Murphy v. Murphy

894 So. 2d 542, 2005 WL 233842
Louisiana Court of Appeal·Decided February 2, 2005·No. 04-1332·Published·Cited by 7 cases

Opinion

894 So.2d 542 (2005)

Patrick MURPHY
v.
Susan Lynn MURPHY.

No. 04-1332.

Court of Appeal of Louisiana, Third Circuit.

February 2, 2005.
Rehearing Denied March 16, 2005.

*543 M. Steven Beverung, Book and Beverung, Lake Charles, LA, for Defendant/Appellant, Susan Lynn Murphy.

Walter M. Sanchez, Lorenzi & Sanchez, L.L.P., Lake Charles, LA, for Plaintiff/Appellee, Patrick Murphy.

*544 Court composed of JOHN D. SAUNDERS, MARC T. AMY, and MICHAEL G. SULLIVAN, Judges.

AMY, Judge.

This matter concerns the appeal of a final child support judgment by the mother, who is the domiciliary parent. The final judgment decreased the interim support amount and was made retroactive to the date of the filing of the original petition. The mother appeals both rulings, as well as the district court's deviation from the child support guidelines to account for time spent by the father with the child. For the following reasons, we affirm.

Factual and Procedural Background

The parties in this case, Patrick Murphy and Susan Book Murphy, were married in Calcasieu Parish on July 12, 1997. Patrick works for his father's corporation, Black Lake Marsh, Inc. He is also the sole owner of his own corporation, Gulf Coast Nursery Supply, Inc. Susan is the sole proprietor of her own business, a gift shop named Expressions. One child was born of the marriage on July 13, 2000. Patrick filed suit for divorce on April 8, 2002; Susan also filed a divorce suit on April 9, 2002. Following a conference, the trial court entered an order on August 9, 2002 setting child support at $969.51 per month. A judgment of divorce was granted on April 17, 2003. The parties stipulated to a joint custody plan[1] and submitted economic data to the court relating to child support. The trial court rendered a judgment on January 6, 2004, reducing the monthly child support to $508.00 per month, retroactive to the date of filing on April 8, 2002. The judgment was signed on June 24, 2004 and the plaintiff filed the instant appeal,[2] alleging the following as error:

1. The trial court was manifestly erroneous in reducing the recommended child support from $969.51 per month to $508.00 per month.
2. The trial court erred in deviating from the guidelines of La. R.S. 9:315 by allowing a credit for time the child spent with the non-domiciliary parent.
3. The trial court was manifestly erroneous in making the change in child support rendered in 2004 retroactive to the filing of the suit in 2002.

Discussion

Standard of review

The trial court has great discretion in determining the amount of a child support award, and that determination should not be disturbed by an appellate court unless the trial court has committed a clear abuse of discretion or manifest error in factual appreciations. Gautreau v. Gautreau, 96-1548 (La.App. 3 Cir. 6/18/97), 697 So.2d 1339, writ denied, 97-1939 (La.11/7/97), 703 So.2d 1272; Widman v. Widman, 93-613 (La.App. 3 Cir. 2/2/94), 631 So.2d 689.

Child Support Reduction

For her first assignment of error, Susan asserts that the district court erred in reducing Patrick's monthly child support payments from $969.51 to $508.00. *545 She suggests that the figure used by the trial court in calculating the final support amount did not include income Patrick allegedly receives from other sources.

The worksheet attached to the hearing officer's second recommendation, which was used as the basis for the support amount at issue, states that Patrick's gross monthly income is $1500 and Susan's is $893. The comments at the bottom of the worksheet state, "Fathers [sic] Income Taken From Est. Mo. gross. Min. Wage Imputed to Mother."

The record contains a letter submitted by Patrick's attorney dated November 24, 2003, and an attached worksheet which states that Patrick's average monthly income for the years 2001 through 2003 was $1,388.00. This figure includes his wages from Black Lake Marsh, which were $9,600 for the years of 2001 and 2002, and only approximately $720.00 per month for 2003. Therefore, the letter and worksheet imputed the minimum wage of $900.00 per month to Patrick for 2003. The letter and worksheet also included in the gross income an annual payment of $7,440.00 for seismographic and oil exploration activities on property owned by Patrick. The letter and worksheet impute the minimum wage, or $900.00 monthly gross income, to Susan. The record also contains an expense and income affidavit that was submitted by Patrick which states that his adjusted gross monthly income is $1,574.05.

Susan asserts in her appellate brief that Patrick's gross income should be calculated using the figures from tax returns for the years 1999 through 2003, which appear in the record. However, the child support calculation statutes do not require the trial court to ascertain the child support obligation using figures dating approximately four years prior to the court's judgment. While the statutes also do not prohibit the use of such figures, it is within a trial court's broad discretion to determine which figures are proper to calculate the amount of Patrick's monthly gross income. Templeton v. Templeton, 00-0536 (La.App. 1 Cir. 12/22/00), 774 So.2d 1257. "The determination of the amount of [a parent's] gross monthly income is a finding of fact subject to manifest error review, and one which cannot be set aside by a reviewing court unless it is clearly wrong or manifestly erroneous." Piccione v. Piccione, 01-1086, p. 5 (La.App. 3 Cir. 5/22/02) 824 So.2d 427, 430.

The record contains numerous documents with various representations relating to the parties' incomes, including depositions by each party and their accountant, tax records, affidavits, and other documents. Although the trial court did not describe in detail which figures were used in calculating the amount of Patrick's monthly gross income, its determination is supported by the tax returns and payroll records which appear in the record. The trial court was not clearly wrong in making a finding of fact that Patrick's gross monthly income was $1,500.00. Neither was the trial court required to accept the assertion that Patrick was under-reporting his income based upon the evidence presented. Thus, this assignment is without merit.

Adjustment of Child Support Obligation Based on Time Spent with Child

For her next assignment, the defendant asserts that the trial court erred in reducing Patrick's monthly child support obligation by one-twelfth on account of the amount of time Patrick has physical custody of the child. Susan argues in her appellate brief that the reduction amounted to a deviation from the child support guidelines, which she states is subject to the test outlined by the Louisiana Supreme Court in Guillot v. Munn, 99-2132 (La.3/24/00), 756 So.2d 290. Susan further *546 cites Guillot, as well as La.R.S. 9:315.1, for the proposition that the trial court is required to provide specific reasons, either orally or written, for a deviation.

Considering the argument that a deviation was justified based on the amount of time that the non-domiciliary parent had physical custody of the child, the Guillot court created a three-pronged test for determining the sufficiency of a deviation in such a circumstance. First, the court must determine whether the visitation at issue goes

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