Opinion
No. 2011 CU 0131.
May 6, 2011.
ON APPEAL FROM THE 22ND JUDICIAL DISTRICT COURT IN AND FOR THE PARISH OF ST. TAMMANY TRIAL COURT NUMBER 2008-13904, DIVISION "L" THE HONORABLE DAWN AMACKER, JUDGE PRESIDING.
Brian A. Dragon, Slidell, LA, Counsel for Plaintiff/Appellee Kelli F. Hartmann.
Mark A. Hartmann, Slidell, LA, Defendant/Appellant Pro Se.
BEFORE: PARRO, GUIDRY, AND HUGHES, JJ.
NOT DESIGNATED FOR PUBLICATION
This is an appeal from a trial court judgment refusing to reduce a child support award, finding that no material change in circumstances had been shown. For the reasons that follow, we affirm.
FACTS AND PROCEDURAL HISTORY
Kelli F. Hartmann and Mark A. Hartmann were married in 1985 and subsequently had four children. In July of 2008, divorce proceedings were instituted, and in November of 2008, the parties entered into a consent judgment regarding child custody and child support. In the consent judgment, the parties agreed to joint custody of the children, with Ms. Hartmann being designated as the domiciliary parent. Mr. Hartmann was given physical custody of the children every Monday evening until 8:00 p.m. on Tuesday and every other week from 4:30 p.m. on Friday until 6:30 p.m. on Sunday. It was further stated in the consent judgment that "[w]hen Mark Hartmann secures his own residence, the parties will consider overnight visitation on Tuesday." The consent judgment provided for equal physical custody during the summer and other holidays, and also decreed that Mr. Hartmann would: pay to Ms. Hartmann $1,015.00 per month in child support; pay 52% of the private school tuition remaining after application of a $198.00 deduction from Ms. Hartmann's payroll check (she works as a teacher at the school); maintain health care insurance for the children; and pay 52% of other medical expenses. A second consent judgment was entered into by the parties in November 2009, which added Tuesday nights to Mr. Hartmann's allocated physical custody of the children; his child support obligation was not changed.
In December of 2009, Mr. Hartmann filed a rule seeking to add every other Sunday night to his physical custody of the children, and asking the court to reduce his child support obligation, as he contended that he had approximately equal physical custody of the children. Mr. Hartmann further asserted in the rule that: Ms. Hartmann was underemployed; her salary was understated in the child support calculation worksheet; and he was entitled to an equal share of the tax exemption for the children. These matters were first reviewed by a hearing officer for the trial court on April 13, 2010. The hearing officer determined that the parties' children were with Mr. Hartmann 40% of the time and with Ms. Hartmann 60% of the time. The hearing officer construed this 40% — 60% split of physical custody as being nearly equal. Applying "Obligation Worksheet B" of LSA-R.S. 9:315.20, as directed by LSA-R.S. 9:315.9 for "shared custody" (defined as "a joint custody order in which each parent has physical custody of the child for an approximately equal amount of time"), the hearing officer recommended a child support reduction in favor of Mr. Hartmann and issued temporary orders to that effect.
Thereafter, on June 24, 2010, a hearing was held before the trial court judge, who set aside the hearing officer's recommendation and temporary orders, and denied the relief requested by Mr. Hartmann in his rule, giving the following oral reasons:
[I]t was Mr. Hartmann's burden to prove there's been a material change in circumstances, both in requesting a modification of child support and in requesting a modification of custody.
I don't find that there is a material change in circumstances. I don't even get to best interest on the part of custody.
. . . I do find that [Mr. Hartmann] has failed to meet his burden of proving a material change in circumstances from the date that the original judgment in this matter on child support was entered into the record by consent, and that was October 20th of 2008.
The only circumstance that he asked me really to look at in that regard is the fact that he now has a house. I don't find that . . . and I certainly haven't been given any case law to suggest that that is, in and of itself, enough reason, sir, to find that there is a material change in circumstance sufficient for me to then come in and do anything different with your custody arrangement with your children.
