Serrate v. Serrate

684 So. 2d 1128, 1996 WL 732362
CourtLouisiana Court of Appeal
DecidedDecember 20, 1996
Docket96 CA 1545
StatusPublished
Cited by9 cases

This text of 684 So. 2d 1128 (Serrate v. Serrate) 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
Serrate v. Serrate, 684 So. 2d 1128, 1996 WL 732362 (La. Ct. App. 1996).

Opinion

684 So.2d 1128 (1996)

Denise Blanchard SERRATE
v.
Carlos A. SERRATE.

No. 96 CA 1545.

Court of Appeal of Louisiana, First Circuit.

December 20, 1996.

*1129 Benjamin P. Mouton, Baton Rouge, for Plaintiff-Appellee.

Alan S. Fishbein, Baton Rouge, for Defendant-Appellant.

Before WATKINS and KUHN, JJ., and GUIDRY,[1] J. Pro Tem.

WATKINS, Judge.

The defendant-appellant, Mr. Carlos A. Serrate, appeals a judgment ordering the payment of $5,166.67 in past due child support and further ordering child support increased from $1,000.00 per month to $1,700.00 per month. We amend in part, and affirm as amended.

FACTS

On September 1, 1995, plaintiff-appellee Denise Blanchard Serrate, filed suit to have a 1985 judgment of child support made executory, and for a modification of child support. An ex parte order making the 1985 judgment executory was signed by the trial court on September 1, 1995. Thereafter, plaintiff filed a petition for payment of child support arrearage. The matters were consolidated and a hearing was held on November 14, 1995.

Mr. and Mrs. Serrate were divorced sometime before March 1985, and apparently Mrs. Serrate was granted sole custody of their two children, Robert Anthony Serrate and Michael Bradley Serrate. On June 13, 1985, judgment was signed in the Twenty-Fourth Judicial Court for the Parish of Jefferson in favor of Mrs. Serrate, ordering Mr. Serrate to pay the amount of $1,000.00 per month in child support. The children resided primarily with Mrs. Serrate until October, 1991, when the eldest son, Robert, moved to Kentucky and resided with his father. Mr. and Mrs. Serrate agreed that the child support obligation would be reduced by $500.00 per month. In January of 1992, it was agreed *1130 that Bradley would also go to live with his father and brother. Mrs. Serrate agreed she would not receive further child support until either or both of the children returned to live with her. In May of 1993, Robert graduated from high school and returned to Baton Rouge to live with his mother until he started college in August 1993. Robert turned 18 on September 14, 1993. Bradley also spent the summer months (June, July, August) of 1993 with his mother. He returned to live with his father in August of 1993. He resided primarily with his father until November 1994, when his father requested that he remain at his mother's home during a routine visit. Mr. Serrate began paying Mrs. Serrate $600.00 per month child support, which he contends was the agreement of the parties at the time Bradley began residing with his mother. However, Mrs. Serrate testified she agreed to accept $600.00 per month child support until she could determine what her additional expenses would be. After Bradley completed the school year at Bishop Sullivan High School in 1995, Mrs. Serrate informed Mr. Serrate by registered letter in July 1995, that he should resume paying child support in the amount of $1,000.00 per month. Mr. Serrate refused and continued paying $600.00 per month in child support.

The trial court awarded Mrs. Serrate arrearages in the amount of $5,166.67, and further ordered that child support be increased to $1,750.00 per month, retroactive to September 1, 1995, with a credit of $1,000.00 per month for partial payments made in September and October of 1995.[2] When asked to explain how it determined the amount of arrearages, the court stated that "[i]t was $500.00 per month for May of 1993, $466.67 for September of 93, $1,000.00 each for the months of June, July and August of 1993, and $1,200.00 for August, September and October of 1995."

Based upon these comments, we conclude that the court intended to award Mrs. Serrate child support arrearages for Robert, at $500.00 per month from May 1993, until September 14, 1993, and for Bradley, $500.00 per month from June 1993, through August 1993, and an additional $400.00 per month from August 1995, through October 1995. We note that the $466.67 figure awarded by the court for September 1995, apparently represents child support for Robert during the 14 days of September before he turned 18 years old. However, as pointed out in brief by the appellee, this was a mathematical error because the court apparently calculated the 14 days of child support based on a $1,000.00 monthly support obligation instead of $500.00. Because only Robert was technically residing with his mother during this time, Mr. Serrate was obligated to pay only for 14 days based on a monthly support obligation of $500.00, which results in a total of $233.33 for September, 1995.[3]

ASSIGNMENTS OF ERROR

Mr. Serrate appealed from the judgment alleging, that the trial court erred in ordering him to pay child support arrearages in the amount of $5,166.67, and that the court was manifestly erroneous in increasing his child support obligation to $1,750.00 per month.

Mr. Serrate contends that the trial court erred in its determination that Mrs. Serrate was entitled to child support during the summer months of 1993, because he was the primary custodial parent of both children at that time and therefore Mrs. Serrate was not entitled to child support during the summer months that the boys resided with her. He further asserts that the trial court erred in determining that Mrs. Serrate was entitled to $1,000.00 per month for August, September and October of 1995, because he and Mrs. Serrate had agreed that the support obligation would be $600.00 per month when Bradley returned to live with his mother in November 1994.

The general rule in Louisiana is that a child support judgment remains in full *1131 force until the party ordered to pay it has the judgment modified, reduced or terminated by a court. Halcomb v. Halcomb, 352 So.2d 1013, 1015-16 (La.1977). However, our courts have recognized that a judgment awarding child support can be modified extrajudicially by agreement of the parties. Such an agreement must meet the requisites of a conventional obligation and the evidence must establish the parties have agreed to waive or to otherwise modify the court-ordered payments. Dubroc v. Dubroc, 388 So.2d 377, 380 (La.1980). Furthermore, the agreement must foster the continued support and upbringing of the child; it must not interrupt the child's maintenance or upbringing, or otherwise work to his detriment. Dubroc, 388 So.2d at 380. The party seeking to modify his obligation under the judgment has the burden of proving the existence of such an agreement. Trisler v. Trisler, 622 So.2d 730, 731 (La.App. 1st Cir.1993).

In the instant case, Ms. Serrate does not dispute that the parties modified the original award of support as circumstances changed. Therefore, the issue is what was the agreed upon modification. The following testimony was given by Mrs. Serrate with regard to the agreement with Mr. Serrate concerning child support when Bradley went to live with his father in January 1992:

We agreed, we went through a counselor here in Baton Rouge, Marcia Cox, and we came to an agreement that during the months he was in school with his dad that his dad would not pay me any child support and he would take care of all of Brad's financial needs from that point on until the time he would return to live with me either in the summer months or return to live with me permanently....

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Bluebook (online)
684 So. 2d 1128, 1996 WL 732362, Counsel Stack Legal Research, https://law.counselstack.com/opinion/serrate-v-serrate-lactapp-1996.