Pendergrass v. Pendergrass

667 So. 2d 1213, 1996 WL 38044
CourtLouisiana Court of Appeal
DecidedFebruary 27, 1996
Docket94-CA-1165, 94-CA-1629
StatusPublished
Cited by9 cases

This text of 667 So. 2d 1213 (Pendergrass v. Pendergrass) 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
Pendergrass v. Pendergrass, 667 So. 2d 1213, 1996 WL 38044 (La. Ct. App. 1996).

Opinion

667 So.2d 1213 (1996)

Robert PENDERGRASS
v.
Pamela Wadell PENDERGRASS.

Nos. 94-CA-1165, 94-CA-1629.

Court of Appeal of Louisiana, Fourth Circuit.

January 26, 1996.
Order Granting Limited Rehearing February 27, 1996.

*1214 Bruce M. Danner, Metairie, for Plaintiff/Appellant, Robert Pendergrass.

Theon A. Wilson, Dreola M. Guyton, New Orleans, for Defendant/Appellee, Pamela Pendergrass.

Before LOBRANO, WALTZER and MURRAY, JJ.

MURRAY, Judge.

Robert Pendergrass (Robert) appeals rulings of the trial court (1) disallowing credit to him for out-of-pocket child care expenses incurred during his visitation time with his children; (2) reducing his visitation privileges; and (3) denying him retroactive effect of the court's $142.55 reduction of his monthly child support payments.

Pamela Pendergrass (Pamela), in her answer to appeal, alleges that the trial court erred in its computation of Robert's income in three respects: (1) in calculating Robert's monthly income based on an average of his income over the course of a year; (2) in failing to find that Robert underreported his earnings to the court; and (3) in failing to include the income of Robert's new wife in the calculation of Robert's income.

We affirm on the issue of retroactivity of the judgment. However, we modify the monthly support obligation of Robert to reflect a reduction of the total support obligation in light of the court's ruling that Robert was not entitled to a credit for out-of-pocket child care expenses, and modify on the issue of visitation.

The facts are as follows: Robert and Pamela Pendergrass, parents of three minor children, were divorced in 1992. By judgment *1215 of March 9, 1992, the parties were awarded joint custody of their children, with Pamela being designated as the primary custodial parent. Robert was granted specific visitation privileges as follows: weekday visitation from 3:00 p.m. to 6:15 p.m. on at least Tuesday, Wednesday, and Thursday; alternate weekends, holidays, and special events; and continuous visitation for at least two-thirds of the children's summer vacation.

On July 29, 1993, Robert filed a Motion for Reduction of Child Support Obligations and Alternative Relief, in which he averred that he "[was] no longer able to care for [his] children during all of his weekly and summer visitation" due to changed circumstances in his employment and to the children's school enrollment. Because of these changes in circumstance, Robert claimed that he was forced to pay for child care during his weekly visitation with his children. He sought a reduction of his child support payments to Pamela or, alternatively, "an adjustment of the joint custody plan and visitation so as to decrease his costs associated with child care."

Pamela opposed the motion, and moved to have the child support payments increased, alleging that Robert had misstated and underreported his monthly income to the court.

Following hearing on the motions in November, the trial court entered a judgment on December 3, 1993. The court found that Pamela's gross monthly income was $1,834.00. Based on an average of Robert's earnings from self-employment over the previous year, the court found that his gross monthly income was $798.00. Applying the guidelines set forth in La.R.S. 9:315 et seq., the court reduced Robert's monthly child support obligation from $500.00 to $357.45. The judgment provided that the support calculations did not include any health care premiums, as the children could be covered at no additional cost under a health insurance policy available to Robert's new wife.

By judgment of February 10, 1994, in response to new trial motions by both sides, the court amended its original judgment to provide that the December 3, 1993, judgment not be given retroactive effect, and also to specifically order Robert to maintain major medical insurance on behalf of his three children through his current wife's employer, Childrens' Hospital.

