Rutland v. Rutland

121 So. 3d 776, 13 La.App. 5 Cir. 70, 2013 WL 3889250, 2013 La. App. LEXIS 1539
CourtLouisiana Court of Appeal
DecidedJuly 30, 2013
DocketNo. 13-CA-70
StatusPublished
Cited by4 cases

This text of 121 So. 3d 776 (Rutland v. Rutland) 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
Rutland v. Rutland, 121 So. 3d 776, 13 La.App. 5 Cir. 70, 2013 WL 3889250, 2013 La. App. LEXIS 1539 (La. Ct. App. 2013).

Opinion

STEPHEN J. WINDHORST, Judge.

| ¡Appellant, Heidi Rutland, seeks review of the trial court’s judgment establishing a final child support award. For the following reasons, we affirm.

PROCEDURAL HISTORY AND EVIDENCE

Ms. Rutland and Mr. Rutland were married on June 1, 2002. One child was born of their marriage on August 12, 2003. The parties separated on March 10, 2010. Ms. Rutland filed a petition for divorce on February 7, 2011, and requested custody of her minor son, subject to supervised visitation and child support. A hearing on the ancillary matters was initially scheduled for March 14, 2011, but was continued to April 11, 2011, at the request of Mr. Rut-land’s counsel.

At the April 11, 2011 hearing, Mr. Rut-land testified that he was previously employed with the St. James Parish Sheriffs Office (“Sheriffs Office”) for eight years. He further testified that he was fired from the Sheriffs Office for sleeping on the job and he was denied unemployment as a result. Mr. Rutland testified that he was currently unemployed although he had applied for several jobs. He also testified that he had to sell his house and he moved to Mississippi where he currently resides with his parents, rent free. He explained that his parents helped him out by giving him money when he needed it, the largest amount being sixty dollars at a given time. He testified that the money was a gift and not a loan from his parents.

|sOn April 11, 2011, the trial court rendered judgment granting Ms. Rutland interim child support in the amount of $200 per month based on Mr. Rutland’s unemployed status and the child support guidelines.1 The judgment further ordered a review to be set within 90 days to determine Mr. Rutland’s employment status and to re-evaluate child support after the parties completed a custody evaluation.

On November 11, 2011, Mr. Rutland filed a rule to show cause why a divorce should not be granted. The rule was set for December 12, 2011, but was continued to February 13, 2012, by Ms. Rutland’s counsel. The rule was again continued to June 11, 2012, by counsel for Mr. Rutland. On March 30, 2012, Ms. Rutland filed a rule to show cause why divorce should not be granted and requested a hearing to increase interim child support with a retroactive date to the date of judicial demand. The rule was scheduled for May 14, 2012, but was continued to June 11, 2012, by Mr. Rutland’s counsel.

A judgment of divorce was rendered on June 11, 2012, with the trial court deferring all other ancillary matters to be heard on August 13, 2012. The judgment addi[778]*778tionally ordered Ms. Rutland to comply and complete the custody evaluation and to produce her income earning documents for the last two years by August 1, 2012. On August 1, 2012, the trial court continued the ancillary matters to September 10, 2012. After a joint request of counsel, the matter was again continued and reset for September 12, 2012.

On September 12, 2012, the parties appeared before the trial court to determine custody and child support. Mr. Rutland testified that he was fired from the Sheriffs Office for sleeping on the job. He further testified that he applied for jobs at Shell Geismer and at all the plants, but was not offered a job. He also | ¿testified that in March 2011, he sold his house and moved to Mississippi to live with his parents. He testified that he primarily moved in with his parents to help his mom take care of his dad who has a medical condition. He further testified that he does not pay rent to his parents; however, he pays for his own food, gas, and all other necessary needs. Mr. Rutland testified that he occasionally received funds from his parents as a gift when he needed help, but does not currently receive any funds from them.

Mr. Rutland further testified that he started working at Consolidated Container Company in May 2011. He worked as an operator making plastic bottles until December 16, 2011, when he was fired for missing a “dye line” on the bottles. He also admitted that he signed a daily check report which contained false information. He testified that he made $15.00 an hour as an operator.

Mr. Rutland also testified that he started working at Dixie Packaging Incorporated in January 2012. He started out at $9.00 an hour, but he currently makes $9.50 an hour, plus 16 hours overtime at a rate of $14.25 an hour each paycheck. Mr. Rutland testified that even though he is currently employed with Dixie Packaging, he is still looking for employment with a higher rate of pay. He has applied for employment at several places, including Georgia Pacific where the starting income is $18.00 an hour. However, he testified that he has not received any job offers that have a higher pay rate than his present employment with Dixie Packaging.

Additionally, Mr. Rutland admitted that he cleared over $9,000.00 from the sale of his house in 2011. He testified that he was not aware that Ms. Rutland’s counsel had requested that he hold off on the sale or escrow the funds.. He conceded that he did not give Ms. Rutland any funds from the sale of the house. Mr. Rutland further admitted that he withdrew his pension in the amount of|r,$19,051.00 sometime around October 2011 through the end of the year. He testified that he received around $15,000.00 after 20% was taken out for taxes. He conceded that he did not give any funds to Ms. Rutland even though the majority of his pension was earned during his marriage. He further testified that he used the funds received from his pension and the sale of his house to pay off prior judgments, mortgages and other bills and that he used the rest of the money for his personal expenses since he was unemployed at that time.

The trial court found that Mr. Rutland was underemployed due to being terminated from two jobs, the Sheriffs Office and Consolidated Containers. The trial court found that Mr. Rutland currently makes $9.50 an hour, plus 16 hours overtime at a rate of $14.25 an hour each paycheck for an average monthly income of $2,141.00.2 [779]*779The trial court further found that Mr. Rutland averaged $4,446.00 per month at the time of his termination with the Sheriff’s Office, based on a W-2 form showing earnings of $43,013.00 for an approximately nine-month period of time.3 Additionally, the trial court noted that it may be difficult for Mr. Rutland to find a job earning the same rate of pay as he earned with the Sheriffs Office. As a result, the trial court attributed an additional $859.004 per month to Mr. Rutland for a monthly income earning potential in the amount of $3,000.00.

The trial court further acknowledged that Mr. Rutland withdrew funds from his pension and netted $15,000.00, as well as netting $9,419.38 from the sale of his separate home in March 2011. However, the trial court found that these amounts | ¿were not ongoing sources of income since the court was setting child support as of September 12, 2012. The trial court noted that Ms. Rutland retains her right to assert her community interest in Mr. Rut-land’s pension and possible reimbursement for the sale of the house.

Based on Ms. Rutland’s stipulated income of $5,535.00 per month5 and Mr. Rutland’s income earning potential of $3,000, plus amounts owed for insurance, the trial court calculated and awarded Ms. Rutland child support in the amount of $474.90 per month, effective September 12, 2012.6

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Cite This Page — Counsel Stack

Bluebook (online)
121 So. 3d 776, 13 La.App. 5 Cir. 70, 2013 WL 3889250, 2013 La. App. LEXIS 1539, Counsel Stack Legal Research, https://law.counselstack.com/opinion/rutland-v-rutland-lactapp-2013.