Now, I know that voluntarily there was a later consent judgment. You both came in and you had a consent judgment that also dealt with, in your original language, custody and child support, and then you come in and you modify it and you get four more days, November 2nd of 2009. Even four more days, whether you argue that or not, I don't find that that provokes me to find that there is a material change in circumstances that I would change either the custody or the support figures.
I am given great discretion in deciding how I calculate the time according to the [R]evised [S]tatutes. I personally don't think, and it hasn't been proven to me, that the mother's expenses are any less because you have the children Sunday during the day. She still has them at night, and I still think that makes a big difference.
You didn't prove to me that she has any less expenses or that yours have increased as a result of the four additional nights per month.
As [counsel for Ms. Hartmann] argued, you have only 12 nights. Maybe on those months that you have four additional [days], slightly more than that, but 12 nights a month don't add up to . . . 50 percent. I don't even have to look at the percentages to come to the conclusion that you haven't proven a material change of circumstances in connection with this case. And, therefore, as I mentioned earlier, this matter is dismissed.
Mr. Hartmann has appealed the trial court's judgment, asserting the trial court erred in failing to consider the custody situation as "approximately equal" and therefore "shared custody."
LAW AND ANALYSIS
Motion to Strike
At the outset, we address a motion filed by Ms. Hartmann, following the filing of original and reply appellate briefs in this case, and entitled "Motion to Disregard Appellant's Reply Brief Due to Issues Raised by Appellant that are not in Rebuttal to Appellee's Original Brief; Issues Raised by Appellant that were not Presented to this Honorable Court in Appellant's Original Brief; Issues Raised by Appellant that were not Presented to the Trial Court; And Appellant's Failure to Timely Notify Appellee of His Request for Leave to File a Reply Brief." After reviewing this motion and the reply brief filed by Mr. Hartmann, we grant Ms. Hartmann's motion, in part, to strike those portions of Mr. Hartmann's reply brief that either exceed the scope of the purpose of a reply brief, raise new legal arguments, and/or reference evidence not present in the record on appeal. In all other respects, Ms. Hartmann's motion is denied.
As stated in Uniform Rules — Courts of Appeal, Rule 2-12.6, an appellant may file a reply brief if he has timely filed an original brief, but "it shall be strictly confined to rebuttal of points urged in the appellee's brief." To the extent a reply brief goes beyond the rebuttal authorized in Rule 2-12.6 and attempts to raise new legal arguments or reference information not introduced as evidence in the trial court, such issues are not properly before an appellate court and should be stricken. See McGregor v. Hospice Care of Louisiana in Baton Rouge L.L.C., 2009-1355, p. 9 n. 2 (La. App. 1 Cir. 2/12/10), 36 So.3d 281, 287, writ denied, 2010-0832 (La. 5/28/10), 36 So.3d 258; Louisiana Patient's Compensation Fund Oversight Board v. Edwards, 39, 149, p. 3 (La. App. 2 Cir. 12/15/04), 891 So.2d 85, 88.
Child Support Award
Louisiana law provides that a child support award may not be modified "unless the party seeking the modification shows a material change in circumstances of one of the parties between the time of the previous award and the time of the rule for modification of the award." See LSA-R.S. 9:311(A)(1). See also LSA-C.C. art. 142. This rule is applicable to spousal support obligations established by a stipulated or consent judgment. See Bonnecarrere v. Bonnecarrere, 2009-1647, p. 6 (La. App. 1 Cir. 4/14/10), 37 So.3d 1038, 1044, writ denied, 2010-1639 (La. 8/11/10), 42 So.3d 381; Hebert v. Hebert, 2006-1315, p. 3 (La. App. 3 Cir. 2/7/07), 948 So.2d 1239, 1241. The burden of proof is on the party seeking modification. Harang v. Ponder, 2009-2182, p. 20 (La. App. 1 Cir. 3/26/10), 36 So.3d 954, 967, writ denied, 2010-0926 (La. 5/19/10), 36 So.3d 219. In addition, the trial court's determination of these issues is, in general, based heavily on factual findings and as such, an appellate court may not set aside the trial court's findings of fact in the absence of manifest error or unless those findings are clearly wrong. Bonnecarrere v. Bonnecarrere, 2009-1647 at pp. 6-7, 37 So.3d at 1044.
