Opinion
NUMBER 2017 CA 1064
05-10-2018
STEPHANIE CLAIRE ELMER ROBIN v. RONALD MICKEL ROBIN, JR.
Charlotte C. McDaniel McGehee Baton Rouge, LA Counsel for Plaintiff/Appellant, Stephanie Claire Elmer Robin Jenel Guidry Secrease Jay Michael Futrell Ponchatoula, LA Counsel for Defendant/Appellee, Ronald Mickel Robin, Jr.
NOT DESIGNATED FOR PUBLICATION Appealed from the Twenty-First Judicial District Court In and for the Parish of Livingston State of Louisiana
Docket Numbers 102270
Honorable Jeffery T. Oglesbee, Judge Presiding
Charlotte C. McDaniel McGehee
Baton Rouge, LA Counsel for Plaintiff/Appellant,
Stephanie Claire Elmer Robin Jenel Guidry Secrease
Jay Michael Futrell
Ponchatoula, LA Counsel for Defendant/Appellee,
Ronald Mickel Robin, Jr. BEFORE: WHIPPLE, C.J., MCDONALD, AND CHUTZ, JJ. WHIPPLE, C.J.
This matter is before us on appeal by plaintiff/appellant, Stephanie Claire Elmer Robin, from a judgment of the trial court modifying a child support award. For the reasons that follow, we affirm in part, amend in part, vacate in part, and remand.
FACTS AND PROCEDURAL HISTORY
Stephanie Claire Elmer Robin and Ronald Mickel Robin, Jr. were married on October 31, 2001, and three children, D.R., M.R., and J.R, were born of their union. The parties subsequently divorced on October 17, 2005, and were awarded joint custody of the children, with Stephanie designated as the domiciliary parent. Following a hearing on January 9, 2006, the trial court rendered judgment on June 27, 2006, ordering that Ronald pay child support in the amount of $846.00 per month, payable in equal installments on the first and fifteenth of each month, retroactive to the date of filing, i.e., June 3, 2005, as well as an additional $25.00 per month toward any past due arrearages.
D.R. was born on August 9, 2001; M.R. was born on December 11, 2002; and J.R. was born on June 14, 2004.
In their judgment of divorce, the trial court ordered that Ronald pay Stephanie child support in the amount of $100.00 per week pending a hearing on the issue of setting a child support award.
After Ronald failed to make the court-ordered payments, ten years later, on June 17, 2015, Stephanie filed a rule for contempt and to increase child support, contending that Ronald owed arrearages in the amount of $86,000.00, and requesting that this amount be made executory, and that Ronald be held in contempt for his willful failure and refusal to comply with the court's order. Stephanie further alleged that because a material and substantial change in circumstances had occurred since the earlier fixing of his support obligation, including the children's enrollment in a private school, as agreed upon by the parties, and the need of the children for outstanding additional medical treatment, an increase in Ronald's child support obligation was warranted.
In response, Ronald filed a petition to annul the earlier June 27, 2006 judgment which had ordered him to pay support in the amount of $846.00 per month. Ronald contended that he never received notice of this judgment, because the clerk of court purportedly sent notice to an address in Violet, Louisiana, where he had not resided since 1998, and which he contended was destroyed by Hurricane Katrina. Ronald argued that the lack of proper notice had precluded him from filing either a timely appeal or requesting a new trial within the time limits provided for in the Louisiana Code of Civil Procedure, (thus warranting the annulment of the longstanding judgment). Alternatively, he requested that a new trial be granted.
In response, Stephanie filed dilatory exceptions of unauthorized use of summary proceedings and improper cumulation of actions and declinatory exceptions of insufficiency of service of process, insufficiency of citation and lack of personal jurisdiction, seeking to dismiss the petition to annul and alternative motion for new trial.
