State of Louisiana in the Interest of: Bajae Michelli v. Joshua Michelli

• Court: Louisiana Court of Appeal
• Decided: April 16, 2021
• Docket: 2020CA1171
• Status: Unknown

Opinion

STATE OF LOUISIANA

COURT OF APPEAL

FIRST CIRCUIT e

NO. 2020 CA 1171

ZrM 041+ STATE OF LOUISIANA IN THE INTEREST OF: BEJAE MICHELLI

VERSUS

JOSHUA MICHELLI

Judgment Rendered. APR 16 2021

Appealed from the 21st Judicial District Court In and for the Parish of Tangipahoa State of Louisiana Case No. 2008- 0002000

The Honorable Jeffery T. Oglesbee, Judge Presiding

Mark Alan Jolissaint Counsel for Plaintiffs/ Appellants Slidell, Louisiana Don and Terry Daigrepont, Joint Administrators of the Succession of Bejae Daigrepont Michelli

Jenel Guidry Secrease Counsel for Defendant/Appellee Ponchatoula, Louisiana Joshua Michelli

BEFORE: THERIOT, WOLFE, AND HESTER, JJ. THERIOT, J.

Terry Daigrepont and Don Daigrepont appeal the July 9, 2020 judgment of

the Twenty -First Judicial District Court, which granted Joshua Michelli' s motion

for new trial on the merits, vacated a previous judgment, and denied Terry

Daigrepont and Don Daigrepont' s rule to make past due child support executory

and for contempt. For the following reasons, we affirm.

FACTS AND PROCEDURAL HISTORY

Joshua Michelli and Bejae' Daigrepont Michelli were married on May 9,

2003, in St. Tammany Parish, Louisiana. Thereafter, Joshua and Bejae lived in

Tangipahoa Parish, Louisiana. Joshua and Bejae had one child, J. M., born on

January 7, 2004. Bejae subsequently filed for divorce. In conjunction with the

divorce proceedings, Joshua and Bejae entered into a consent judgment in which

the parties stipulated that they would share joint custody of J. M. and that Bejae

would be the domiciliary parent.

In a joint stipulation signed on November 9, 2005, Joshua and Bejae

stipulated that Joshua would pay Bejae $ 400. 00 per month in child support. In

doing so, Joshua and Bejae acknowledged that the $ 400. 00 amount was a deviation

from the child support guidelines and was made without prejudice to either party.

Beginning in November 2005, Joshua paid $ 400. 00 in monthly child support.

On June 23, 2008, the State of Louisiana, Department of Social Services

the Department") filed a rule to show cause, asserting that Bejae had applied for

Child Support Enforcement Services from the State of Louisiana. The Department

sought to have Joshua ordered to provide child support for J. M., payable as

directed by the Department, as well as medical coverage for the child. On August

Beiae' s name is occasionally spelled " Bajae" in these proceedings. For consistency, we will refer to her as Bejae.

2 21, 2008, Joshua and Bejae signed a consent judgment which raised Joshua' s

monthly child support payments from $ 400. 00 to $ 629. 04.2

On March 16, 2009, Bejae filed a motion and order to dismiss the case with

child support enforcement. On March 23, 2009, the Department filed a motion to

amend judgment, seeking to have the August 2008 judgment amended by

dismissing payments through support enforcement services and reverting all

payments back to Bejae, the custodial parent.3

Joshua alleges that he had difficulty paying the increased amount of child

support. Joshua testified that when he explained to Bejae that he was struggling to

pay the new amount, she agreed that he could instead pay off a school loan taken

out so that J.M. could attend private school. Joshua submitted as evidence an

email sent from Bejae on May 26, 2009, which stated the following:

I will not take you back to court for more child support. The money that you are paying for J.M.' s school loan through First Guaranty Bank will suffice as child support. Let my typed name below serve as

my signature.

Bejae Michelli

Following the email, Joshua paid J. M.' s school loan for the school years

2009- 10, 2010- 11, and 2011- 12. Thereafter, Joshua reverted back to paying

400. 00 per month in child support. Joshua testified that he also paid for J. M.' s

extracurricular activities during this time frame.

