Reggio v. Reggio

956 So. 2d 637, 6 La.App. 5 Cir. 800, 2007 La. App. LEXIS 443, 2007 WL 752195
CourtLouisiana Court of Appeal
DecidedMarch 13, 2007
DocketNo. 06-CA-800
StatusPublished
Cited by4 cases

This text of 956 So. 2d 637 (Reggio v. Reggio) 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
Reggio v. Reggio, 956 So. 2d 637, 6 La.App. 5 Cir. 800, 2007 La. App. LEXIS 443, 2007 WL 752195 (La. Ct. App. 2007).

Opinion

CLARENCE E. McMANUS, Judge.

\ STATEMENT OF THE CASE

Richard Reggio, Jr. and Amy Steen Reggio were married February 15, 1992. They had two children during their marriage. Thereafter, the parties separated and filed for divorce. The Reggios entered into a Consent Judgment on September 7, 2004. According to that judgment, Mr. Reggio was to pay child support in the amount of $3,725.00 per month and spousal support in the amount of $3,275.00 per month.

[639]*639The monthly support amounts in the Consent Judgment were based on Mr. Reggio’s monthly income of $15,000.00 that he attested to in his affidavit of August 26, 2004. At that time he was employed overseas by Likpin, a company in Dubai, UAE. Thereafter, Mr. Reggio moved back to the United States and in May 2005, he was employed in Houston, Texas with Wilibros USA, Inc. earning $125,000.00 per year, or approximately $10,000.00 per month, according to pay stubs and a letter from his employer.

On March 5, 2005, Ms. Reggio filed a Rule for Increase in Child Support and For Final Permanent Periodic Spousal Support alleging Mr. Reggio was earning in excess of $250,000.00 per year, significantly more than when support was originally ordered by the court. Mr. Reggio filed a Rule to Modify/Decrease 1¿Child Support and to terminate Spousal Support on March 30, 2005. Mr. Reggio alleged his child support obligation should be reduced because the tuition expenses for the children were less and his income had not increased. He also alleged that Ms. Reggio had made no reasonable attempts to gain employment.

Both motions were heard by a hearing officer on May 25, 2005. On that date, the hearing officer made a recommendation that Mr. Reggio pay $1,993.00 per month in child support and $2,007.00 per month in interim periodic spousal support. The trial court adopted the hearing officer’s recommendations as an interim order and advised both parties that they had three days to file the appropriate objection if they disagreed with the recommendation.

On May 31, 2005, Ms. Reggio filed a Motion to Reset Hearing On Rule to Decrease Child Support and Interim Periodic Support, objecting to the recommendation made by the hearing officer on May 25, 2005. The parties agreed to submit the matter to the court by brief only. On January 23, 2006, the trial court rendered a judgment setting child support at $3,647.00 per month and spousal support at $4,000.00 per month, both retroactive to March 5, 2005. The trial court also found Ms. Reggio capable of finding a job since the youngest child is in school and the mother must find employment to help support her family.

Mr. Reggio filed a motion for new trial on January 30, 2006. The trial court denied the motion on April 5, 2005. Mr. Reggio then filed a Motion for Appeal.

DISCUSSION

Mr. Reggio has appealed the trial court’s judgment setting child support and spousal support. Mr. Reggio submits that the trial court lacked authority to make any rulings in this matter on January 23, 2006 because Ms. Reggio had failed to file a written objection within three days of the hearing officer’s recommendation and receiving the court’s ruling. Mr. Reggio also argues the trial court erred in | ¿calculating child and spousal support. Mr. Reggio argues the trial court erred by setting support higher than the amount set by the hearing officer, even though his income has decreased. Mr. Reggio argues the trial court deviated from the child support guidelines, but provided no reasons. Finally, he contends the trial court did not explicitly find him to be underemployed, even though it appears the trial court used his previous higher income in calculating support.

For the reasons which follow, we vacate the trial court’s judgment and remand the matter to the trial court for further proceedings.

The standard of appellate review of factual findings in a civil action is a two-part test: (1) the appellate court must find [640]*640from the record there is a reasonable factual basis for the finding of the fact finder, and (2) the appellate court must further determine the record establishes the finding is not clearly wrong (manifestly erroneous). State, Dept. of Social Services ex rel. Clark v. Ruiz, 04-1064 (La.App. 5 Cir.2005), 898 So.2d 514, 518, citing, Mart v. Hill, 505 So.2d 1120, 1127 (La.1987). A trial court’s child support order will not be reversed except for abuse of discretion. State, Dept. of Social Services ex rel. Clark v. Ruiz, supra, citing Hogan v. Hogan, 549 So.2d 267, 271 (La.1989).

First, we note that Ms. Reggio’s Motion to Reset Hearing objecting to the hearing officer recommendations was timely filed. La. R.S. 13:717 F(4)(a) provides:

If no objection to the hearing officer’s recommendation is filed in writing with the district court judge having jurisdiction over the case, within three days of rendition and notification ... exclusive of weekends and holidays, the order shall become a final judgment of the court and shall be signed by a judge of the 24th Judicial District Court and is appealable as any other final judgment.

The hearing officer issued the recommendation on May 25, 2005 and the trial court adopted it as an interim order. The objection by Ms. Reggio was filed Lon May 31, 2005. May 28, 2005 was a Saturday, May 29, 2005 was a Sunday, and May 30, 2005 was Memorial Day holiday. La. C.C.P. art. 5059 provides that a legal holiday is to be included in the computation of a period of time except when the period is less than seven days. This objection had to be filed within three days, which is less than seven days. Therefore, the legal holiday and weekend days are not counted and May 31, 2005 was the third day. Therefore, the objection was timely filed in accordance with La. R.S. 13:717 F(4)(a).

Next, after a review of the record, we find we are unable to ascertain how the trial court arrived at the amount of child and spousal support set forth in its judgment. We further find there is insufficient proof of Mr. Reggio’s income provided in the record.

In setting or modifying a child support award, the trial court must use the child support guidelines as provided by statute. La. R.S. 9:315(A). The trial court may deviate from these guidelines if their application would not be in the best interest of the child or would be inequitable to the parties. La. R.S. 9:315.1(B)(1). In order to calculate a basic child support obligation, La. R.S. 9:315.2 provides:

A. Each party shall provide to the court a verified income statement showing gross income and adjusted gross income, together with documentation of current and past earnings. Spouses of the parties shall also provide any relevant information with regard to the source of payment of household expenses upon request of the court or the opposing party, provided such request is filed in a reasonable time prior to the hearing. Failure to timely file the request shall not be grounds for a continuance. Suitable documentation of current earnings shall include but not be limited to pay stubs, employer statements, or receipts and expenses if self-employed. The documentation shall include a copy of the party’s most recent federal tax return. A copy of the statement and documentation shall be provided to the other party.
B. If the party is voluntarily unemployed or underemployed, his or her gross income shall be determined as set forth in R.S. 9:315.11.
C.

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Bluebook (online)
956 So. 2d 637, 6 La.App. 5 Cir. 800, 2007 La. App. LEXIS 443, 2007 WL 752195, Counsel Stack Legal Research, https://law.counselstack.com/opinion/reggio-v-reggio-lactapp-2007.