Stephanie's rule for an increase in child support and for contempt was ultimately heard by the trial court over the course of a two-day trial on September 8, 2015, and August 3, 2016. Between the first and second hearing dates, however, several ancillary matters, including Ronald's petition to annul and Stephanie's exceptions to the petition, were set and heard on April 20, 2016. Although the record before us does not contain a transcript of the hearing, on May 13, 2016, the trial court signed a judgment related to the April 20, 2016 hearing, issuing an "interim ruling" maintaining Stephanie's exceptions, taking Ronald's motion for new trial under advisement pending the outcome of his petition to annul, which Ronald had refiled in a separate proceeding, and granting Stephanie's motion to increase child support in part, thereby increasing Ronald's child support obligation to $1,427.00 per month in accordance with a joint obligation worksheet introduced by the parties. The trial court further ordered that Ronald pay an additional $200.00 toward arrears, ordered that the child support and arrears be paid via an income assignment order from Ronald's employer directly to Stephanie, and took Stephanie's request to include private school tuition in the child support obligation computation under advisement.
A monthly gross income amount of $4,275.00 was attributed to Ronald in the joint obligation worksheet used to set the interim award, which was based on his income from his employment with Grady Crawford Construction Company, Inc. ("Crawford Construction"). The worksheet also included extraordinary expenses of $1,799.00 for private school tuition. Ronald's share of the recommended child support obligation for three children based on that income was $2,256.80. The trial court stated that it arrived at the $1,427.00 figure by deducting the "extraordinary expense" of $1,799.00 for private school tuition from the interim basic child support obligation.
Again, while the record does not contain a transcript of the April 20, 2016 hearing, following the hearing, Stephanie filed a memorandum in opposition to an oral motion made by Ronald at the April 20, 2016 hearing to deviate from the child support guidelines wherein he claimed that the recommended amount of $2,256.80 represented more than 50% of his monthly gross income. In her memo, Stephanie objected to any deviation from the guidelines and attached numerous exhibits evidencing Ronald's income and assets.
Thereafter, at the conclusion of the hearing on Stephanie's rule for contempt and to increase child support on August 3, 2016, the trial court issued oral reasons: (1) maintaining the interim award increasing Ronald's child support obligation to $1,427.00 per month to be paid by income assignment to Stephanie, retroactive to the filing of Stephanie's motion for modification on June 17, 2015; and (2) ordering that Ronald pay an additional $200.00 per month toward the arrearages he owed her until paid. However, despite the parties' prior agreement, the trial court also ordered that Ronald shall not be responsible for the children's private school tuition and denied Stephanie's request for court costs and attorney's fees incurred on her rule to increase child support. A written "Judgment on Modification of Child Support" was signed on December 16, 2016.
With reference to the issues of contempt and award of the total arrearages, which was also before the court, the trial court awarded arrearages and made the award executory, giving Ronald credit for any payments made directly to Stephanie, but not for any tuition payments made to the children's school by him or by his mother. Thereafter, on March 2, 2017, the trial court signed a separate judgment on the issues of contempt and arrearages, finding Ronald in contempt, making his total arrears of $96,474.00 (from June 2005 to June 2015) executory, and denying Stephanie's request for court costs and attorney's fees. Stephanie's appeal from this March 2, 2017 judgment of the trial court is addressed in a companion opinion of Robin v. Robin, 2017 CA 1065, also handed down this date.
On February 10, 2017, Stephanie filed a motion for new trial on two issues: the omission of the private school tuition in calculating the child support obligation and the setting of gross income at an amount that was not consistent with the support guidelines. In support, Stephanie contended that the amount used for Ronald's gross income by the trial court in calculating his monthly support obligation was contrary to and less than the gross income amount established by the evidence. Stephanie averred that this error by the trial court rendered its ruling contrary to the law and evidence such that a new trial should be granted to re-calculate the obligation to reflect the true amount of his gross income.
Ronald opposed Stephanie's motion for new trial, contending that there was no error in using a gross income figure previously stipulated to by the parties and that the trial court "may have considered" Ronald's legal duty to support his current spouse and children not subject to the support order.
Ronald testified that he has five other children in his home, ranging from the ages of two to ten. He has two children that were adopted by his current wife for whom he receives no support, two children with his current wife, and a stepson.
