McDaniel v. McDaniel

670 So. 2d 767, 1996 WL 95138
CourtLouisiana Court of Appeal
DecidedMarch 6, 1996
Docket95-1314
StatusPublished
Cited by12 cases

This text of 670 So. 2d 767 (McDaniel v. McDaniel) 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
McDaniel v. McDaniel, 670 So. 2d 767, 1996 WL 95138 (La. Ct. App. 1996).

Opinion

670 So.2d 767 (1996)

Renee Soileau McDANIEL, Plaintiff-Appellant,
v.
Christopher Darren McDANIEL, Defendant-Appellee.

No. 95-1314.

Court of Appeal of Louisiana, Third Circuit.

March 6, 1996.
Rehearing Denied April 17, 1996.

*769 Clyde Fontenot, Kathy Fontenot Deshotel, Ville Platte, for Reneé Soileau McDaniel.

J. Jake Fontenot, Mamou, for Christopher Darren McDaniel.

Before DOUCET, C.J., and YELVERTON and SAUNDERS, JJ.

DOUCET, Chief Judge.

This is an appeal from a judgment ordering an increase in child support. The parties, Reneé Soileau McDaniel and Christopher Darren McDaniel, were divorced by a judgment of the district court on February 8, 1989. The judgment of divorce named Reneé as the custodial parent of the two minor children of the marriage and ordered Darren to pay child support. The support order was subsequently modified several times, most recently on October 1, 1991, when a stipulated judgment was rendered, ordering Darren to pay $275.00 per month, plus an additional "voluntary" payment of $75.00 per month for the younger child's nursery school tuition.

On March 31, 1995, Reneé filed a rule to increase the child support, which was heard on July 7, 1995. On July 25, 1995, the district court rendered a judgment increasing the support to $400.00 per month, plus 60% of any extraordinary medical expenses incurred on behalf of the children. Reneé has appealed, assigning numerous errors in the district court's ruling. Darren has answered the appeal, asking that the support award be reduced.

A threshold issue raised by Darren on appeal is whether Reneé satisfied her burden of establishing a change in the circumstances of the parties justifying a modification of the 1991 stipulated judgment. It is well-settled that a party seeking a modification of a child support award, including a consent decree, must establish a substantial change in the circumstances of one of the parties. La.R.S. 9:311; Kleiser v. Kleiser, 619 So.2d 178 (La.App. 3 Cir.1993); Rushing v. Rushing, 614 So.2d 268 (La.App. 3 Cir. 1993), appeal after remand, 635 So.2d 610 (La.App. 3 Cir.1994).

Reneé contends that Darren's income has substantially increased. Darren, on the other hand, argues that his current income is lower than his 1993 income of $18,658.00 and his 1992 income of $16,574.00. The resolution of this dispute lies in the classification of certain monthly payments that Darren receives from a corporation that he formed in 1994.

Darren's principal source of income is a video rental business, which he bought in 1991. He operated the business as a sole proprietorship until July 1, 1994, when he transferred all of its assets to C.D.M. Enterprises, *770 Inc., a Louisiana corporation that he exclusively owns. According to Darren's testimony, he did not fund the corporation by purchasing its stock. He simply transferred all of the assets and liabilities of his sole proprietorship to the corporation, and the corporation agreed to pay him $30,970.43 at the rate of $750.00 per month.

The trial judge concluded that these payments by the corporation cannot be considered "income" within the meaning of La.R.S. 9:315, because they reflect a return of capital, as opposed to income, which is generated by capital without impairing it. In support of that conclusion, the trial judge relied upon French v. Wolf, 181 La. 733, 160 So. 396 (1935) in which the Louisiana Supreme Court held that benefits paid under a war risk insurance policy were not income for the purposes of determining a spouse's right to alimony pendente lite. The court in Guy v. Guy, 600 So.2d 771 (La.App. 5 Cir.1992), similarly, cited French, 160 So. 396, in holding that death benefits paid under a life insurance policy were not income for the purposes of calculating child support under La.R.S. 9:315.

We fully agree with the principle underlying these decisions that funds that are generated through the depletion of capital are not income. However, what the trial judge apparently overlooked in this case is that the sale of the assets of Darren's sole proprietorship to his wholly owned corporation did not deplete his capital. While the life insurance policy in Guy obviously lost all of its intrinsic value when the death benefits were paid, the assets that Darren sold to his corporation did not similarly lose their worth. Their value is now reflected in the stock that Darren owns. As the sole shareholder, Darren has the right to dissolve the corporation, and upon doing so, all of the assets (or the funds generated by their liquidation) will be returned to him.

One need not pierce the corporate veil, as Darren suggests in his brief, in order to hold that he cannot reduce his income simply by converting his sole proprietorship to a corporation that he exclusively owns. It is clear from his testimony that he did not give up anything when he sold his personal assets to his corporation. As the sole stockholder in the corporation, he is still the recipient of all of the net income generated by the business. While the sale of the assets might permit the corporation to claim the $750.00 monthly payments as a business expense for accounting and tax purposes, the transaction has had no effect on Darren's personal financial condition or on his ability to pay child support. He still receives $750.00 per month out of the net profits of the business in addition to his monthly salary of $1,000.00.

In light of the fact that Darren remains the sole owner of the business, which is generating the monthly payments that he receives, we find that the trial judge erred in failing to classify those payments as income. For purposes of calculating his child support obligation, Darren's monthly income consists of his $1,000.00 salary, the $750.00 payment from his corporation, and an additional $175.00 in rental income. His total monthly income of $1,925.00 is roughly $544.00 per month, or 28% greater than his 1992 income. An increase of this magnitude in the income of the payor qualifies as a substantial change in the circumstances of the parties, which will support a modification of the prior consent decree.

Reneé argues that we should also classify as income monthly transportation expense reimbursements that Darren receives from his corporation. Darren testified that he uses a pickup truck that he personally owns for business purposes. He pays all of the expenses associated with operating the truck, including monthly payments on the purchase price, gasoline and maintenance expenses. The corporation reimburses him for its use of the vehicle at the rate of $.28 per mile.

La.R.S. 9:315(4)(b) includes within the definition of "gross income," expense reimbursements received by a parent in the operation of a business, "if the reimbursement payments are significant and reduce the parent's personal living expenses." While we find that payments averaging $350.00 per month are significant, there was no showing in this case that being reimbursed for expenses that *771 he has actually incurred has reduced Darren's personal living expenses.

In Widman v. Widman, 619 So.2d 632 (La.App. 3 Cir.1993), this court held under similar facts that the trial court had erred in including transportation expense reimbursements as income without an accompanying credit for the expenses actually incurred by the parent receiving the reimbursement. In this case, the trial judge apparently found that Darren's income was not increased by the reimbursements, because they were offset by his expenses. The evidence and our holding in Widman

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Bluebook (online)
670 So. 2d 767, 1996 WL 95138, Counsel Stack Legal Research, https://law.counselstack.com/opinion/mcdaniel-v-mcdaniel-lactapp-1996.