In March, 1994, Robert filed a series of motions again seeking, among other things, reimbursement of the out-of-pocket child care expenses or, alternatively, an adjustment in his visitation schedule. More specifically, Robert requested that either the court order Pamela to reimburse him for child care expenses, including the cost of summer camp for the children, or allow him a credit for these expenses against his child support obligation.

Alternatively, Robert requested that the visitation schedule be modified as follows: reduce the weekday visitation from three to two afternoons a week and to modify the hours of weekday visitation from 3:00 p.m. to 6:15 p.m. to 4:30 p.m. to 6:30 p.m. so that he would not incur the child care costs; extend the alternate weekend visitation into Monday; reduce the summer visitation from two continuous months to two continuous weeks with alternating weekends.

On April 25, 1994, a hearing was scheduled to hear the latest of Robert's motions. Apparently, after a pre-trial in chambers, the judge ordered that the stipulations agreed to by the parties in chambers be read into the record. That transcript would form the basis for a consent judgment between the parties. However, after all of the stipulations were read, Robert withdrew his consent. Robert requested that the court instead render the stipulations as an order of the court. The court did as he requested. Robert's counsel then requested that the court address the parties relative to the reason for reduction of visitation:

Neither party is to address the children as it relates as to why Mr. Pendergrass is having a reduce [sic] visitation schedule. If a question is posed by anyone [sic] of the children as to why Mr. Pendergrass is seeing them less, visiting with them less, the response is: `That was the Order and decision of the Court.' Do not go into any more than that. If the questions persist, then, feel free to contact your counsel, and have counsel contact me, and I'll make an effort to set up a situation where I try with *1216 the children directly and let them know that there were practical considerations in bring [sic] about that reduction. It had nothing to do with their father's feelings.

According to that judgment, Robert was to continue paying $357.45 in monthly child support. Robert's weekday visitation schedule was altered to allow visitation on alternate Wednesdays from 3:00 p.m. until 6:15 p.m. during the week following a non-visitation weekend. The summer visitation was modified to provide that Robert and Pamela would each have two continuous weeks with the children during the summer. The holiday and special events visitation schedule was not changed.

Several other issues were included in the April 25 transcript, but as those issues are not before us on appeal, we pretermit discussion of them.

CHILD SUPPORT

Robert contends that the court erred by refusing to give him credit for out-of-pocket child care expenses incurred by him during his visitation time with his children.

Louisiana Revised Statute 9:315.3 provides that net child care costs shall be added to the basic child support obligation. Net child care costs are defined as "the reasonable costs of child care incurred by a party due to employment or job search, minus the value of the federal income tax credit for child care." La.R.S. 9:315(7). In calculating the total support obligation, La.R.S. 9:315.8(D) states:

Free access — add to your briefcase to read the full text and ask questions with AI

Related

State of Louisiana v. Kevin Willis
Louisiana Court of Appeal, 2011
LEARD v. Schenker
35 So. 3d 1152 (Louisiana Court of Appeal, 2010)
State, Department of Social Services ex rel. Clark v. Ruiz
898 So. 2d 514 (Louisiana Court of Appeal, 2005)
DEPT. OF SOC. SERVS. EX REL. CLARK v. Ruiz
898 So. 2d 514 (Louisiana Court of Appeal, 2005)
Kern v. Kern
786 So. 2d 193 (Louisiana Court of Appeal, 2001)
State v. Holland
738 So. 2d 721 (Louisiana Court of Appeal, 1999)
McClelland Ex Rel. Winters v. Broussard
736 So. 2d 878 (Louisiana Court of Appeal, 1999)
Henry v. Henry
704 So. 2d 793 (Louisiana Court of Appeal, 1997)
Langley v. Langley
681 So. 2d 25 (Louisiana Court of Appeal, 1996)

Cite This Page — Counsel Stack

Bluebook (online)
667 So. 2d 1213, 1996 WL 38044, Counsel Stack Legal Research, https://law.counselstack.com/opinion/pendergrass-v-pendergrass-lactapp-1996.