Lisa Jean Vogler v. Vernon Gervis Ayres, Jr.

Judgment rendered August 17, 2022.
Application for rehearing may be filed
within the delay allowed by Art. 2166,
La. C.C.P.

No. 54,734-CA

COURT OF APPEAL
SECOND CIRCUIT
STATE OF LOUISIANA

*****

LISA JEAN VOGLER Plaintiff-Appellant

versus

VERNON GERVIS Defendant-Appellee
AYRES, JR.

*****

Appealed from the
Twenty-Sixth Judicial District Court for the
Parish of Bossier, Louisiana
Trial Court No. 139,177

Honorable Robert Lane Pittard, Judge

*****

DAVID L. WHITE Counsel for Appellant

SOCKRIDER, BOLIN, ANGLIN & Counsel for Appellee
BATTE, LLC
By: D. Rex Anglin

*****

Before MOORE, THOMPSON, and ROBINSON, JJ.

ROBINSON, J.

Vernon Gervis Ayres, Jr. (“Ayres”) filed a rule to show cause on June

14, 2021, seeking to enforce a judgment dated October 23, 2014, which, in

part, partitioned the former matrimonial domicile previously owned in

indivision by him and Lisa Jean Vogler (“Vogler”), adjudicating ownership

to Ayres and ordering that he refinance the property to remove Vogler from

the mortgage. Ayres petitioned that Vogler be ordered to sign a deed

transferring title to the property to Ayres and to cancel the notice of lis

pendens filed by Vogler on May 3, 2021, because he could not sell or

refinance the property without showing clear title.

Vogler filed an answer and reconventional demand on July 30, 2021,

denying any obligation to facilitate clear title prior to Ayres’ refinancing of

the property, and claiming that the October 2014 judgment was null and void

based on an impermissible waiver of child support.

Judgment rendered by the trial court on August 16, 2021, ordered

Vogler to execute a quitclaim deed conveying all her interest in the property

to Ayres in accordance with the October 2014 judgment, and directed the

clerk of court to cancel the notice of lis pendens recorded by Vogler.

Vogler appeals the August 2021 judgment.

For the following reasons, we affirm the trial court and remand to the

trial court with instructions.

FACTS AND PROCEDURAL HISTORY

Vogler filed a petition for divorce on June 4, 2012, including a

demand that child support be fixed. A consent judgment was entered on

August 2, 2012, awarding Vogler primary, domiciliary custody of their two

minor children, ages 11 and 13 at the time. The parties stipulated that the

children could move to Michigan with Vogler and provided for Ayres’

reasonable visitation with the children in Louisiana, with all travel expenses

to be paid by Vogler. Vogler’s demand that child support be set by the court

was reserved. The August 2012 judgment also divided separate and

community assets and included an order that the separate, jointly owned

marital residence be sold, with Vogler receiving a reimbursement for the

down payment she made on the home and the parties splitting the remaining

proceeds from the net equity.

Vogler filed a rule to show cause on January 6, 2014, asserting that

Ayres failed to cooperate with the sale of the home and to divide a SEP IRA

that the parties had acquired and contributed to during the existence of the

marriage, pursuant to the August 2012 judgment, and that child support had

not been set. Ayres filed an answer and reconventional demand on April 24,

2014, seeking to change custody of the minor children and requesting that

child support be set, as well as requesting to purchase Vogler’s interest in

the marital domicile by refinancing and paying the existing debt and

repaying Vogler the down payment and the remaining net equity.

Vogler filed a petition asserting that Michigan has subject matter and

personal jurisdiction over the children and was the appropriate court for

issues related to custody. An evidentiary hearing was conducted on July 14,

2014, and the trial court held that Louisiana had jurisdiction. Vogler filed a

supervisory writ to this Court, which was denied.

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A hearing was held on August 8, 2014, and the parties ultimately

reached an agreement, forgoing the need for trial. The issues settled

included: Vogler’s continued custody of the minor children; satisfaction of

any past due child support owed by Ayres to Vogler; no ongoing child

support due to Vogler in exchange for Ayres’ relinquishment of all child-

related tax credits and deductions and Ayres’ payment of all visitation

expenses, including transportation costs; an award to Ayres of Vogler’s

entire share in the separate and community assets that had originally been

divided by stipulation in the August 2012 judgment, including Vogler’s

interest in the marital residence; and Ayres’ refinancing of the marital

residence to remove Vogler from the mortgage.

