Opinion
No. 2010 CU 2278.
May 6, 2011.
ON APPEAL FROM THE TWENTY-FIRST JUDICIAL DISTRICT COURT NUMBER 119949, DIV. G, PARISH OF LIVINGSTON STATE OF LOUISIANA HONORABLE ERNEST G. DRAKE, JUDGE.
James J. Zito, Baton Rouge, Louisiana, Counsel for Plaintiff-Appellant, John Wesley Brister, III.
Michael A. Betts, Denham Springs, Louisiana, Counsel for Defendant-Appellee, Allison Renee Cranford Brister.
BEFORE: KUHN, PETTIGREW, AND HIGGINBOTHAM, JJ.
NOT DESIGNATED FOR PUBLICATION
Plaintiff-appellant, John Wesley Brister, III, appeals the trial court's judgment that, among other things, determined a visitation schedule, set an amount he is to pay to his ex-wife, defendant-appellee, Allison Renee Cranford Brister, for the support of their two minor children, and awarded her interim spousal support. We amend and, as amended, affirm.
BACKGROUND
A hearing was held on October 7, 2009, to address several rules filed by the parties. Pursuant to their stipulation, the parties were awarded joint custody of the children. In its judgment, the trial court named Mrs. Brister domiciliary parent and gave Mr. Brister visitation with his children three weekends of each month, articulating in detail when the weekend commences and terminates; all but four weeks of summer, with Mrs. Brister to have custody the first week after school terminates and the last seven days before school commences along with two consecutive weeks during the summer; and set forth a holiday schedule. The trial court awarded Mrs. Brister $1,197.58 in monthly child support, which included child care costs. A monthly interim spousal support award was granted to Mrs. Brister.
On appeal, Mr. Brister challenges the visitation schedule and the bases for the trial court's calculations of the amount of child support awarded and the interim spousal support award.
CHILD CUSTODY/VISITATION SCHEDULE
Mr. Brister asserts that the trial court erred in failing to consider the custody arrangement the parties had at the time Mrs. Brister sought a hearing on the issue. He suggests that although the parties never reduced their arrangement to writing, they essentially had a shared custody regime on a 2, 2, 3 schedule, i.e., the children stayed (for example) with him for two days, Mrs. Brister the following two days, and returned to him for the weekend. The following week, the parental visitation altered so that the children were with Mrs. Brister for two days, followed by two days with their father, and they returned to their mother for the weekend. Mr. Brister contends that the trial court erred by not applying the proper burden of proof, urging that in addition to the best interests of the children, Mrs. Brister was required to show a change in circumstances to modify the arrangement. See Evans v. Lungrin, 1997-0541, pp. 12-13 (La. 2/6/98), 708 So.2d 731, 738 (delineating the burdens of proof for consent decrees and considered decrees respectively).
Although Mr. Brister strongly urges that Mrs. Brister's former counsel had all but signed the agreement setting a 2, 2, 3 shared custody arrangement, the record clearly shows that the October 7, 2009 hearing was the first time the issue of custody was before the court. Mrs. Brister testified that she simply went along with the 2, 2, 3 arrangement to avoid conflict with Mr. Brister. She stated she always believed that it was in the best interests of the children — ages 2 and 4 on the date of the hearing — to stay with her during the week. She pointed out that she was the children's primary caregiver since birth. Mrs. Brister explained that children of their ages need structure and routine. She believed the constant shuffling made it difficult for them to have a consistent routine and to remain healthy.
Additionally, the record supports an implicit finding that the shared custody arrangement was in effect for no more than about four of the twenty-four months the parties had lived separately. It was undisputed that Mrs. Brister kept the children from October 2007 through May 2008, the entire summer of 2008, and through October 2008. During the first seven months after he left, Mr. Brister admitted he only saw his children three or four times a month. Mr. Brister conceded that for several months after October 2008, Mrs. Brister drove to his apartment before work, picked up the children, fed and dressed them, and drove the younger child to daycare and the older child to school. Beginning in the spring of 2009, for the last two months of the school year, Mr. Brister began taking the children to daycare and school on those mornings after he had them overnight. But Mrs. Brister continued to pick them up in the afternoons and kept them until Mr. Brister arrived after work, sometime between 5:30 and 6:00. Mrs. Brister again kept the children throughout the summer of 2009, except when the children spent the night at Mr. Brister's apartment. The evidence shows that the parties commenced a true 2, 2, 3 shared custody arrangement for only a short period of time; and that even then Mrs. Brister maintained a daily contact with her children except apparently every other weekend when Mr. Brister kept his children. Under the facts of this case and an application of the factors listed in La.C.C. art. 134, we cannot say the trial court abused its discretion or committed manifest error in the establishing the visitation schedule set forth in its judgment. See Martello v. Martello, 2006-0594, p. 4 (La. App. 1st Cir. 3/23/07), 960 So.2d 186, 191-92.
