STATE OF LOUISIANA COURT OF APPEAL, THIRD CIRCUIT
03-684
MICHAEL GREGORY THEVENOT, SR.
VERSUS
CHRISTINE DRONET THEVENOT
************
APPEAL FROM THE TWENTY-SEVENTH JUDICIAL DISTRICT COURT, PARISH OF ST. LANDRY, NO. 97-4887, HONORABLE JAMES T. GENOVESE, DISTRICT JUDGE
MICHAEL G. SULLIVAN JUDGE
Court composed of Ned E. Doucet, Jr., Chief Judge, Sylvia R. Cooks, and Michael G. Sullivan, Judges.
REVERSED.
David L. Carriere Attorney at Law 322 South Market Street Opelousas, Louisiana 70570 (337) 948-6217 Counsel for Defendant/Appellant: Christine Dronet Thevenot
Thomas E. Gibbs Thomas E. Gibbs & Associates 10988 North Harrell’s Ferry Road, Suite 19 Baton Rouge, Louisiana 70816 (225) 272-0020 Counsel for Plaintiff/Appellee: Michael Gregory Thevenot, Sr. SULLIVAN, Judge.
Christine Thevenot appeals the trial court’s refusal to enforce an extrajudicial
agreement she had with Michael Thevenot, Sr., her former husband, for him to pay her
child support for their son, Michael Thevenot, Jr. For the following reasons, we
reverse the judgment of the trial court.
Facts
The facts are not in dispute. Michael and Christine were married and had one
child, Michael, Jr. They were divorced on July 31, 1998. After the divorce, Michael,
Jr. lived with Christine until January 1999. At that time, the trial court designated
Michael as domiciliary parent due to Christine’s relocation to Houston. In August
1999, Christine was again designated domiciliary parent and has remained domiciliary
parent since that time.
Various pleadings filed by the parties in this matter reflect that at different times
each party requested child support from the other, but support was never established
by the court. Instead, in August 1999, Michael and Christine agreed between
themselves that he would pay her $250.00 per month support for Michael, Jr. In July
2001, Michael filed a rule to modify custody. In response, Christine filed exceptions
to the rule and filed a rule seeking arrearages in child support or, alternatively, to have
child support set. In her rule, Christine alleged that Michael owed her $5,500.00 for
the period August 1999 through August 2001. A hearing was held on August 21,
2001. After the hearing, the trial court maintained Christine as the domiciliary parent
and ordered that the issue of support be referred to the hearing officer. There was
never a referral to the hearing officer.
In June 2002, Michael filed another rule, seeking designation as domiciliary
parent. Christine again filed a rule for child support arrearages; she also sought to
establish support in accordance with the child support guidelines set forth in La.R.S. 9:315-315.22. In her rule, Christine sought the $5,500.00 she had previously
requested and an additional $350.00 in arrearages which she asserted arose from a
second agreement she and Michael made in September 2001.
On September 26, 2002, these rules were considered by the hearing officer, who
recommended that Michael be ordered to pay Christine $5,500.00 in arrearages.
Michael objected to the recommendation, and a hearing was held before the trial court.
During the hearing, the trial court recited the following facts which Michael admitted
and counsel for the parties stipulated were correct:
And this is what I understand the facts to be: That at one point in time [Michael] had agreed to pay $250 a month. And during a period of time from January of ‘99 to August of ‘99, [Michael] actually kept the child, but there was no support being paid by the mother while [Michael] kept the child. It is not disputed that from August of ‘99 to July of 2001 the child has been predominantly with the mother and that [Michael has] paid only $500 during that period of time. And the question is whether or not an arrearage is owed from August of ‘99 through July of 2001 at the rate of an alleged agreement of $250 a month and whether or not that can be made executory in a court of law.
....
I consider that to be a stipulation, because I just gave you the opportunity to present any evidence to the contrary. If there’s no evidence to the contrary, that’s what I consider having taken place.
The parties also stipulated that in September 2002 they amended their original
support agreement, increasing Michael’s monthly support obligation from $250.00 to
$325.00, and that Michael had not paid $325.00 for the month of July 2002.
