Miller v. Miller

610 So. 2d 183, 1992 WL 364371
Louisiana Court of Appeal·Decided December 9, 1992·No. 91-514·Published·Cited by 8 cases

Opinion

610 So.2d 183 (1992)

Bryan MILLER, Plaintiff-Appellee,
v.
Bonnie Foret MILLER, Defendant-Appellant.

No. 91-514.

Court of Appeal of Louisiana, Third Circuit.

December 9, 1992.

Blak Deshotels, Ville Platte, for plaintiff/appellee.

Young, Hoychick & Aguillard, M. Terrance Hoychick, Eunice, for defendant/appellant.

Before STOKER and KNOLL, JJ., and MARCANTEL,[*] J. Pro Tem.

*184 KNOLL, Judge.

This appeal concerns a deviation from the child support guidelines by the trial court.

At the hearing held on March 22, 1991, the trial court: 1) increased monthly support from $150 per month to $225 per month; 2) maintained provisions requiring Bryan Miller (Bryan) to provide hospitalization for the child, Bronson, and to pay one-half of all noncovered medical and dental expenses; 3) ordered Bryan to pay past due medical expenses and found him free from contempt for his failure to pay; and, 4) found Bonnie Foret Miller (Bonnie) in contempt for refusing weekly visitation but suspended the 10 day jail sentence.

Bonnie asserts that the trial court's monthly child support award of $225 was inadequate and not in accordance with the child support guidelines. She also appeals the contempt judgment against her.

After a careful study, we find that the trial court erred in deviating from the guidelines without an evidentiary basis, and amend the trial court's judgment to reflect the proper amount of Bryan's monthly child support obligation. Further, we find that the judgment of contempt is not an appealable judgment and is not properly before us.

FACTS

Following the parties' legal separation in May of 1987, Bryan paid $150 per month to Bonnie for support of their child. In November of 1987, the trial court suspended Bryan's child support obligation after his income from workers' compensation was terminated. When the parties obtained their divorce on November 21, 1988, the divorce decree maintained the suspension of child support payments. No other attempts to modify the original support order were made until July 23, 1990, when Bonnie filed a rule for an increase in child support, contempt of court, and attorney fees. On February 22, 1991, Bryan filed a rule for contempt against Bonnie. A contradictory hearing was held on these issues, and from this judgment Bonnie brings this appeal.

CONTEMPT JUDGMENT NOT APPEALABLE

Bonnie contends that the trial court erred in finding her in contempt of court for refusing to allow Bryan weekly visitation. Our courts have repeatedly held that a judgment of contempt is not an appealable judgment; instead, the proper remedy is to seek supervisory writs. Cooper v. Cooper, 594 So.2d 939, 942 (La.App. 3rd Cir.1992) and cases cited therein. Accordingly, we find that Bonnie's contempt judgment is not properly before us. Thus, the sole issue for our review is the propriety of the amount of child support.

DEVIATION FROM CHILD SUPPORT GUIDELINES

Bonnie contends that the trial court deviated from the child support guidelines without articulating any reasons for the downward deviation.

The child support guidelines promulgated in LSA-R.S. 9:315 et seq. apply to the present case. LSA-R.S. 9:315.1 creates a rebuttable presumption that the amount calculated under the guidelines is the proper amount of a child support award. LSA-R.S. 9:315.1(B) allows the trial court to deviate from the guidelines if their application would not be in the best interest of the child or would be inequitable to the parties. A downward deviation requires a showing that application of the guidelines would be inequitable to the parties as such a downward deviation would obviously not be in the best interest of the child. Montgomery v. Waller, 571 So.2d 765, 768 (La.App. 2nd Cir.1990). Section (C) recognizes the court's discretion to consider various obligations in deviating from the guidelines. Specifically, subsection (2) provides that the court may consider "[t]he legal obligation of a party to support dependents who are not the subject of the action before the court and who are in that party's household." If the court deviates from the guidelines, it must, in accordance with section (B), give oral or written reasons for the deviation on the record.

*185 The act requires the parties to provide the court with documentation evidencing their respective adjusted gross incomes. The court utilizes the schedule in LSA-R.S. 9:315.14 to determine the basic child support obligation based on the combined adjusted gross incomes of the parties and the number of children. LSA-R.S. 9:315.2. The total child support obligation is determined by adding together the basic child support obligation amount, the net child care costs, the cost of health insurance premiums, extraordinary medical expenses, and other extraordinary expenses. LSA-R.S. 9:315.8. The court is required to use a worksheet such as the one shown in LSA-R.S. 9:315.8 to determine the parties' respective child support obligations.

In the case sub judice, the parties stipulated that there had been a change in the circumstances sufficient to have the trial court consider Bonnie's rule. The parties also stipulated to the amounts reported as gross income by both parties, and that both had remarried and had one child in these new marriages.

Bryan is a self-employed welder. His 1990 federal income tax return was offered into evidence. Although it was incomplete, the trial court stated that it would consider the partial income tax return as being representative of his wages. The return indicated a gross income of $39,417. From this amount expenses of $20,247 were deducted to reach a net pre-tax profit of $19,170. The trial court did not include in Bryan's income the amount of his depreciation expense, $3,680. We find this was clear error. As Bonnie correctly points out in her brief, LSA-R.S. 9:315(4)(c) excludes from "`[o]rdinary and necessary expenses' ... amounts allowable by the Internal Revenue Service for the accelerated component of depreciation expenses or investment tax credits or any other business expenses determined by the court to be inappropriate for determining gross income for purposes of calculating child support." This language clearly intends the exclusion of $3,680 in the "depreciation and section 179 expense deduction" from the total expenses.

Therefore, Bryan's income should be as follows:

     $39,417       (gross as per tax return)
   - $16,567       (expenses not including depreciation
                                   expenses)
   _________
     $22,850            (net pre-tax income)
   +   1,680             (unreported income)
   +   3,732               (interest income)
   _________
     $28,262         (total income for 1990)

This amount divided over twelve months equals a monthly income of $2,355 per month. After adding Bonnie's monthly income of $2,004 to this, the combined income equals $4,359 per month. Bryan's income is fifty-four percent of the total. Fifty-four percent of $624.08, the amount reflected on the schedule in LSA-R.S. 9:315.14, is $337. Thus, according to the schedule, Bryan's basic child support obligation equals $337.

The trial court concluded that Bryan's child support obligation was $225 per month. This is clearly a deviation from the guidelines. Therefore, we must determine whether the trial court had an evidentiary basis for the deviation.

In deviating from the child support guidelines, the trial court stated:

"BY THE COURT:

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