State of Louisiana in the Interest of Shaleque Washington v. Tramond Bourgeois

NOT DESIGNATED FOR PUBLICATION

STATE OF LOUISIANA

COURT OF APPEAL

FIRST CIRCUIT

NO. 2022 CA 0931

STATE OF LOUISIANA IN THE INTEREST OF
SHALEQUE WASHINGTON

VERSUS

TRAMOND BOURGEOIS

Judgment Rendered: MAR 0 8 2623

Appealed from the
21st Judicial District Court
In and for the Parish of Tangipahoa
State of Louisiana
Docket No. 2021- 0000897

The Honorable Jeffery T. Oglesbee, Judge Presiding

Scott Perrilloux Counsel for Plaintiff/Appellee,

District Attorney State of Louisiana
Cassandra Butler
Assistant District Attorney
Amite, Louisiana

Emily Guidry Counsel for Defendant/Appellant,
Ponchatoula, Louisiana Tramond Bourgeois

BEFORE: GUIDRY, C. J., WOLFE, AND MILLER, JJ.

W 0 ( A , T. " . env

MILLER, J.

In this child support enforcement proceeding, Tramond Bourgeois (" Mr.

Bourgeois") appeals a judgment ordering him to pay child support and arrearages.

For the following reasons, we vacate and remand for further proceedings.

FACTUAL AND PROCEDURAL HISTORY

On March 31, 20211 the State of Louisiana, Department of Children and

Family Services (" State"), filed a Rule to Show Cause alleging that Mr. Bourgeois

is the father of the minor child, T.B. The rule prayed for Mr. Bourgeois to show

cause why he should not be ordered to pay child support, daycare expenses,

medical and dental coverage, and extracurricular expenses for the minor child; pay

an administrative fee; and pay all costs of the proceedings. A hearing was held on

May 13, 2022. Mr. Bourgeois was served through domiciliary service, but he failed

to appear at the hearing.

The minor child' s mother, Shaleque Washington (" Ms. Washington"), was

present at the hearing. Ms. Washington testified that she works at Burger King,

makes $ 10. 25 per hour, and works thirty-two hours per week. When asked about

Mr. Bourgeois' s work, Ms. Washington stated that he is an HVAC technician and

owns his own air conditioning business. During the hearing, the State introduced

the child support obligation worksheet, with the Louisiana Occupational

Employment and Wages from the Louisiana Workforce Commission for 2017

wage survey") attached, and a copy of the minor child' s birth certificate. Using

the wage survey, the State asked the trial court to set child support at $ 695. 80 per

month and medical at $ 20. 00 per month, retroactive to March 30, 2021.

Based on Ms. Washington' s testimony and the State' s evidence, the hearing

officer recommended: ( 1) that Mr. Bourgeois be ordered to pay support of $695. 80

per month, plus the administrative fee of five percent thereof, payable on the

thirtieth day of each month through Support Enforcement Services effective March

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30, 2021; ( 2) that Mr. Bourgeois be ordered to pay $ 25. 00 per month towards the

arrearage resulting from the retroactivity of the order, plus the administrative fee of

five percent thereof, commencing with the next support payment; ( 3) that an

immediate income assignment be ordered; ( 4) that Mr. Bourgeois be ordered to

obtain medical insurance for the minor child if it is available through his

employment at a reasonable cost; ( 5) that Mr. Bourgeois pay a cash medical

support order of $20. 00 per month, until such time as the child has private medical

insurance; ( b) if the child is covered by private medical insurance, Mr. Bourgeois

shall be responsible for seventy-two percent of all extraordinary medical or dental

costs incurred on behalf of the child; and ( 7) that Mr. Bourgeois be cast with all

court costs associated with the matter. The hearing officer signed this

recommendation on May 13, 2022. On June 7, 2022, the trial court ordered that the

recommendations of the hearing officer were approved and decreed to be a

judgment of the trial court. It is from this judgment that Mr. Bourgeois appeals.

ASSIGNMENT OF ERROR

Mr. Bourgeois contends that the trial court erred when it adopted the hearing

officer' s recommendation regarding child support using a wage survey to impute

Mr. Bourgeois' s income as a heating and air conditioning employee rather than a

verified income statement or proof of income from either party.

DISCUSSION

The determination or modification of child support is governed by the

guidelines contained in La. R.S. 9: 315, et seq. The trial court has great discretion in

establishing and modifying child support awards. Stogner v. Sto ner, 98- 3044 ( La.

717199), 739 So. 2d 762, 770. A trial court' s determination of the monthly gross

income of a parent and the parents' credibility is subject to a manifest error

standard of review. Bell v. Jackson, 2018- 1075 ( La. App. 1St Cir. 5/ 31/ 19), 278 So.

3d 382, 385. Accordingly, an appellate court will not disturb a child support order

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unless there is an abuse of discretion or manifest error. State in Interest of Michelli

v. Michelli, 2020- 1171 ( La. App. lit Cir. 4116121), 323 So. 3d 870, 874.

Mr. Bourgeois asserts that the trial court erred in awarding child support

because neither party provided a verified income statement or proof of income.

Louisiana Revised Statutes 9: 315( A) provides, in part:

C] hild 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 or out -of w - edlock
birth. The economic data underlying these guidelines . .. and the

guideline calculations attempt to simulate the percentage of parental
net income that is spent on children in intact families incorporating a
consideration of the expenses of the parties, such as federal and state
taxes and FICA taxes. While the legislature acknowledges that the
expenditures of two -household divorced, separated, or non -formed
families are different from intact family households, it is very
important that the children of this state not be forced to live in poverty
because of family disruption and that they be afforded the same
opportunities available to children in intact families, consisting of
parents with similar financial means to those of their own parents.

