Opinion
2018 CU 1549
02-28-2019
CHAD M. LOWE v. CAROLINE K. BACON
Lindsey S. Olsen Shandy Arguelles Slidell, LA Attorneys for Plaintiff/Appellant Chad M. Lowe Michael D. Conroy Covington, LA Attorney for Defendant/Appellee Caroline K. Bacon
NOT DESIGNATED FOR PUBLICATION On Appeal from the Twenty-Second Judicial District Court In and for the Parish of St. Tammany State of Louisiana
No. 2015-14165, Div. "L" The Honorable Dawn Amacker, Judge Presiding Lindsey S. Olsen
Shandy Arguelles
Slidell, LA Attorneys for Plaintiff/Appellant
Chad M. Lowe Michael D. Conroy
Covington, LA Attorney for Defendant/Appellee
Caroline K. Bacon BEFORE: McDONALD, CRAIN, AND HOLDRIDGE, JJ. HOLDRIDGE, J.
In this appeal, the father challenges a trial court judgment that imputed income to him to calculate his child support obligation. Based on a careful review of the record before us, we affirm.
FACTS AND PROCEDURAL HISTORY
Chad M. Lowe and Caroline K. Bacon were in a relationship beginning around 2010; although they were engaged for several years, they never married. Two children, both with initials C.M.L., were born of the relationship on October 24, 2011, and December 27, 2013, respectively. The parties and their children lived together in a home in Mandeville, Louisiana. When the parties' relationship ended, Caroline was awarded sole custody and Chad was granted supervised visitation. Chad appealed from that judgment, and this court affirmed that part of the judgment awarding sole custody to Caroline and remanded the matter for the trial court to establish a valid visitation order for Chad. See Lowe v. Bacon, 2018-0766 pp. 2-3 (La. App. 1 Cir. 11/6/18), 2018WL5817280 (unpublished).
Although we are not required to use initials to protect and maintain the privacy of the minor children involved in child custody cases pursuant to Uniform Rules, Courts of Appeal, Rule 5-1 and Rule 5-2, we choose to use the initials of the minor children in this opinion. See Jupiter v. Jupiter, 2014-0395 (La. App. 1 Cir. 9/24/2014), 154 So.3d 1241, 1241 n.1, writ denied, 2014-2301 (La. 1/23/15), 159 So.3d 1058; Rodock v. Pommier, 2016-809 (La. App. 3 Cir. 2/1/17), 225 So.3d 512, 515 n.1, writ denied, 2017-0631 (La. 5/1/2017), 221 So.3d 70.
The record in this case does not contain the earlier pleadings and judgments in this matter, but the parties appealed an earlier judgment, and the procedural history as to custody is set forth in the opinion in the earlier appeal. See Lowe v. Bacon, 2018-0766 (La. App. 1 Cir. 11/6/18), 2018WL5817280 (unpublished). It appears some of Chad's references to the record in his brief are to the record in the prior appeal before this court. However, that record is not lodged in this court at this time and cannot be used in this appeal. See Uniform Rules, Courts of Appeal, Rule 2-1.14.
The issue of child support remained. The trial court held a hearing on June 5, 2018, on child support and signed a judgment on August 2, 2018 wherein it ordered child support in different amounts over different time periods based on fluctuations in Caroline's income as a nurse. As to all the time periods, the trial court imputed a monthly income of $3,500.00 to Chad. For all but the two most recent time periods, the trial court reduced Chad's obligation by $393.00, which was the amount of a preexisting child support order for another child for which he was given credit. More specifically, the judgment ordered Chad to pay child support as follows: $730.02 monthly from November 9, 2016 through December 31, 2016, and from October 1, 2017 through May 31, 2018, based on Caroline's monthly income of $2,657.00; $598.63 monthly from January 1, 2017 through September 30, 2017, based on Caroline's monthly income of $5,297.00; $791.18 monthly from June 1, 2018 forward, based on Caroline's monthly income of $2,657.00; and $622.46 monthly when Caroline began full-time employment, based on her monthly income of $5,893.00.