After taking the matter under advisement, the trial court determined “there is
no legal authority for the legal enforcement of child support created by extra-judicial
agreement” and “[a] court order of child support, with a delinquency, must be
established before this court can make a judicial determination of an arrearage.”
Consequently, the trial court refused to award Christine a judgment for the child
support arrearages Michael agreed to pay her but did not.
2 Discussion
The basis for the payment of child support is found in La.Civ.Code art. 227
which provides:
Fathers and mothers, by the very act of marrying, contract together the obligation of supporting, maintaining, and educating their children.
“A parent’s child support obligation is a primary continuous obligation.” Fink
v. Bryant, 01-987, p. 5 (La. 11/28/01), 801 So.2d 346, 349. It cannot be renounced
or suspended. Dubroc v. Dubroc, 388 So.2d 377 (La.1980). At issue in Dubroc was
an agreement by divorced parents to suspend one-half of the father’s child support
obligation when the child resided with the father. The trial court found the agreement
could not be enforced; the court of appeal reversed. The supreme court reviewed the
legal obligation of parents to support their children and the right of former spouses to
collect that support and found no legal prohibition to a parent’s agreement to suspend
the right to compel the payment of support, explaining:
Of course, an essential prerequisite to such a conventional modification of a parent’s right to receive support payments is implied. The parent may not, by suspension of this right, thwart the purpose for which the right is established, i.e., the enforcement of the child’s right to support and upbringing.
For these reasons, an agreement by a parent to suspend his right to receive child support payments will not be enforced unless it meets the requisites for a conventional obligation and fosters the continued support and upbringing of the child. To allow the parent to suspend his right to receive support payments under circumstances contrary to the child’s interests, would be inimical to the ultimate goal of support and upbringing of the child. On the other hand, if the parties clearly agree to a suspension of the payments, and such agreement does not interrupt the child’s maintenance or upbringing or otherwise work to his detriment, the agreement should be enforceable.
Id. at 380.
Thereafter, in Aldredge v. Aldredge, 477 So.2d 73 (La.1985), the supreme
court determined that parties who entered into a consent judgment regarding the
3 payment of child support could waive the requirement of proving a change in
circumstances for purposes of a later request for modification of those payments. The
court found that the requirement of proving a substantial change of circumstances for
modification of support awards was judicially created and that an agreement waiving
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STATE OF LOUISIANA COURT OF APPEAL, THIRD CIRCUIT
03-684
MICHAEL GREGORY THEVENOT, SR.
VERSUS
CHRISTINE DRONET THEVENOT
************
APPEAL FROM THE TWENTY-SEVENTH JUDICIAL DISTRICT COURT, PARISH OF ST. LANDRY, NO. 97-4887, HONORABLE JAMES T. GENOVESE, DISTRICT JUDGE
MICHAEL G. SULLIVAN JUDGE
Court composed of Ned E. Doucet, Jr., Chief Judge, Sylvia R. Cooks, and Michael G. Sullivan, Judges.
REVERSED.
David L. Carriere Attorney at Law 322 South Market Street Opelousas, Louisiana 70570 (337) 948-6217 Counsel for Defendant/Appellant: Christine Dronet Thevenot
Thomas E. Gibbs Thomas E. Gibbs & Associates 10988 North Harrell’s Ferry Road, Suite 19 Baton Rouge, Louisiana 70816 (225) 272-0020 Counsel for Plaintiff/Appellee: Michael Gregory Thevenot, Sr. SULLIVAN, Judge.
Christine Thevenot appeals the trial court’s refusal to enforce an extrajudicial
agreement she had with Michael Thevenot, Sr., her former husband, for him to pay her
child support for their son, Michael Thevenot, Jr. For the following reasons, we
reverse the judgment of the trial court.
Facts
The facts are not in dispute. Michael and Christine were married and had one
child, Michael, Jr. They were divorced on July 31, 1998. After the divorce, Michael,
Jr. lived with Christine until January 1999. At that time, the trial court designated
Michael as domiciliary parent due to Christine’s relocation to Houston. In August
1999, Christine was again designated domiciliary parent and has remained domiciliary
parent since that time.
