STATE, DEPT. OF SOCIAL SERVICES v. Swords

996 So. 2d 1267, 2008 WL 4791924
CourtLouisiana Court of Appeal
DecidedNovember 5, 2008
Docket08-0580
StatusPublished
Cited by6 cases

This text of 996 So. 2d 1267 (STATE, DEPT. OF SOCIAL SERVICES v. Swords) 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
STATE, DEPT. OF SOCIAL SERVICES v. Swords, 996 So. 2d 1267, 2008 WL 4791924 (La. Ct. App. 2008).

Opinion

996 So.2d 1267 (2008)

STATE of Louisiana, DEPARTMENT OF SOCIAL SERVICES, Office of Family Support, Support Enforcement Services, Kristie Anders
v.
Tony B. SWORDS.

No. 08-0580.

Court of Appeal of Louisiana, Third Circuit.

November 5, 2008.

*1268 George L. Celles IV, Assistant District Attorney, Natchitoches, LA, for Plaintiff/Appellee, Kristie Anders.

Jeffrey H. Thomas, Thomas Law Firm, Natchitoches, LA, for Defendant/Appellant, Tony B. Swords.

Court composed of JIMMIE C. PETERS, ELIZABETH A. PICKETT, and DAVID J. PAINTER, Judges.

PETERS, J.

The defendant, Tony B. Swords, appeals the trial court's judgment increasing his gross monthly salary to properly reflect his job duties in his parents' business and in imputing as income the benefits he receives from his parents in the way of a house note benefit and the payment of property taxes and homeowners' insurance on a house that he rents from them. He further appeals from the trial court's inclusion of the private school tuition in the child support obligation. For the following reasons, we affirm in part as amended, reverse in part, and render.

DISCUSSION OF THE RECORD

Kristie Anders and Tony B. Swords have never been married, but are the parents of a fifteen-year-old son. The initial child support decree issued in 1994, set Mr. Swords' monthly support obligation at $123.00. The trial court modified the monthly obligation a number of times, with the last modification being rendered by a judgment dated January 9, 2008. In that judgment, the trial court increased Mr. Swords' monthly obligation from $222.00 per month to $559.00 per month.

In awarding the increase, the trial court concluded after a hearing that the evidence established that Mr. Swords was under-employed and that his average monthly salary was $2,318.17, rather than the $1,733.33 he claimed. The trial court based this on a finding that Swords' job duties fell between the categories of heavy and light truck drivers for the Shreveport, Louisiana region, as set forth in a 2007 Louisiana Department of Labor Wage Survey (Wage Survey). Based on the findings of the survey, the trial court averaged *1269 the two annual salaries associated with those occupations, which were $33,536.00 and $22,100.00 respectively. The trial court then attributed amounts paid on behalf of Mr. Swords by his parents and concluded that Mr. Swords' average monthly income for the purpose of calculating his child support obligation should be increased from $2,318.17 to $2,879.90.[1] Finally, the trial court concluded that Ms. Anders satisfied her burden of proving that attendance at the Provencal Christian Academy was necessary to meet the particular needs of the minor child. Based on that conclusion, the trial court included an additional $110.42 in the monthly child support obligation. Applying the child support guidelines found in La.R.S. 9:315.18, the trial court set Mr. Swords' monthly support obligation at $559.00.

OPINION

In his appeal, Mr. Swords assigns five assignments of error.

1. The District Court erroneously included the cost of tuition in the basic support amount.
2. The District Court improperly utilized the Louisiana Department of Labor Wage Survey in imputing income to Brian Swords.
3. The District Court erroneously imputed a "Home Note Benefit" from parents of Brian Swords.
4. The District Court committed manifest error in imputing income to Brian Swords without finding that he was underemployed.
5. The District Court erroneously imputed as income to Brian Swords the property taxes and insurance paid by Brian Swords' parents on a home owned by them and rented to Brian Swords.

Assignment of Error Number One

In his first assignment of error, Mr. Swords argues that the trial court erred by including the costs of the private school tuition in the monthly child support obligation. He claims that this was error because Ms. Anders failed to prove that attendance at the school was necessary to satisfy a particular educational need of their son.

Concerning this issue, Ms. Anders testified that her son suffers from allergies and asthma, for which he undergoes breathing treatments twice a year and utilizes an inhaler; and he has difficulties with short term memory as a result of a head trauma he suffered the previous February. According to Ms. Anders, the child cracked his skull in two places and the injury resulted in a swelling of his brain. She also asserted that even prior to this incident, the child struggled in school, but that he struggled worse after the accident. In her opinion, the child benefitted from the move to the private school because of the one-on-one attention available from the teachers. She testified that he is now on the "A" honor roll. The trial court based its approval of the private school tuition in the child support obligation on the increased personal attention the child would receive in that environment.

Louisiana Revised Statutes 9:315.6(1) provides that expenses associated with a child's attendance at a special or private school may be added to the basic child support obligation upon the agreement of the parents or by court order. The parent seeking to include such expenses *1270 in the child support has the burden of proving that their child has a particular educational need that is being met by attendance at a particular school. Basile v. Basile, 04-25 (La.App. 3 Cir. 5/12/04), 872 So.2d 1274. A trial court's order in this regard will not be reversed in the absence of an abuse of discretion. Id.

In this case, we find an abuse of discretion. The only evidence of the child's special needs is the unsupported testimony of Ms. Anders. Thus, we find that the state did not meet its burden of proof on this issue and find that the trial court erred in concluding that attendance at the private school met the child's special needs.

Assignment of Error Numbers Two and Four

In these assignments of error, Mr. Swords argues that the trial court erred in finding that he was underemployed, and in imputing income to him based on his underemployment. He asserts that not only does his physical incapacitation resulting from a childhood illness prevent him from working any more than he currently works, but that the trial court erred in utilizing the Wage Survey to determine his monthly income

Income in child support matters includes the potential income that a parent would be entitled to if that parent is voluntarily unemployed or underemployed. La.R.S. 9:315(C)(5)(b). Additionally, La.R.S. 9:315.11(A) provides that "[i]f a party is voluntarily . . . 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." In Harris v. Harris, 07-966, p. 7 (La.App. 4 Cir. 2/20/08), 976 So.2d 347, 351-52, the court stated:

Voluntary underemployment for purposes of calculating child support is a question of good faith on the obligor-spouse in reducing his income. Hansel v. Hansel, 00-1914, p. 6 (La.App. 4 Cir. 11/21/01), 802 So.2d 875, 889 (citing Gould v. Gould, 28,996 (La.App. 2 Cir. 1/24/97), 687 So.2d 685). "Voluntary underemployment is a fact driven consideration." Koch v. Koch, 97-1600, p. 5 (La.App. 4 Cir. 4/22/98), 714 So.2d 63, 66.

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Cite This Page — Counsel Stack

Bluebook (online)
996 So. 2d 1267, 2008 WL 4791924, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-dept-of-social-services-v-swords-lactapp-2008.