State of Louisiana, Child Support Enforcement v. DeBrandon Cortez Jones

• Court: Louisiana Court of Appeal
• Decided: November 20, 2019
• Docket: 53,131-CA
• Status: Published

Opinion

Judgment rendered November 20, 2019. Application for rehearing may be filed within the delay allowed by Art. 2166, La. C.C.P.

No. 53,131-CA

COURT OF APPEAL SECOND CIRCUIT STATE OF LOUISIANA

*****

STATE OF LOUISIANA, Plaintiff-Appellant DEPARTMENT OF CHILDREN AND FAMILY SUPPORT, CHILD SUPPORT ENFORCEMENT

versus

DEBRANDON CORTEZ JONES Defendant-Appellee

Appealed from the Forty-Second Judicial District Court for the Parish of DeSoto, Louisiana Trial Court No. 14-5528

Honorable Charles B. Adams, Judge

STATE OF LOUISIANA, DEPARTMENT Counsel for Appellant OF CHILDREN AND FAMILY SUPPORT, CHILD SUPPORT ENFORCEMENT By: Michael Tate

DEBRANDON CORTEZ JONES In Proper Person

LABRESHA SHAR’NA WILLIAMS In Proper Person

Before WILLIAMS, GARRETT, and THOMPSON, JJ. GARRETT, J.

The plaintiff, the State of Louisiana, Department of Children and

Family Services (“DCFS”), Child Support Enforcement, appeals a judgment

of the trial court refusing to reinstate an order for child support and medical

support against the defendant, DeBrandon Cortez Jones, and ordering Jones

and Labresha Williams, the mother of the children, to seek marriage

counseling. For the following reasons, we reverse the trial court judgment

and remand for further proceedings.

FACTS

On March 19, 2014, Jones signed a stipulation under La. R.S.

46:236.7, agreeing to pay the DCFS $364 per month, effective April 19,

2014, for two of his children, DeBrandon Jones, Jr., born March 9, 2011,

and D’Jayden Jones, born March 30, 2012. It appears from the record that

Williams is the mother of these children. Jones also agreed to include the

children on his health and dental plan at his employment. On April 2, 2014,

the trial court signed an order memorializing the stipulation.

In April 2018, the DCFS filed an ex parte motion to suspend the

medical support and child support obligation, asserting that Williams, the

custodial parent of the children, filed a request that her case for child support

and medical support be closed. The request for closure document executed

by Williams recited, “DeBrandon Jones and I are back together and he takes

care of his kids.” A representative of the DCFS signed a certificate of

suspension of child support enforcement, averring that the DCFS was not

furnishing child support services to Williams and was not providing Family

Independence Temporary Assistance Program (“FITAP”) benefits or

Medicaid benefits for the children. On April 6, 2018, the trial court signed an order granting the ex parte motion, suspending the judgment of April 2,

2014, effective March 20, 2018.

In November 2018, the DCFS filed against Jones and Williams a rule

and order to show cause why a medical support obligation in this case for

DeBrandon Jr. and D’Jayden should not be modified to include a child

support obligation. The rule indicated that the custodial parent had reapplied

for child support services. It asked that a cash medical support award be

issued until Jones could secure and maintain health care insurance at a

reasonable cost.

A report to a judicial hearing officer listed the issues at the hearing to

be a modification of child support to add a third child, a reinstatement of

child support, and a cash medical award. The report indicated that Jones and

Williams had a third child, D’Kaisen Jones, born October 12, 2016.

According to the report, Williams was receiving Supplemental Nutrition

Assistance Program (“SNAP”) benefits for herself and three children and

had applied for reinstatement of child support services. An obligation

worksheet, prepared and signed by a DCFS worker, listed all three children

and specified that Jones was receiving workers’ compensation benefits. The

worksheet suggested that a monthly child support obligation of $206.82 be

paid by Jones for all three children.1

The trial court minutes show that a hearing on the rule was held on

December 5, 2018. However, no transcript of the hearing was furnished

with this record. It does not appear that a transcript exists. The initial page

1 The worksheet specified that Jones was paying $213 per month for a preexisting child support obligation.

2 of the appellate record, prepared by the district court clerk of court’s office,

contains the following notation: “No Court Reporter in DSS court.”

According to the minutes, the parties were present at the hearing.

Neither party was represented by counsel. It appears that only one witness,

Kylee Barber, testified at the hearing. The state’s brief indicates that this

witness was the DCFS caseworker.2 There is no indication what the witness

said in her testimony.

On January 14, 2019, the trial court signed a judgment denying the

request for reinstatement of child support based upon its finding that the

parties were legally married and had not filed for divorce. The court ordered

both parties to seek counseling, from a pastor of their choice, concerning

marriage and raising children. The trial court did not furnish written reasons

for judgment. The judgment appeared to be a form judgment, possibly

generated by the district attorney’s office on behalf of the DCFS. The

elements of the judgment appear to have been checkmarked by computer,

not by the hand of the trial court judge. The DCFS appealed.