Bejae died unexpectedly on January 27, 2018. Her parents, Terry

Daigrepont and Don Daigrepont ( collectively, " the Daigreponts") were appointed

joint administrators of her succession. On January 4, 2019, the Daigreponts filed a

rule to make past due child support executory and for contempt. The Daigreponts

The Daigreponts allege that the increase in child support was done pursuant to a rule to modify child support filed by Bejae, but it is unclear from the record when this rule was filed.

3 Joshua alleged that he was never served with this document. He testified that he received a letter from the Department, dated October 20, 2012, informing him that the State of Louisiana had closed his child support case with Bejae and that the Department would no longer pursue the court order for child and/ or medical support. The letter further stated that Joshua was not relieved from paying child support or providing health insurance for J. C., and instructed him to contact Bejae or an attorney to determine what actions should be taken in the future.

3 asserted that, on August 21, 2008, Joshua had been ordered to pay to Bejae child

support in the amount of $629. 04 per month. The Daigreponts alleged that Joshua

had failed to pay his full child support obligation since that time and asked that all

outstanding amounts owed by Joshua through the date of trial be accrued and made

executory in a money judgment in their favor.

On September 19, 2019, the trial court signed a judgment finding Joshua to

be indebted to Bejae' s succession for past due child support in the full sum of

24, 557. 33, plus legal interest, and attorney' s fees in the amount of $2, 500. 00. On

September 27, 2019, Joshua filed a motion for new trial on the merits. Joshua

asserted that there was new evidence, which was not available when the matter was

first heard. A hearing on the matter was heard on February 6, 2020.

On July 9, 2020, the trial court signed a judgment granting Joshua' s motion

for new trial on the merits, vacating the September 19, 2019 judgment, and

denying the Daigreponts' rule to make past due child support executory and for

contempt. In its reasons for judgment, the trial court found that, following the

payment of the child' s tuition, Joshua and Bejae agreed to resume the $ 400. 00 per

month payments that Joshua had previously been ordered to pay in the 2005 joint

stipulation of the parties. The trial court also pointed out that Joshua had made

additional payments. Considering that Bejae had not filed any additional pleadings

for contempt, nor did she resume collection of the payments through child support

enforcement services, the trial court concluded that Joshua had met his burden of

clearly proving that he and Bejae had an extrajudicial agreement to modify his

child support obligation of $629. 04 per month.

M The Daigreponts appeal, seeking to have the July 9, 2020 judgment reversed

and a judgment granted in their favor and against Joshua in the amount of

21, 017. 03 plus reasonable attorney' s fees and costs.'

ASSIGNMENTS OF ERROR

The Daigreponts assign the following as error:

1) The trial court erred in holding that Joshua and Bejae had reached a clear and specific agreement to modify Joshua' s child support obligation.

2) The trial court erred in holding that the purported agreement entered into by Joshua and Bejae could be enforced without first determining that it was in the child' s best interest.

STANDARD OF REVIEW

The standard of review in a child support case is manifest error and,

accordingly, an appellate court will not disturb a child support order unless there is

an abuse of discretion or manifest error. State ex rel. Dept. of Children and Family

Services v. Peters, 2014- 1800 ( La. App. 1 Cir. 6/ 5/ 15); 174 So. 3d 1200, 1202.

DISCUSSION

Assignment of Error # I

The Daigreponts first argue that the trial court erred in holding that Joshua

and Bejae had reached a clear and specific agreement to modify Joshua' s child

support obligation. The Daigreponts assert that, aside from Joshua' s testimony,

there is no clear and specific evidence from Bejae that she ever consented to

receiving only $ 400. 00 per month in child support payments once the school loan

was paid.

In Louisiana, the general rule is that a child support judgment remains in full

force until the party ordered to pay support has the judgment modified, reduced, or

terminated by a court. Beck v. Cox, 2014- 0256 ( La. App. 1 Cir. 9/ 25/ 14); 2014

WL 4783404, at * 2 ( unpublished). However, our courts have recognized that a

4 The parties stipulated at trial that Joshua would owe an arrearage of $21, 017. 03 if there was no valid extrajudicial agreement.

