Opinion
NO. 2017-CA-0174 C/W: NO. 2017-CA-0175
11-09-2017
WENDY WEATHERALL KERRIGAN v. TYLER M. KERRIGAN CONSOLIDATED WITH: TYLER M. KERRIGAN v. WENDY WEATHERALL KERRIGAN
Brigid E. Collins BRIGID COLLINS, LLC 4046 Banks Street New Orleans, LA 70119 COUNSEL FOR PLAINTIFF/APPELLANT Theon Agnes Wilson LAW OFFICES OF THEON A. WILSON 1100 Poydras Street Suite 2900 New Orleans, LA 70163--2900 COUNSEL FOR DEFENDANT/APPELLEE
NOT DESIGNATED FOR PUBLICATION APPEAL FROM CIVIL DISTRICT COURT, ORLEANS PARISH
NO. 2009-07173 C\W 2015-05011, DIVISION "D"
Honorable Nakisha Ervin-Knott, JUDGE Judge Paula A. Brown (Court composed of Judge Roland L. Belsome, Judge Daniel L. Dysart, Judge Paula A. Brown) Brigid E. Collins
BRIGID COLLINS, LLC
4046 Banks Street
New Orleans, LA 70119
COUNSEL FOR PLAINTIFF/APPELLANT Theon Agnes Wilson
LAW OFFICES OF THEON A. WILSON
1100 Poydras Street
Suite 2900
New Orleans, LA 70163--2900
COUNSEL FOR DEFENDANT/APPELLEE
AFFIRMED
This matter arises out of a dispute over child support. Appellant, Tyler M. Kerrigan ("Mr. Kerrigan"), appeals the trial court's judgment, which found that Mr. Kerrigan had entered into an enforceable extrajudicial agreement with Appellee, Wendy Kerrigan ("Ms. Kerrigan"), to increase his child support payments to $5,000.00 per month. For the following reasons, we affirm.
FACTUAL AND PROCEDURAL BACKGROUND
Ms. Kerrigan filed a Petition for Divorce Pursuant to Louisiana Civil Code Article 102 from Mr. Kerrigan on July 10, 2009. On November 3, 2009, the parties entered into a consent judgment. The consent judgment included agreements on interim spousal support, child custody and child support. As to child support, the judgment required Mr. Kerrigan to pay $3,600.00 per month for the couple's minor sons, T.K. and R.K., effective July 15, 2009. Specifically, the consent judgment provided in pertinent part:
Mr. Kerrigan subsequently filed an action for divorce under La. C.C. art. 103 on May 27, 2015, which resulted in a judgment of divorce rendered on June 26, 2015.
This Court chooses to use the initials of minors to afford some degree of confidentiality on their behalf.
3. Tyler M. Kerrigan shall pay to Wendy W. Kerrigan base monthly support in the amount of Three Thousand Six Hundred ($3,600.00) Dollars per month commencing July 15, 2009. Payments shall be made one-half on the first day and one-half on the fifteenth day of each month. Tyler M. Kerrigan shall be given credits for direct or in-kind payments to which he is entitled by law. The child support amount is based on a gross annual earned income for Tyler M. Kerrigan of Three Hundred Thirty Thousand ($330,000.00) Dollars and based upon a gross annual earned income for Wendy W. Kerrigan of Thirty Thousand (30,000.00) Dollars and, based upon this estimate of income for the year 2009 and utilizing Child Support Calculation A pursuant to Louisiana Child Support Guidelines. Tyler M. Kerrigan shall provide to Wendy W. Kerrigan a copy of his Federal Income Tax returns within two weeks of the date upon which said returns are filed. In the event there is a 'substantial' increase in his gross income (herein defined to be in excess of 20% over the amount of which the child support is being calculated), Wendy Kerrigan shall have the right to seek an increase in child support without penalty at any time during the two year period referred to below. When child support is revisited at the end of the two-year period, the monthly child support payments will not be less than Four Thousand ($4,000.00) Dollars per month, provided Tyler M. Kerrigan's gross income is not substantially less (herein defined as 20%) in an amount according to what the child support is being calculated as set forth above.
On January 25, 2016, Ms. Kerrigan filed a Rule for Contempt, Attorney Fees and Court Costs ("Rule") against Mr. Kerrigan. In the Rule, Ms. Kerrigan alleged that the parties had revisited child support payments in August 2011, and had reached an extrajudicial agreement which required Mr. Kerrigan to pay $5,000.00 per month. Ms. Kerrigan averred that, as of the time of filing the Rule, Mr. Kerrigan owed $54,242.00 in child support payments; and, he owed child support reimbursement expenses in the amount of $3,906.00.
