Judgment rendered April 5, 2022. Application for rehearing may be filed within the delay allowed by Art. 2166, La. C.C.P.
No. 54,203-CA
COURT OF APPEAL SECOND CIRCUIT STATE OF LOUISIANA
*****
STATE OF LOUISIANA Plaintiff-Appellant
versus
TIMOTHY SHANE ISTRE Defendant-Appellee
Appealed from the Fourth Judicial District Court for the Parish of Ouachita, Louisiana Trial Court No. 11-NS-027213
Honorable Benjamin Jones (Pro Tempore), Judge
ASHLEY L. SMITH Counsel for Appellant, Assistant District Attorney the State of Louisiana
OFFICE OF FAMILY SERVICES Counsel for Appellant, By: Sheri L. Stapleton the State of Louisiana DCFS, Child Support Enforcement
TIMOTHY SHANE ISTRE In Proper Person, Appellee
Before PITMAN, HUNTER, and O’CALLAGHAN (Pro Tempore), JJ. PITMAN, J.
Plaintiffs, the State of Louisiana, and the State of Louisiana DCFS,
Child Support Enforcement (“CSE”), appeal the judgment of the trial court
which modified a child support order and made it retroactive to a date prior
to the date of judicial demand. For the following reasons, we amend the
judgment and, as amended, affirm.
FACTS
Timothy Istre and Challis Adkins had a child, M.I., born April 21,
2006, in Concordia Parish. The couple never married. In April 2011, the
CSE asked the state, through the district attorney for the Fourth Judicial
District, to file a rule for child and medical support on behalf of Adkins.
Because Istre could not be found to be served, the rule for child and medical
support was refiled on March 4, 2013. On June 20, 2013, a trial judge in
Ouachita Parish ordered Istre to pay $235 monthly to Adkins. The order
was modified a week later to name Julie Lowery, the child’s grandmother
and the person with whom the child was living, as payee.
In March 2020, CSE asked the state to file a pleading of modification
due to a change in the minor child’s living arrangements. CSE had been
notified that the child had begun living with Istre in Jennings, Louisiana,
Jefferson Davis Parish, in January 2019. The referral to the state was
accompanied by CSE Form 145 or Affidavit of Intact Household or Non-
Custodial Parent Caregiver, which had been completed by Istre and
notarized on February 26, 2020. The affidavit verified that the minor child
had been living with him in his household since January 2019 and that he is
the obligor listed in the case. Istre attached a copy of his current Louisiana driver’s license and a Jennings High School Student Demographics
Information form showing the dates on which the child had been enrolled.
The form also showed that both Istre and the child had the same physical
address.
Pursuant to the request and the provision of proof, the state filed a
request for modification on April 1, 2020, and the matter was set for hearing
on June 16, 2020, in Ouachita Parish, which was the original parish in which
the case began. The matter was heard before a hearing officer who
determined that the minor child had physically resided with Istre since
January 2018. The hearing officer cited equity as the reason it
recommended that Istre’s support order be modified to zero and that the
modification be applied retroactively to the date of his physical custody of
the minor child.
The state objected to the hearing officer’s recommendation and
requested a de novo hearing because the suggested modification was
contrary to La. R.S. 9:315.21. The hearing was held on August 4, 2020, and
a pro tempore judge heard the matter. After taking testimony and arguments
from Istre and the state, the trial court determined that a “good cause”
exception existed that would allow for the retroactive application of the
modification to an earlier date than that of the judicial demand. At that
hearing, Istre informed the court that he had previously misspoken
concerning the date his daughter came to live with him, and the date of
modification was changed to January 2019. The state continued to object to
the date of modification of January 2019, rather than April 1, 2020.
The state filed a motion for a new trial and for determination of the
application of the retroactivity date. The trial court handed down oral 2 reasons on October 6, 2020, denying the state’s request for reversal on the
issue of retroactivity, as well as the motion for new trial. A final judgment
was signed April 26, 2021, and the state has filed this appeal of the trial
court’s ruling relative to the date of retroactivity of the judgment.
DISCUSSION
The state argues that the trial court erred in declaring the order
modifying child support retroactive to a date that was prior to the date of
judicial demand in contravention of La. R.S. 9:315.21.
Istre, who was representing himself, did not file a brief in response to
the state’s appeal.
La. R.S. 9:315.21 concerns retroactivity of child support and states, in
pertinent part, as follows:
C. Except for good cause shown, a judgment modifying or revoking a final child support judgment shall be retroactive to the date of judicial demand, but in no case prior to the date of judicial demand. ***
E. In the event that the court finds good cause for not making the award retroactive to the date of judicial demand, the court may fix the date on which the award shall commence, but in no case shall this date be a date prior to the date of judicial demand. (Emphasis added.)
A child support judgment may be rendered retroactively. Vaccari v.