A form and content hearing was held on October 23, 2014. The

parties discussed the method for transferring the property, i.e., the timing of

executing a quitclaim deed in conjunction with the refinancing or sale of the

property, but no specific “vehicle” for the transfer was included in the

judgment. Vogler also raised the issue of whether the child support “waiver”

was contrary to Louisiana law, but the court found the particular issue to

have been already resolved at the August 2014 hearing and outside the scope

of a form and content hearing. With the exception of revising the judgment

to correctly reflect the marital residence as separate, jointly owned property

rather than community property, a judgment was entered on October 23,

2014, reflecting the issues settled upon by the parties at the August 2014

hearing, including directing Ayres to refinance the mortgage within 90 days.

On December 9, 2014, Ayres filed a petition seeking a judgment

ordering Vogler to execute a deed transferring title of the subject property to

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Ayres, alleging that he could not refinance the property without having a

deed in his name. Two hearings were set, but the matter was ultimately

abandoned. Ayres filed the October 2014 judgment in the conveyance

records on June 14, 2018.

Ayres filed a petition on June 14, 2021, seeking a judgment ordering

Vogler to sign a deed transferring her interest in the subject property to

Ayres pursuant to the terms of the October 2014 judgment, because that

judgment alone was insufficient to transfer title to a prospective buyer. He

also requested the cancellation of a notice of lis pendens filed by Vogler on

May 3, 2021.

Vogler filed an answer and reconventional demand on July 30, 2021,

denying any obligation to facilitate clear title prior to Ayres’ refinancing of

the property and claiming that the October 2014 judgment was null and void

based on an impermissible waiver of child support.

The trial court rendered a judgment on August 16, 2021, ordering

Vogler to execute a quitclaim deed conveying all her interest in the property

to Ayres in accordance with the October 2014 judgment and directing the

clerk of court to cancel the notice of lis pendens. Vogler appeals the

judgment.

DISCUSSION

Absolute Nullity

Vogler claims that the trial court erred in failing to address the past,

present, and future waiver of child support contained in the October 2014

consent judgment that permanently relieved Ayres of his support obligation

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to his minor children, and in failing to find that the waiver is a violation of

public policy and an absolutely nullity and void from its inception.

Vogler further asserts that since the child support waiver is absolutely

void, the entire agreement is tainted and all other provisions in the October

2014 judgment are also void, such that the trial court had no authority upon

which to order her to sign a quitclaim deed in the September 2021 judgment.

Parents have a legal duty to provide support to their children that

cannot be permanently renounced or suspended. Dubroc v. Dubroc, 388 So.

2d 377 (La. 1980). Thus, the courts of our state have long recognized that a

judgment wherein a parent is permanently relieved of his obligation to

support his minor children is an absolute nullity because it contravenes the

public policy of this state. Hebert v. Hebert, 96–2155 (La. App. 1 Cir.

9/19/97), 700 So. 2d 958; see also Walder v. Walder, 159 La. 231, 105 So.

300 (1925); Dubroc, supra; Pierce v. Pierce, 397 So. 2d 62 (La. App. 2 Cir.

1981); Richardson v. Richardson, 427 So. 2d 518 (La. App. 3 Cir.

1983), writ denied, 433 So. 2d 182 (La. 1983); Macaluso v. Macaluso, 509

So. 2d 201 (La. App. 1 Cir. 1987). The public policy behind a parent’s duty

of support is to ensure, both for the sake of the child and the sake of the

general public that might otherwise have to provide his support, that each

child receives support sufficient for his maintenance and upbringing.

Macaluso, supra.

Absolutely null judgments may be attacked collaterally, at any time,

by rule or by any other method. Hebert, supra, citing Garnett v. Ancar, 203

So. 2d 812 (La. App. 4 Cir. 1967). See also La. C.C.P. art. 2002; Nethken v.

Nethken, 307 So. 2d 563 (La. 1975); Bass v. LaPorte, 95–0867 (La. App. 1

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Cir. 2/14/97), 691 So.2d 138, writ denied, 97–0646 (La. 4/25/97), 692 So. 2d

1088; Webster v. Boh Brothers Constr. Co., 603 So. 2d 761 (La. App. 4 Cir.

1992). Estoppel or laches cannot arise against an absolute nullity. Wilson v.

King, 227 La. 546, 79 So. 2d 877 (1955).