Although Mr. Brister complains about comments made by the trial court in its oral reasons for judgment, it is the judgment — not the reasons for judgment — that this court reviews. See La.C.C.P. art. 1918; Bellard v. American Cent. Ins. Co. , 2007-1335, p. 25 (La. 4/18/08), 980 So.2d 654, 671. Thus, it is the language contained in the judgment that we review to determine whether the trial court abused its vast amount of discretion in reaching its conclusions or committed manifest error in making its express or implicit findings. See e.g. , La.C.C. art. 131 and 134 and Chauvin v. Chauvin , 2010-1055, pp. 3-4 (La. App. 1st Cir. 10/29/10), 49 So.3d 565, 569.
CHILD SUPPORT OBLIGATION
The combined gross monthly income of the parties is approximately $9,700. Mr. Brister's proportionate share is 57% and Mrs. Brister's is 43%. Thus, the trial court determined that Mr. Brister's basic child support obligation is $1,008. See La.R.S. 9:315.2D and 315.19. In his assertions levied against the child support award, Mr. Brister does not challenge this amount. Rather, Mr. Brister first suggests that the trial court erred in failing to give him a credit for the time he had spent in a shared custody arrangement. But as noted above, the equal sharing agreement was only in place for a short duration. He also complains that the trial court failed to make a downward adjustment to the basic child support obligation calculated under an application of the guidelines for the time he will have the children under the visitation schedule set forth in the judgment under review.
Mr. Brister bore the burden of proving entitlement to a credit for the amount of time he has spent or will spend with the children. See La.R.S. 9:315.8E(4); see also D'Aquilla v. D'Aquilla, 2003-2212, pp. 6-7 (La. App. 1st Cir. 4/2/04), 879 So.2d 145, 149-50, writ denied , 2004-1083 (La. 6/25/04), 876 So.2d 838. Specifically, Mr. Brister failed to show an increased financial burden on his part and a concomitant decrease in the expenses of Ms. Brister in connection with the exercise of the visitation. See La.R.S. 9:315.8E(3)(b); see also D'Aquilla, 2003-2212 at p. 7, 879 So.2d at 149-50. Accordingly, we find no abuse of discretion.
Mr. Brister next maintains that the trial court erred in setting child care costs. Specifically, he challenges the award for the daycare expenses to the children's maternal grandmother, Mrs. Cranford.
Mr. Brister also urges that the basic child support obligation already calculates the cost of diapers such that the trial court erred in stating that Mrs. Brister was entitled to an additional amount for the Jefferson Baptist Mommy's Day Out daycare program. We agree with Mr. Brister that net child care costs cannot include the replicated expense of diapers. Thus, on review, we will not include the monthly expense of $20 that Mrs. Brister testified she pays to the Jefferson Baptist daycare.
La.R.S. 9:315.3 provides, "Net child care costs shall be added to the basic child support obligation." "Net child care costs" are defined in La.R.S. 9:315C(7) as "the reasonable costs of child care incurred by a party due to employment or job search, minus the value of the federal income tax credit for child care." The determination of the amount of child support to be awarded is within the sound discretion of the trial court and will not be disturbed absent manifest error. McKenzie v. Thomas , 95-2226, p. 6 (La. App. 1st Cir. 6/28/96), 678 So.2d 42, 46-47, writ denied , 96-1855 (La. 10/25/96), 681 So.2d 372.
Mrs. Brister said, and her mother's testimony was in conformity, that she paid Mrs. Cranford $100 per week to care for the two boys while she and Mr. Brister were married. Because Mrs. Brister works in the Livingston Parish School system, her child care costs coincide with the school year, which she testified was approximately ten months per year. Therefore, her daycare costs to Mrs. Cranford amount to $4,000 per year ($100 x 4 weeks x 10 months). Additionally, Mrs. Brister testified that she paid $130 per month for tuition for the younger child's daycare expenses at Jefferson Baptist's Mommy Day Out program, and an additional $30 per month for supplies. Adding the costs of $4,000 for daycare provided by Mrs. Cranford; $1,300 for Jefferson Baptist daycare (i.e., $130 x 10 months); and $300 for supplies (i.e., $30 x 10 months), see La.R.S. 9:315.6, Mrs. Brister has proven an annual net child care cost of $5,600. It is undisputed that Mrs. Brister's federal tax credit is 20%. Applying that credit to the total child care costs results in a reduction of $1,120 to the annual net child care cost, leaving a total annual net child care cost of $4,480, or $373.33 per month. Applying 57%, the amount of Mr. Brister's proportionate share, to the net child care expenses, see La.R.S. 9:315.8, results in a monthly obligation of $212.80. Thus, added to the basic child support obligation of $1,008 is $212.80, representing Mr. Brister's proportionate share of net child care costs after deducting the federal tax credit Mrs. Brister receives. Therefore, the record supports a reasonable factual basis for a child support award of $1,220.80. As such, the trial court did not abuse its discretion by ordering Mr. Brister to pay child support in the lesser amount of $1,197.58, which Mrs. Brister has not challenged.