In this case, the trial judge found that the changes in circumstances cited by Mr. Hartmann as reasons for reducing his child support obligation, i.e., his purchase of a house and the addition of an extra night of physical custody each week, were not sufficient to constitute "a material change in circumstances." The evidence presented to the trial court reveals that the incomes of the parties had not changed from the time the child support award was first made. Additionally, and as stated by the trial judge, Mr. Hartmann failed to introduce any evidence at the trial of the matter to show that his expenses had increased or that Ms. Hartmann's expenses had decreased.
Furthermore, the applicability of LSA-R.S. 9:315.9 and "Obligation Worksheet B" of LSA-R.S. 9:315.20 is dependent upon an award of "shared custody," in which "each parent has physical custody of the child for an approximately equal amount of time." We cannot say the trial court erred in concluding that the 40% — 60% split of physical custody, under the specific facts and circumstances of this case, was not "approximately equal."
We particularly note the fact that during his summer custody time, Mr. Hartmann frequently needed either Ms. Hartmann or her mother to babysit the children due to his work schedule.
We also note that no bright-line rule has been established in the jurisprudence as to what split of percentages will be considered "an approximately equal amount of time" for purposes of LSA-R.S. 9:315.9. See Broussard v. Rogers, 2010-593, p. 6 (La. App. 5 Cir. 1/11/11), 54 So.3d 826, 830 (42.85% — 57.15% split was found approximately equal); Martello v. Martello, 2006-0594, p. 11 (La. App. 1 Cir. 3/23/07), 960 So.2d 186, 196 (42.85% — 57.15% split was not found approximately equal); Janney v. Janney, 2005-0507, pp. 5-6 (La. App. 1 Cir. 7/26/06), 943 So.2d 396, 399-400, writ denied, 2006-2144 (La. 11/17/06), 942 So.2d 536 (45.3% — 54.7% split was found approximately equal); DeSoto v. DeSoto, 2004-1248, p. 7 (La. App. 3 Cir. 2/2/05), 893 So.2d 175, 180 (45.5% — 54.5% split was found approximately equal); Lea v. Sanders, 2004-762, pp. 10-11 (La. App. 3 Cir. 12/22/04), 890 So.2d 764, 770, writ denied, 2005-0183 (La. 3/24/05), 896 So.2d 1046 (43% — 57% split was not found approximately equal). See also Aguillard v. Aguillard, 2008-1131 (La. App. 1 Cir. 12/23/08), 9 So.3d 183; Westcott v. Westcott, 2004-2298 (La. App. 1 Cir. 11/4/05), 927 So.2d 377.
Generally, an award of child support is entitled to great weight and will not be disturbed on appeal absent an abuse of discretion. Harang v. Ponder, 2009-2182 at p. 18, 36 So.3d at 966 (citing Campbell v. Campbell, 95-1711 (La. App. 1 Cir. 10/10/96), 682 So.2d 312, 316). What constitutes a change in circumstances is determined on a case-by-case basis and falls within the great discretion of the trial court. Harang v. Ponder, 2009-2182 at p. 20, 36 So.3d at 967. Based on the evidence presented, we find no abuse of discretion in the trial court's judgment in this case.
CONCLUSION
For the reasons assigned herein, the motion to strike the appellant's reply brief is granted in part and denied in part, as stated hereinabove, and the June 24, 2010 judgment of the trial court is affirmed. All costs of this appeal are to be borne by Mark A. Hartmann.