Todtenbier v. Todtenbier

48 So. 3d 413, 2010 La.App. 1 Cir. 0304, 2010 La. App. LEXIS 1423, 2010 WL 4232818
CourtLouisiana Court of Appeal
DecidedOctober 27, 2010
Docket2010 CA 0304
StatusPublished
Cited by3 cases

This text of 48 So. 3d 413 (Todtenbier v. Todtenbier) 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
Todtenbier v. Todtenbier, 48 So. 3d 413, 2010 La.App. 1 Cir. 0304, 2010 La. App. LEXIS 1423, 2010 WL 4232818 (La. Ct. App. 2010).

Opinions

McDonald, j.

| ¡Allen Jay Todtenbier and Tara Lee Todtenbier were married in May of 2000, and in November of 2000 they had a daughter, Bailey Dean Todtenbier. In February of 2001, Mrs. Todtenbier was diagnosed with a large acoustic neuroma tumor situated on her brain stem that required an emergency craniotomy. Thereafter, Mrs. Todtenbier underwent two more craniotomies and a “gamma knife” radiation treatment to remove the acoustic neuroma. Due to ongoing complications, she later underwent a left eye corneal transplant and a second corneal transplant after a rejection of the first corneal transplant. She eventually underwent around thirty eye surgeries due to her ongoing complications with the left eye as a result of the nerve damage from surgery. Mrs. Todtenbier was left with deafness in her left ear, partial facial paralysis, and frequent, severe headaches, as well as an ongoing left eye condition that requires monitoring.

The Todtenbiers separated in October of 2005, and in January 2006 a petition for dissolution of the marriage was filed in Arizona.1 The Todtenbiers were divorced on September 1, 2006 in Arizona, but were living in Baton Rouge at the time of judg[415]*415ment. The judgment of divorce granted the parties joint custody of the child, with no designation of a domiciliary parent, but provided that the child should live primarily with Mrs. Todtenbier. The judgment further states:

THE COURT FINDS that Father left his job at Cisco Systems where he earned between $135,000 — $150,000 per year. The Court finds that Father presented evidence that although his leaving Cisco was voluntary, his position there was tenuous at best. The Court further finds that Father’s job change was for reasons other than in anticipation of dissolution of the marriage.
Accordingly, THE COURT FINDS that Father’s income for purposes of child support is $6,000 per month. However, the Court fully expects Father to continue to seek higher paying employment. When said employment occurs, Mother shall be entitled to an upward modification.
1¡¡Dr. Cavalier testified that he believed that Mother was disabled (as does the Social Security Administration) and not capable of working either full-time or part-time. Father failed to present evidence to refute Dr. Cavalier’s opinion. Accordingly,
THE COURT FINDS that Mother’s income shall be calculated at $1,027.00, which is her disability income.

The Arizona court ordered Mr, Todtenbier to pay Mrs. Todtenbier $1,250.00 per month in spousal support and $209.67 per month in child support, and ordered Mr. Todtenbier to pay Bailey’s tuition at St. James Episcopal Day School in Baton Rouge.

Mr. Todtenbier filed motions with the Arizona court for review or a new trial. The minute entries from January 29, 2007 in the Arizona court records indicate that the Arizona court denied his request for a modification of custody and denied his request to modify the spousal support award, and that thereafter, the parties stipulated that Mr. Todtenbier would pay for Bailey’s medical insurance, and that Mr. Todtenbier’s child support was set at $249.00 per month.2

On December 14, 2007, Mr. Todtenbier filed a petition in the Family Court in East Baton Rouge Parish to modify custody, reduce child support, and terminate or reduce his spousal support obligation.3 Mrs. Todtenbier filed a motion to increase child support and spousal support.

By judgment dated August 18, 2009, the family court awarded the parties joint custody of Bailey, and named Mrs. Todtenbier as the domiciliary parent. Mr. Todtenbier was given visitation on Wednesday nights and every other weekend.4 As to the financial issues, after a hearing, the family court took the matter under advisement. Thereafter, the family court issued written reasons for judgment on 14July 9, 2009,5 finding no significant change in the circumstances of the parties, finding that Mr. Todtenbier was voluntarily underemployed, and finding that Mrs. Todtenbier was disabled such that employment would [416]*416be difficult if not impossible to obtain. The family court denied Mr. Todtenbier’s motion for reduction or termination of spousal support, denied Mrs. Todtenbier’s motion to increase spousal support, modified the child support award to Mrs. Tod-tenbier to $339.10 per month, retroactive to February 3, 2009, and ordered Mr. Tod-tenbier to pay for and maintain Bailey’s health and hospitalization insurance. Further, the family court ordered that Bailey remain enrolled in St. James Episcopal Day School, and that retroactive to February 3, 2009, the percentage of the parties’ total monthly income attributable to Mr. Todtenbier was 72% and to Mrs. Todtenbier was 28%. Further, the court ordered that each party pay their percentage share of all mandatory fees and tuition required by Bailey’s enrollment in private school, and any and all medical, dental, and ocular expenses not covered by health insurance over and above the first $250.00 incurred per calendar year.

Mr. Todtenbier is appealing that judgment, asserting that the family court erred in finding him voluntarily underemployed and assigning him an earning capacity, in denying his motion for a reduction in child support, and in failing to reduce his spousal support.

Mrs. Todtenbier answered the appeal, asserting that the family court erred by attributing the Social Security Administration payment received by Mrs. Todtenbier on Bailey’s behalf (based on the earnings of Mrs. Todtenbier), as income to Bailey, in contravention of the terms of La. R.S. 9:315.7.

THE SPOUSAL SUPPORT ISSUE

Louisiana Civil Code article 114 provides that “An award of periodic support may be modified if the circumstances of either party materially change and 15shall be terminated if it has become unnecessary.” The trial court found that Mr. Todtenbier failed to show a significant or substantial change in either party’s financial situation and denied his request for a reduction or termination of his spousal support obligation.6

Mr. Todtenbier argues that Mrs. Tod-tenbier has family help and support, yet the testimony established that Mrs. Tod-tenbier’s only income is social security disability and spousal support, and her employment opportunities are limited due to her disability. Mrs. Todtenbier’s stamina is limited also, and being a full-time mother to Bailey and dealing with her own medical issues appeal's to deplete her energy completely. Mr. Todtenbier has an MBA and prefers to work for himself in a start-up company rather than work for someone else, arguing that while he makes less money now, he has the potential to make more money later. We cannot say that the family court abused its discretion in finding no substantial change in either of the parties’ financial situation and denying Mr. Todtenbier’s request for a reduction or termination of his spousal support at this time.7

[417]*417THE CHILD SUPPORT ISSUE

Mr. Todtenbier asserts that the family court erred in failing to reduce his child support under La. R.S. 9:815.8 E, which provides in part:

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Related

State ex rel. Department of Children & Family Services v. Peters
174 So. 3d 1200 (Louisiana Court of Appeal, 2015)
State, Department of Social Services ex rel. B.B. v. C.B.
164 So. 3d 850 (Louisiana Court of Appeal, 2014)
Todtenbier v. Todtenbier
48 So. 3d 413 (Louisiana Court of Appeal, 2010)

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Bluebook (online)
48 So. 3d 413, 2010 La.App. 1 Cir. 0304, 2010 La. App. LEXIS 1423, 2010 WL 4232818, Counsel Stack Legal Research, https://law.counselstack.com/opinion/todtenbier-v-todtenbier-lactapp-2010.