The applicable provision regarding child support in the October 2014

judgment reads as follows:

IT IS FURTHER ORDERED, ADJUDGED AND DECREED
that all pending actions of LISA JEAN VOGLER seeking an
award of child support and/or accrual of allegedly past due child
support are dismissed, with prejudice. Pursuant to the stipulation
of the parties and their transaction and compromise, it is the order
of this Court that VERNON GERVIS AYRES, JR. will not owe
LISA JEAN VOGLER for any child support payments allegedly
due as of the date of this judgment nor any prospective child
support payments. This provision of this judgment excluding an
obligation of child support on behalf of VERNON GERVIS
AYRES, JR. is specifically approved by the Court in view of the
other consideration expressed and contained herein including, by
way of example, MS. VOGLER’S exclusive right to claim both
minor children as dependents and exemptions every year and
MR. AYRES’ assumption of the cost of transporting the children
for his Spring Break visitation every year as set forth in the Joint
Custody Plan attached hereto.

The record indicates that a lump sum payment was made in

consideration for the satisfaction of arrearages as of the date of the

judgment. Therefore, only the portion of the judgment as it applies to

prospective support is at issue in this case. It is clear that the terms of the

judgment indicate the parties’ agreement that Ayres would owe no child

from the date of the judgment going forward, providing that Ayres “will not

owe LISA JEAN VOGLER for any child support payments allegedly due as

of the date of this judgment nor any prospective child support payments,”

and “[t]his provision of this judgment excluding an obligation of child

support on behalf of VERNON GERVIS AYRES, JR.”

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The release of his obligation to provide child support following the

October 2014 judgment amounted to a full and complete waiver of

prospective child support, making this provision null and void as against

public policy.

However, this Court rejects Vogler’s argument that the entire October

2014 judgment is absolutely null and void due to the flawed provision

regarding waiver of prospective child support. There is ample case law

supporting that only the provision itself – not the entire agreement – is

absolutely null and void.

The court in Macaluso, supra, held that the portion of a judgment

making the payment of child support contingent on full compliance with the

visitation ordered was an absolute nullity.

In Walder, supra, the wife filed suit to annul that portion of the

judgment which relieved the husband of any future obligations to support the

children. The court stated in its ruling that “[I]t should be observed that

plaintiff is not suing to annul the agreement, made by her, to support her

minor children, but the purpose of the suit … is to have the decree in the

partition proceedings annulled or declared void, in so far as it purports to

relieve defendant of all legal obligations to support his minor children…

Hence the validity vel non of the agreement entered into between plaintiff

and defendant does not enter into the case, but only the decree in said

judgment“[.]” [Emphasis added.] Id.

In Pierce, supra, the plaintiff contended that her agreement to waive

future child support contained in the community property settlement was

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contrary to public policy, and for that reason unenforceable. The court in

Pierce held that the mother had a valid cause of action for child support. Id.

In Richardson, supra, the court held that the portion of the judgment

recognizing the waiver of future child support by the wife upon the

acceptance of a certain lump sum payment from the husband, was null and

void as against public policy. The case was remanded for a hearing solely

on the issue of child support. Id.

Vogler cites Hebert when arguing for the nullity of the entire consent

judgment. In Hebert, the consent judgment disposed of the issues of

custody, use of the family home, health insurance, alimony, and child

support, much like the case at hand. The defendant was to commence

payment of child support only upon the parties paying off all community

debts as specified in the judgment. Hebert, supra. The plaintiff filed a

motion to rescind the consent judgment in its entirety because the judgment

abrogated defendant’s obligation to support his children and because her

consent thereto had been vitiated by an error of fact concerning the principal

cause, but she asked the court to then rule on the issues of child support,

alimony, and use of the family home after the original consent judgment was

rescinded. Id. The court found the provision to be clearly repugnant to

defendant’s obligation to support his children, thus absolutely null and void

as against public policy. Id. It seemed to find the judgment itself to be

absolutely null, but the ruling appeared to merely grant the plaintiff’s motion

to rescind the judgment in its entirety. We find this matter distinguishable

because the plaintiff in Hebert had argued an error of fact concerning the

principal cause; therefore, the child support provision was so intertwined

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with the remaining provisions that it could not be nullified without affecting

the entire judgment.

Severability

Vogler’s argument that the October 2014 judgment contained no

severability clause, such that the entire agreement is tainted by the quid pro

quo negotiations in which Ayres agreed to dismiss his custody request, is

wholly without merit. This Court is unaware of any requirement of a

severability clause in consent judgments, and Vogler offers no support for

such an argument. In fact, she points out that neither she nor her attorney

cooperated in the signing of the judgment – further weakening any potential

defect of form argument akin to that of contractual requirements.