Following a hearing on March 22, 2017, the trial court signed a judgment on April 20, 2017, denying Stephanie's motion for new trial. Stephanie then filed the instant appeal.
Stephanie's motion for appeal references the "March 23, 2017" denial of her motion for new trial on her motion to modify the child support order. Although the hearing was actually on March 22, 2017, Stephanie's appeal references the denial of the motion for new trial. Although a judgment denying a motion for new trial is an interlocutory order and is normally not appealable, see LSA-C.C.P. art. 2083(C), when a motion for appeal refers by date to the judgment denying a motion for new trial, but the circumstances indicate that the appellant actually intended to appeal from the final judgment on the merits, the appeal should be maintained as being taken from the judgment on the merits. See Byrd v. Pulmonary Care Specialists, Inc., 2016-0485 (La. App. 1st Cir. 12/22/16), 209 So. 3d 192, 195; Thomas v. Comfort Center of Monroe, LA, Inc., 2010-0494 (La. App. 1st Cir. 10/29/10), 48 So.3d 1228, 1233; Dural v. City of Morgan City, 449 So.2d 1047, 1048 (La. App. 1st Cir. 1984).
In this case, it is clear from the assignments of error that Stephanie sought to appeal from the final judgment on the motion to increase child support. Her mistake in listing the wrong hearing date in her motion for appeal is insufficient grounds for the dismissal of her appeal, particularly since appeals are favored and will be dismissed only when the grounds are free from doubt. See Byrd v. Pulmonary Care Specialists, Inc., 209 So. 3d at 195. Thus, we will consider the merits of her appeal of the December 16, 2016 "Judgment on Modification of Child Support" which is properly before us.
On appeal, Stephanie contends the trial court erred in:
(1) deviating from the statutory support guidelines in LSA-R.S. 9:315, et seq., by failing to consider and calculate the actual income of the parties in determining the total child support obligation;
(2) failing to include the children's private school tuition upon an evidentiary showing that the current income of the parties made it financially feasible to include same into the total support obligation; and
(3) failing to award attorney's fees and costs.
DISCUSSION
Income of the Parties
(Assignment of Error Number One)
In this assignment of error, Stephanie contends that the trial court erred in calculating the parties' income and in deviating from the support guidelines. Specifically, she contends that the evidence and testimony establishing the income of the parties was set forth at the first hearing date on September 8, 2015, and that additional evidence, including evidence concerning Ronald's tax consulting business, Robin Tax Service, was submitted to the trial court shortly after the hearing in September of 2015. However, after six months had passed after her filing for a modification, during which she continued to receive no support from Ronald, the parties agreed that until an amount could be judicially determined at the second hearing date of August 3, 2016, an interim income amount was agreed to by the parties and submitted to the court for the granting of an interim child support award at a hearing on ancillary matters on April 20, 2016. Stephanie contends that the interim award was put in place pursuant to LSA-R.S. 9:315.1(C)(6) for the purpose of receiving an income assignment order from the court, as Ronald was not voluntarily providing her with any child support during this time.
Stephanie contends that Ronald's income from his tax consulting business was in addition to his income from his primary employment with Crawford Construction.
Louisiana Revised Statute 9:315.1(C)(6) provides:
In determining whether to deviate from the guidelines, the court's considerations may include .... [t]he need for immediate and temporary support for a child when a full hearing on the issue of support is pending but cannot be timely held. In such cases, the court at the full hearing shall use the provisions of this Part and may redetermine support without the necessity of a change of circumstances being shown.
Stephanie further contends that when the matter was heard on August 3, 2016, the trial court was provided with additional information reflecting that Ronald had received recurring monetary gifts from his mother, that his income was underreported because he failed to include his income and profits from his tax consulting business, and that his claimed income was not borne out by and was contradictory to his standard of living and assets, given that the evidence established that he had seven vehicles registered in his name, including a Corvette, and had purchased a $272,000.00 home in 2015. Stephanie contends that instead of using this additional evidence to accurately calculate the actual income of the parties, the trial court simply applied the interim stipulated income used to calculate the interim support award and failed to correctly apply the amount suggested by the guidelines, thereby improperly deviating from the guidelines and without providing specific reasons for such deviation as required by LSA-R.S. 9:315.1(B)(1).