DISCUSSION

The DCFS argues that the trial court erred in denying child support

and medical support awards in this case based upon its finding that the

parties were legally married and had not filed for divorce. The DCFS also

argues that the trial court erred in ordering Jones and Williams to seek

marriage counseling. Under the unique circumstances of this case, these

arguments have merit.

2 The witness’s last name is spelled “Barber” in the trial court minutes. In the brief filed by the DCFS, the witness’s last name is spelled “Barker.” The obligation worksheet, referenced above, was prepared by Kylee Barker. The correct spelling is unclear.

3 The standard of review in a child support case is manifest error.

Generally, an appellate court will not disturb a child support order unless

there is an abuse of discretion or manifest error. State, Dep’t of Soc. Servs.

ex rel. D.F. v. L.T., 2005-1965 (La. 7/6/06), 934 So. 2d 687. See also

Reeves v. Reeves, 36,259 (La. App. 2 Cir. 2002), 823 So. 2d 1023; State ex

rel. Dep’t of Children & Family Servs. v. Peters, 2014-1800 (La. App. 1 Cir.

6/5/15), 174 So. 3d 1200.

It is notable here that no transcript was made of the proceedings

below. La. C.C.P. art. 2130 states:

A party may require the clerk to cause the testimony to be taken down in writing and this transcript shall serve as the statement of facts of the case. The parties may agree to a narrative of the facts in accordance with the provisions of Article 2131.

La. C.C.P. art. 2131 provides:

If the testimony of the witnesses has not been taken down in writing the appellant must request the other parties to join with him in a written and signed narrative of the facts, and in cases of disagreement as to this narrative or of refusal to join in it, at any time prior to the lodging of the record in the appellate court, the judge shall make a written narrative of the facts, which shall be conclusive.

The law is clear that the appellant bears the responsibility of securing

a narrative of facts where there has been no transcript of testimony made

during a trial. Creech v. Creech, 29,499 (La. App. 2 Cir. 5/7/97), 694 So. 2d

589; Fontenot v. Flaire, Inc., 26,055 (La. App. 2 Cir. 8/17/94), 641 So. 2d

1062; State, Through La. Div. of Health and Human Resources v. Simmons,

542 So. 2d 1150 (La. App. 2 Cir. 1989); Simmons v. Yelverton, 513 So. 2d

504 (La. App. 2 Cir. 1987). The lack of a transcript or narrative of facts is

imputable to the appellant. Creech v. Creech, supra; Borden v. West Carroll

Parish Police Jury, 28,967 (La. App. 2 Cir. 12/11/96), 685 So. 2d 454; West

4 Consol. Co., Inc. v. Creole Fisheries, 616 So. 2d 268 (La. App. 2 Cir. 1993).

In cases where factual issues are involved, and the record on appeal contains

no transcript, or narrative of facts, the court applies the presumption that the

trial court’s judgment is supported by competent evidence, that it is correct,

and the judgment is affirmed. Succession of Rock v. Allstate Life Ins. Co.,

340 So. 2d 1325 (La. 1976); Raia v. WWL-TV, 247 La. 1095, 176 So. 2d 390

(1965); Creech v. Creech, supra; Borden v. West Carroll Parish Police Jury,

supra; West Consol. Co., Inc. v. Creole Fisheries, supra. See also Willis v.

Letulle, 597 So. 2d 456 (La. App. 1 Cir. 1992); St. Pierre v. St. Pierre, 425

So. 2d 254 (La. App. 1 Cir. 1982); Strange v. Imperial Pools, Inc., 520 So.

2d 1039 (La. App. 3 Cir. 1987), writ denied, 522 So. 2d 565 (La. 1988);

Yokum v. Court of Two Sisters, Inc., 2006-0732 (La. App. 4 Cir. 11/21/06),

946 So. 2d 671.

When a record contains written reasons for judgment by a trial judge

which reveal substantially all of the material testimony, and the record is

sufficiently complete to permit full consideration of the issues presented on

appeal, the reasons for judgment will be considered in lieu of the narrative of

the facts. Simmons v. Yelverton, 513 So. 2d 504 (La. App. 2 Cir. 1987).3

Ordinarily, when an appellant fails to furnish a transcript, written

narrative of fact, or written reasons for judgment, the failure is imputed to

the appellant, the judgment is deemed to be based upon competent evidence,

3 La. C.C.P. art. 1917 provides in part:

In all appealable contested cases, other than those tried by a jury, the court when requested to do so by a party shall give in writing its findings of fact and reasons for judgment, provided the request is made not later than ten days after the mailing of the notice of the signing of the judgment.