The district court conducted a hearing on Ms. Kerrigan's Rule on June 22, 2016. Ms. Kerrigan testified that after the two-year period, as outlined in the consent judgment, she and Mr. Kerrigan revisited the amount of child support he would pay. Ms. Kerrigan stated that the idea of more money was devised by Mr. Kerrigan—he offered to pay $5,000 per month if she agreed to take the children more, in lieu of his custody-visitation schedule. Ms. Kerrigan offered into evidence a spread sheet which showed Mr. Kerrigan's payment history from August 2011 through March 2016. In August 2011 and September 2011, she said Mr. Kerrigan made child support payments of approximately $5,000.00. For the remainder of 2011, Ms. Kerrigan stated that Mr. Kerrigan made child support payments of $4,500.00 per month. For the years 2012 to 2016, Mr. Kerrigan's record of payments included the following:
| 2012 | 2013 | 2014 | 2015 | 2016 | |
| January | $4,500.00 | $7,000.00 | $3,600.00 | ||
| February | $5,000.00 | $6,000.00 | |||
| March | $4,500.00 | $4,500.00 | $4,000.00 | $3,600.00 | |
| April | $4,500.00 | $4,500.00 | |||
| May | $4,500.00 | $5,000.00 | $5,000.00 | $6,000.00 | |
| June | $4,500.00 | $3,000.00 | |||
| July | $14,000.00 | $7,000.00 | |||
| August | $9,000.00 | $7,270.00 | $4,0000.00 | ||
| September | $4,500.00 | $4,368.00 | $6,000.00 | $8,000.00 | |
| October | $4,000.00 | $4,400.00 | $7,035.00 | $10,000.00 | |
| November | $4,500.00 | $3,600.00 | |||
| December | $3,900.00 | $4,000.00 | $5,485.00 | $3,600.00 |
Ms. Kerrigan explained that after the initial $5,000.00 payments in August and September 2011, thereafter, Mr. Kerrigan paid whatever he wanted. According to Ms. Kerrigan, contrary to their verbal agreement, Mr. Kerrigan unilaterally reduced the $5,000.00 monthly child support payments without her consent. Ms. Kerrigan testified that Mr. Kerrigan routinely requested sexual favors in exchange for child support payments. She said the talk of sex was "quite frequent" and "[Mr. Kerrigan] said that he decided that the $5,000 a month meant that [she] had to have sex with him twice a month." Ms. Kerrigan introduced into evidence a text message exchange between her and Mr. Kerrigan. Ms. Kerrigan stated that when she texted him, "[d]on't forget the check," he responded, [d]on't forget the [vagina]."
Ms. Kerrigan testified that as time passed, she was concerned that Mr. Kerrigan might claim that they did not have an agreement. Consequently, she had him sign a typed-written document wherein he verified that payments he made from August 2009 to November 2011 were child support, reimbursement, or tax refund payments, not advancements from the community. Ms. Kerrigan also introduced into evidence the Kerrigans' 2014 joint tax return, which showed Mr. Kerrigan's adjusted gross income was $323,394.00. Additionally, Ms. Kerrigan told Mr. Kerrigan in a March 11, 2014, text message that he owed her $5,000.00 for January and February and $4,000.00 for March 2014. Ms. Kerrigan explained that at the time she issued those demands, and after Mr. Kerrigan told her "that's the way it's going be," she succumbed to his unilateral decision to reduce the child support payments to $4,000.00 per month.
In addition to past due child support payments, Ms. Kerrigan testified that Mr. Kerrigan owed reimbursement expenses for their children's extracurricular activities; he agreed to pay these expenses in the initial consent judgment and the extrajudicial agreement, but he had failed to do so. Ms. Kerrigan highlighted that Mr. Kerrigan ceased making payments on any of the sailing camp and clinic expenses incurred by their son, T.K. Ms. Kerrigan testified the reimbursement expenses tallied $37,706.00.
Ms. Kerrigan testified that T.K. was on several sailing teams, including the Southern Yacht Club. She said T.K. made the U.S. National Team and was on an "Olympic" track for sailors.