According to the judgment, Caroline's attorney was to notify Chad when she became employed full-time. The judgment also provided for the payment of medical and child care expenses, tax exemptions, and income assignment.
Chad appeals the judgment, contending that the trial court erred in imputing gross income to him.
APPLICABLE LAW
Generally, an award of child support is entitled to great weight and will not be disturbed on appeal absent an abuse of discretion. Lambert v. Lambert, 2006-2399 (La. App. 1 Cir. 3/23/07), 960 So.2d 921, 924. Furthermore, a trial court's conclusions of fact regarding financial matters underlying an award of child support will not be disturbed in the absence of manifest error. Romanowski v. Romanowski, 2003-0124 (La. App. 1 Cir. 2/23/04), 873 So.2d 656, 662. The manifest error 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. Freeman v. Freeman, 2016-0580 (La. App. 1 Cir. 4/12/17), 218 So.3d 653, 659. When presented with two permissible views of the evidence, the trier of fact's choice between them cannot be manifestly erroneous. Id. at 559-60. The trial court has wide discretion in determining the credibility of witnesses, and its factual determinations will not be disturbed on appeal absent a showing of manifest error. Aguillard v. Aguillard, 2008-1131 (La. App. 1 Cir. 12/23/08), 9 So.3d 183, 187.
CHILD SUPPORT
In his only assignment of error, Chad contends that the trial court erred in imputing gross income of $3,500.00 to him, asserting that the court had no evidence to support its conclusions that he was voluntarily underemployed and that he received $1,230.00 in cash benefits monthly in addition to his regular salary.
The Louisiana child support guidelines set forth the method for implementation of the parental obligation to pay child support. See La. R.S. 9:315.1(A). To apply the guidelines, the court must initially determine the gross income of the parties. See La. R.S. 9:315.2(A). Income means the actual gross income of a party, if the party is employed to full capacity. La. R.S. 9:315(C)(5)(a). Income also means the potential income of a party, if the party is voluntarily unemployed or underemployed; in such a case, his gross income shall be determined as set forth in La. R.S. 9:315.11. See La. R.S. 9:315(C)(5)(b) and 9:315.2(B). If a party is voluntarily unemployed or underemployed, child support shall be calculated based on a determination of his or her income earning potential (rather than actual gross income), unless the party is physically or mentally incapacitated, or is caring for a child of the parties under the age of five years. La. R.S. 9:315.11. A party shall not be deemed voluntarily unemployed or underemployed if he or she is absolutely unemployable or incapable of being employed, or if the unemployment or underemployment results through no fault or neglect of the party. La. R.S. 9:315(C)(5)(b).
Louisiana Revised Statutes 9:315.11 was amended by 2017 La. Acts. No. 264 sec. 2 to list specific factors the trial court should consider in determining whether to impute income to a party. The amendment became effective on January 1, 2019, after the hearing in this matter. --------
Voluntary unemployment or underemployment for purposes of calculating child support is a question of good faith on the obligor-spouse. Romanowski, 873 So.2d at 660. In virtually every case where a parent's voluntary unemployment or underemployment was found to be in good faith, courts have recognized extenuating circumstances beyond that parent's control which influenced or necessitated the voluntary change in employment. Id. Whether a spouse is in good faith in ending or reducing his or her income is a factual determination that will not be disturbed absent manifest error. Id. at 662.
At the hearing on child support, Caroline and Chad both testified. Chad worked for his parents forty hours per week managing their business, the Antebellum House. He was a wedding event planner and had worked there for twelve or thirteen years. In 2017, Chad's W-2 showed income of $14,400.00. According to Chad, he was paid $600.00 twice a month, and his employer provided him with gas and a cell phone and paid for his health insurance.