Vaccari, 10-2016 (La. 12/10/10), 50 So. 3d 139, citing Fink v. Bryant,
01-0987 (La. 11/28/01), 801 So. 2d 346. Retroactivity in this context is not
in the nature of a penalty, but merely a judicial recognition of preexisting
entitlement. Viccari, supra.
In the event that the court finds good cause for not making the award
retroactive to the date of judicial demand, it may fix the date on which the
award shall commence. La. R.S. 9:315.21(E). Curtis v. Curtis, 34,317 (La. 3 App. 2 Cir. 11/1/00), 773 So. 2d 185. A trial judge is not required to assign
reasons justifying a finding of good cause to make an award not retroactive
to filing. Id. Moreover, as already noted herein, the trial court is vested with
much discretion in fixing support, and its reasonable determinations will not
be disturbed unless there is a clear abuse of discretion. Id.
When the wording of a section is clear and free of ambiguity, the
letter of it shall not be disregarded under the pretext of pursuing its spirit.
La. R.S. 1:4. La. C.C. art. 9 states:
When a law is clear and unambiguous and the application does not lead to absurd consequences, the law shall be applied as written and no further interpretation may be made in search of the intent of the legislature.
Although La. R.S. 9:315.21(E) states a trial court may find good cause
not to make an award retroactive to the date of judicial demand, it cannot,
under any circumstances, make the award retroactive to a date prior to the
date of judicial demand. The language of the statute is unambiguous and
cannot be interpreted any other way. This assignment of error has merit.
Assessment of Costs
La. C.C.P. art. 1920 states that unless the judgment provides
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Judgment rendered April 5, 2022. Application for rehearing may be filed within the delay allowed by Art. 2166, La. C.C.P.
No. 54,203-CA
COURT OF APPEAL SECOND CIRCUIT STATE OF LOUISIANA
*****
STATE OF LOUISIANA Plaintiff-Appellant
versus
TIMOTHY SHANE ISTRE Defendant-Appellee
Appealed from the Fourth Judicial District Court for the Parish of Ouachita, Louisiana Trial Court No. 11-NS-027213
Honorable Benjamin Jones (Pro Tempore), Judge
ASHLEY L. SMITH Counsel for Appellant, Assistant District Attorney the State of Louisiana
OFFICE OF FAMILY SERVICES Counsel for Appellant, By: Sheri L. Stapleton the State of Louisiana DCFS, Child Support Enforcement
TIMOTHY SHANE ISTRE In Proper Person, Appellee
Before PITMAN, HUNTER, and O’CALLAGHAN (Pro Tempore), JJ. PITMAN, J.
Plaintiffs, the State of Louisiana, and the State of Louisiana DCFS,
Child Support Enforcement (“CSE”), appeal the judgment of the trial court
which modified a child support order and made it retroactive to a date prior
to the date of judicial demand. For the following reasons, we amend the
judgment and, as amended, affirm.
FACTS
Timothy Istre and Challis Adkins had a child, M.I., born April 21,
2006, in Concordia Parish. The couple never married. In April 2011, the
CSE asked the state, through the district attorney for the Fourth Judicial
District, to file a rule for child and medical support on behalf of Adkins.
Because Istre could not be found to be served, the rule for child and medical
support was refiled on March 4, 2013. On June 20, 2013, a trial judge in
Ouachita Parish ordered Istre to pay $235 monthly to Adkins. The order
was modified a week later to name Julie Lowery, the child’s grandmother
and the person with whom the child was living, as payee.
In March 2020, CSE asked the state to file a pleading of modification
due to a change in the minor child’s living arrangements. CSE had been
notified that the child had begun living with Istre in Jennings, Louisiana,
Jefferson Davis Parish, in January 2019. The referral to the state was
accompanied by CSE Form 145 or Affidavit of Intact Household or Non-
Custodial Parent Caregiver, which had been completed by Istre and
notarized on February 26, 2020. The affidavit verified that the minor child
had been living with him in his household since January 2019 and that he is
the obligor listed in the case. Istre attached a copy of his current Louisiana driver’s license and a Jennings High School Student Demographics
Information form showing the dates on which the child had been enrolled.
The form also showed that both Istre and the child had the same physical
address.
Pursuant to the request and the provision of proof, the state filed a
request for modification on April 1, 2020, and the matter was set for hearing
on June 16, 2020, in Ouachita Parish, which was the original parish in which
the case began. The matter was heard before a hearing officer who
determined that the minor child had physically resided with Istre since
January 2018. The hearing officer cited equity as the reason it
recommended that Istre’s support order be modified to zero and that the
modification be applied retroactively to the date of his physical custody of
the minor child.