Ms. Kerrigan calculated the total amount of past due child support owed through the date of trial to be $69,476.00; accordingly, she requested that $107,182.00 be made executory. --------
Mr. Kerrigan denied he entered into an extrajudicial child support agreement to pay $5,000.00 per month. He accused Ms. Kerrigan of filing her Rule for past due child support in retaliation for the Motion for Contempt and Enforcement of Judgment he filed to compel her compliance with the child custody provisions of the consent judgment. Mr. Kerrigan testified that he sometimes voluntarily paid more than the $3,600.00 agreed upon in the consent judgment because their children required extra money to take care of their expenses. He stressed that he paid for his children's extracurricular activities, although he acknowledged he did not pay for T.K.'s sailing expenses. Mr. Kerrigan stated that he objected to the sailing expenditures because he did not have access to the Southern Yacht Club to participate in his son's sailing activities. He denied that he asked Ms. Kerrigan for sexual favors in exchange for child support payments. He further testified that it was Ms. Kerrigan who "continuously tried to reengage [their] relationship."
On cross-examination, Mr. Kerrigan's credibility was challenged. Mr. Kerrigan admitted that the child support obligation he agreed to in the consent judgment did not consider a $750,000.00 bonus he received at the end of 2009, but rather, it was calculated using a gross income of $330,000.00. He also acknowledged that two former employers "asked [him] to leave" their companies. Testifying in the affirmative, Mr. Kerrigan confirmed that he was terminated by one employer for lying to the employer about signing a client's signature on a document without his client's consent. As to his decision not to pay T.K.'s sailing expenses, Mr. Kerrigan testified that as a non-member of the yacht club, he was not aware that he could access the club to participate in T.K.'s sailing activities. As to the text message with the sexual overtones, Mr. Kerrigan could not recall sending the text, nor did he remember making the statements. He did, however, verify his signature on Ms. Kerrigan's exhibit W-3, which documented support, reimbursement or tax refund payments from August 2009 to November 2011. Mr. Kerrigan also did not dispute Ms. Kerrigan's record of other child support payments and expenses.
The district court issued a Judgment and Reasons for Judgment on June 28, 2016. The judgment specifically decreed that Mr. Kerrigan and Ms. Kerrigan entered into an enforceable and valid extrajudicial agreement in August 2011, wherein Mr. Kerrigan agreed to pay Ms. Kerrigan $5,000.00 per month for child support. The district court found that Mr. Kerrigan owed Ms. Kerrigan monthly unpaid child support in the amount of $69,476.00, covering the period of August 2011 through June 2016, and unpaid extracurricular activity expenses in the amount of $37,706.00.
Mr. Kerrigan filed a Motion for New Trial on July 7, 2016. The motion was denied on October 26, 2016. This appeal followed.
STANDARD OF REVIEW
Appellate courts review child support determinations using the manifest error standard of review and will not disturb the trial court's support order unless it committed manifest error or an abuse of discretion in its determination. See State, Dept. of Social Services ex rel. D.F. v. L.T., Jr., 2005-1965, p. 6 (La. 7/6/06), 934 So.2d 687, 690. The manifest error standard also applies to a trial court's factual determinations regarding whether an extrajudicial modification of a child support consent judgment has occurred. Bergeron v. Bergeron, 2011-130, p. 4 (La. App. 3 Cir. 10/5/11), 75 So.3d 537, 541. A trial court's order of support is entitled to great weight on appeal. Langley v. Langley, 2007-0754, p. 3 (La. App. 4 Cir. 3/26/08), 982 So.2d 881, 883. In order to reverse the findings of a trier of fact under the manifest error standard of review, the appellate court must find from the record that a reasonable factual basis does not exist for the trier of fact's findings and must determine that the record establishes the findings are clearly wrong. A.S. v. D.S., 2014-1098, pp. 8-9 (La. App. 4 Cir. 4/8/15), 165 So.3d 247, 253.
DISCUSSION
Mr. Kerrigan's sole assignment of error alleges the district court erred in determining that Ms. Kerrigan met her burden of proof in showing the parties entered into an extrajudicial child support agreement.