In addition, it is undisputed that Vogler, an attorney, proposed the

details of the October 2014 judgment. Both parties received benefits from

their transaction and compromise, most significantly Vogler’s continued

custody of the two minor children after an allowed relocation to Michigan

while Ayres stayed in Louisiana. Also, Vogler made no attempt to seek a

declaration of nullity or to obtain a judgment of child support at any time

after the October 2014 judgment until her July 30, 2021, filing of a

reconventional demand seeking retroactive child support, despite being told

by the trial court numerous times that she had the ability to do so. She

operated under all provisions of the consent judgment for seven years, aside

from the contested “vehicle” to be used in effectuating the transfer of her

interest in the former marital domicile, seemingly acquiescing in the validity

of all its terms, despite any doubts she may have expressed as to the child

support waiver.

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Duress in Negotiations

Vogler refers to the combination of the issues of child custody,

property division, and child support during negotiations leading up to the

October 2014 judgment, alleging that Ayres used the minor children as a

“bargaining chip” to obtain additional assets and the waiver of child support.

She further points out the pressure she was put under prior to executing the

consent judgment, and the fact that she continued to have unresolved

questions and hesitations.

It is commonplace for several issues to be discussed at once in family

law matters such as this. However, there is no evidence in the record to

support Vogler’s contention that Ayres exhibited any wrongdoing as part of

the negotiations. Had she legitimately believed that the terms to which she

agreed in open court were unlawful in any way, those matters could have

been taken up at the impending trial under the supervision of the trial court.

Consent is vitiated when it has been obtained by duress of such a

nature as to cause a reasonable fear of unjust and considerable injury to a

party’s person, property, or reputation. La. C.C. art. 1959. The threat of

doing a lawful act or exercising a right does not constitute duress. Leonard

v. Reeves, 2011–1009 (La. App. 1 Cir. 1/12/12), 82 So. 3d 1250. Here, even

if Ayres had threated to seek full custody of the children, the subject of that

threat – seeking custody – is a lawful act and within his right to exercise.

Therefore, such an action would not constitute duress resulting in the

vitiating of consent.

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Requirement of Quitclaim Deed; Contempt

Vogler further argues that the trial court erred in ordering her to sign a

quitclaim deed when the October 2014 judgment contained no provision

requiring her to do so. She also claims the trial court erred when it failed to

find Ayres in contempt for failing to refinance the debt on the separate,

jointly owned property as required pursuant to the October 2014 judgment.

The judgment contains the following provisions, in pertinent part:

IT IS FURTHER ORDERED, ADJUDGED AND DECREED
that there be judgment herein partitioning the following assets:

I. VERNON GERVIS AYRES, JR. hereby receives and LISA
JEAN VOGLER hereby grants, bargains, sells and coveys unto
VERNON GERVIS AYRES, JR. with full guarantee of title and
with complete transfer and subrogation of all rights and actions
of warranty against all former proprietors of the property herein
conveyed unto VERNON GERVIS AYRES, JR. all of her right,
title and interest in and to the following described property:

A. LOT 3, WOODLAKE SOUTH SUBDIVISION, UNIT 3, A
SUBDIVISION OF Bossier Parish, Louisiana, as per plat thereof
recorded on Conveyance Book 808, pages 464-465 of the
Conveyance records of Bossier Parish, Louisiana, together with
all buildings and improvements thereon.

****

IT IS FURTHER ORDERED, ADJUDGED AND DECREED
that the parties hereby effect a division of the debts incurred
either prior to, during or subsequent to the existence of their
community of acquets and gains as follows:

III. VERNON GERVIS AYRES, JR. is hereby ordered to and
does hereby assume full liability for, holding LISA JEAN
VOGLER free and harmless from any future responsibility for
the following debts:

A. Outstanding balance owed on any debt or promissory note
secured by mortgage on the immovable property herein
conveyed unto VERNON GERVIS AYRES, JR. VERNON
GERVIS AYRES, JR. shall completely pay this debt within
ninety (90) days by refinancing the existing real estate debt
hereby assumed by him; …

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The judgment is clear and unambiguous in its adjudication of the

formerly co-owned property to Ayres. While the intent may have been for

the judgment itself to effectuate the transfer, Ayres offered evidence

showing that the title company would not continue with refinancing or

approve a sale without a deed from Vogler transferring her interest in the

property as provided in the judgment, as well as a cancellation of the notice

of lis pendens filed by Vogler, so that Ayres would have clear title as the

sole owner of the property. Vogler offered no evidence to the contrary, but

merely argued that the judgment contained no specific direction to execute a

quitclaim deed and that the judgment was nevertheless absolutely void due

to the invalid waiver of child support. There also could have been other

sufficient and reasonable means of transfer, but Vogler offered no evidence

as to such alternatives.

