provision was so intertwined
8 with the remaining provisions that it could not be nullified without affecting
the entire judgment.
Severability
Vogler’s argument that the October 2014 judgment contained no
severability clause, such that the entire agreement is tainted by the quid pro
quo negotiations in which Ayres agreed to dismiss his custody request, is
wholly without merit. This Court is unaware of any requirement of a
severability clause in consent judgments, and Vogler offers no support for
such an argument. In fact, she points out that neither she nor her attorney
cooperated in the signing of the judgment – further weakening any potential
defect of form argument akin to that of contractual requirements.
In addition, it is undisputed that Vogler, an attorney, proposed the
details of the October 2014 judgment. Both parties received benefits from
their transaction and compromise, most significantly Vogler’s continued
custody of the two minor children after an allowed relocation to Michigan
while Ayres stayed in Louisiana. Also, Vogler made no attempt to seek a
declaration of nullity or to obtain a judgment of child support at any time
after the October 2014 judgment until her July 30, 2021, filing of a
reconventional demand seeking retroactive child support, despite being told
by the trial court numerous times that she had the ability to do so. She
operated under all provisions of the consent judgment for seven years, aside
from the contested “vehicle” to be used in effectuating the transfer of her
interest in the former marital domicile, seemingly acquiescing in the validity
of all its terms, despite any doubts she may have expressed as to the child
support waiver.
9 Duress in Negotiations
Vogler refers to the combination of the issues of child custody,
property division, and child support during negotiations leading up to the
October 2014 judgment, alleging that Ayres used the minor children as a
“bargaining chip” to obtain additional assets and the waiver of child support.
She further points out the pressure she was put under prior to executing the
consent judgment, and the fact that she continued to have unresolved
questions and hesitations.
It is commonplace for several issues to be discussed at once in family
law matters such as this. However, there is no evidence in the record to
support Vogler’s contention that Ayres exhibited any wrongdoing as part of
the negotiations. Had she legitimately believed that the terms to which she
agreed in open court were unlawful in any way, those matters could have
been taken up at the impending trial under the supervision of the trial court.
Consent is vitiated when it has been obtained by duress of such a
nature as to cause a reasonable fear of unjust and considerable injury to a
party’s person, property, or reputation. La. C.C. art. 1959. The threat of
doing a lawful act or exercising a right does not constitute duress. Leonard
v. Reeves, 2011–1009 (La. App. 1 Cir. 1/12/12), 82 So. 3d 1250. Here, even
if Ayres had threated to seek full custody of the children, the subject of that
threat – seeking custody – is a lawful act and within his right to exercise.
Therefore, such an action would not constitute duress resulting in the
vitiating of consent.
10 Requirement of Quitclaim Deed; Contempt
Vogler further argues that the trial court erred in ordering her to sign a
quitclaim deed when the October 2014 judgment contained no provision
requiring her to do so. She also claims the trial court erred when it failed to
find Ayres in contempt for failing to refinance the debt on the separate,
jointly owned property as required pursuant to the October 2014 judgment.
The judgment contains the following provisions, in pertinent part:
IT IS FURTHER ORDERED, ADJUDGED AND DECREED that there be judgment herein partitioning the following assets:
I. VERNON GERVIS AYRES, JR. hereby receives and LISA JEAN VOGLER hereby grants, bargains, sells and coveys unto VERNON GERVIS AYRES, JR. with full guarantee of title and with complete transfer and subrogation of all rights and actions of warranty against all former proprietors of the property herein conveyed unto VERNON GERVIS AYRES, JR. all of her right, title and interest in and to the following described property:
A. LOT 3, WOODLAKE SOUTH SUBDIVISION, UNIT 3, A SUBDIVISION OF Bossier Parish, Louisiana, as per plat thereof recorded on Conveyance Book 808, pages 464-465 of the Conveyance records of Bossier Parish, Louisiana, together with all buildings and improvements thereon.
****
IT IS FURTHER ORDERED, ADJUDGED AND DECREED that the parties hereby effect a division of the debts incurred either prior to, during or subsequent to the existence of their community of acquets and gains as follows:
III. VERNON GERVIS AYRES, JR. is hereby ordered to and does hereby assume full liability for, holding LISA JEAN VOGLER free and harmless from any future responsibility for the following debts:
A. Outstanding balance owed on any debt or promissory note secured by mortgage on the immovable property herein conveyed unto VERNON GERVIS AYRES, JR. VERNON GERVIS AYRES, JR. shall completely pay this debt within ninety (90) days by refinancing the existing real estate debt hereby assumed by him; …
11 The judgment is clear and unambiguous in its adjudication of the
formerly co-owned property to Ayres. While the intent may have been for
the judgment itself to effectuate the transfer, Ayres offered evidence
showing that the title company would not continue with refinancing or
approve a sale without a deed from Vogler transferring her interest in the
property as provided in the judgment, as well as a cancellation of the notice
of lis pendens filed by Vogler, so that Ayres would have clear title as the
sole owner of the property. Vogler offered no evidence to the contrary, but
merely argued that the judgment contained no specific direction to execute a
quitclaim deed and that the judgment was nevertheless absolutely void due
to the invalid waiver of child support. There also could have been other
sufficient and reasonable means of transfer, but Vogler offered no evidence
as to such alternatives.