Louisiana Revised Statute 9:315.1(B)(1) provides:
The court may deviate from the guidelines set forth in this Part if their application would not be in the best interest of the child or would be inequitable to the parties. The court shall give specific oral or written reasons for the deviation, including a finding as to the amount of support that would have been required under a mechanical application of the guidelines and the particular facts and circumstances that warranted a deviation from the guidelines. The reasons shall be made Part of the record of the proceedings.
Ronald contends that the trial court did not deviate from the statutory support guidelines, as the parties specifically stipulated via a joint income worksheet to their annual and monthly gross base incomes. Ronald further contends that Stephanie's attempt to submit additional information and evidence concerning his income at the August 3, 2016 hearing was correctly denied by the trial court, given that the trial court had previously accepted the parties' joint stipulation as to their base income at the April 20, 2016 hearing.
Ronald also contends that the parties agreed to use their base salaries without taking into account any bonuses for purposes of computing the interim child support obligation.
The premise of the guidelines for determination of child support is that child support is a continuous obligation of both parents, children are entitled to share in the current income of both parents, and children should not be the economic victims of divorce. LSA-R.S. 9:315(A). The standard of review in a child support case is manifest error. Generally, an appellate court will not disturb a child support order unless there is an abuse of discretion or manifest error. State, Department of Social Services ex rel. D.F. v. L.T., 2005-1965 (La. 7/6/06), 934 So. 2d 687, 690.
At the outset, we agree with Stephanie that the trial court's April 20, 2016 increase in the support award to $1,427.00, plus an additional $200.00 toward arrearages, clearly was an "interim award." The trial court's May 13, 2016 judgment, following the April 20, 2016 hearing, specifically refers to the ruling as an "interim ruling," providing, in part, as follows:
After hearing the argument of counsel, review of the law, evidence and memorandums the Court makes [an] interim ruling in favor of the plaintiff, Stephanie ... in part and takes under advisement certain other claims. [Emphasis added.]
IT IS ORDERED ADJUDGED AND DECREED AS FOLLOWS:
* * * * *
Plaintiff's Motion to increase Child Support is granted in part and taken under advisement in part. The increase shall be partially
granted based on income the parties agreed was the base income of the parties and grants partial relief in that [Ronald] is ordered to pay [Stephanie] the amount of $1427.00 in support and $200.00 in arrears per month with the Court taking the request for private school tuition under advisement to be determined at the time of the hearing on the oral motion to deviate from the child support guidelines. ... [Emphasis added.]
The support awarded is retroactive to the date of the request, June 16, 2015.[]
* * * * *
The increase in child support in the amount of $1427.00 and arrearage in the amount of $200.00 is subject to income assignment order to the employer of [Ronald] to be paid to [Stephanie] at her physical address via U.S. Mail on the pay dates as occur to [Ronald].
The record indicates that Stephanie's rule to increase child support was actually filed on June 17, 2015.
"Interim" is defined as "[d]one, made, or occurring for an intervening time; temporary or provisional." Black's Law Dictionary 819 (7th ed. 1999).
On review of the record, we find that the trial court clearly imposed the "interim ruling" increasing the child support award and setting payment on arrears via income assignment order as a means of providing Stephanie with some form of child support until the issues could be fully tried at the second hearing date on her motion for an increase in child support and for contempt, which was not until August 3, 2016, over a year after her motion was filed. Indeed, at the commencement of the August 3, 2016 hearing, Stephanie's counsel referenced the nature of the prior award as an interim amount, stating, "Last time we were here we talked about what the court had ordered in the interim. We have not had a final word on support." She continued stating, "[T]here was [sic] also questions about whether or not the actual income had been reported ... what the court indicated to us was that [it] was going to make a final -- final award based on everything now ... so today what we're talking about is the award of increase in support, based on the numbers, and the ... rule for contempt." Following these remarks, the trial court asked counsel if they were "ready to proceed?" and the trial re-commenced.