A contract is an agreement by two or more parties whereby

obligations are created, modified, or extinguished. La. C.C. art. 1906. A

contract is commutative when the performance of the obligation of each

party is correlative to the performance of the other. La. C.C. art. 1911.

When there are reciprocal obligations, the obligor of one may not be put in

default unless the obligor of the other has performed or is ready to perform

his own obligation. La. C.C. art. 1993. A party to a commutative contract

may refuse to perform his obligation if the other has failed to perform. La.

C.C. art. 2022. As a general rule, a party suing to recover on

commutative contract must allege and prove performance of his

agreement. Charles C. Cloy, Gen’l Contrs., Inc. v. DiVincenti Bros., Inc.,

308 So. 2d 495 (La. App. 1 Cir. 1975), writ denied, 311 So. 2d 262 (La.

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1975). Before a person can have a contract canceled on account of a failure

of the other party to perform, such person must allege and prove that he

himself has performed or offered to perform his part of the contract. La.

Farm Rice Bur. v. Miller, 389 So. 2d 840 (La. App. 3 Cir. 1980), Racca v.

Zwan, 194 So. 68 (La. App. 1 Cir. 1940).

Ayres’ requirement to refinance the property and Vogler’s

requirement to transfer her interest operates as a commutative contract. The

performance of one obligation is correlative to the performance of the other.

Vogler argues at great length that Ayres cannot support his request that she

sign a quitclaim deed because he failed to perform under the agreement by

not refinancing within 90 days of the judgment. However, in order to be

successful in such a claim, Vogler must allege and prove the performance of

her agreement. In other words, she must prove that she has performed or

offered to perform. Vogler has not performed under this commutative

contractual agreement; therefore, she is barred from claiming Ayres’ failure

to perform.

Good faith governs the conduct of the obligor and obligee in whatever

pertains to the obligation. La. C.C. art. 1759. A party to a contract has an

implied obligation to make a good faith effort to fulfill the conditions of

the contract. Bloom’s Inc. v. Performance Fuels, L.L.C., 44,259 (La. App. 2

Cir. 7/1/09), 16 So. 3d 476, writ denied, 2009–2003 (La. 11/20/09), 25 So.

3d 800.

We find that Ayres has made a good faith effort to fulfill the

conditions of the commutative contract. As evidenced by his petition filed

shortly after the October 2014 judgment, he did attempt to refinance the

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property within the 90-day timeframe. He also filed the judgment itself in

the conveyance records in an attempt to effectuate the transfer. Ayres later

provided evidence of correspondence with the title company in which he

was informed a deed would be required in order to close on the refinancing,

and per his latest sworn petition, for the potential sale of the property.

Child Support Guidelines

The Louisiana Supreme Court in Stogner v. Stogner, 98–3044 (La.

7/7/99), 739 So. 2d 762, held that, “[n]otwithstanding the freedom of the

parties to [enter into consent judgments], agreements may not ‘derogate

from laws enacted for the protection of the public interest.’” The Court held

that, pursuant to La. R.S. 9:315.1(A) and (D), the trial court should have

“consider[ed] the guidelines set forth [and] … review[ed] the adequacy of

the stipulated amount,” before the stipulated judgment was presented to it

for signature, and further, that the trial court should have given oral or

written reasons for warranting the deviation from the guidelines, La. R.S.

9:315.1(B).

There was no review by the trial court of the child support guidelines

provided in La. R.S. 9:315.1 pertaining to the parties’ underlying agreement

regarding child support – for either the satisfaction of arrearages as of the

October 2014 judgment by lump sum payment or the waiver of prospective

child support following that judgment – nor were there any oral or written

reasons for deviation therefrom in the judgment. Such failure to consider the

guidelines and provide reasons for any deviation therefrom was error.

However, this error does not result in absolute nullity of the child support

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provision in any respect, but merely affects the basis for which an amount of

child support is set.

La. R.S. 9:315.1 provides, in part, as follows:

A. …There shall be a rebuttable presumption that the amount of
child support obtained by use of the guidelines set forth in this
Part is the proper amount of child support.
B. (1) 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. …

Subpart C provides a list of the court’s considerations in determining

whether to deviate from the guidelines.