Various pleadings filed by the parties in this matter reflect that at different times
each party requested child support from the other, but support was never established
by the court. Instead, in August 1999, Michael and Christine agreed between
themselves that he would pay her $250.00 per month support for Michael, Jr. In July
2001, Michael filed a rule to modify custody. In response, Christine filed exceptions
to the rule and filed a rule seeking arrearages in child support or, alternatively, to have
child support set. In her rule, Christine alleged that Michael owed her $5,500.00 for
the period August 1999 through August 2001. A hearing was held on August 21,
2001. After the hearing, the trial court maintained Christine as the domiciliary parent
and ordered that the issue of support be referred to the hearing officer. There was
never a referral to the hearing officer.
In June 2002, Michael filed another rule, seeking designation as domiciliary
parent. Christine again filed a rule for child support arrearages; she also sought to
establish support in accordance with the child support guidelines set forth in La.R.S. 9:315-315.22. In her rule, Christine sought the $5,500.00 she had previously
requested and an additional $350.00 in arrearages which she asserted arose from a
second agreement she and Michael made in September 2001.
On September 26, 2002, these rules were considered by the hearing officer, who
recommended that Michael be ordered to pay Christine $5,500.00 in arrearages.
Michael objected to the recommendation, and a hearing was held before the trial court.
During the hearing, the trial court recited the following facts which Michael admitted
and counsel for the parties stipulated were correct:
And this is what I understand the facts to be: That at one point in time [Michael] had agreed to pay $250 a month. And during a period of time from January of ‘99 to August of ‘99, [Michael] actually kept the child, but there was no support being paid by the mother while [Michael] kept the child. It is not disputed that from August of ‘99 to July of 2001 the child has been predominantly with the mother and that [Michael has] paid only $500 during that period of time. And the question is whether or not an arrearage is owed from August of ‘99 through July of 2001 at the rate of an alleged agreement of $250 a month and whether or not that can be made executory in a court of law.
....
I consider that to be a stipulation, because I just gave you the opportunity to present any evidence to the contrary. If there’s no evidence to the contrary, that’s what I consider having taken place.
The parties also stipulated that in September 2002 they amended their original
support agreement, increasing Michael’s monthly support obligation from $250.00 to
$325.00, and that Michael had not paid $325.00 for the month of July 2002.
After taking the matter under advisement, the trial court determined “there is
no legal authority for the legal enforcement of child support created by extra-judicial
agreement” and “[a] court order of child support, with a delinquency, must be
established before this court can make a judicial determination of an arrearage.”
Consequently, the trial court refused to award Christine a judgment for the child
support arrearages Michael agreed to pay her but did not.
2 Discussion
The basis for the payment of child support is found in La.Civ.Code art. 227
which provides:
Fathers and mothers, by the very act of marrying, contract together the obligation of supporting, maintaining, and educating their children.
“A parent’s child support obligation is a primary continuous obligation.” Fink
v. Bryant, 01-987, p. 5 (La. 11/28/01), 801 So.2d 346, 349. It cannot be renounced
or suspended. Dubroc v. Dubroc, 388 So.2d 377 (La.1980). At issue in Dubroc was
an agreement by divorced parents to suspend one-half of the father’s child support
obligation when the child resided with the father. The trial court found the agreement
could not be enforced; the court of appeal reversed. The supreme court reviewed the
legal obligation of parents to support their children and the right of former spouses to
collect that support and found no legal prohibition to a parent’s agreement to suspend
the right to compel the payment of support, explaining:
Of course, an essential prerequisite to such a conventional modification of a parent’s right to receive support payments is implied. The parent may not, by suspension of this right, thwart the purpose for which the right is established, i.e., the enforcement of the child’s right to support and upbringing.
For these reasons, an agreement by a parent to suspend his right to receive child support payments will not be enforced unless it meets the requisites for a conventional obligation and fosters the continued support and upbringing of the child. To allow the parent to suspend his right to receive support payments under circumstances contrary to the child’s interests, would be inimical to the ultimate goal of support and upbringing of the child. On the other hand, if the parties clearly agree to a suspension of the payments, and such agreement does not interrupt the child’s maintenance or upbringing or otherwise work to his detriment, the agreement should be enforceable.