A contract is an agreement by two or more parties whereby
obligations are created, modified, or extinguished. La. C.C. art. 1906. A
contract is commutative when the performance of the obligation of each
party is correlative to the performance of the other. La. C.C. art. 1911.
When there are reciprocal obligations, the obligor of one may not be put in
default unless the obligor of the other has performed or is ready to perform
his own obligation. La. C.C. art. 1993. A party to a commutative contract
may refuse to perform his obligation if the other has failed to perform. La.
C.C. art. 2022. As a general rule, a party suing to recover on
commutative contract must allege and prove performance of his
agreement. Charles C. Cloy, Gen’l Contrs., Inc. v. DiVincenti Bros., Inc.,
308 So. 2d 495 (La. App. 1 Cir. 1975), writ denied, 311 So. 2d 262 (La.
12 1975). Before a person can have a contract canceled on account of a failure
of the other party to perform, such person must allege and prove that he
himself has performed or offered to perform his part of the contract. La.
Farm Rice Bur. v. Miller, 389 So. 2d 840 (La. App. 3 Cir. 1980), Racca v.
Zwan, 194 So. 68 (La. App. 1 Cir. 1940).
Ayres’ requirement to refinance the property and Vogler’s
requirement to transfer her interest operates as a commutative contract. The
performance of one obligation is correlative to the performance of the other.
Vogler argues at great length that Ayres cannot support his request that she
sign a quitclaim deed because he failed to perform under the agreement by
not refinancing within 90 days of the judgment. However, in order to be
successful in such a claim, Vogler must allege and prove the performance of
her agreement. In other words, she must prove that she has performed or
offered to perform. Vogler has not performed under this commutative
contractual agreement; therefore, she is barred from claiming Ayres’ failure
to perform.
Good faith governs the conduct of the obligor and obligee in whatever
pertains to the obligation. La. C.C. art. 1759. A party to a contract has an
implied obligation to make a good faith effort to fulfill the conditions of
the contract. Bloom’s Inc. v. Performance Fuels, L.L.C., 44,259 (La. App. 2
Cir. 7/1/09), 16 So. 3d 476, writ denied, 2009–2003 (La. 11/20/09), 25 So.
3d 800.
We find that Ayres has made a good faith effort to fulfill the
conditions of the commutative contract. As evidenced by his petition filed
shortly after the October 2014 judgment, he did attempt to refinance the
13 property within the 90-day timeframe. He also filed the judgment itself in
the conveyance records in an attempt to effectuate the transfer. Ayres later
provided evidence of correspondence with the title company in which he
was informed a deed would be required in order to close on the refinancing,
and per his latest sworn petition, for the potential sale of the property.
Child Support Guidelines
The Louisiana Supreme Court in Stogner v. Stogner, 98–3044 (La.
7/7/99), 739 So. 2d 762, held that, “[n]otwithstanding the freedom of the
parties to [enter into consent judgments], agreements may not ‘derogate
from laws enacted for the protection of the public interest.’” The Court held
that, pursuant to La. R.S. 9:315.1(A) and (D), the trial court should have
“consider[ed] the guidelines set forth [and] … review[ed] the adequacy of
the stipulated amount,” before the stipulated judgment was presented to it
for signature, and further, that the trial court should have given oral or
written reasons for warranting the deviation from the guidelines, La. R.S.
9:315.1(B).
There was no review by the trial court of the child support guidelines
provided in La. R.S. 9:315.1 pertaining to the parties’ underlying agreement
regarding child support – for either the satisfaction of arrearages as of the
October 2014 judgment by lump sum payment or the waiver of prospective
child support following that judgment – nor were there any oral or written
reasons for deviation therefrom in the judgment. Such failure to consider the
guidelines and provide reasons for any deviation therefrom was error.
However, this error does not result in absolute nullity of the child support
14 provision in any respect, but merely affects the basis for which an amount of
child support is set.
La. R.S. 9:315.1 provides, in part, as follows:
A. …There shall be a rebuttable presumption that the amount of child support obtained by use of the guidelines set forth in this Part is the proper amount of child support. B. (1) The court may deviate from the guidelines set forth in this Part if their application would not be in the best interest of the child or would be inequitable to the parties. The court shall give specific oral or written reasons for the deviation, including a finding as to the amount of support that would have been required under a mechanical application of the guidelines and the particular facts and circumstances that warranted a deviation from the guidelines. The reasons shall be made part of the record of the proceedings. …
Subpart C provides a list of the court’s considerations in determining
whether to deviate from the guidelines.
This Court directs the trial court to use the guidelines provided in La.
