Savage v. Savage

821 So. 2d 603, 2002 WL 1285333
CourtLouisiana Court of Appeal
DecidedJune 12, 2002
Docket36,138-CA
StatusPublished
Cited by7 cases

This text of 821 So. 2d 603 (Savage v. Savage) 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
Savage v. Savage, 821 So. 2d 603, 2002 WL 1285333 (La. Ct. App. 2002).

Opinion

821 So.2d 603 (2002)

Robert S. SAVAGE, Plaintiff-Appellant
v.
Martha Melzer SAVAGE, Defendant-Appellee.

No. 36,138-CA.

Court of Appeal of Louisiana, Second Circuit.

June 12, 2002.

*604 McLeod & Verlander, by Linda K. Ewbank, Monroe, for Plaintiff-Appellant.

Watson, McMillin & Harrison, by David C. McMillin, Monroe, for Defendant-Appellee.

Before NORRIS, CARAWAY and KOSTELKA, JJ.

NORRIS, Chief Judge.

The father, Robert G. ("Bob") Savage, appeals a judgment denying his rule to reduce a stipulated child support award of $750 a month for his 13-year-old daughter. He argues that the District Court improperly applied La. R.S. 9:311, regarding change in circumstances, made numerous unsupported factual findings, and should have reduced support to $114 a month. The mother, Martha Savage, argues that the court's findings were neither legally nor manifestly erroneous. For the reasons expressed, we affirm.

Factual background

Bob and Martha married in 1978. Their son Robert Jr. was born in 1982 (he is now a major and not involved in this suit); their daughter Annie was born in 1988. The parties physically separated in September 1996 and Bob filed for an Art. 102 divorce later that year. Martha was a teacher in the Monroe City School system, making $1,984 a month. Bob was, at the time, vice-president of Sunbelt Plastics, a corporation that made garbage bag liners. The record does not show his precise income, but based on the parties' 1995 tax return, he was making around $100,000 a year, including salary and bonuses.

By stipulated judgment on rule rendered December 12, 1996, Martha received domiciliary custody of both children, while Bob was to pay child support of $1,500 a month and maintain them on his company's medical and dental plan. The divorce became final in May 1997. Bob subsequently married Melissa, one of his co-workers at Sunbelt. In March 1999, Sunbelt was acquired by Tyco International, a large manufacturing corporation. At Tyco he was vice-president of institutional marketing.

Bob testified that on April 12, 1999 he was asked to resign because of a rumor that he was trying to start his own company. He admitted having "discussions" to that effect, but denied he intended to leave Tyco at that time. He resigned, taking a severance package but forfeiting a bonus of $32,000 that was anticipated in September. Melissa and another colleague, Billy Clark, also resigned.

Bob testified that there were no other positions in Northeast Louisiana comparable to his old one at Sunbelt. He explored *605 options in other companies, but he did not want to relocate to out of state. After talking with several of Tyco's competitors, he decided to start a new business making plastic sheets and bags. With his wife and Billy Clark, both former colleagues at Tyco, he formed Sapphire Plastics, incorporating in late April or early May 1999. Bob's parents have also made capital contributions to Sapphire.

Sapphire began operation in late 1999. Bob and Melissa own a majority (64%) of Sapphire's stock; Bob testified that he has infused $420,000 in start-up and operating funds. Although in 2000 Sapphire had gross sales of $768,000, the company showed a net loss of $335,974 (excluding depreciation). Bob testified that he has fixed his salary, as well as Melissa's, at $225 a week, about minimum wage, until the company can show a profit.

Bob filed the instant rule in January 2001. He alleged that when Robert Jr. turned 18, the parties agreed to reduce child support to $750 a month. But he claimed that this was still too much, since he lost his job at Tyco and Sapphire was not yet profitable enough to match his old salary. He argued that based on his current weekly salary of $225, and Martha's teaching salary, his support obligation should be reduced to $114 a month.

At trial in May 2001, only Bob and Martha testified. Bob described the circumstances of his separation from Tyco as "absolutely" beyond his control. He mentioned that some initial financial commitments "never came through," and recounted in some detail how he, his partners and his parents have capitalized Sapphire. He maintained that he has virtually depleted all his personal assets, including his Sunbelt/Tyco stock package, his Sunbelt/Tyco 401(k) plan, other stock he privately owned, and the proceeds of a second mortgage on his house, to put in $420,000. He has also called on his parents, who contributed over $200,000. Although he felt business was on the rise and Sapphire would turn a profit soon, he had to take various measures to assure cash flow, including minimal salaries of $225 a week for himself and Melissa.

Bob admitted, however, that he and Melissa were still living in a large home on the north side of Monroe; he still owns an airplane, a 1967 Cherokee Piper, on which he pays a monthly note and hangar rental; and despite his meager salary, he has managed to pay bills such as part of Robert Jr.'s tuition at Centenary College, a $1,000 pledge to the Boy Scouts of America, pool chemicals, country club dues, and a payment on Melissa's son's braces. On redirect, Bob offered explanations for most of these items. For example, he used the plane for business travel, as it was more economical than commercial flights. The hangar rental was essential to protect the plane from the elements, and with about $2,700 of repairs, the plane could be sold for $55,000. He stated that pool expenses were justified to spruce up the house for sale, although he has not actually placed the house on the market. He also testified that several large deposits (over $150,000 total) to his checking account in 2000 were actually capital contributions from his parents to Sapphire; these funds passed through his account but were not his income. He concluded that his current checkbook balance of $65,349 was "somewhat misleading."

Martha testified that her teacher's salary, with the "13th check," bonus and other stipends came to about $32,000 a year. She testified that she sold the parties' former marital home for $260,000 and bought a more modest home (in the same neighborhood) for $158,000. Her house note is $705 a month. She calculated expenses attributable solely to Annie at *606 about $5,100 a year, and sure to rise as she is now a teenager. She testified that child support of $750 a month was absolutely essential to keep them in their accustomed standard of living, but that Bob had been falling behind. She took the case to Child Support Services, which helped, but at the time of trial Bob was still two months in arrears.

In August 2001, the District Court recited oral reasons for judgment. It found that Bob established a change in circumstances, but that he had to resign from Tyco or else be fired for misconduct. "The evidence shows that the change in circumstances was caused by Mr. Savage's own fault; therefore he is not entitled to a reduction in child support." R.p. 237. The court then questioned whether Bob's decision to start his own business, "rather than pursuing other opportunities, is reasonable and justified and in good faith." R.p. 238. Based on Bob's 2000 W-2 from Sapphire, the court noted that his salary was actually $313 a week, not the $225 he testified about. The court found, "Mr. Savage's gamble in beginning a new business venture is not reasonable, particularly in light of his testimony that he rejected other employment opportunities in his field." R.p. 239. The court concluded that Bob was required to earn his true earning capacity, in light of his education and experience.

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Bluebook (online)
821 So. 2d 603, 2002 WL 1285333, Counsel Stack Legal Research, https://law.counselstack.com/opinion/savage-v-savage-lactapp-2002.