State of Louisiana, Department of Social Services v. Tony B. Swords

• Court: Louisiana Court of Appeal
• Decided: November 5, 2008
• Docket: CA-0008-0580
• Status: Unknown

Opinion

STATE OF LOUISIANA COURT OF APPEAL, THIRD CIRCUIT

08-0580

STATE OF LOUISIANA DEPARTMENT OF SOCIAL SERVICES OFFICE OF FAMILY SUPPORT SUPPORT ENFORCEMENT SERVICES

KRISTIE ANDERS

VERSUS

TONY B. SWORDS

************

APPEAL FROM THE TENTH JUDICIAL DISTRICT COURT, PARISH OF NATCHITOCHES, NO. CS 93-2663 A HONORABLE ERIC R. HARRINGTON, DISTRICT JUDGE

JIMMIE C. PETERS JUDGE

Court composed of Jimmie C. Peters, Elizabeth A. Pickett, and David J. Painter, Judges.

Pickett, J., concurs in the result.

AFFIRMED IN PART AS AMENDED; REVERSED IN PART; AND RENDERED.

George L. Celles IV Assistant District Attorney Post Office Box 486 Natchitoches, LA 71458-0486 (318) 238-4000 COUNSEL FOR PLAINTIFF/APPELLEE: Kristie Anders Jeffrey H. Thomas Thomas Law Firm Post Office Box 548 Natchitoches, LA 71458-0548 (318) 352-6455 COUNSEL FOR DEFENDANT/APPELLANT: Tony B. Swords

2 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 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

1 The trial court based this increase on its conclusion that Mr. Swords’ parents were paying $163.76 per month for property taxes and $161.87 per month for homeowner’s insurance premiums for him, and were contributing the equivalent of $236.11 per month toward the monthly rental on a home Mr. Swords and his wife were renting from his parents.

2 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 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

3 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. When determining if a party is voluntarily underemployed for purposes of calculating a child support obligation, the court shall consider that party’s earning capacity in light of all circumstances. Peacock v. Peacock, 39,950, p. 14 (La.App. 2 Cir. 5/4/05), 903 So.2d 506, 516. “A party shall not be deemed voluntarily unemployed or underemployed if . . . the unemployment or underemployment results through no fault or neglect of the party.” La. R.S. 9:315(C)(5)(b).

4 Additionally, a trial court is granted great discretion in child support matters,

including credibility determinations as to whether a parent was in good faith in

ending or reducing his/her income. McDaniel v. McDaniel, 03-1763 (La.App. 3 Cir.

5/19/04), 878 So.2d 686. Thus, a trial court’s order of child support is entitled to

great deference on review, and any factual determinations made by it will not be

reversed absent manifest error. Id.

In this matter, the record establishes that Mr. Swords does, in fact, have a

physical disability. At the age of three, he was stricken with meningitis and/or

encephalitis. He suffered a stroke in conjunction with the disease, the result of which

was paralysis on the right side of his body. Eventually, he lost a lung. Despite his

physical impairment, Mr. Swords pursued an accounting education at Northwestern

State University in Natchitoches, Louisiana, but left school after four years without

a degree.

Upon leaving school, Mr. Swords worked for a local company for ten dollars

per hour. Sometime thereafter, he began working for his parents’ company, Battery

Warehouse of Natchitoches, and had worked for that company for the thirteen years

prior to the hearing. According to Mr. Swords, he only works three days per week,

and drives a sand and gravel truck for the company.2 With regard to rate of pay, he

testified that his base salary is ten dollars per hour, but he is paid for a full forty-hour

week. He testified that he does not feel capable of earning more than ten dollars per

hour and that the company does not pay him bonuses, commissions, or cash payments

for his services.

2 Mr. Swords also testified that occasionally he drives a tow truck; picks up parts; drives a GMC dual-rear-wheel truck to haul batteries, tractors, and a bulldozer; performs vehicle inspections; answers the telephone; and occasionally installs batteries.

5 Mr. Swords testified that when not working, he enjoys both water and snow

skiing, turkey and duck hunting, and fishing. He has full use of his parents’ hunting

camp and fishing boats and personally owns a ski boat, an all-terrain vehicle, and has

access to his father’s recreational equipment.

The discovery of Mr. Swords’ employment situation is what prompted Jennifer

Holton, a Support Enforcement Analyst with the State of Louisiana, Department of

Social Services, Office of Family Support (state) to seek an increase in the child

support award. She testified that when she learned of Mr. Swords’ job duties and the

fact that the was earning ten dollars per hour on a forty hour basis while working only

three days per week, she concluded that he was being intentionally underpaid. She

was also told by Ms. Anders that Mr. Swords was driving a truck outside of his

employment with his parents’ company for which he received cash payments, and this

affected her decision to pursue an increase.3

Ms. Holton testified that utilizing the Wage Survey and considering the job

duties being performed by Mr. Swords, she identified several employment positions

that Mr. Swords could fill and make more money than that which he was making with

his parents’ company. These included management positions,4 as well as light and

heavy duty truck driving positions. According to Ms. Holton, a heavy duty truck

driver in the Shreveport, Louisiana region earns an average of $33,536.00 per year,

while a light duty truck driver earns an average of $20,299.00 per year.