R judgment awarding child support can be extrajudicially modified by agreement of

the parties. Beck, 2014 WL 4783404 at * 2; see also State v. Burton, 2013- 0193

La. App. 1 Cir. 12/ 18/ 13); 2013 WL 6700361, at * 4; Palmer v. Palmer, 95- 0608

La. App. 1 Cir. 11/ 9/ 95); 665 So. 2d 48, 50- 51; Dubroc v. Dubroc, 388 So. 2d 377,

380 ( La. 1980). Such an agreement must meet the requisites of a conventional

obligation and the evidence must establish that the parties have clearly agreed to

waive or otherwise modify the court- ordered payments. 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 the obligation

under the judgment has the burden of proving the existence of such an agreement.

Beck, 2014 WL 4783404 at * 2.

Joshua testified that, after his child support obligation was increased, he

struggled to pay the increased amount. He testified that he and Bejae came to the

agreement regarding the school loan. Following Bejae' s email regarding the

school loan, Joshua paid for J. M.' s school loan for three years. After he finished

paying the school loan, Joshua paid Bejae $ 400. 00 each month in child support.'

Joshua testified that when Bejae asked for extra money, he gave it to her. He also

contributed to J. M.' s extracurricular activities. According to Joshua, he and Bejae

also agreed that Bejae would claim J. M. on her taxes. 6

Joshua testified that from 2009 until her death on January 27, 2018, Bejae

never filed a rule for contempt or any other pleading to modify his child support

obligation. Joshua further testified that he believed that they had their own

5 According to Joshua, the only lapse in child support payments from 2012 until January 2018 occurred when he was deployed. He testified that, when he returned from his deployment, he wrote Bejae a check for the entire time that he missed. Joshua also testified that during one summer, he had custody of the child every other week, which was a deviation from the usual amount of time he had J. M. During that two month period, Joshua only paid $ 300. 00 in child support. Aside from his deployment and the summer during which he had increased visitation, he always paid the same amount.

6 Bejae claimed J. M. on her taxes from 2012 until she passed away in January 2018. Prior to 2012, she and Joshua alternated each year.

on agreement and that he and Bejae had multiple conversations about it. During this

same time period, Joshua' s custody schedule also fluctuated due to various

agreements made between Bejae and himself.

In written reasons, the trial court wrote the following:

Based upon the testimony presented and the additional evidence submitted which was not available to the hearing officer, this Honorable Court finds that Mr. Michelli has met his burden of clearly proving that he and Bejae had an extrajudicial agreement to modify his child support obligation of $629. 04 per month.

Considering the evidence and testimony presented at the February 6, 2020 hearing,

we cannot find that the trial court abused its discretion. The May 26, 2009 email

from Bejae supports Joshua' s contention that the parties extrajudicially agreed to

modify the August 21, 2008 consent judgment. Joshua established that for the

2009- 10, 2010- 11, and 2011- 12 school years, he made payments towards a school

loan taken out to pay for J. M.' s private school tuition. Joshua resumed paying

400. 00 per month in child support from 2012 until Bejae' s passing in 2018,

except for during his deployment ( when he paid her a lump sum upon his return)

and one summer when he had the child for longer periods than usual. Bejae never

brought Joshua to court to seek an increase in the amounts paid. Thus, we find that

the trial court was not manifestly erroneous in determining that Joshua proved that

he and Bejae had an extrajudicial agreement to modify his child support obligation.

See State ex rel. Dept. of Children and Family Services, 174 So. 3d at 1202. This

assignment of error lacks merit.

Assignment of Error #2

In their second assignment of error, the Daigreponts argue that the trial court

erred in holding that the extrajudicial agreement was enforceable without first

determining whether the agreement was in the child' s best interest. As previously

stated, an extrajudicial agreement must foster the continued support and upbringing

7 of the child and must not interrupt the child' s maintenance or upbringing, or

otherwise work to his detriment. See Beck, 2014 WL 4783404 at * 2.

From the record, there is no indication that J.M.' s maintenance or

upbringing was interrupted. Joshua testified that he provided Bejae with extra

money when asked and that he contributed to J.M.' s extracurricular activities. He

further testified that he did not notice any difference in J. M.' s quality of life when

he was paying the increased amount. There is nothing in the record to refute this

testimony. Thus, the record before us does not contain any evidence that the

extrajudicial agreement caused any detriment to J. M. This assignment of error

lacks merit.

DECREE

For the above and foregoing reasons, the July 9, 2020 judgment of the

Twenty -First Judicial District Court is affirmed. Costs are assessed to Appellants,

Terry Daigrepont and Don Daigrepont.

AFFIRMED.

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