Dividing the amount of $4,480 by 12 months yields $373.33.
In his final assertion against the child support determination, Mr. Brister contends that the trial court erred in failing to give him credit for the child support payments he made before the October 7, 2009 hearing. He claims that he is entitled to credit of $12,965.
The trial court's judgment clearly recognizes that Mr. Brister is entitled to a credit for the payments he made, specifically stating that the child support amount is "subject to a credit for any sums paid as child support in the intervening time." We agree that the language employed by the trial court is less than precise, definite, and certain. See La.C.C.P. art. 1918, Official Revision Comment (a); see also Vanderbrook v. Coachmen Industries, Inc., 2001-0809, pp. 11-12 (La. App. 1st Cir. 5/10/02), 818 So.2d 906, 913 (the specific nature and amount of damages should be determinable from a judgment without reference to extrinsic sources). Mrs. Brister does not dispute that Mr. Brister is entitled to a credit, or that the amount of that credit is $12,965. Accordingly, we will modify the judgment to expressly so order. We also note an error in that portion of the judgment that makes the child support award to Mrs. Brister in the amount of $1,197.58 retroactive to the date of filing of the petition for divorce. Although the judgment states the petition was filed on May 1, 2009, the record shows that Mr. Brister filed his petition for divorce on May 19, 2008. Thus, we will amend the judgment to conform to the correct date. See La.C.C.P. art. 2164.
Our review of the documentary evidence does not yield a credit of $12,965. The checks submitted into the record and testified to by Mr. Brister total $7,460. But in his testimony Mr. Brister testified to an additional six checks, which totaled $2,670. Two checks — one payable to an elementary school with the memo indicating "Brady Brister's lunch money" in the amount of $205.50 and the other payable to Mrs. Cranford in the amount of $30.00 — were not identified by Mr. Brister. Further complicating matters was Mr. Brister's testimony that from April 2009 until the date of the hearing, he paid the first and second mortgages on the property in lieu of a separate amount for child support, which ostensibly totaled $8,932. Mrs. Brister did not dispute that Mr. Brister had made some of the first and second mortgage payments. Since the totality of the evidence appears to support Mr. Brister's entitlement to an amount in excess of $12,965, and because Mrs. Brister did not challenge that amount as the proper credit to which Mr. Brister was entitled, mindful that Mrs. Brister drafted the language of the judgment the trial court signed, it is, therefore, undisputed for purposes of this appeal that Mr. Brister is entitled to receive a credit of $12,965 for child support payments he made between June 2008 and October 7, 2009.
SPOUSAL SUPPORT OBLIGATION
Mr. Brister complains that the trial court's award of interim spousal support in the amount of $700 per month was in error because the record shows Mrs. Brister had adequate income for her own support. He specifically urges that when the court-ordered child support obligation is combined with interim spousal support, it results in an award that exceeds Mrs. Brister's monthly expenses.
Interim spousal support is designed to assist the claimant spouse in sustaining the same style or standard of living that she enjoyed while residing with the other spouse, pending the litigation of the divorce. Loftice v. Loftice, 2007-1741, p. 4 (La. App. 1st Cir. 3/26/08), 985 So.2d 204, 207; see also La.C.C. arts. 111 and 113.
Mrs. Brister testified to her monthly expenses after the parties separated, indicating that she has $1,270.51 more in expenses than her monthly income. The record also supports a finding that while the parties were married, they were able to maintain their monthly expenses including weekly payments of $100 for the children's daycare expense. But since the parties have separated, Mrs. Brister testified, she has had to consolidate her debts and is unable to consistently pay either her mother or the two mortgages on the house. Clearly, a reasonable factual basis exists to support the trial court's implicit finding that Mrs. Brister established a need.
