Scott Franks v. Amanda Franks

STATE OF LOUISIANA

wnc, w
7 COURT OF APPEAL

FIRST CIRCUIT

2020 CU 1170

SCOTT FRANKS

VERSUS

AMANDA FRANKS

JUDGMENT RENDERED: APR 16 2021

Appealed from the
Twenty -Third Judicial District Court
In and for the Parish of Ascension • State of Louisiana
Docket Number 111, 078 • Division C

The Honorable Katherine Tess Stromberg, Judge Presiding

Larry Bernard Hampton, Jr. COUNSEL FOR APPELLANT
Baton Rouge, Louisiana PLAINTIFF— Scott Franks

Philip N. Maples COUNSEL FOR APPELLEE
Prairieville, Louisiana DEFENDANT— Amanda Franks

BEFORE: WHIPPLE, C.J., WELCH, AND CHUTZ, JJ.

WELCH, J.

Scott Franks appeals a judgment in favor of Amanda Franks declaring that

any modification of his child support obligation based on the parties exercising

shared physical custody of their minor child would not be retroactive to the date

the parties began exercising shared physical custody in response to Mr. Franks'

petition to modify custody. We affirm and issue this memorandum opinion in

compliance with Uniform Rules -- Courts of Appeal, Rule 2- 16. 1( B).

The parties were married on August 5, 2006, and they had one child during

their marriage. Mr. Franks filed a petition for divorce on September 19, 2014, and

the parties were divorced by a judgment signed on November 16, 2015. Pursuant

to a judgment signed by the trial court on October 19, 2015, the parties were

awarded joint custody of the minor child, with Ms. Franks designated as the

domiciliary parent, subject to specific physical custodial periods in favor of Mr.

Franks. Specifically, the October 19, 2015 judgment awarded Mr. Franks physical

custodial time during the summer, on holidays, and anytime Mr. Franks was in

Louisiana. The record reflects that this physical custodial arrangement was based

on the fact that Mr. Franks was on active military duty in the Air Force and

stationed in Geilenkirchen, Germany. The October 19, 2015 judgment also set

forth that Mr. Franks would pay child support to Ms. Franks in the amount of

1, 113. 00 per month, from May 6, 2015 through September 14, 2015, and that

thereafter, he would pay child support in the amount of $745. 00 per month.

On August 22, 2017, Mr. Franks filed a motion requesting a modification of

custody and child support. Thereafter, the parties entered into a stipulated

judgment on October 6, 2017, 1 that modified Mr. Frank' s physical custodial

schedule by providing him with physical custody of the child every other weekend

1 Although the parties entered into the stipulated judgment on October 6, 2017, the judgment was
not actually signed by the trial court until June 26, 2018.

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during the school year, during the summer, and on holidays. The record reflects

that this physical custodial arrangement was based on the fact that while Mr.

Franks was still on active military duty, he was stationed at Barksdale Air Force

Base in Bossier Parish, Louisiana. This stipulated judgment also provided for an

award of child support in favor of Ms. Franks in the amount of $821. 00 per month.

On June 11, 2018, Mr. Franks filed another motion to modify custody,

seeking joint shared physical custody because he was no longer on active military

duty and was residing in Ascension Parish, where the child and Ms. Franks were

residing. In this motion, Mr. Franks did not specifically request a modification of

his child support obligation; however, Mr. Franks " reserve[ d] any and all claims

and/ or causes of action which may be available to him pursuant to and incidental to

this proceeding," and he also prayed " for any and all other just and equitable relief

reasonable in the premises."

It is undisputed that in October 2018, the parties began voluntarily sharing

physical custody of the child. A dispute then arose between the parties as to a

reduction in Mr. Franks' child support obligation based on the new shared

custodial arrangement. See La. R.S. 9: 315. 9. Mr. Franks contended he was

entitled to a reduction in child support obligation retroactive to the date the parties

began sharing physical custody, despite the fact that in his June 11, 2018 motion to

modify custody, he did not specifically seek a modification of his child support

obligation.
Mr. Franks contended that his reservation of "any and all claims and/or

causes of action which may be available to him pursuant to and incidental to this

proceeding" and his prayer " for any and all just and equitable relief reasonable in

the premises" were sufficient to make any modification of his child support

retroactive to the date the parties began sharing physical custody. On the other

hand, Ms. Franks maintained that there was no judicial demand by Mr. Franks for a

reduction in child support, and thus, he was not entitled to a retroactive reduction

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in child support.