Id. at 380.
Thereafter, in Aldredge v. Aldredge, 477 So.2d 73 (La.1985), the supreme
court determined that parties who entered into a consent judgment regarding the
3 payment of child support could waive the requirement of proving a change in
circumstances for purposes of a later request for modification of those payments. The
court found that the requirement of proving a substantial change of circumstances for
modification of support awards was judicially created and that an agreement waiving
the requirement does not violate public policies because:
It merely allows the parties to come to an amicable agreement on the amount of child support or alimony with the reassurance that the court will be able to review this agreement at a later date to ensure its fairness. Extrajudicial resolution of family matters without costly litigation will be promoted, since the parties will be more willing to come to an agreement between themselves, knowing that they may return to litigate the issue should the need arise. As the trial court noted in this case, it would be contrary to good public policy to preclude the parties to a consent decree from stipulating that they could return to litigate the issue of child support without proving a change of circumstances.
Id. at 75.
The overriding interest of the State in custody matters is the best interest of the
child. Baggett v. Baggett, 96-453 (La.App. 3 Cir. 4/23/97), 693 So.2d 264. A logical
extension of this tenet and the concepts approved in Dubroc, 388 So.2d 377, and
Aldredge, 477 So.2d 73, is that parents can agree between themselves to establish
child support. If they do, there must be proof of a specific agreement. Casey v.
Casey, 02-246 (La.App. 4 Cir. 5/22/02), 819 So.2d 1108. Such an agreement is
enforceable, if it satisfies “the requisites for a conventional obligation and fosters the
continued support and upbringing of the child,” Dubroc, 388 So.2d 380, and does not
“derogate from laws enacted for the protection of the public interest.” La.Civ.Code
art. 7.
Michael contends that there was no specific agreement for him to pay Christine
support for Michael, Jr. A close reading of the exchange between the trial judge and
Michael, as well as the stipulation entered by counsel, reveals that this contention is
without merit. Michael admitted to the trial judge that he agreed to pay Christine
4 $250.00 per month in support but claimed the agreement was modified. However, he
failed to prove that Christine later agreed to a modification of the agreement.
By agreeing on their child support obligation, Michael and Christine simply did
what they are legally obligated to do under La.Civ.Code art. 227. There is no
indication that the agreement was not in Michael, Jr.’s best interest. The law does not
prohibit parents from mutually agreeing to support arrangements for their children,
nor does the law require that parents demand and obtain support from each other or
that they enforce child support judgments whether rendered by courts or stipulated by
the parties and approved by courts.
For these reasons, we reverse the trial court’s determination that Michael and
Christine’s agreement for Michael to pay $250.00 per month for Michael Jr.’s support
is not a valid, enforceable agreement. Further, we find that Michael owes Christine
$5,500.00 for the period of August 1999 to July 2001, which represents $250.00 per
month during that time period less $500.00 paid by Michael.
As previously noted, in September 2002, Michael and Christine agreed to
increase Michael’s child support from $250.00 per month to $325.00 per month.
Michael paid Christine $325.00 per month thereafter, except for the month of August
2002. Accordingly, Michael owes Christine an additional $325.00 for the month of
August 2002.
Our consideration of this matter includes the case of Stogner v. Stogner, 98-
3044 (La. 7/7/99), 739 So.2d 762, where the supreme court held that, when parties
stipulate in open court regarding their child support obligation, the adequacy of the
of amount of child support established by the stipulation must be reviewed and
approved by the trial court in light of the child support guidelines. Michael and
Christine did not stipulate before the trial court regarding child support; therefore,
5 Stogner, 739 So.2d 762, is inapplicable to our determination herein. See La.R.S.
315.1(A).
Decree
The judgment of the trial court is reversed. Judgment is rendered in favor of
Christine Thevenot and against Michael Thevenot in the amount of $5,825.00,
together with legal interest thereon from the date of judicial demand until paid. All
costs of this appeal are assessed to Michael Thevenot.