Roberts v. Roberts

677 So. 2d 1042, 1996 WL 305617
CourtLouisiana Court of Appeal
DecidedJune 5, 1996
Docket95-CA-1626
StatusPublished
Cited by17 cases

This text of 677 So. 2d 1042 (Roberts v. Roberts) 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
Roberts v. Roberts, 677 So. 2d 1042, 1996 WL 305617 (La. Ct. App. 1996).

Opinion

677 So.2d 1042 (1996)

Barbette Campo, Wife of Christopher Curtis ROBERTS
v.
Christopher Curtis ROBERTS.

No. 95-CA-1626.

Court of Appeal of Louisiana, Fourth Circuit.

June 5, 1996.
Rehearing Denied August 29, 1996.

*1044 Lynne W. Wasserman, Metairie, for Plaintiff/Appellant.

Daniel L. Dysart, A Professional Law Corporation, Daniel L. Dysart, Faye Anne Dysart, Chalmette, for Defendant/Appellee.

Before LOBRANO, LANDRIEU and MURRAY, JJ.

LANDRIEU, Judge.

This case arises from the trial court's denial of Barbette Campo's request for a rule to increase child support. Campo was divorced from Christopher Curtis Roberts on January 24, 1992. The parties entered into a consent decree that awarded the care and physical custody of the minor children, Christopher Curtis Roberts, Jr. and Cobby Roberts, to Campo. The agreement obligated Roberts to pay child support of $500.00 per month and maintain hospital insurance for the children and each party to pay one-half of the tuition at Lynn Oaks School.[1]

On July 26, 1994, Campo filed a Rule to Increase Child Support claiming a change in circumstances. The court denied Campo's request stating that she did not prove a change in circumstance sufficient to merit an increase in her award. A trial court's child support order will not be reversed except for abuse of discretion. Hogan v. Hogan, 549 So.2d 267, 271 (La.1989). Campo claims that the court erred:

1. In finding that she failed to prove a change in circumstances, and

2. In failing to award support retroactive to the date of the original filing of the rule to increase.

ASSIGNMENT OF ERROR NO. 1

Campo has the burden of proving a change in circumstance subsequent to the prior judgment because she is the party seeking the increase. Preis v. Preis, 610 So.2d 163, 164 (La.App. 3d Cir.1992), writ denied, 612 So.2d 103 (La.1993). La.Rev. Stat.Ann. 9:311(A) (West 1991) states:

An award for support shall not be reduced or increased unless the party seeking the reduction or increase shows a change in circumstances of one of the parties between the time of the previous award and the time of the motion for modification of the award.

Campo cites three changes in circumstances to support her request for an increase in support. The first change that Campo asserts is that she now stays home to *1045 care for a new baby. La.Rev.Stat.Ann. 9:315.9 (West 1991) states:

If a party is voluntarily unemployed or underemployed, child support shall be calculated based on a determination of his or her income earning potential, unless the party is physically or mentally incapacitated, or is caring for a child of the parties under the age of five years.... (Emphasis added).

Campo's youngest child is not an issue of her marriage to Roberts. Therefore, Campo's voluntary unemployment is not cause for increased child support.

Second, Campo asserts that she has additional expenses because Cobby, the younger child of her marriage to Roberts, now attends Lynn Oaks School. The original consent decree stated that "[e]ach party shall pay one-half of the tuition at Lynn Oaks School." Campo's request for an increase is based on her having to pay one-half of Cobby's tuition, about $165.00 per month, in addition to one-half of Christopher's tuition.[2] This additional expense is not sufficient to warrant a change of circumstances. Campo further alleges that she has additional costs because the children are older and involved in more activities. However, she presented no evidence to prove increased expenses other than Cobby's school tuition.

Last, Campo claims that circumstances have changed since the consent decree because Roberts' income is substantially higher now than it was at the time of the consent decree. A substantial increase in the incomes of the parents equates to a change in circumstances. Humphrey v. Humphrey, 27,238 (La.App. 2d Cir. 8/23/95), 660 So.2d 92, 94. The parent seeking an increase in payments is required to demonstrate an improvement in the payor's financial condition. Bordenave v. Bordenave, 93-1183 (La.App. 4th Cir. 1/13/94), 631 So.2d 519, 520, writ denied, 94-0409 (La. 4/4/94), 635 So.2d 1108.

The record from the hearing on the rule to increase includes Roberts' 1991 personal income tax return, but that return is insufficient to determine Roberts' income at the time of the consent decree hearing which was conducted on June 28, 1991. La.Rev.Stat. Ann. 9:315.2(A) (West 1991) states:

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. 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. (Emphasis added).

The record does not indicate what documentation or information the court used, at the time of the hearing, to determine whether the amount stipulated in the consent decree was reasonable in light of the child support guidelines.[3]

Public policy dictates that parents should support their children in a manner comparable to their income and that judicial decisions should be made in the best interest of the children. See La.Civ.Code Ann. art. 227 (West 1993); Fuge v. Uiterwyk, 613 So.2d 717 (La.App. 4th Cir.1993), writs denied, 619 So.2d 574 (La.1993) (children residing with their mother are entitled to the same standard of living as if they resided with their father). Accordingly, we will review Campo's assertions to determine whether the current child support obligation is reasonable based on the parents' income.

Campo bases her claim of Roberts' increased income on the following facts:

*1046 (1) Roberts' income tax return of 1993 lists an income that is double what it was when child support was awarded;

(2) Roberts' gross income should include the profits from his personally owned business;

(3) Roberts is hiding income from his cash only business; and

(4) Benefits Roberts derives from having his living expenses paid by his business should be included in determining his gross income.

Claim That Income Has Doubled

Campo claims that Roberts' income at the time of the consent decree (June 28, 1991) was $10,500.00 and that his 1993 income tax return lists his salary as $20,000.00. Campo concludes that her support should be raised because Roberts' income has, in effect, doubled. This argument fails for two reasons. First, it is unclear how Campo arrived at the $10,500.0 that she quotes. She submitted, as evidence, Roberts' 1991 income tax returns which lists his annual salary as $15,802.00. Nevertheless, the record does not prove what Roberts' income was at the time of the consent decree.

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Cite This Page — Counsel Stack

Bluebook (online)
677 So. 2d 1042, 1996 WL 305617, Counsel Stack Legal Research, https://law.counselstack.com/opinion/roberts-v-roberts-lactapp-1996.