R.S. 9:315.1(C) to establish child support as of the rendering of the August
2014 judgment (as a result of this Court’s finding that the portion of the
provision in the judgment regarding prospective child support amounted to a
waiver in violation of public policy, rendering that portion of the provision
absolutely null and void). In addition, the trial court is to consider the
guidelines pursuant to La. R.S. 9:315.1(D) to review the adequacy of the
stipulated amount for arrearages paid by lump sum as of the filing of
judgment (as a result of this Court’s finding that the portion of the provision
in the judgment regarding satisfaction of child support arrearages prior to the
judgment was permissible and valid).
This Court would draw particular attention to that portion of La. R.S.
9:315.1 which authorizes a trial court to deviate from the child support
guidelines “if their application … would be inequitable to the parties.” The
15 record is devoid of any specific information to enlighten this Court as to the
parties’ financial positions (1) in August 2012 when child support was first
ordered in favor of Vogler upon the parties’ divorce, and (2) in August 2014
when Ayres made a lump sum payment for arrearages for the period leading
up to that point and when, resultingly and retroactively, prospective child
support was never set due to an invalid waiver. However, this Court does
have information in the record as to certain considerations which would
make the application of the guidelines inequitable to the parties.
First, the terms of the consent judgment were presented by Vogler
herself as a result of the looming uncertainties of an impending trial. It is
undisputed that there was a very real possibility that Vogler was about to
lose custody for several reasons. Vogler proposed that she maintain custody
of the children in Michigan and that Ayres be responsible for 100% of any
and all visitation transportation costs, while she would forfeit certain
community property and other reimbursement rights related to the former
marital domicile and waive future child support. Through true transaction
and compromise, she received her desired benefits of the bargain. The
ultimate determination that there was an impermissible waiver of future
child support, rendering such provision absolutely null and void as against
public policy and requiring that child support be retroactively set in
accordance with the guidelines, creates a problematic imbalance in what
was, at the time of the consent judgment, considered to be an even,
bargained-for exchange.
In the interest of equity, credence must be given to the fact that, in
exchange for the waiver of future child support and other considerations,
16 Vogler received custody of her minor children, ages 15 and 13 at the time,
who would reside with her in Traverse City, Michigan, over 1,000 miles
away from their father in Benton. Vogler filed her most recent petition on
July 30, 2021, requesting nullity of the October 2014 judgment entered
seven years before, several years after the children reached majority. This
valuable consideration – the time spent raising minor children – cannot be
nullified to offset the nullity of the impermissible waiver of child support.
In addition, the record shows that Vogler was, at the very least, aware
of the possibility that the provision regarding future child support was an
impermissible waiver. She admittedly discussed the issue with her attorney
at the time the August 2014 was rendered, and brought up the issue in open
court at the form and content hearing in October 2014. The trial court judge
repeatedly informed Vogler that she would be able to address the child
support issue at a later date. He did not entertain an argument on the issue at
the hearing in which the consent judgment was entered because the parties
were set for trial. If Vogler had hesitations regarding the issue of child
support or felt in any way that the consent judgment did not support the
parties’ agreement, she could have – and should have – proceeded with trial
as scheduled. She also brought up the issue at the form and content hearing
wherein the trial court again rightfully refused to hear argument outside the
scope of the hearing.
It must also be mentioned that Vogler was represented by counsel
during negotiations, during the hearing regarding the consent judgment and
throughout the majority of the matter with the exception of a brief period of
time during which the form and content hearing was held. More
17 importantly, she was a licensed attorney herself. As such, she is held to a
higher standard, not only as to her knowledge of the law, but ethically and
morally. She knew at the time of the consent judgment that there was an
issue with the validity of the future child support provision, yet she followed
through with the entering of the judgment. She also operated under the
terms of that judgment – which she proposed – for seven years as if she
acquiesced in its validity, only to contest its legitimacy once she received
her benefit of the bargains.
In addition to its determination of child support, “[i]n no event shall
the court set an award of child support less than one hundred dollars, except
in cases involving shared or split custody.” La. R.S. 9:315.14. No matter
the trial court’s determination as to support pursuant to the guidelines and
deviation therefrom, the amount set cannot be less than $100.00. Also,
should the trial court find that the lump sum amount paid by Ayres in
satisfaction of arrearages at the time was excessive per the guidelines such
that a deviation is justified, the revised support amount should not be less
than $100.00, and any excess should be used to offset the future child
support amount determined. The trial court must also consider any expenses
actually paid by Ayres as an offset against what is to be determined as the
total amount of child support due from the rendering of the August 2014
consent judgment to the age of majority for each child. This would include,
but not be limited to, any amount previously paid for arrearages as of the
August 2014 judgment considered to be excessive per the guidelines, any
visitation travel expenses, and any other expenses paid for and on behalf of
the minor children.
18 CONCLUSION
For the foregoing reasons, this Court AFFIRMS the trial court’s
judgment rendered on August 16, 2021, ordering Vogler to execute a
quitclaim deed conveying all her interest in the property to Ayres in
accordance with the October 2014 judgment, and directing the clerk of court
to cancel the notice of lis pendens recorded by Vogler. However, this matter
is REMANDED to the trial court for determination of child support pursuant
to La. R.S. 9:315.1 and as consistent with this opinion. Each party is to bear
his or her own costs of the appeal.
AFFIRMED AND REMANDED.