State v. Battson

828 So. 2d 132, 2002 WL 31060579
CourtLouisiana Court of Appeal
DecidedSeptember 18, 2002
Docket36,336-JAC
StatusPublished
Cited by11 cases

This text of 828 So. 2d 132 (State v. Battson) 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 v. Battson, 828 So. 2d 132, 2002 WL 31060579 (La. Ct. App. 2002).

Opinion

828 So.2d 132 (2002)

STATE of Louisiana-Sandra McGee, Appellee
v.
Kenny A. BATTSON, Appellant.

No. 36,336-JAC.

Court of Appeal of Louisiana, Second Circuit.

September 18, 2002.

*133 Michael O. Craig, Benton, for Appellant.

Richard Ieyoub, Attorney General, James M. Bullers, District Attorney, Robert Randall Smith, Assistant District Attorney, for Appellee.

Before BROWN, KOSTELKA and HARRISON (Pro Tempore), JJ.

KOSTELKA, J.

Kenny Battson ("Battson") seeks review of the judgment denying his request to decrease his child support obligation based upon the district court's determination that he was voluntarily underemployed. We reverse the judgment denying Battson's request to reduce his child support obligation and reduce the monthly child support obligation.

Facts

Of the marriage between Battson and his former wife, Sandra Wells McGee ("McGee"), one child, Kasey, was born on June 2, 1989. Upon Battson's and *134 McGee's divorce, Battson stipulated to child support payments of $550 per month on September 2, 1997. At the time of the agreement, Battson worked as a disc jockey for a Shreveport radio station and was a popular radio personality in the area. When in 1999 he lost his employment, Battson sought a decrease in the child support amount. However, when he was re-employed in the radio field, Battson withdrew his request.

Battson moved to Brandon, Mississippi and there obtained employment as a disc jockey with a radio station in Jackson, Mississippi. Battson had remarried and had a stepchild in Mississippi. However, in January 2001, Battson was terminated from his radio station employment and filed a rule to decrease his support obligation on February 23, 2001.

A hearing on this rule to decrease support was held before a hearing officer on March 20, 2001, in accordance with La. R.S. 46:236.5, et seq., which provides an expedited process for establishment and modification of support.[1] Because Battson failed to make a sufficient showing that he had sought employment, however, the hearing officer denied Battson's request.

Battson excepted to this ruling in the district court and in the meantime obtained employment with Wal-Mart. At the appeal hearing on April 2, 2001, the district court remanded the case to the hearing officer for a second hearing to determine the level of Battson's earnings.

On May 8, 2001, the parties agreed that Battson would pay $350 per month until the rule for decrease in support could be heard. After two more continuances, the hearing on the rule to decrease occurred on December 4, 2001. Upon considering the testimony of experts and Battson, the hearing officer concluded that Battson was not voluntarily underemployed and recommended that the child support be reduced.

At the conclusion of the hearing, the state excepted to this ruling in accordance with La. R.S. 46:236.5(C)(6) and Rule 33(C), Twenty Sixth Judicial District Civil Court Rules. After the parties agreed to submit the contradictory appeal hearing on the transcripts, the district court rejected the recommendation of the hearing officer and found Battson to be voluntarily underemployed and reinstated the child support award to the original amount of $550 per month. A written judgment reflecting this determination was signed by the trial judge on December 18, 2001.[2] This appeal ensued.

DISCUSSION

At the time Battson's rule for reduction was filed, La. R.S. 9:311 provided in pertinent part:

(A) An award for support shall not be reduced or increased unless the party seeking the reduction or increase shows a change in circumstances of one of the parties between the time of the previous award and the time of the motion for modification of the award.
Additionally, La. R.S. 9:315.9 provided in part:
*135 If a party is voluntarily unemployed or 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....[3]

Not every change in circumstances warrants a reduction in child support. Louisiana jurisprudence distinguishes between voluntary and involuntary changes in circumstances. Savage v. Savage, 36,138 (La.App.2d Cir.06/12/02), 821 So.2d 603. An involuntary change is one resulting from fortuitous events or other circumstances beyond that person's control, such as loss of one's position or illness. A voluntary act rendering it difficult or impossible to meet one's support obligation is not a ground for release, in whole or in part, from the obligation. Id.

There is apparently no dispute that Battson's termination from his job at the Mississippi radio station was not voluntary. Nevertheless, at issue at the hearing to decrease was whether his continued unemployment in the radio field, i.e., employment at Wal-Mart, qualified as voluntary underemployment. Proof of a change in circumstances does not justify the reduction of a child support award where an obligor's inability to pay arises from his own voluntary actions. McHale v. McHale, 612 So.2d 969 (La.App. 2d Cir.1993). Voluntary underemployment for purposes of calculating child support is a question of good faith on the obligor-spouse. Gould v. Gould, 28,996 (La.App.2d Cir.01/24/97), 687 So.2d 685. In virtually every case where a parent's voluntary unemployment or underemployment was found to be in good faith, courts have recognized extenuating circumstances beyond that parent's control which influenced or necessitated the voluntary change in employment. Hutto v. Kneipp, 627 So.2d 802 (La.App. 2d Cir. 1993). A party is not deemed voluntarily unemployed or underemployed if he or she is absolutely unemployable or incapable of being employed, or if the unemployment or underemployment results through no fault or neglect of the party. Savage, supra. Voluntary underemployment is a fact-driven consideration. Koch v. Koch, 97-1600 (La.App. 4th Cir.04/22/98), 714 So.2d 63. The trial court has wide discretion in determining the credibility of witnesses and its factual determinations will not be disturbed on appeal absent a showing of manifest error. McHale, supra.

When a hearing officer is employed by the court in cases involving modification of child support, the hearing officer acts as a finder of fact and makes recommendations to the court concerning the modification of support. La. R.S. 46:236.5(C)(3). Any party, within the time and manner established by court rule,[4] may file an exception to the findings of fact or law of the hearing officer. Upon the filing of the exception, a contradictory hearing is to be held before a judge who shall accept, reject or modify in whole or in part the findings of the hearing officer. La. R.S. 46:236.5(C)(6).

In the case sub judice, the hearing officer heard testimony from two experts in the radio field. First to testify was Gary McCoy ("McCoy"), director of programming with Clear Channel in Shreveport, Louisiana. He explained that with deregulation of the radio industry, large corporations are now allowed to own multiple *136 stations. For example, Clear Channel[5] owns six properties in the Shreveport market, in excess of twenty in the Louisiana market and a total of 1,300 radio stations. Another company, Cumulus owns 600.

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Cite This Page — Counsel Stack

Bluebook (online)
828 So. 2d 132, 2002 WL 31060579, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-battson-lactapp-2002.