The parties subsequently entered into a stipulation, asking the trial court to

determine the issue based on the memoranda of the parties. See La. C. C. P. art.

1871 ( providing in pertinent part that "[ c] ourts of record within their respective

jurisdictions may declare rights, status, and other legal relations whether or not

further relief is or could be claimed"). Thereafter, on August 3, 2020, the trial

court issued written reasons for judgment and signed a judgment in favor of Ms.

Franks and against Mr. Franks, declaring that " any modification of child support

based on the parties exercising shared custody of the minor child shall not be

retroactive to [ the] date the parties began exercising shared custody in response to

Mr. Franks' June 11, 2018 Petition to Modify Custody." From this judgment, Mr.

Franks has appealed. See La. C. C. P. art. 1877.

Louisiana Revised Statutes 9: 315. 21( C) provides that "[ e] xcept for good

cause shown, a judgment modifying or revoking a final child support judgment

shall be retroactive to the date of judicial demand, but in no case prior to the date

of judicial demand." A judicial demand is commenced by the filing of a pleading

presenting the demand for the enforcement of a legal right to a court of competent

jurisdiction. Jones v. American Home Assurance Company, 2018- 0107 ( La.

App. 4' Cir. 6/ 27/ 18), So. 3d , 2018 WL 3151022 at * 2; writ denied,

2018- 1374 ( La. 1/ 28/ 19), 263 So. 3d 426; see La. C. C. P. art. 421. The pleading or

petition " shall set forth the name, surname, and domicile of the parties; shall

contain a short, clear, and concise statement of all causes of action arising out of,

and of the material facts of, the transaction or occurrence that is the subject matter

of the litigation." La. C. C. P. art. 891( A).

The trial court, in its written reasons for judgment, determined that Mr.

Franks' June 11, 2018 Petition to Modify Custody did not make a judicial demand

for a modification of child support because it did not contain a prayer for a

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modification of child support or any allegations of fact to indicate that Mr. Franks

sought a modification of his child support obligation. The trial court further

determined that Mr. Franks' reservation of " any and all claims and/ or causes of

action which may be available to him pursuant to and incidental to this

proceeding" was simply a reservation and not a demand that would put Ms. Franks

on notice that Mr. Franks sought to modify his child support obligation. Likewise,

the trial court also determined that Mr. Franks' prayer for " any and all just and

equitable relief reasonable in the premises" failed to put Ms. Franks on notice that

Mr. Franks intended to seek relief in the form of a modification of child support.

As such, the trial court declared that any modification of child support based on the

parties exercising shared custody of the minor would not be retroactive to the date

the parties began exercising shared custody in response to Mr. Franks' June 11,

2018 petition to modify custody.

Based on our review of the pleadings and applicable law, we find no error in

the trial court' s determination. In order for Mr. Franks to be entitled to a

modification of his child support obligation based on shared custody and in order

for that modification to be retroactive to the date the parties began sharing custody

of the child, he had to make judicial demand for a modification of child support.

See La. R.S. 9: 315. 21( C). Mr. Franks' June 11, 2018 motion for modification of

custody does not mention Mr. Franks' child support obligation or otherwise

demand or request a modification of his child support obligation. Further, Mr.

Franks' reservation of causes of action incidental to a modification of custody and

his prayer for all just and equitable relief are insufficient to constitute a judicial

demand for a modification of support because those provisions fail to provide

notice as to the demand or relief being sought or requested by Mr. Franks. As

such, we must conclude there has been no judicial demand for a modification of

support based on shared custody and the trial court' s declaratory judgment in this

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regard was correct.

For all of the above and foregoing reasons, the August 3, 2020 judgment of

the trial court is affirmed. All costs of this appeal are assessed to the appellant,

Scott Franks.

AFFIRMED.

CI