The state objected to the hearing officer’s recommendation and
requested a de novo hearing because the suggested modification was
contrary to La. R.S. 9:315.21. The hearing was held on August 4, 2020, and
a pro tempore judge heard the matter. After taking testimony and arguments
from Istre and the state, the trial court determined that a “good cause”
exception existed that would allow for the retroactive application of the
modification to an earlier date than that of the judicial demand. At that
hearing, Istre informed the court that he had previously misspoken
concerning the date his daughter came to live with him, and the date of
modification was changed to January 2019. The state continued to object to
the date of modification of January 2019, rather than April 1, 2020.
The state filed a motion for a new trial and for determination of the
application of the retroactivity date. The trial court handed down oral 2 reasons on October 6, 2020, denying the state’s request for reversal on the
issue of retroactivity, as well as the motion for new trial. A final judgment
was signed April 26, 2021, and the state has filed this appeal of the trial
court’s ruling relative to the date of retroactivity of the judgment.
DISCUSSION
The state argues that the trial court erred in declaring the order
modifying child support retroactive to a date that was prior to the date of
judicial demand in contravention of La. R.S. 9:315.21.
Istre, who was representing himself, did not file a brief in response to
the state’s appeal.
La. R.S. 9:315.21 concerns retroactivity of child support and states, in
pertinent part, as follows:
C. Except for good cause shown, a judgment modifying or revoking a final child support judgment shall be retroactive to the date of judicial demand, but in no case prior to the date of judicial demand. ***
E. In the event that the court finds good cause for not making the award retroactive to the date of judicial demand, the court may fix the date on which the award shall commence, but in no case shall this date be a date prior to the date of judicial demand. (Emphasis added.)
A child support judgment may be rendered retroactively. Vaccari v.
Vaccari, 10-2016 (La. 12/10/10), 50 So. 3d 139, citing Fink v. Bryant,
01-0987 (La. 11/28/01), 801 So. 2d 346. Retroactivity in this context is not
in the nature of a penalty, but merely a judicial recognition of preexisting
entitlement. Viccari, supra.
In the event that the court finds good cause for not making the award
retroactive to the date of judicial demand, it may fix the date on which the
award shall commence. La. R.S. 9:315.21(E). Curtis v. Curtis, 34,317 (La. 3 App. 2 Cir. 11/1/00), 773 So. 2d 185. A trial judge is not required to assign
reasons justifying a finding of good cause to make an award not retroactive
to filing. Id. Moreover, as already noted herein, the trial court is vested with
much discretion in fixing support, and its reasonable determinations will not
be disturbed unless there is a clear abuse of discretion. Id.
When the wording of a section is clear and free of ambiguity, the
letter of it shall not be disregarded under the pretext of pursuing its spirit.
La. R.S. 1:4. La. C.C. art. 9 states:
When a law is clear and unambiguous and the application does not lead to absurd consequences, the law shall be applied as written and no further interpretation may be made in search of the intent of the legislature.
Although La. R.S. 9:315.21(E) states a trial court may find good cause
not to make an award retroactive to the date of judicial demand, it cannot,
under any circumstances, make the award retroactive to a date prior to the
date of judicial demand. The language of the statute is unambiguous and
cannot be interpreted any other way. This assignment of error has merit.
Assessment of Costs
La. C.C.P. art. 1920 states that unless the judgment provides
otherwise, costs shall be paid by the party cast in judgment. The code article
also states that, except as otherwise provided by law, the court may render
judgment for costs, or any part of them, against any party as it may consider
equitable. La. R.S. 13:4521 concerns deferral of court costs against the state
and its subdivisions and exceptions to the general rule. La. R.S.
13:4521(A)(3) states:
(3) This Section shall not apply to the Department of Children and Family Services for any proceedings brought by the Department of Children and Family Services or any district attorney, on behalf of the Department of Children and Family 4 Services, to establish filiation or enforce support, when such proceedings are subject to a cooperative agreement between the agency and the clerk of court of the appropriate jurisdiction. Any cooperative agreement entered into between the clerk of court and the agency shall include reimbursement for sheriff's costs.
When the state filed its motion to appeal the judgment of the trial
court denying the motion for new trial and request for rehearing on the issue
of retroactivity, the last paragraph of the motion requested that the appeal be
granted “and any and all costs be cast against the mover.” The trial court
signed the order of appeal and that last sentence was included in the order.
On appeal, we do not cast any party in judgment, but only amend the
ruling of the trial court and affirm it as amended. We believe it would be
inequitable to assess Istre with any costs in this appeal. He did not raise any
issues and did not oppose the state’s appeal. Because this matter is one to
“enforce support” under La. R.S. 13:4521(A)(3), the state will not be
ordered to pay costs. For these reasons, we exercise our discretion under La.
C.C.P. art. 1920 and decline to assess any costs against Istre.
CONCLUSION
For the foregoing reasons, the judgment of the trial court is amended
to reflect that the child support order reducing Timothy Shane Istre’s child
support obligation to $0 is made retroactive to April 2020, the date of
judicial demand, and, as amended, is affirmed.
AMENDED AND, AS AMENDED, AFFIRMED.