Thus, to the extent that Ronald contends that the trial court properly rejected Stephanie's attempts to enter additional income information at the August 3, 2016 hearing on the stated basis the parties had previously stipulated to the amount of their respective incomes, such that the calculation of the parties' income was not before the court, we disagree.
In support of her rule to increase child support, Stephanie introduced: an "Act of Cash Sale" showing that Ronald purchased a home on July 10, 2015, for the amount of $272,250.00; Ronald's income tax return from 2014 showing his gross income of $72,103.00; photographs and registration records of a 2016 GMC Denali truck, 2016 Cadillac Escalade, 2016 Corvette, motorcycle, and three all-terrain vehicles titled in Ronald's name; her W-2s and income tax returns; records of tuition payments and medical expenses for counseling and prescriptions for the children that were not covered by insurance; proof that the children were covered on her insurance; records of payments for extracurricular activities and lunch payments for the children; and records of out-of-pocket medical payments of $8,200.00 made by Stephanie after the deductible was paid for two of the children who had surgery in 2015. Stephanie also introduced an email from Ronald to her attorney, wherein Ronald did not dispute his receipt of an annual bonus in the amount of $17,500.00 and truck allowance of $9,600.00 per year ($175.00 per week), but argued that these amounts should be deducted from the gross income amount of $72,103.00, as shown on his 2014 income tax return, because he is not guaranteed a bonus every year. In failing to consider this evidence, the trial court erred as a matter of law.
Counsel for Stephanie attempted to introduce a child support worksheet computing the obligation using a base salary of $62,500.00 for Ronald based on his base salary as set forth in the email, but counsel for Ronald objected to the introduction of the worksheet, which was sustained by the trial court. In doing so, the trial court noted, "I'll calculate the numbers based upon what I determine - judicially determine is his correct child support."
Ronald conceded at trial that he has not made payments for child support directly to Stephanie, but instead claimed that he had paid the children's private school tuition in lieu of child support. Ronald conceded that he made $72,103.00 in 2014 and $82,000.00 in 2015; however, Ronald argued that the court should consider the fact that he has five other children in his home to support in addition to his three children with Stephanie in accordance with LSA-R.S. 9:315.1(C)(2). With respect to the various vehicles Stephanie alleged Ronald owned, Ronald testified that he paid for his 2016 Denali truck with a $9,600.00 per year truck allowance that he received from his employer. He further claimed that he had sold the motorcycle and two of the three ATVs. However, Ronald further conceded that he had earned an additional $4,200.00 per year performing tax consulting services business, and admitted to accepting cash payments for tax consulting, but claimed that he was no longer performing this type of work.
Louisiana Revised Statute 9:315.1(C)(2) provides that in deviating from the guidelines, the court may consider the legal obligation of a party to support dependents that are not the subject of the action before the court and who are in the party's household.
After the presentation of this evidence, at the conclusion of the August 3, 2016 hearing, the trial court referred to the child support obligation worksheet upon which its interim ruling was based, stating, "I am going to accept that as the income of the parties." The trial court then maintained the interim child support obligation amount of $1,427.00 per month. However, in doing so, the trial court failed to provide any reasons or basis for "carrying over" the income amount used to set an interim award or for rejecting the evidence of Ronald's additional income and assets properly presented by Stephanie in support of her rule for increase.
A district court errs in approving an award of child support stipulated to in a consent agreement that deviates from the guidelines, where the trial court fails to provide reasons to justify its decision to adopt a consent agreement presented by the parties. See State, Department of Social Services Office of Family Support in re Young v. Jennings, 2000-0814 (La. App. 4th Cir. 6/27/01), 790 So. 2d 750, 752.
