State v. Reed

658 So. 2d 774, 1995 WL 377042
CourtLouisiana Court of Appeal
DecidedJune 21, 1995
Docket26896-CA, 26897-CA
StatusPublished
Cited by9 cases

This text of 658 So. 2d 774 (State v. Reed) 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. Reed, 658 So. 2d 774, 1995 WL 377042 (La. Ct. App. 1995).

Opinion

658 So.2d 774 (1995)

STATE of Louisiana, Plaintiff-Appellee,
v.
Fred L. REED, Jr., Defendant-Appellant.

Nos. 26896-CA, 26897-CA.

Court of Appeal of Louisiana, Second Circuit.

June 21, 1995.

Samuel Thomas, Tallulah, for appellant.

James D. Caldwell, Dist. Atty., by Vicki V. Baker, Asst. Dist. Atty., Tallulah, for appellee.

Before SEXTON, LINDSAY and STEWART, JJ.

*775 SEXTON, Judge.

Fred Reed, Jr. appeals consolidated judgments denying his request for reduction in child support payments. We affirm.

Fred L. Reed, Jr. (hereinafter "Reed") is a physician in Lake Providence, Louisiana. On May 29, 1991, Reed was ordered to pay $2,400 per month child support for the six children born of the marriage between him and Mary Ann Chase Reed Russell (hereinafter "Russell"), as a result of a divorce between the parties. He was also ordered to pay $1,000 per month in alimony and an additional $300 per month for child care expenses as long as Mary Ann Chase Reed Russell continued in school. Further, Reed was ordered to maintain health insurance and pay college tuition for the minor children until they reached the age of majority. Reed accepted all community property indebtedness.

On August 20, 1992, Vivian Allen (hereinafter "Allen") filed a petition to establish paternity on behalf of her son, Fred Reed, III, and for child support. Paternity was established, and Reed was ordered to pay $549 child support on January 12, 1993.

Reed has remarried and one child was born of this union. He also supports the three children of his present wife.

Through the office of support enforcement, both Russell and Allen sought arrearages from Reed. Because one of the children born of the marriage between Russell and Reed had reached the age of majority, the petition claimed arrearages for only five of the children born of the marriage. On August 10, 1993, the asserted arrearages were made executory.

On this same day, Reed filed a rule to decrease his child support payments in both cases. His petition included allegations that he had filed bankruptcy on November 4, 1991, and that as a result of his reorganization, he was ordered to pay $8,000 per month to the bankruptcy court. Further, he asserted that as a result of overpayment by Medicaid and Medicare, he was obligated to pay $7,000 per month to the Louisiana Department of Health and Hospitals. He claimed also to only receive the salary of $5,000 per month from his newly incorporated business, which he claimed should be the amount used to calculate his income. Reed also contended that both Russell and Allen were voluntarily unemployed and, therefore, the child support obligation should be calculated based upon a determination of the income earning potential of each.

On August 31, 1993, the two cases were consolidated and heard. A judgment denying Reed's requests for decrease was rendered on April 5, 1994. The trial court determined that the bankruptcy and corresponding payments were not a change in circumstances sufficient to warrant a reduction in Reed's child support payments. The court did determine that because one of Reed's children reached the age of majority, Reed's remarriage, and the birth of two children since his divorce did constitute a change in circumstances sufficient to inquire into the request for reduction. Upon this inquiry, the court determined that Reed's income for the purpose of the child support calculation was $11,000 per month, the amount admitted to by Reed at the 1993 hearing to establish support for Fred Reed, III. After utilizing the child support guidelines, the court found that a reduction was not warranted.

Reed appeals the denial of the request for decrease in child support urging that the trial court erred in failing to find a change in circumstances sufficient to warrant a reduction in the support obligation. Specifically, he claims that the trial court erred in the calculation of his income which, he argues, should exclude amounts paid to the bankruptcy court and the state of Louisiana, as these are necessary expenses. Reed thus contends that $5,000 is the correct calculation of his monthly income. He further argues that he should be given a credit for medical and health insurance, which he pays for the children in the amount of $501. Finally, Reed argues that the trial court erred in failing to find both Chase and Allen voluntarily underemployed.

DISCUSSION

LSA-R.S. 9:311 provides for the reduction or increase in child support and states in part:

*776 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.

Even as to consent decrees, a child support obligation must be justified by a substantial change in circumstances. Crowder v. Crowder, 595 So.2d 810 (La.App.2d Cir.1992), writ denied, 598 So.2d 358 (La. 1992).

Once the obligor proves a change in circumstances, entitlement to a reduction is presumed and the burden shifts to the party opposing reduction to overcome that presumption. Preis v. Preis, 93-569 (La.App. 3d Cir.1994) 631 So.2d 1349.

Proof of change in circumstances does not justify a reduction in child support award where obligor's inability to pay arises from his own voluntary actions. McHale v. McHale, 612 So.2d 969 (La.App.2d Cir.1993).

BANKRUPTCY AND MEDICARE PAYMENTS AS CHANGE IN CIRCUMSTANCES

Reed first argues that the trial court erred in failing to find that the monthly payments of $8000 and $7000-$7500 owed by Reed as a result of his bankruptcy and Medicare overpayment were a change in circumstances sufficient to warrant reduction of the child support obligation.

The court reasoned that between 1989 and the date of his divorce in 1991, Reed had incurred a one-half million dollar debt as the result of poor business management and an extravagant lifestyle. Reed admitted at the trial of this matter that the bankruptcy was the result of his poor business savvy and bad management practices. Further, the court found that the amounts owing to the state of Louisiana for Medicare overpayment were the result of Reed's actions in overcharging the state. We find no abuse of discretion in this finding by the trial court.

Louisiana jurisprudence is well settled that even upon a showing of change in circumstances, a reduction is not warranted where an obligor's inability to pay arises from his own voluntary actions. McHale, supra. The jurisprudence is likewise clear that a parent and spouse will not be relieved of his or her obligation to support children because of an unstable financial condition brought about by the obligor's own neglect or mismanagement. Boudreaux v. Boudreaux, 460 So.2d 703 (La.App. 3d Cir.1984); Moore v. Moore, 380 So.2d 180 (La.App.2d Cir. 1980).

In Moore v. Moore, supra, the mother sought to garnish the wages of the defendant father as she had for the third time in six years. The trial court, on reconventional demand of the father, upheld the garnishment, but suspended the father's obligation to pay the accruing child support until the past due child support was satisfied. The mother appealed, contending that the father's financial dilemma was shown to result solely from his own neglect and mismanagement. In Moore, the parties were divorced and the father was ordered to pay child support.

Free access — add to your briefcase to read the full text and ask questions with AI

Related

Kairdolf v. Kairdolf
58 So. 3d 527 (Louisiana Court of Appeal, 2011)
Harper v. Harper
977 So. 2d 312 (Louisiana Court of Appeal, 2008)
Rene Windham Harper v. Randolph Wallace Harper
Louisiana Court of Appeal, 2008
Fink v. Bryant
801 So. 2d 346 (Supreme Court of Louisiana, 2001)
Lutke v. Lutke
750 So. 2d 512 (Louisiana Court of Appeal, 2000)
Stogner v. Stogner
739 So. 2d 762 (Supreme Court of Louisiana, 1999)
Brown v. Taylor
728 So. 2d 1058 (Louisiana Court of Appeal, 1999)
STATE, THRU DEPT. OF SOC. SERVICES v. Seals
701 So. 2d 746 (Louisiana Court of Appeal, 1997)

Cite This Page — Counsel Stack

Bluebook (online)
658 So. 2d 774, 1995 WL 377042, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-reed-lactapp-1995.