Long v. Rebouche

690 So. 2d 894, 1997 La. App. LEXIS 357, 1997 WL 88262
CourtLouisiana Court of Appeal
DecidedFebruary 26, 1997
DocketNo. 29204-CA
StatusPublished
Cited by2 cases

This text of 690 So. 2d 894 (Long v. Rebouche) 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
Long v. Rebouche, 690 So. 2d 894, 1997 La. App. LEXIS 357, 1997 WL 88262 (La. Ct. App. 1997).

Opinion

^WILLIAMS, Judge.

The defendant, Winton Rebouche, appeals a trial court judgment in favor of the plaintiff, Lynette Marie Long, that ordered defendant to pay past due child support in the amount of $29,447.00 and fixed his monthly child support obligation at $397.00. For the following reasons, we affirm in part, reverse in part, and remand for further proceedings.

FACTS

On January 22, 1990, the plaintiff filed a “Petition to Establish Paternity, Support and For Attorney Fees” in the trial court. The defendant was served and he timely answered the petition, admitting that all parties should be ordered to submit to blood tests for determination of paternity.

After extensive pre-trial litigation regarding the issue of paternity, the case was finally called for trial in August of 1995. The hearing officer found that the defendant was the father of the minor child. The defendant excepted to the finding of paternity.1 A hearing on the issue of child support was set, but was continued first at the defendant’s request, and then later at the State’s request due to the court-appointed expert’s inability to complete his report. Trial on the issue of child support was finally held in October of 1995, and the hearing officer’s recommendation was filed into the record in March of 1996. The defendant again excepted to the hearing officer’s findings.2 After a hearing [896]*896on the exception, the trial court rendered judgment adopting the hearing officer’s findings. The ^defendant appeals the trial court’s judgment only with regard to the monetary awards for child support.

DISCUSSION

Inclusion of Spouse’s Income

By his first assignment of error, the defendant contends the trial court abused its discretion by including his wife’s income in its determination of the parties’ adjusted gross income for the purpose of calculating child support. We agree.

LSA-R.S. 9:315(6)(c) states in pertinent part:

The court may also consider as income the benefits a party derives from expense-sharing or other sources. However, in determining the benefits of expense-sharing, the eourt shall not consider the income of another spouse, regardless of the legal regime under which the remarriage exists, except to the extent that such income is used directly to reduce the cost of a party’s actual expenses.

The trial court based its decision to include defendant’s spouse’s income on LaForge v. LaForge, 26,317 (La.App.2d Cir. 1/25/95), 649 So.2d 151. In LaForge, the defendant and his new spouse were involved in a joint trucking business. This court found that the new spouse’s income was used directly to reduce the cost of the defendant’s actual expenses, because due to the nature of the trucking business, each spouse’s income and expenses were so commingled with the expenses of “the truck,” the expenses were impossible to separate. LaForge v. LaForge, supra at 154.

In the instant ease, the trial court reasoned and plaintiff argues in brief that because defendant’s wife was a co-owner of one of defendant’s businesses, their expenses are impossible to separate. We disagree. The defendant testified that he paid his spouse a salary for bookkeeping and secretarial work. The salary was not necessarily a reduction of defendant’s business expenses because presumably, defendant would have had to pay someone else, if not his wife, to perform these ^duties. Consequently, plaintiff made no showing that defendant’s expenses were reduced by hiring his wife for bookkeeping and secretarial work. Nor was there any documentation showing how defendant’s wife’s salary from the business may have been used to reduce defendant’s household expenses. Because there was no showing how defendant’s expenses were reduced by his wife’s income, this case is distinguishable from LaForge v. LaForge, supra and the trial court abused its discretion by including the spouse’s income in its child support calculations.

Inclusion of Defendant’s Depreciation

The defendant also assigns as error the trial court’s inclusion of depreciation amounts that defendant had deducted on corporate tax returns in calculating the income from his business. This assignment of error lacks merit.

LSA-R.S. 9:315(4)(c) states:
“Gross income” means:
(c) Gross receipts minus ordinary and necessary expenses required to produce income, for purposes of income from self-employment, rent, royalties, proprietorship of a business, or joint ownership or closely held corporation. “Ordinary and necessary expenses” shall not include amounts allowable by the Internal Revenue Service for the accelerated component of depreciation expenses or investment tax credits or any other business expenses determined by the court to be inappropriate for determining gross income for purposes of calculating child support, [emphasis ours]

In the present case, defendant deducted depreciation on his tax returns as an ordinary business expense. However, there is no information provided on the return, in the testimony, or anywhere else in the record to show whether the depreciation defendant de[897]*897ducted is the accelerated component of depreciation, which must be included in his income according to the above statute, or if the depreciation is of an excludable type. Since defendant did not prove to the trial court that his depreciation should be excluded from his income, we decline to find that the trial court abused its discretion by including defendant’s depreciation in his income.

14Determination of defendant’s income based on his “earning potential”

Defendant next assigns as error the ' trial court’s determination of child support based on his earning potential for the years 1994 and 1995. He argues that the trial court should not have made such a determination since the court specifically declined to find that defendant was voluntarily underemployed. Further, defendant argues that he was not voluntarily underemployed during 1994 and 1995, because he started a new business venture for the purpose of making money. Defendant’s contentions have merit.

LSA-R.S. 9:315.9 states in pertinent part:
If a party is voluntarily unemployed or underemployed, child support shall be calculated based on a determination of his or her 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. The amount of the basic child support obligation obtained by use of this Section shall not exceed that amount which the party paying support would have owed had no determination of the other party’s earning income potential been made.

In the present case, there has been no finding that the defendant was voluntarily underemployed. Indeed, the trial court declined to so find. Further, this court has held that starting a new business to make money is not voluntary underemployment. Mayo v. Crazovich, 621 So.2d 120 (La.App.2d Cir.1993); see Goodall v. Goodall, 561 So.2d 867 (La.App.2d Cir.1990). Defendant testified that he started his new business, Houseboat Adventures, Inc., because his other two businesses failed.

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Bluebook (online)
690 So. 2d 894, 1997 La. App. LEXIS 357, 1997 WL 88262, Counsel Stack Legal Research, https://law.counselstack.com/opinion/long-v-rebouche-lactapp-1997.