Matherne v. Matherne

562 So. 2d 937, 1990 La. App. LEXIS 1391, 1990 WL 68983
CourtLouisiana Court of Appeal
DecidedMay 16, 1990
DocketNo. 90-CA-2
StatusPublished
Cited by2 cases

This text of 562 So. 2d 937 (Matherne v. Matherne) 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
Matherne v. Matherne, 562 So. 2d 937, 1990 La. App. LEXIS 1391, 1990 WL 68983 (La. Ct. App. 1990).

Opinion

GOTHARD, Judge.

Defendant, Wiltz Matherne, appeals a judgment from the trial court making exec-utory past due child support in the amount of $2,450.00, denying defendant’s request for a decrease in child support and making special custody provisions for one of the couple’s four minor children. Mrs. Math-erne has answered the appeal requesting an increase in child support. The judgment rendered, in the trial court is silent on the disposition of that issue. It appears from the record that consideration of that matter in view of the recently enacted guidelines is ongoing in the trial court and has yet to be decided. Consequently, that issue is not properly before us for review.

This matter began with a petition for separation filed by the wife on February 28, 1986. Since that time several judgments concerning child support and custody of the couple’s four minor children have been rendered. The most recent judgment prior to the judgment in question is a consent judgment of divorce entered into by the parties on July 21, 1987. That judgment ordered Wiltz Matherne to pay $600.00 per month child support with a reduction to $300.00 per month for the summer months should Mr. Matherne exercise his right to physical custody of the children during those months. Additionally, joint custody was granted with the following stipulation:

“The parents shall have equal authority over the up-bringing, education and discipline of the children. Each parent shall have equal rights and access to any and all matters affecting the children. Both parents shall have an equal voice in rearing the children and participating in decision making regarding health, education, social and religious development of the children.”

Mr. Matherne left the state in search of employment opportunities in September, 1987 and eventually settled in New Hampshire. He did not exercise his right to summer custody and is not entitled to a reduction of child support pursuant to the judgment. Mr. Matherne fell behind in his support obligation forcing Mrs. Matherne to turn to the state for assistance. During the period from April, 1988 to the hearing date the State of Louisiana, through the Department of Health and Human Resources collected the entire amount of child support due by Mr. Matherne.

Physical custody of the couple’s four minor children remained with Mrs. Matherne, who still lives in Louisiana. One of the children, Seth age 10, is a Down’s Syndrome child. In September, 1987 shortly [939]*939after Mr. Matherne left the state, Mrs. Matherne obtained residential placement for Seth in Magnolia State School pursuant to a Federal grant. Mr. Matherne learned of the placement in December, 1987.

On May 24, 1989 Mr. Matherne filed a rule seeking custody of Seth and a decrease in child support should the rule for custody be granted. On June 14, 1989, Mrs. Matherne objected to Mr. Matherne’s rule and filed a rule to make past due child support executory, and for contempt, attorney’s fees and an increase in child support.

After a hearing on the rules conducted on September 8th and 9th, 1989, the trial court rendered a judgment making child support in the amount of $2,450.00 exec-utory, setting attorney’s fees at $500.00, denying a change in amount of child support and suspending the original contempt citation. Additionally, the judgment contained the following order of custody:

IT IS FURTHER ORDERED, ADJUDGED AND DECREED that the original joint custody order is reinstated; however, insofar as at (sic) pertains to the minor, Seth Matherne, it is specifically ordered that both parties are to participate in his future welfare, provided that by court order this date, he is not to be removed from Magnolia School unless and until further rulings from this court are requested. The Magnolia School is hereby ordered to treat the father on a (sic) equal basis as the mother in reference to the minor, Seth Matherne.

Mr. Matherne appeals asserting two errors in the judgment, the amount of child support made executory and the custody order.

Child Support

Mrs. Matherne filed a rule for contempt on June 14, 1989 asserting that Mr. Matherne was $1,900.00 in arrears in child support payments. In order to carry her burden of proof on this rule, Mrs. Math-erne offered testimony of Joycelyn Acosta of DHHR, who testified that Mr. Matherne was current on payments due from April, 1988 to the date of trial. Mrs. Matherne did not testify. She called Mr. Matherne for cross-examination under the act. Mr. Matherne produced records of payment to rebut the accusation that he was behind in child support prior to the time the State took over collection of payments. Among these records were several blank money order stubs. During cross-examination the following transpired:

Q And what I’ve done and your attorney have done, .. we’ve matched up the checks and the money orders that you claim you paid Cindy. And we’ve put them in a schedule form. And is it not true that after those checks and money orders are matched up with the face amount of the checks and the face amount of the money orders, you still owe a balance of two thousand four hundred and fifty dollars ($2450.00)?
A If that’s the amount that was added up, I suppose. Yes sir.
MR. .GRIFFITH:
Q Are you claiming that you want credit for these money orders which have no date, no amount.
A These are my copies. The attached pieces are the money orders that were sent to Cindy.

After admission of the blank stubs Mr. Matherne testified as follows:

MR. GRIFFITH:
Q Not taking this into consideration, you admit, though, that your records reflect that you still owe a balance to her of two thousand four hundred and fifty dollars ($2450.00)?
A Well, with .. okay.
Q Is that correct?
A I suppose.

On direct examination Mr. Matherne’s counsel attempted to retract that admission:

THE COURT:
Well, I don’t understand it. He just testified he owes two thousand four hundred and fifty dollars ($2450.00).
MR. GRIFFITH:
Okay. I’ll withdraw .
THE COURT:
Didn’t he just say that?
MR. RICE:
If his assumption was correct.
[940]*940THE COURT:
What do you mean, “if his assumption is correct”?
MR. RICE:
His assumption .
THE COURT:
Oh, I’m not going to get into that.
MR. RICE:
Okay.
However, the court again questioned Mr. Matherne directly:
THE COURT:
Q Do you owe two thousand four hundred and fifty dollars ($2450.00)?
A I .. ah .. yes sir. I suppose.

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Cite This Page — Counsel Stack

Bluebook (online)
562 So. 2d 937, 1990 La. App. LEXIS 1391, 1990 WL 68983, Counsel Stack Legal Research, https://law.counselstack.com/opinion/matherne-v-matherne-lactapp-1990.