In its reasons for judgment, the trial court implicitly found Mr. Swords

voluntarily underemployed. It did so by finding that Mr. Swords’ job duties fell

3 The record contains no evidence of this allegation. 4 The trial court rejected this classification, concluding that Mr. Swords’ current position was not that of a manager.

6 within the job categories of a heavy truck driver and a light truck driver. The trial

court then averaged the annual salaries of the two positions and reduced that sum to

a monthly salary of $2,318.17. The trial court then used this amount as the basis for

calculating the child support obligation rather than the $1,733.33 per month claimed

by Mr. Swords.

Considering the evidence, we cannot say that the trial court was manifestly

erroneous in finding that Mr. Swords is voluntarily underemployed and in imputing

additional income to him. Although Mr. Swords argues that his health prevents him

from earning more than his present salary, no specific evidence was introduced as to

how his condition limits his work capabilities. Further, as noted by the trial court,

Mr. Swords manages to participate in numerous outdoor activities despite his stated

health problems.

As to Mr. Swords’ argument that he is not a full-time truck driver, his

testimony indicated that he is the only employee who drives the sand and gravel

truck. Presumably, the only reason that he does not drive the truck full-time is

because it is not contracted out full time, such as during the winter when it is wet.

However, when not driving the larger truck, Mr. Swords’ job duties require him to

drive the smaller GMC truck to pick up parts and haul various items. Thus, we find

no error in the trial court’s factual determination that Mr. Swords’ job duties fall

between that of a heavy and a light truck driver. We further find no error in the trial

court’s determination that Mr. Swords’ potential average monthly salary is $2,318.17,

the average of the two salaries.

7 Assignment of Error Numbers Three and Five

In these assignments of error, Mr. Swords argues that the trial court erred by

imputing to his salary additional amounts which represented a “house note benefit”

and the homeowner’s insurance and property taxes paid by his parents. We agree.

Mr. Swords and his wife lease a three bedroom, two bath brick home from his

parents for $500.00 per month. The home, located on Cane River Lake in

Natchitoches, Louisiana, is approximately 3,000 square feet in size. The trial court

imputed to Mr. Swords additional monthly income of $561.74 to balance the benefit

he received from renting from his parents.5

Louisiana Revised Statutes 9:315(C)(3)(b) provides that gross income includes

“[e]xpense reimbursement or in-kind payments received by a parent in the course of

employment, self-employment, or operation of a business, if the reimbursements or

payments are significant and reduce the parent’s personal living expenses.” Although

the trial court and the state obviously felt that the benefits Mr. Swords received by

renting from his parents was in the nature of an in-kind payment as a result of his

employment, we feel that it should more properly be categorized as income received

from any other source, pursuant to La.R.S. 9:315(C)(5)(c). However, no matter the

categorization, if proven, these amounts would be considered income and should be

added to Mr. Swords’ average monthly income for a determination of his monthly

child support obligation.

However, after reviewing the evidence, we find that the trial court erred in

imputing this amount to Mr. Swords’ income. With regard to the “house note

5 The total amount represents the sum of $236.11 (the “house note benefit), $163.76 (the homeowner’s insurance paid by Mr. Swords’ parents), and $161.87 (the property taxes paid by Mr. Swords’ parents).

8 benefit,” the record contains no evidence pertaining to the value of the house or to a

fair rental value of the property.6 In fact, the first time the issue is addressed is in the

state’s post-trial memorandum. Thus, we find that the trial court erred in relying on

the state’s argument, rather than on actual evidence, in setting the house note benefit

and in imputing that amount to Mr. Swords.

With regard to insurance and property taxes, the evidence did establish that Mr.

Swords’ parents paid the equivalent of $163.76 per month for property taxes and

$161.87 per month for homeowner’s insurance and that Mr. Swords made no

contribution to that obligation. The trial court imputed both amounts to Mr. Swords.

Property taxes and insurance are the obligation of the property owner and not the

renter.7 The fact that the property owner and the renter are related does not change

that relationship absent evidence establishing that the property owner and renter have

an agreement to the contrary.

DISPOSITION

For the foregoing reasons, we reverse the trial court judgment insofar as it

added an additional $110.42 to the monthly child support obligation for private

school tuition and insofar as it imputed income to Tony B. Swords in the amount of

$561.74 for the “house note benefit,” the homeowners insurance, and the property

taxes. We affirm the trial court’s determination that Tony B. Swords was

underemployed and in setting his monthly income at $2,318.17 for child support

6 The only reference to the value of the property is found in a response to a request for production of documents propounded to Mr. Swords’ parents. Therein, the parents stated that they had attached a copy of the Natchitoches Parish Tax Assessor notice, but no such document is found in the record. When asked at the hearing to state the value of the property, Mr. Swords stated that he did not know. 7 Mr. Swords testified that he and his wife owned the contents of the home, but nothing in the record suggests that the insurance carried by his parents covered the contents.

9 purposes. We recalculate the child support award pursuant to La.R.S. 9:315.19 and

amend the trial court award from $559.99 to $332.00. We assess twenty-five percent

of the cost of this appeal to Tony B. Swords and seventy-five percent of the cost of

this appeal to the State of Louisiana, Department of Social Services, Office of Family

Support. Pursuant to La.R.S. 13:5112, we set the amount due from the State of

Louisiana, Department of Social Services, Office of Family Support, at $428.64.

AFFIRMED AS AMENDED; REVERSED IN PART; AND RENDERED.