5 and is affirmed. Although the trial court judgment in this case was arguably

based, in part, upon whatever testimony was adduced below, and a fact

determination was made based upon that testimony, this case also contains

errors of law which require a reversal of the trial court judgment and a

remand for further proceedings.

Parents have a duty to support, maintain, and educate their children

under La. C.C. art. 224, and this obligation cannot be permanently

renounced or suspended. See St. Cyr v. St. Cyr, 2016-0896 (La. App. 1 Cir.

2/21/17), 215 So. 3d 283, writ denied, 2017-0511 (La. 3/31/17), 217 So. 3d

357. Children should not be deprived of necessary and needed support from

a noncustodial parent. The overriding factor in determining the amount of

child support is the best interest of the children. Earle v. Earle, 43,925 (La.

App. 2 Cir. 12/3/08), 998 So. 2d 828, writ denied, 2009-0117 (La. 2/13/09),

999 So. 2d 1151.

La. R.S. 46:236.1.2 gives the DCFS a separate cause of action to seek

to obtain and modify family and child support orders from a noncustodial

parent when the DCFS is providing services to those entitled to support.

This cause of action does not require the institution of divorce proceedings.

La. R.S. 46:236.1.2(D)(1) provides:

The department, except when it is not in the best interest of the child, may without the necessity of written assignment, subrogation, tutorship proceedings, or divorce proceedings take direct civil action, including actions to establish filiation against an alleged biological parent notwithstanding the existence of a legal presumption that another person is the parent of the child solely for the purpose of fulfilling its responsibility under this Section, in any court of competent jurisdiction, to obtain an order, judgment, or agreement of support against the responsible person in any case in which the department is providing services under this Subpart. The amount of such support shall be set only by order of the court or by the consent of the parties, but in either case the 6 department shall be designated as payee. Additionally, the department may take direct action to modify an order or judgment of support, including actions to increase or decrease support, in any case in which the department is providing services pursuant to this Subpart. A separate and distinct cause of action in favor of the department is hereby created, and suits brought under this provision need not be ancillary to or dependent upon any other legal proceeding. [Emphasis supplied.]

If Jones and Williams were, in fact, married and had not filed for divorce,

this would in no way bar the DCFS from seeking to obtain child support and

medical support from the noncustodial parent under the circumstances

presented in this matter. Based upon La. R.S. 46:236.1.2, the trial court

erred in denying child support and medical support because it found that

Jones and Williams were legally married and had not filed to obtain a

divorce.

Also, there was no legal basis for the trial court’s requirement that

Jones and Williams seek marriage counseling. The statement in the trial

court judgment, that the parties are legally married, is the only indication in

this sparse appellate record regarding marriage between the father and

mother of these children. We note that the information for service of

process for Jones and Williams listed separate addresses, indicating that they

were not living together, whether they were married or not.

The DCFS cites provisions of the Covenant Marriage Act, La. R.S.

9:272 et seq., providing that parties can sue for child support while living

separate and apart, although not judicially separated. We observe that, even

if the parties had a covenant marriage, which imposes the most stringent

requirements on terminating a marriage in this state, there is no provision in

that law requiring the parties to file for divorce or undergo marriage

7 counseling before seeking child support. See Johnson v. Johnson, 2014-

0564 (La. App. 1 Cir. 12/23/14), 168 So. 3d 641.

The record contains a worksheet prepared by the DCFS setting forth a

recommendation for the amount of child support and medical support to be

paid by Jones. However, even though the DCFS sought a cash medical

support award, there is no indication of the proper amount for that award in

this record. According to La. C.C.P. art. 2164, the appellate court shall

render any judgment which is just, legal, and proper upon the record on

appeal. In the interest of protecting and providing for these children, we

determine that the trial court judgment, denying child support and medical

support to the children, must be reversed. We also remand the matter to the

trial court for further proceedings to determine, based upon the law, whether

child support and medical support should be paid and if so, the proper

amount. The DCFS is instructed to ensure that those proceedings are

transcribed by a court reporter, or the DCFS must obtain from the trial court

either a written narrative of facts or written reasons for judgment revealing

substantially all of the material testimony upon which the judgment is based.

If an appeal is necessary in the future, this court will have some basis to

review the proceedings below.

CONCLUSION

For the reasons stated above, we reverse the judgment of the trial

court denying the request of the State of Louisiana, Department of Child and

Family Support, Child Support Enforcement, to reinstate an order of child

support against DeBrandon Cortez Jones, and ordering Jones and Lebresha

Williams to seek marriage counseling. The matter is remanded to the trial

8 court for further proceedings consistent with this opinion. Costs in this court

are assessed to DeBrandon Cortez Jones.

REVERSED AND REMANDED.