Martin v. Martin

716 So. 2d 46, 1998 WL 283051
CourtLouisiana Court of Appeal
DecidedJune 3, 1998
Docket98-165
StatusPublished
Cited by7 cases

This text of 716 So. 2d 46 (Martin v. Martin) 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
Martin v. Martin, 716 So. 2d 46, 1998 WL 283051 (La. Ct. App. 1998).

Opinion

716 So.2d 46 (1998)

Coleen Faubion MARTIN, Plaintiff-Appellee,
v.
Russell L. MARTIN, Defendant-Appellant.

No. 98-165.

Court of Appeal of Louisiana, Third Circuit.

June 3, 1998.

*47 Edward B. Broussard, Abbeville, for Coleen Faubion Martin.

Allan Dale Smith, James Francis Slaughter, Colfax, for Russell L. Martin.

Before DOUCET, C.J., and DECUIR and AMY, JJ.

DOUCET, Chief Judge.

Russell L. Martin (Russell) seeks review of a trial court judgment setting his child support obligation, making the award retroactive to the date of filing of the petition for divorce, awarding arrearages, and finding him in contempt of court for failing to pay the full amount of the interim support award.

Russell married Coleen Faubion Martin (Coleen) on December 18, 1982, in Rapides Parish. They established their matrimonial domicile in Lafayette Parish. They had three children. All are minors. Russell and Coleen separated and filed for divorce once previous to this action. They reconciled and again separated. Coleen filed this action for divorce on August 23, 1995. The two were divorced by a judgment rendered on November 9, 1995. The judgment ordered Russell to pay temporary child support of $675.00 per month until a hearing on the matter could be had.

*48 The Fifteenth Judicial District Court's hearing officer for support-related matters set a hearing to determine the appropriate amount of child support. The matter, originally set for January 29, 1996, was continued due to Russell's failure to appear at the hearing. The hearing was held on April 26, 1996. After examining the affidavits of income and expenses submitted by the parties and applying the child support guidelines, the hearing officer recommended, among other things, that Russell pay child support in the amount of $900.00.

Russell filed an exception to the hearing officer's recommendation. He also filed a rule for contempt and change of custody, alleging that Coleen had interfered with his court-ordered visitation and that she had hidden the children from him. Coleen had earlier filed a rule for contempt and past due child support in connection with Russell's failure to pay the full amount of the temporary child support. Russell also filed a rule to reduce his child support obligation.

After a hearing, on November 12, 1996, the trial judge entered a judgment ruling on a number of issues. Those relevant to this appeal are as follows: The trial judge set child support at $840.00 per month, beginning August 23, 1996, and denied Russell's rule for a reduction. He further granted Coleen's rule for past due child support and found Russell to be $3000.00 in arrears. Additionally, he found Russell in contempt of court for failure to pay the full amount of the child support ordered and ordered him to serve thirty days in jail. However, he suspended the sentence on the condition that Russell pay the arrearage within six months. He assessed Russell with $250.00 in attorney's fees. Russell appeals.

CHANGE OF TEMPORARY CHILD SUPPORT AWARD

Russell argues that the trial court should not have increased the existing award of child support in the absence of a change of circumstances. La.R.S. 9:315.1(C) (emphasis added) states, in pertinent part, that:

C. In determining whether to deviate from the guidelines, the court's considerations may include:
(5) The need for immediate and temporary support for a child when a full hearing on the issue of support is pending but cannot be timely held. In such cases, the court at the full hearing shall use the provisions of this Part and may redetermine support without the necessity of a change of circumstances being shown.

Having made a temporary order of support under this provision, the court in this case was correct in determining the appropriate support without requiring that a change in circumstances be shown.

Russell further alleges that it was not appropriate to award an increase in child support where none was requested. In this case, however, the court, in the judgment complained of, made a first determination of the appropriate amount of the award. Therefore, there was no need for Coleen to file a motion for an increase. Russell further alleges that Coleen did not request an award of child support in her petition for divorce. The petition in this matter clearly asserts Colleen's need for and entitlement to an award of support. Although not clear, it is possible that Russell is complaining of the failure of the petition to include the demand in the prayer for relief. We do not believe that the law requires such a technical form of pleading. La.Code Civ.P. art. 862 provides that: "Except as provided in Article 1703, a final judgment shall grant the relief to which the party in whose favor it is rendered is entitled, even if the party has not demanded such relief in his pleadings and the latter contain no prayer for general and equitable relief." Coleen's petition clearly states her demand for child support. Therefore, the matter was properly before the trial court.

INCOME DETERMINATION

Russell further asserts that the trial court erred in calculating the amount of child support due. He first argues that the court erred in finding that he had income of $2,500.00 per month. After reviewing the evidence of record, we find no error in the trial court's ruling. Russell previously worked in construction, earning income averaging in excess of $2500.00, even though he had frequent periods of unemployment from *49 his construction work. In fact, in 1995 he worked only nine months and made $35,000.00. While at the time of trial he was working for less money installing TV systems, his testimony indicates that he could be called back to his construction work at any time and had never failed to accept the employment. "The district court's conclusions of fact regarding financial matters underlying an award of child support will not be disturbed in the absence of manifest error. Timmons v. Timmons, 605 So.2d 1162 (La. App. 2d Cir.1992) [,writ denied, 608 So.2d 195 (La.1992)]; Miller v. Miller, 475 So.2d 40 (La.App. 2d Cir.1985)." Havener v. Havener, 29,785 (La.App. 2 Cir. 8/20/97); 700 So.2d 533, 539. After reviewing the record herein, we find no error in the trial court's determination of Russell's income.

Russell further argues that the trial court erred in calculating Coleen's income. However, our review reveals no error in the trial court's determination. While Coleen previously earned more, the evidence adduced at the hearing showed that her earning capacity was diminished due to an injury. Therefore, the court correctly set her income at $3,864.00 per month.

PRIVATE SCHOOL EXPENSE

Russell contends that the trial court erred in including the tuition for the children's attendance at private school in his calculation of the child support obligation, absent a showing that "the particular educational needs" of the children require that they attend private school.

LSA-R.S. 9:315.6 addresses certain extraordinary expenses which may be added to the basic child support obligation and provides, in pertinent part, as follows:
By agreement of the parties or order of the court, the following expenses incurred on behalf of the child may be added to the basic child support obligation:
(1) Any expenses for attending a special or private elementary or secondary school to meet the particular educational needs of the child.

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Cite This Page — Counsel Stack

Bluebook (online)
716 So. 2d 46, 1998 WL 283051, Counsel Stack Legal Research, https://law.counselstack.com/opinion/martin-v-martin-lactapp-1998.