Ola v. Ola

985 So. 2d 786, 2008 WL 1741614
CourtLouisiana Court of Appeal
DecidedApril 16, 2008
Docket2007 CA 0667
StatusPublished

This text of 985 So. 2d 786 (Ola v. Ola) 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
Ola v. Ola, 985 So. 2d 786, 2008 WL 1741614 (La. Ct. App. 2008).

Opinion

985 So.2d 786 (2008)

Tabitha Duet OLA
v.
Paul Patrick OLA.

No. 2007 CA 0667.

Court of Appeal of Louisiana, First Circuit.

April 16, 2008.

*787 Joan M. Malbrough, Malbrough & Lirette, Houma, LA, for Plaintiff-Appellee, Tabitha Duet Ola.

Jerri G. Smitko, Houma, LA, for Defendant-Appellant, Paul Patrick Ola.

Before PARRO, KUHN, and DOWNING, JJ.

PARRO, J.

Paul Patrick Ola appeals a judgment ordering him to pay his former spouse, Tabitha Duet Ola, child support for their two minor children, and a judgment denying in part his motion for new trial. We affirm the judgments.

FACTUAL AND PROCEDURAL BACKGROUND

Paul Patrick Ola and Tabitha Duet Ola were married on September 2, 1988, and had two children: Crystal Marie Ola, born December 3, 1994, and Magen Renee Ola, born August 23, 1996. Mrs. Ola filed a petition for divorce on October 31, 2005; Mr. Ola filed an answer and reconventional demand, also seeking a judgment of divorce. In those pleadings, both parties also asked the court to order child support to be paid in accordance with LSA-R.S. 9:315, et seq., for the support and maintenance of the minor children of the marriage. A judgment of divorce was rendered and signed on June 27, 2006. On August 2, 2006, a judgment granted the parties joint custody of the minor children, with the mother designated the primary domiciliary parent and the father receiving "reasonable visitation privileges" in accord with a fixed schedule.[1]

A hearing was held on August 21, 2006, on the issues of child support and interim periodic spousal support. A judgment was rendered that day and signed August 25, 2006, ordering Mr. Ola to pay Mrs. Ola child support in the amount of $1,659 per month for the support and maintenance of the minor children, "retroactively to October 31, 2006."[2] He was also ordered to maintain a policy of medical insurance on the children and to pay 92.46% of their extraordinary medical expenses. He filed a motion for new trial, which was granted as to the issue of giving him credit for the amount of health insurance premiums actually paid by him for the children's coverage, but which was denied as to the issue of including the employer-paid health insurance premiums in his gross income. The new trial date was set for October 30, 2006. Mr. Ola appealed the judgment rendered August 21, 2006, along with the implicit partial denial of his motion for new trial rendered on October 9, 2006. No new trial was held, but the parties entered into a consent judgment on October 30, 2006, reducing his child support to $1,637 per month, and reserving to him "his right to appeal other issues in this matter raised in *788 the motion for new trial filed by Paul Patrick Ola on September 7, 2006." Accordingly, the August 25, 2006 judgment being appealed appears to be a final, appealable judgment.

DISCUSSION

In his only assignment of error, Mr. Ola asserts that in calculating his gross income for determining his child support obligation, the trial court erred by adding to his gross income the amounts paid as premiums by his employer for health insurance coverage and by denying his motion for a new trial on that issue. The relevant portions of LSA-R.S. 9:315(C)(3) define "gross income" as:

(a) The income from any source, including but not limited to salaries, wages, commissions, bonuses, dividends, severance pay, pensions, interest, trust income, recurring monetary gifts, annuities, capital gains, social security benefits, workers' compensation benefits, basic and variable allowances for housing and subsistence from military pay and benefits, unemployment insurance benefits, disaster unemployment assistance received from the United States Department of Labor, disability insurance benefits, and spousal support received from a preexisting spousal support obligation;
(b) Expense reimbursement or in-kind payments received by a parent in the course of employment, self-employment, or operation of a business, if the reimbursements or payments are significant and reduce the parent's personal living expenses. Such payments include but are not limited to a company car, free housing, or reimbursed meals[.]

In oral reasons for judgment, the court stated:

Turning to the determination of the gross income of Mr. Paul Ola, the most recent documentation presented to the Court concerning Mr. Ola's income is his 2006 year to date pay stub through April 15, 2006, which reflects a gross income of $38,288.56 for a three and one-half month time period. That would indicate that he has a gross monthly income of $10,940 per month.
Counsel for Mr. Ola has argued that the Court should not include as part of his gross income the contributions by his employer to medical insurance provided for Mr. Ola and his family. The Court believes that those contributions would fall within the definition of income.
Therefore, the Court determines that Mr. Ola's gross income is $10,940 each month. There's no evidence of any preexisting child support or spousal support obligation. Therefore, the Court determines that Mr. Ola's adjusted monthly gross income is $10,940 each month.

The Louisiana Supreme Court noted that the definition of "gross income" in LSA-R.S. 9:315(C)(3)[3] does not limit income merely to the type of compensation listed, but instead, through the use of the words "but not limited to ...," includes any compensation for services. State, Dep't of Soc. Serv. ex rel. D.F. v. L.T., 05-1965 (La.7/6/06), 934 So.2d 687, 691. During oral arguments in the Ola case, the trial court commented several times concerning the economic benefit to Mr. Ola of the health insurance premiums paid by his employer, Entergy Operations, Inc. At one point, the court stated, "But for the fact that Entergy is paying that, then Mr. Ola *789 would have to pay it." Eventually Mr. Ola's counsel admitted that "[i]t is an economic benefit to Mr. Ola," but argued that it still was not "income," because he never actually got this money, even though it was shown on his pay stub. Mrs. Ola's attorney responded that the payment of those premiums by Mr. Ola's employer fits the definition of "gross income" in LSA-R.S. 9:315(C)(3)(b), which includes any expense reimbursement or in-kind payment received by a parent in the course of employment, if those payments are significant and reduce the parent's personal living expenses. Her attorney argued:

And that is exactly what happens with Mr. Ola's health insurance benefits. The company pays them, but they reduce his personal living expenses because he doesn't have to pay them. So that's why it should be — that should be included as part of his gross income.

Obviously, the court agreed with this argument.

The Third Circuit case of Widman v. Widman, 619 So.2d 632 (La.App. 3rd Cir. 1993) was cited by Mr. Ola in support of his position. In that case, the court refused to include the employer's payment of health insurance premiums in Mr. Widman's gross income. However, as the district court noted in this case:

On that issue, that's not a First Circuit case. That's not a Supreme Court case. At most that can be is persuasive and I have to disagree with you. That is as good as giving Mr. Ola $5,000 a year and saying go buy your insurance. So, with all cue respect to that Circuit Court's opinion, I disagree with it because the statute says any source of income and then gives you all these examples.

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Related

Pumphrey v. City of New Orleans
925 So. 2d 1202 (Supreme Court of Louisiana, 2006)
Widman v. Widman
619 So. 2d 632 (Louisiana Court of Appeal, 1993)
State, Department of Social Services v. L.T.
934 So. 2d 687 (Supreme Court of Louisiana, 2006)

Cite This Page — Counsel Stack

Bluebook (online)
985 So. 2d 786, 2008 WL 1741614, Counsel Stack Legal Research, https://law.counselstack.com/opinion/ola-v-ola-lactapp-2008.