Louisiana Revised Statute 9:315.1(A) creates a rebuttable presumption that the amount calculated under the guidelines is the proper amount of child support to be awarded, such that the trial court may deviate from the guidelines only if their application "would not be in the best interest of the child or would be inequitable to the parties." LSA-R.S. 9:315.1(B)(1). Moreover, if the trial court deviates from the guidelines, it is statutorily obligated to give specific oral or written reasons for the deviation, including a finding as to the amount of support that would have been required under a mechanical application of the guidelines and the particular facts and circumstances that warrant a deviation from the guidelines, and the reasons shall be made part of the record of the proceedings. LSA-R.S. 9:315.1(B)(1).
Louisiana Revised Statute 9:315.1(C) provides a list of circumstances, which may be considered by the trial court in determining whether to deviate from the guidelines, as follows:
C. In determining whether to deviate from the guidelines, the court's considerations may include:
(1) That the combined adjusted gross income of the parties is not within the amounts shown on the schedule in R.S. 9:315.19.
(a) If the combined adjusted gross income of the parties is less than the lowest sum shown on the schedule, the court shall determine an amount of child support based on the facts of the case, except that the amount awarded shall not be less than the minimum child support provided in R.S. 9:315.14.
(b) If the combined adjusted gross income of the parties exceeds the highest sum shown on the schedule, the court shall determine an amount of child support as provided in R.S. 9:315.13(B)(1) and may order the placement of a portion of the amount in a trust in accordance with R.S. 9:315.13.
(2) The legal obligation of a party to support dependents who are not the subject of the action before the court and who are in that party's household.
(3) That in a case involving one or more families, consisting of children none of whom live in the household of the noncustodial or
nondomiciliary parent but who have existing child support orders (multiple families), the court may use its discretion in setting the amount of the basic child support obligation, provided it is not below the minimum fixed by R.S. 9:315.14, if the existing child support orders reduce the noncustodial or nondomiciliary parent's income below the lowest income level on the schedule contained in R.S. 9:315.19.
(4) The extraordinary medical expenses of a party, or extraordinary medical expenses for which a party may be responsible, not otherwise taken into consideration under the guidelines.
(5) An extraordinary community debt of the parties.
(6) The need for immediate and temporary support for a child when a full hearing on the issue of support is pending but cannot be timely held. In such cases, the court at the full hearing shall use the provisions of this Part and may redetermine support without the necessity of a change of circumstances being shown.
(7) The permanent or temporary total disability of a spouse to the extent such disability diminishes his present and future earning capacity, his need to save adequately for uninsurable future medical costs, and other additional costs associated with such disability, such as transportation and mobility costs, medical expenses, and higher insurance premiums.
(8) That support awarded for an adult child with a disability, as defined in R.S. 9:315.22(E), may be a long-term and financially burdensome obligation that warrants the court's special consideration of the circumstances surrounding the manifestation of the disability and the financial burden imposed on the obligor.
The party seeking the deviation has the burden of proving that an application of the guidelines would not be in the best interest of the children or would be inequitable to him. Lambert v. Lambert, 2006-2399 (La. App. 1st Cir. 3/23/07), 960 So. 2d 921, 927.
In the instant case, in calculating Ronald's child support obligation, the trial court relied on a monthly gross income amount of $4,275.00, which would make his annual gross income $51,300.00. However, his income tax return showed that he made $72,103.00 in 2014, and he testified that he made "a little over $82,000.00" in 2015. Thus, we agree that the trial court erred in its calculation and improperly deviated from the guidelines by using an amount for Ronald's income that was less than the amount shown by the evidence and the testimony, including his own, submitted to establish his final support obligation. The trial court further erred in failing to provide reasons for its decision to reject the evidence of Ronald's gross income and to maintain the interim award that used a stipulated income amount, where this award was not in accord with Ronald's income as established by the evidence when the rule was ultimately tried to conclusion.
Moreover, while the parties may have agreed to use their base salaries without bonuses for purposes of computing the interim child support obligation, we are unable to find any such stipulation on the record with reference to the use of such in fixing the final award on the rule to increase child support. "Gross income" is defined as the "income from any source, including but not limited to salaries, wages, commissions, bonuses, dividends, severance pay, pensions ... ." LSA-R.S. 9:315(C)(3)(a) (emphasis added). Thus, in the absence of any stipulation by the parties, consideration of the parties' bonuses is likewise a source for consideration within the discretion of the trial court. See Caro v. Caro, 95-0173 (La. App. 1st Cir. 10/6/95), 671 So. 2d 516, 520.