Caroline indicated that Chad did not live the lifestyle of a person earning $14,000.00 per year, based on his purchase of her portion of their former home for $30,000.00 and a new car for $17,000.00 or $18,000.00 in cash. According to Caroline, he also had four New Orleans Saints season tickets and had also previously paid child support of almost $400.00 monthly for his child from another relationship. Caroline testified that Chad's job involved cash and that he actually earned between $60,000.00 and $75,000.00 per year. According to Caroline, his parents paid Chad a base salary of $300.00, and he was paid in cash for services at the Antebellum House, such as $150.00 for acting as the DJ and $500.00 for officiating at a wedding, for example.
On questioning by his counsel and by the trial court, Chad denied ever being paid in cash by his parents or anyone using the Antebellum House, although he did acknowledge that people sometimes paid for services at the business in cash. Chad stated that he planned on working for his parents long-term and indicated he had never received a raise over the twelve to thirteen years he worked for them. Chad testified that he had a college degree and that he had worked for a finance company in a "training situation." Chad also testified that he had health conditions that had developed in July of 2017. According to Chad, he had seven procedures performed on his back (with an eighth procedure scheduled), blood pressure issues, and knee issues.
Chad testified that he averaged $300.00 in cash monthly from side jobs such as bartending. He acknowledged that he paid $17,000.00 or $18,000.00 in cash for a car in 2013, stating that he obtained those funds from a personal injury settlement. Chad stated that he had taken out a second mortgage on his house, and he admitted that he had borrowed $90,000.00 from his parents to pay for his house and attorney's fees.
In its oral reasons for the child support determination, the trial court stated that it based Chad's income not only on his proven salary and benefits with a deduction for his health insurance, but it also added $1,230.00 in cash benefits Chad received. The trial court stated:
This is based on the credible testimony of [Caroline] and the court not finding credible [Chad's] testimony in this matter.
In fact, probably the Court could have made a finding of much more in cash benefits. That probably would take a forensic accountant to actually get to the exact amount, but that is the minimum amount that could be found, in the Court's opinion, of cash benefits that he receives. It is not credible to the Court that in 12 years he's never gotten a raise; he doesn't get paid cash for anything in a business which is paid cash. And so, for that reason, I found her testimony to be credible, and the Court thinks that at this point in time
he is well capable of making $3,500 a month, whether he works as the manager at a wedding facility or he gets another job as a college graduate with that type of experience; so the Court finds that $3,500 is well within reason in setting his ability to make a monthly gross income.
Based on our review of the record, we do not find any manifest error in the conclusion that Chad was voluntarily underemployed. There was reasonable factual support that he earned $1,230.00 per month in cash benefits, and there was sufficient evidence for the imputation of monthly income of $3,500.00 to Chad. Although Chad contends that the trial court erred in giving more weight to Caroline's testimony, which he argues was self-serving and unsupported by evidence, the trial court has wide discretion in determining the credibility of witnesses. The trial court believed Caroline's testimony that Chad earned more than he claimed. The record shows that Chad is a college graduate who worked at his parents' business for twelve to thirteen years for the same salary of $300.00 weekly for forty hours of work. While Chad testified as to his various health issues, he presented no medical evidence or testimony that he was unable to work or that his workload should be reduced. See Haddox v. Haddox, 2008-2425 (La. App. 1 Cir. 8/24/09), 2009WL2589706 (unpublished). Moreover, Chad managed to work forty hours weekly at the Antebellum House despite his health issues.
Thus, as Caroline had sole custody and Chad was not caring for his son who was under five years old at the time of the hearing, and as there was nothing presented to the trial court to establish that Chad was mentally or physically incapable of seeking or securing better paying employment or asking for a raise, we find no manifest error in the trial court's decision to impute $3,500.00 to Chad as his monthly income. Chad's assignment of error has no merit.
CONCLUSION
For the foregoing reasons, we affirm the August 2, 2018 judgment of the trial court. We assess costs of this appeal to Chad M. Lowe.
AFFIRMED.