Here, because Mr. Bourgeois failed to appear at the hearing or provide any

documentation of his income as required by La. R.S. 9: 315. 2, the State sought to

impute income to Mr. Bourgeois. Pursuant to La. R. S. 9: 315. 1. 1( B), "[ w] hen the

income of an obligor cannot be sufficiently established, evidence of wage and

earnings surveys distributed by government agencies for the purpose of attributing

income to the obligor is admissible." Regarding Mr. Bourgeois' s income, Ms.

Washington testified at the hearing that Mr. Bourgeois is an HVAC technician and

owns his own air conditioning business. The State arrived at a figure of $48, 274.00

as an average yearly wage for heating, air conditioning, and refrigeration

mechanics and installers pursuant to the wage survey. To establish the gross

incomes amount, the State introduced the child support obligation worksheet with

1 Under La. R.S. 9: 315( C)( 3), " gross income" means:

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the wage survey attached and a copy of the minor child' s birth certificate. The

State contended that Mr. Bourgeois' s monthly gross income was $ 4, 023. 00, based

on the wage survey.

Pursuant to La. R. S. 13: 3712. 1, " whenever a copy of a self -authenticating

report from the Louisiana Workforce Commission, or from any state or federal

reporting agency, is offered in evidence in any child or spousal support proceeding,

it shall be received by the court as prima facie proof of its contents." In the instant

case, the appropriate documentation needed to establish or properly impute income

to Mr. Bourgeois was introduced. Mr. Bourgeois seeks to use his failure to appear

to his benefit. He argues that because he did not appear with the documentation

required by La. R. S. 9: 315. 2( A), the calculation of his income based upon the labor

guide was manifest error. Mindful of the important policy considerations

associated with the setting of child support, an obligor parent should not be

allowed to benefit from their recalcitrance. Thus, because the record contains

evidence as authorized by La. R.S. 9: 315. 1. 1( 13) and La. R.S. 13: 3712. 1 to support

the imputation of income to Mr. Bourgeois, the calculation of Mr. Bourgeois' s

income was within the trial court' s discretion.

a) The income from any source, including but not limited to salaries, wages,
commissions, bonuses, dividends, severance pay, pensions, interest, trust income,
recurring monetary gifts, annuities, capital gains, social security benefits,
workers' compensation benefits, basic and variable allowances for housing and
subsistence from military pay and benefits, unemployment insurance benefits,
disaster unemployment assistance received from the United States Department of
Labor, disability insurance benefits, and spousal support received from a
preexisting spousal support obligation;

b) Expense reimbursement or in- kind payments received by a parent in the
course of employment, self-employment, or operation of a business, if the
reimbursements or payments are significant and reduce the parent' s personal

living expenses. Such payments include but are not limited to a company car, free
housing, or reimbursed meals; and

c) Gross receipts minus ordinary and necessary expenses required to produce
income, for purposes of income from self-employment, rent, royalties,

proprietorship of a business, or joint ownership or a partnership or closely held
corporation. "
Ordinary and necessary expenses" shall not include amounts
allowable by the Internal Revenue Service for the accelerated component of
depreciation expenses or investment tax credits or any other business expenses
determined by the court to be inappropriate for determining gross income for
purposes of calculating child support.

G
J

Regarding the determination of her income and expenses, Ms. Washington

testified at the hearing that she works at Burger King, makes $ 10. 25 per hour, and

works thirty-two hours per week. However, the record before us is devoid of any of

the supporting documentation required by La. R. S. 9: 315. 2. Documentation is

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essential to the setting of child support. Carr v. Gibbens, 2015- 0701 ( La. App.

Cir. 9118115), 2015 WL 5515906, * 7 ( unpublished). Louisiana Revised Statutes

9: 315. 2( A) is clear in its mandate of essential documentation and provides:

Each party shall provide to the court a verified income statement
showing gross income and adjusted gross income, together with
documentation of current and past earnings. Spouses of the parties
shall also provide any relevant information with regard to the source
of payments of household expenses upon request of the court or the
opposing party, provided such request is filed in a reasonable time
prior to the hearing. Failure to timely file the request shall not be
grounds for a continuance. Suitable documentation of current earnings
shall include but not be limited to pay stubs or employer statements.
The documentation shall include a copy of the party' s most recent
federal tax return. A copy of the statement and documentation shall be
provided to the other party.

Although Ms. Washington did not provide pay stubs, tax papers, or other

documentation, she did testify under oath regarding her income. It was within the

trial court' s discretion to accept her sworn testimony as to her income. However,

she did not testify under oath as to any other matter associated with her expenses,

including daycare. Further, she did not provide any documentary evidence

pertaining to daycare, as is needed to calculate the net child care costs. Taken

together, the evidence presented by Ms. Washington is insufficient to set child

support. Accordingly, we vacate the judgment and remand to the trial court for the

submission of the required documentary evidence and the proper calculation of the

parties' respective child support obligations.

CONCLUSION

The judgment of the Twenty -First Judicial District Court in favor of the

appellee, State of Louisiana in the Interest of Shaleque Washington, and against

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the appellant, Tramond Bourgeois, is vacated and this matter is remanded for

further proceedings. Costs of this appeal, in the amount of $778. 00, are assessed to

the State of Louisiana, Department of Children and Family Services.

VACATED AND REMANDED FOR FURTHER PROCEEDINGS.

VA