Accordingly, to the extent that the trial court granted Stephanie's motion to increase the child support award, we affirm the judgment. However, to the extent that the trial court failed to properly calculate and use an accurate amount of income for Ronald in fixing the final award, the trial court erred. Accordingly, we will vacate the award of child support rendered by the trial court and remand this matter to the trial court with instructions to expeditiously perform a proper calculation of the child support obligation in accordance with the precepts of LSA-R.S. 9:315, et seq., after considering the evidence of the parties' income. However, until such time, Ronald is to continue paying the amount previously awarded by the trial court.
Private School Tuition
(Assignment of Error Number Two)
By agreement of the parties or order of the court, expenses of tuition, books, and supply fees required for attending a special or private elementary or secondary school to meet the needs of the child may be added to the basic child support obligation. LSA-R.S. 9:315.6(1). The needs of the child met by the special or private school need not be particular educational needs, but may include such needs of the child as the need for stability or continuity in the child's educational program. LSA-R.S. 9:315.6, 2001 Comment. Moreover, a child's successful continuation of his or her education in a proven academic environment is generally found to be in his or her best interest. Campbell v. Campbell, 95-1711 (La. App. 1st Cir. 10/10/96), 682 So. 2d 312, 320. The trial court's decision to add private school expenses to the basic child support obligation is subject to the abuse of discretion standard of review. In re Touchet, 2013-0815 (La. App. 1st Cir. 9/13/13), 135 So. 3d 30, 33.
Prior to 2001 "any expenses" for attending a special or private elementary or secondary school to meet the "particular educational" needs of the child could be added to the basic child support obligation calculated using the guideline tables. Clarifying language was added to Paragraph (1) to specify the types of school expenses (tuition, registration, books and supply fees required for attending the school) permitted to be added to the basic child support amount, but the necessity of showing that attendance at the special or private school was required to meet the "particular educational" needs of the child was eliminated. LSA-R.S. 9:315.6, 2001 Comment.
The record shows that Ronald's mother, Shirley Wagner, paid $34,401.02 in tuition directly to the children's school. Ms. Wagner testified that it was her understanding that Ronald and Stephanie had agreed that instead of Ronald paying Stephanie directly, she would pay the children's tuition to the school directly on his behalf. She further testified that she sent Stephanie checks for cash and bunk beds for the children totaling $5,317.47, which she also claimed were paid by her in lieu of support from Ronald. While Ms. Wagner also testified that she wrote checks to the school for tuition in the amount of $12,416.00 for the 2012-2013 school year and $13,710.00 for the 2013-2014 school year, there is no evidence of such checks in the record before us. Stephanie's mother, Suzanne Elmer, also testified. Ms. Elmer testified that Stephanie and the children lived with her and her husband from 2006 to 2013. She identified several registration fees that she and her husband paid to the children's school, ranging from $715.00 to $775.00 each, as well as tuition payments made by the Elmers, which totaled $33,869.00. Ms. Elmer testified that she was not aware of any agreement that payments made by Ms. Wagner for the children's private school tuition were in lieu of Ronald's child support obligation.
In determining not to include private school tuition to the basic child support obligation, the trial court ruled as follows:
It's clear to me from the testimony that I've heard here today, together with all the testimony I've heard, that the boys have been enrolled in private school. However, it's also equally clear to me that neither one of you could have done it on your own. By the testimony of you, [Stephanie], your mother testified that she paid a good portion of the tuition; and, sir, your mother paid a good portion of the tuition. And I don't think either one of you could have done it, as much as you would want your children in private school. And I'm sure from [Ronald's] testimony, he'd like to have his children in private school. It's just not financially feasible for you to do that, based upon the incomes that you have respectively. Therefore, I'm not going to order that [Ronald] contribute anything to the private school tuition for these children.