This Court discussed the enforceability of child support judgments and extrajudicial child support judgments in Burnette v. Burnette, 1998-0498 (La. App. 4 Cir. 10/21/98), 720 So.2d 757, 760-761 as follows:
A child support judgment generally remains in full force until the party ordered to pay it has the judgment modified, reduced or terminated by a court. Halcomb v. Halcomb, 761 352 So.2d 1013, 1015-17 (La.1977). However, the parties may modify or terminate child support payments by conventional agreement if it does not interrupt the children's maintenance or upbringing and is in their best interests. Dubroc v. Dubroc, 388 So.2d 377, 380 (La.1980); Johnson v. Johnson, 430 So.2d 223 (La.App. 4th Cir.1983). The party asserting an extrajudicial modification has the burden of proving a clear and specific agreement; mere acquiescence in accepting reduced payments does not waive the right to enforce the judgment. Dubroc, 388 So.2d at 380; Johnson, 430 So.2d at 224 (citations omitted). The trial court's resolution of this issue is a factual determination which cannot be disturbed on appeal absent manifest error. Roberts, 474 So.2d at 472.
In Burnette, the father contended that the district court erred in rejecting "uncontroverted" evidence that he and the mother had entered into an extrajudicial agreement to reduce his child support payments subsequent to a 1990 child support consent judgment. The father cited corroborating testimony from his second wife and the mother's acceptance of reduced payments. However, the evidence in the record showed the father's consistent pattern of falling behind in his child support payments since 1989 caused the district court to question whether there was a follow-up oral agreement to reduce child support payments. In applying the manifest error standard of review, the Burnette Court found that the district court's determination that the father failed to prove any extrajudicial modification of the child support agreement was amply supported by the evidence. Burnette, 1998-0498, 720 So. 2d. at 761.
In contrast to the Burnette district court, here, the district court noted in its reasons for judgment that evidence of the $5,000.00 child support payments in August and September of 2011 and $4,500.00 payments for the remainder of 2011 and the majority of 2012 corroborated the existence of an extrajudicial agreement. The district court also accredited Ms. Kerrigan's testimony that after Mr. Kerrigan paid $5,000.00 for a few months, he unilaterally reduced the child support payments without her consent. In contrast, the trial court questioned Mr. Kerrigan's credibility. The district court found Mr. Kerrigan's "wavering" testimony regarding the text message—which suggested he requested sexual acts as a condition for child support—damaged his credibility. The district court emphasized that the apparent request for sexual favors "demonstrated Mr. Kerrigan held child support payments over Ms. Kerrigan's head. He maintained control over the payments, and unilaterally chose to reduce payments whenever he desired."
It is well settled jurisprudence that "[w]hen findings are based on determinations regarding the credibility of witnesses, the manifest error-clearly wrong standard demands great deference to the trier of fact's findings; for only the fact finder can be aware of the variations in demeanor and tone of voice that bear so heavily on the listener's understanding and belief in what is said." Rosell v. ESCO, 549 So.2d 840, 844 (La. 1989). Where a fact finder reaches its finding premised on its decision to credit the testimony of one of two or more witnesses, that finding can virtually never be manifestly erroneous or clearly wrong. Rosell, 549 So.2d at 845. This Court reviewed credibility determinations and the trial court's role as a factfinder in A.S. v. D.S., 2014-1098, p. 9, 165 So.3d at 253 as follows:
The issue for a reviewing court to resolve when faced with a finding of fact "is not whether the trier of fact was right or wrong, but whether the fact finder's conclusion was a reasonable one." Stobard v. State through Dept. of Transp. And Development, 617 So.2d 880, 882 (La. 1993). Thus, even when we may consider that our "own evaluations and inferences are more reasonable than the factfinder's, reasonable evaluations of credibility and reasonable inferences of fact should not be disturbed upon review where conflict exists in the testimony." Id. (citations omitted). This particular standard of
review is based, in part, on the trial court's ability to better evaluate the testimony of live witnesses, compared with an appellate court's sole reliance upon a written record.
Here, while Mr. Kerrigan assigns as error that Ms. Kerrigan did not prove the existence of an extrajudicial agreement, we note he simultaneously acknowledges in his appellate brief that the parties did modify the initial child support consent judgment—he simply disputes the amount. Mr. Kerrigan specifically represents that the "pattern of payments, reviewed together with the text messages between Mr. and Mrs. Kerrigan demonstrate a clear agreement of a $4,000.00 per month child support payment." When we consider Mr. Kerrigan's acknowledgment of an agreement and review the record, we cannot say the district court's finding that the parties entered into an extrajudicial agreement to increase Mr. Kerrigan's child support obligation to $5,000.00 per month is manifestly erroneous or clearly wrong. The record contains sufficient evidence to show the district court's conclusion was a reasonable one based upon Ms. Kerrigan's credible testimony and supportive evidence. This assignment of error lacks merit.
CONCLUSION
Based on the foregoing reasons, the judgment of the district court is affirmed.
AFFIRMED