McHale v. McHale

612 So. 2d 969, 1993 WL 7883
CourtLouisiana Court of Appeal
DecidedJanuary 20, 1993
Docket24,384-CA
StatusPublished
Cited by18 cases

This text of 612 So. 2d 969 (McHale v. McHale) 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
McHale v. McHale, 612 So. 2d 969, 1993 WL 7883 (La. Ct. App. 1993).

Opinion

612 So.2d 969 (1993)

Kathy K. McHALE, Plaintiff/Appellee,
v.
John Michael McHALE, Defendant/Appellant.

No. 24,384-CA.

Court of Appeal of Louisiana, Second Circuit.

January 20, 1993.

*970 Robert Levy, Ruston, for plaintiff/appellee.

Shotwell, Brown & Sperry by C.A. Martin, III, Monroe, for defendant/appellant.

Before MARVIN, NORRIS and LINDSAY, JJ.

LINDSAY, Judge.

The plaintiff in rule, John Michael McHale, appeals from a trial court judgment which rejected his request for a reduction in child support payments and found him to be in arrears for child support in the amount of $1,945.00. We affirm the trial court judgment awarding child support arrearages to his former wife, Kathy Kincannon McHale. However, for the following reasons, we reverse that portion of the trial court judgment denying Mr. McHale a reduction in his child support obligation.

FACTS

Mr. and Mrs. McHale were married on July 21, 1979, in Ruston, Louisiana where they established their matrimonial domicile. Two children were born of the marriage; a daughter, born May 31, 1982 and a son, born October 28, 1983. The McHales were judicially separated on October 13, 1986. A judgment of divorce was rendered on September 17, 1987.[1] The parties were awarded joint custody of the children and Mrs. McHale was named the domiciliary parent. Mr. McHale was ordered to pay $1,500.00 per month in child support until the matrimonial domicile was sold. Thereafter, he was to pay child support in the amount of $1,000.00 per month.

This issue of child support was again addressed on August 26, 1988. A judgment *971 was signed and filed in which Mr. McHale was ordered to make his child support payment of $1,500.00 for the month of August 1988. The court then raised Mr. McHale's child support obligation by $130 per month. This increase was to continue until the community was liquidated.[2] Therefore, according the terms of the new judgment, Mr. McHale was to pay a total support obligation of $1630 per month. Further, we note that the record in this case does not indicate that the community has been liquidated.

On September 16, 1991, Mr. McHale filed the present rule for decrease in child support, alleging changes in his employment which resulted in a significant reduction in his income. He also alleged that Mrs. McHale had received increases in salary since the prior child support award was set. He contended that these factors, along with the recent promulgation of child support guidelines in LSA-R.S. 9:315 et seq., constituted a change in circumstances warranting a decrease in his child support obligation.

Mrs. McHale filed a counter rule for arrearages. She alleged that Mr. McHale failed to make one half of his child support payment for May, 1989 and all of the payment for September, 1990, and therefore, he was in arrears in the amount of $1,945.00.

A hearing on both rules was held on October 14, 1991. Mr. McHale testified that at the time the child support obligation was set, he was employed as general manager of a car dealership in Ruston, sometimes earning as much as $70,000 annually. In April, 1990, he was terminated from that position. He then moved, with his new spouse, to Florida where his father owned an interest in an automobile dealership. He was originally promised a salary of $5,000.00 per month to work in his father's business. However, due to economic conditions in the area, Mr. McHale's income was reduced to $4,000.00 per month after only two months employment.

Mr. McHale worked in Florida until August, 1991, when he left his job. He was not terminated from his position. He voluntarily chose to leave his Florida home and job and return to Ruston. He claimed that he moved back to Louisiana to be near his children. Mr. McHale's new spouse is also a native of the Ruston area.

Mr. McHale testified that upon his return to Ruston he was unable to secure a managerial position at any automobile dealership in the area. However, he obtained employment in September, 1991 as a car salesman at a local Chevrolet dealership. The average salary for a salesman at that dealership was approximately $1,946.00 per month. Mr. McHale had earned approximately $2,200.00 for the month of September, 1991, the only month he had been so employed at the time of trial.

Mr. McHale testified that since his return to Louisiana, he had depleted his present wife's savings because of his loss of income and had taken numerous drastic measures in order to adjust his lifestyle, such as renting an inexpensive home. He also testified he had substantial debts that he wished to begin paying. He stated he was not trying to deprive his children but rather was making lifestyle changes due to the tremendous loss of income. However, Mr. McHale admitted that his father still owned an interest in the Florida dealership and that he could have stayed at his job in Florida making a much higher salary.[3]

Mrs. McHale testified that the children's expenses had increased since the time the support obligation was originally set. She testified that they had significant medical expenses and required some tutoring. Mrs. McHale testified that she had obtained *972 her present employment in January, 1987 and was currently earning a gross monthly salary of approximately $1,500.00.

Mrs. McHale also testified that in the four week period after Mr. McHale's return to Louisiana, he had not fully exercised his visitation rights with the children. She claimed he had the children for one weekend visitation and he saw the children on two other occasions for approximately an hour to an hour and a half. Mrs. McHale testified that she never interfered with the children's communications or visitation with their father in Florida so as to compel him to return to Louisiana.

In regard to the alleged child support arrearages, Mrs. McHale testified that in May, 1989, Mr. McHale had only paid her one-half of the amount of support due for that month. After the State of Louisiana obtained an income assignment affecting Mr. McHale's salary, Mrs. McHale informed the State of this arrearage but no payment was ever made. Regarding the alleged arrearage in September, 1990, Mr. McHale stipulated that no payment had been made for that month.

Following a review of the testimony and evidence, the trial court found that because Mr. McHale voluntarily left his lucrative employment in Florida to take a lesser position in Louisiana, no reduction in child support was warranted. The court stated that although Mr. McHale claimed he returned to Louisiana to spend more time with his children, he had not exercised full visitation rights since reestablishing his home in this state. The court also found that Mr. McHale had frequently been before the court for child support arrearages during the time he had a higher income and was able to afford a luxurious life-style for himself. The trial court continued Mr. McHale's child support obligation at $1,130.00 per month and found that Mr. McHale owed $1,945.00 in arrearages. Judgment to this effect was entered in favor of Mrs. McHale.

Mr. McHale appealed, contending that the trial court erred in holding that his change in circumstances did not warrant a reduction in child support. Mr. McHale further contends that the trial court erred in the amount of arrearages awarded to Mrs. McHale, arguing that she failed to prove he had not made the full child support payment for May, 1989.

CHANGE OF CIRCUMSTANCES

The trial court found that Mr.

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Bluebook (online)
612 So. 2d 969, 1993 WL 7883, Counsel Stack Legal Research, https://law.counselstack.com/opinion/mchale-v-mchale-lactapp-1993.