Stephanie contends that trial court erred in failing to include private school tuition in the child support obligation computation and in finding that the parties could not afford their proportionate share. She points out that by agreement, the children have attended private school since pre-school, that their continued enrollment in such is in the best interests of the children, and that the evidence establishes that both parties can now afford to share in their pro rata share of the private school tuition expense.
Stephanie testified that she was working as a legal assistant and decided to "do better for herself by going to law school. She testified that she attended law school from 2007 to 2010 and testified that she struggled financially from 2010 to 2015 to try to provide for herself and the children. Stephanie further stated that it was not until 2015 that she was financially able and emotionally ready to pursue collection of Ronald's past due support after 119 months of no support and to seek an increase in his child support obligation based on the parties' current financial status and the increased needs of the children. Stephanie notes that as of the time of the hearing in September of 2015, she was paying the tuition for the children entirely on her own.
While not disputing that the parties agreed to enroll the children in private school, Ronald argues that he is married, has other children not subject to this child support order, and that his current spouse does not work due to the age of their youngest child. Ronald also concedes that for ten years, he did not make direct child support payments to Stephanie, yet argues that he fulfilled an extra- judicial agreement with Stephanie to ensure that the children attended private school. He argues that he cannot afford to pay child support directly to Stephanie and private school tuition, contending that the parties could not have afforded tuition for the past ten years without third party intervention.
On review, we find the evidence establishes that the children attended private school their entire lives, attending the same private school since pre-school, for nearly ten years, and that the oldest child was at the age of entering high school. The evidence further establishes that during this time, Ronald consented and agreed to their enrollment and attendance at private school. Moreover, he testified that he agreed to pay the tuition, and claimed that he had an agreement with Stephanie that he pay children's tuition in lieu of direct child support to her. While Stephanie disputes that she agreed to allow him to pay such in lieu of paying support to her, the record is devoid of any evidence that removing the children from their private school and placing them in a public school would now be in their best interest.
Accordingly, considering our ruling above, once the parties' respective gross incomes are determined by the trial court on remand, we further instruct the trial court to also consider whether the expense of private school tuition should be included in the calculation of the child support obligation in accordance with the precepts of LSA-R.S. 9:315, et seq.
Attorney's Fees and Costs
(Assignment of Error Number Three)
In her final assignment of error, Stephanie contends that where she went for 119 months without a child support payment from Ronald and bore the burden of supporting her children alone, and where she was forced to incur legal fees to assist her in getting the support that Ronald owed, she should have been awarded attorney's fees and costs by the trial court.
It is well-settled that a party may not recover attorney's fees except where authorized by statute or provided for by contract. Bernard Lumber Company, Inc. v. Lake Forest Construction Company, Inc., 572 So. 2d 178, 183 (La. App. 1st Cir. 1990). In the instant matter, where no statutory authority has been provided to support the imposition of an award of attorney's fees on a rule to increase child support, we are constrained to find no error in the trial court's denial of attorney's fees. However, as the prevailing party, we agree that she was entitled to an award for court costs associated with the rule to increase child support.
Accordingly, we find merit in part to this assignment of error.
CONCLUSION
Based on the above and foregoing reasons, the December 16, 2016 judgment of the trial court is hereby affirmed to the extent that it grants Stephanie's motion to increase child support. The portion of the judgment awarding $1,427.00 is vacated in part, and this matter is remanded to the trial court with instructions to expeditiously re-calculate Ronald's child support obligation in accordance with the rulings expressed herein. The matter is to be heard expeditiously and Ronald is hereby ordered to continue to pay the amounts previously awarded until such time as the obligation is recalculated consistent with the views expressed herein. The judgment is further amended to award Stephanie all court costs associated with the rule to increase child support.
All costs of this appeal are assessed to the appellee, Ronald Robin.
AFFIRMED IN PART; AMENDED IN PART; VACATED IN PART; AND REMANDED, WITH INSTRUCTIONS.