State v. Rodell

733 So. 2d 1247, 1999 WL 323004
CourtLouisiana Court of Appeal
DecidedMay 18, 1999
Docket98 CA 0093
StatusPublished
Cited by3 cases

This text of 733 So. 2d 1247 (State v. Rodell) 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. Rodell, 733 So. 2d 1247, 1999 WL 323004 (La. Ct. App. 1999).

Opinion

733 So.2d 1247 (1999)

STATE of Louisiana Through The DEPARTMENT OF SOCIAL SERVICES, OFS, Support Enforcement Services, in the Interest of Ashlyn Harrison, Minor Child(ren) of Joycelyn Harrison Brunswick
v.
Lawrence RODELL.[1]

No. 98 CA 0093.

Court of Appeal of Louisiana, First Circuit.

May 18, 1999.

*1248 Cazeline H. Dixon, Baton Rouge, Counsel for Plaintiff/Appellant State of Louisiana Support Enforcement Services.

Michael L. Harris, Baton Rouge, Attorney for Defendant/Appellee Lawrence Rodell.

BEFORE: FOIL, FOGG, FITZSIMMONS, KUHN, and WEIMER, JJ.

KUHN, Judge.

This is an appeal from a trial court judgment setting the child support obligation of the biological father in the amount of $550.00 per month. We conclude the record lacks an evidentiary basis to support the trial court's deviation from the statutory guidelines for the determination of child support set forth in La. R.S. 9:315.1. The matter is remanded with an order directing the trial court to determine, in conformity with our ruling as expressed herein, the monthly gross income of Ms. Brunswick, the mother of the minor child who is the subject of this action.

I. FACTUAL AND PROCEDURAL BACKGROUND

On November 23, 1992, the State of Louisiana, through the Department of Social Services, Office of Family Support, on behalf of Joycelyn Harrison Brunswick ("the State") filed a petition to establish paternity of Ms. Brunswick's minor child and to determine the monthly child support obligation owed by defendant, Rodell Lawrence, the alleged biological father of the minor child. According to the allegations of the State, defendant and Ms. Brunswick had a sexual relationship which resulted in the birth of the minor child. Results of blood tests revealed the probability of defendant's paternity of the minor child to be 99.9998%.

On March 23, 1995, the parties entered into a stipulated judgment which ordered defendant to pay, inter alia, child support in the sum of $450.00 per month. The judgment further provided that defendant's monthly child support obligation would be reviewed in December 1995. By agreement of the parties, the hearing for review of defendant's child support obligation was continued until January 1996.

*1249 After the hearing, the trial court found that a mechanical application of the child support guidelines would be inequitable and concluded a downward departure was warranted. By judgment dated June 17, 1996, the trial court ordered defendant to pay child support in the amount of $550.00 per month retroactive to December 8, 1995. After the trial court denied its motion for new trial, the State appealed, urging the trial court's determination is erroneous.

II. LAW

The guidelines set forth in La. R.S. 9:315-315.14 are to be used in any proceeding to establish or modify child support. La. R.S. 9:315.1 A. Use of the guidelines gives rise to a rebuttable presumption that the amount obtained is the proper amount of child support. Id. Under subpart B of Article 315.1, the court is permitted to deviate from the guidelines based on specified reasons, which must be included within the record, and which support a finding that application of the guidelines either is not in the best interest of the child or will be inequitable to the parties. La. R.S. 9:315.1 B. Subpart C of Article 315.1 details considerations the court may include in determining whether a departure from the guidelines is warranted. Although on appeal, a trial court's order of child support is generally subject to review for an abuse of discretion, see State in the Interest of Penn v. Penn, 97-1269 (La.App. 1st Cir.5/15/98); 712 So.2d 625, 627, deviations from the guidelines shall not be disturbed absent a finding of manifest error. La. R.S. 9:315.12.1.

III. MECHANICAL APPLICATION OF THE GUIDELINES

A. Gross Monthly Income of Mr. Lawrence

In her written reasons, the trial judge noted that defendant's monthly gross income at the time of the hearing was $9,618.00. Apparently adjusting defendant's gross monthly income in accordance with La. R.S. 9:315(1), which permits the court to subtract "amounts for preexisting child support ... obligations paid to another who is not a party to the proceedings," the trial judge allowed defendant a monthly credit of $1,039.00 for the underlying support obligation, as well as a monthly credit of $377.00 for the private school tuition he pays for his minor child who is not the subject of this action.[2] Thus, the trial court adjusted defendant's *1250 monthly gross income to $8,202.00.

B. Gross Monthly Income of Ms. Brunswick

The trial court utilized as Ms. Brunswick's gross monthly income the amount of $1,316.77, an amount she supplied in a column entitled, "TOTAL GROSS MONTHLY INCOME." A close scrutiny of the Income/Expense Affidavit of Ms. Brunswick reveals that it contains inconsistent information. Although Ms. Brunswick attested that her gross monthly income is "$1,316.77," after itemizing her payroll deductions, she indicates that her net monthly income is "$852.77/ (BIWEEKLY)." In his appellate brief, Mr. Lawrence avers that at a hearing on the new trial motion Ms. Brunswick filed after the trial court set Mr. Lawrence's monthly child support obligation at $550.00, Ms. Brunswick testified that she had erroneously stated her monthly income was $1,316.77 when in fact it was $2,633.54. Nothing in Ms. Brunswick's appellate brief casts doubt on this representation by Mr. Lawrence. Because the record lodged in this appeal by Ms. Brunswick does not contain a transcription of the hearing on the motion for new trial, we cannot definitively conclude what the actual gross monthly income of Ms. Brunswick was as of January 24, 1996, (the date of her Income/ Expense affidavit). We find the inconsistency in the Income/Expense affidavit creates an ambiguity that cannot be resolved by reading the entirety of the record. Therefore, in the interest of justice and in pursuit of the truth, we will remand this matter to the trial court for the sole purpose of determining whether Ms. Brunswick's monthly gross income on January 24, 1996, was: (1) $1,316.77, as she indicated in the column entitled "TOTAL GROSS MONTHLY INCOME"; (2) $2,633.54, as Mr. Lawrence asserts in his appellate brief and which parenthetically is the amount of Ms. Brunswick's gross monthly income if she was being paid twice per month; or (3) $2,853.00,[3] the amount of her gross monthly salary if she was being paid biweekly, as she indicated on her Income/Expense Affidavit.

C. Application of the Schedule for Support to Combined Adjusted Gross Monthly Income

i. If Ms. Brunswick's Gross Monthly Income is $1,316.77

To defendant's adjusted monthly gross income of $8,202.00, the trial court added the amount of $1,316.77 as Ms. Brunswick's monthly gross income, and concluded that combined adjusted monthly income of $9,518.77. Applying the schedule for support contained in La. R.S. 9:315.14, the trial court determined the parties' base obligation for child support for the minor child of Ms. Brunswick was $1,033.00. Calculating the percentage of defendant's proportionate share of the combined income to be 86% under La. R.S. 9:315.8(C), the trial court concluded that under a mechanical application of the guidelines, defendant's monthly child support obligation for his minor child born to Ms. Brunswick was $888.38.[4]

*1251

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Cite This Page — Counsel Stack

Bluebook (online)
733 So. 2d 1247, 1999 WL 323004, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-rodell-lactapp-1999.