Based on a review of Mr. Brister's affidavit of income and expenses, we find a reasonable factual basis exists to support the trial court's implicit finding that Mr. Brister has the ability to pay the interim support award. Mr. Brister's net income after paying his child support, rent, truck note, truck insurance, and fixed debt leaves him $1,418.42. Subtracting the $700 interim spousal support award leaves Mr. Brister with $718.42 for his remaining monthly expenses. While we may sympathize with the financial strain that has obviously been placed on Mr. Brister by the trial court's award of interim spousal support, the record does support the trial court's conclusions that Mr. Brister has the means or ability to pay interim spousal support to Mrs. Brister in the amount of $700. The trial court was free to disregard Mr. Brister's claim to a monthly expense of $85 for cable television; and to reduce the monthly amounts he claimed for food, household supplies, clothing, gas, ordinary medical expenses, utilities, laundry, personal/grooming, and entertainment. Mindful that interim spousal support is temporary and is intended to award Mrs. Brister an amount that allows her to maintain the standard of living enjoyed by the spouses during their marriage, we cannot say the trial court abused its discretion. See Lambert v. Lambert, 2006-2399, pp. 9-14 (La. App. 1st Cir. 3/23/07), 960 So.2d 921, 928-30.
Although the parties have not complained, we note several discrepancies with the judgment signed by the trial court. First, the judgment incorrectly states that the award of interim spousal support is "for the care and maintenance of the minor children." Secondly, it states that the $700 payment is payable in two monthly installments of $300 due on the 1st and 15th of each month. The court notes that $300 + $300 is not $700. Accordingly, we will modify these portions of the judgment. See La.C.C.P. art. 2164.
While the signed judgment decrees income tax exemptions in favor of "Laura Maynor" and "John Maynor," who are not parties to this suit, at oral arguments counsel for Mrs. Brister, who drafted the language of the judgment, conceded that it was a typographical error. Neither party has appealed this portion of the judgment.
DECREE
For these reasons, that portion of the judgment which makes payment of Mr. Brister's child support obligation of $1,197.58 (payable in two equal installments of $598.79 on the 1st and 15th of each month) retroactive is amended to state that it is "retroactive to the date of filing of the petition of divorce, May 19, 2008." That portion of the judgment which states Mr. Brister's child support obligation is "subject to credit for any sums paid as child support in the intervening time" is amended to state, "subject to a credit of $12,965, the sum he has already paid in child support." That portion of the judgment which awards interim spousal support in favor of Mrs. Brister is amended to delete the phrase, "for the care and maintenance of the minor children." And that portion of the judgment which awards interim spousal support in the amount of $700 per month is amended to state, "payable in two equal installments of $350 due on the 1st and 15th day of each month, retroactive to the date of filing, July 1, 2008." In all other respects, the trial court's judgment is affirmed. Appeal cost are assessed against plaintiff-appellant, John Wesley Brister.
We note that all orders of spousal support are retroactive to the date of filing. See La.R.S. 9:310A. And Mrs. Brister's interim spousal support terminated as a matter of law on October 7, 2009, when the parties were divorced. See La.C.C. art. 113. As such, the amount owed to Mrs. Brister by Mr. Brister is an accrued amount. Nothing in the transcript of the hearing purports that the installment schedule set forth in the judgment was intended to be a schedule of payment of arrearages. But because the parties have not complained, we do not address the propriety of the trial court's imposition of an installment schedule on an accrued debt.
Mr. Brister maintains that it was error for the trial court to grant Mrs. Brister exclusive use of the former matrimonial domicile without also awarding him the fair rental value of the family home. It is clear from the record that the rule to partition the community was expressly deferred by the trial court. On the showing made, we find no error in the trial court's implicit determination that Mr. Brister failed his burden of proving the fair rental value of the immovable property. See Hoover v. Hoover, 2010-1245, p. 3 (La. App. 1st Cir. 3/17/11), ___ So.3d ___, 2011 WL 940490. Nothing prevents Mr. Brister from raising this issue again at the trial on the partition of the parties' community. See La.R.S. 9:374 and 2801.
AMENDED AND, AS AMENDED, AFFIRMED.
HIGGINBOTHAM, J., dissenting in part and concurring in part.
I respectfully disagree with the portions of the trial court judgment that address custody and the retroactivity of child support. Louisiana Revised Statute 9:315.9 provides that Worksheet B shall be used when each parent has physical custody of the children for an approximately equal amount of time. The trial court stated that the parties shared custody in a two-two-three custody schedule for a portion of the time between the date Ms. Brister filed her request for child support and the trial on child support. Thus, the trial court was legally incorrect in making the child support retroactive to the date of filing without using Worksheet B for the portion of time the parties shared physical custody of the children for an approximately equal period of time. Although I find the trial court committed legal error on the retroactivity issue, I concur with the majority's amendments to the trial court judgment addressing the amount of credit due Mr. Brister, correcting the payment schedule for spousal support, and including the date for retroactive support.
For these reasons, I respectfully dissent in part and concur in part.