This Court directs the trial court to use the guidelines provided in La.

R.S. 9:315.1(C) to establish child support as of the rendering of the August

2014 judgment (as a result of this Court’s finding that the portion of the

provision in the judgment regarding prospective child support amounted to a

waiver in violation of public policy, rendering that portion of the provision

absolutely null and void). In addition, the trial court is to consider the

guidelines pursuant to La. R.S. 9:315.1(D) to review the adequacy of the

stipulated amount for arrearages paid by lump sum as of the filing of

judgment (as a result of this Court’s finding that the portion of the provision

in the judgment regarding satisfaction of child support arrearages prior to the

judgment was permissible and valid).

This Court would draw particular attention to that portion of La. R.S.

9:315.1 which authorizes a trial court to deviate from the child support

guidelines “if their application … would be inequitable to the parties.” The

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record is devoid of any specific information to enlighten this Court as to the

parties’ financial positions (1) in August 2012 when child support was first

ordered in favor of Vogler upon the parties’ divorce, and (2) in August 2014

when Ayres made a lump sum payment for arrearages for the period leading

up to that point and when, resultingly and retroactively, prospective child

support was never set due to an invalid waiver. However, this Court does

have information in the record as to certain considerations which would

make the application of the guidelines inequitable to the parties.

First, the terms of the consent judgment were presented by Vogler

herself as a result of the looming uncertainties of an impending trial. It is

undisputed that there was a very real possibility that Vogler was about to

lose custody for several reasons. Vogler proposed that she maintain custody

of the children in Michigan and that Ayres be responsible for 100% of any

and all visitation transportation costs, while she would forfeit certain

community property and other reimbursement rights related to the former

marital domicile and waive future child support. Through true transaction

and compromise, she received her desired benefits of the bargain. The

ultimate determination that there was an impermissible waiver of future

child support, rendering such provision absolutely null and void as against

public policy and requiring that child support be retroactively set in

accordance with the guidelines, creates a problematic imbalance in what

was, at the time of the consent judgment, considered to be an even,

bargained-for exchange.

In the interest of equity, credence must be given to the fact that, in

exchange for the waiver of future child support and other considerations,

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Vogler received custody of her minor children, ages 15 and 13 at the time,

who would reside with her in Traverse City, Michigan, over 1,000 miles

away from their father in Benton. Vogler filed her most recent petition on

July 30, 2021, requesting nullity of the October 2014 judgment entered

seven years before, several years after the children reached majority. This

valuable consideration – the time spent raising minor children – cannot be

nullified to offset the nullity of the impermissible waiver of child support.

In addition, the record shows that Vogler was, at the very least, aware

of the possibility that the provision regarding future child support was an

impermissible waiver. She admittedly discussed the issue with her attorney

at the time the August 2014 was rendered, and brought up the issue in open

court at the form and content hearing in October 2014. The trial court judge

repeatedly informed Vogler that she would be able to address the child

support issue at a later date. He did not entertain an argument on the issue at

the hearing in which the consent judgment was entered because the parties

were set for trial. If Vogler had hesitations regarding the issue of child

support or felt in any way that the consent judgment did not support the

parties’ agreement, she could have – and should have – proceeded with trial

as scheduled. She also brought up the issue at the form and content hearing

wherein the trial court again rightfully refused to hear argument outside the

scope of the hearing.

It must also be mentioned that Vogler was represented by counsel

during negotiations, during the hearing regarding the consent judgment and

throughout the majority of the matter with the exception of a brief period of

time during which the form and content hearing was held. More

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importantly, she was a licensed attorney herself. As such, she is held to a

higher standard, not only as to her knowledge of the law, but ethically and

morally. She knew at the time of the consent judgment that there was an

issue with the validity of the future child support provision, yet she followed

through with the entering of the judgment. She also operated under the

terms of that judgment – which she proposed – for seven years as if she

acquiesced in its validity, only to contest its legitimacy once she received

her benefit of the bargains.

In addition to its determination of child support, “[i]n no event shall

the court set an award of child support less than one hundred dollars, except

in cases involving shared or split custody.” La. R.S. 9:315.14. No matter

the trial court’s determination as to support pursuant to the guidelines and

deviation therefrom, the amount set cannot be less than $100.00. Also,

should the trial court find that the lump sum amount paid by Ayres in

satisfaction of arrearages at the time was excessive per the guidelines such

that a deviation is justified, the revised support amount should not be less

than $100.00, and any excess should be used to offset the future child

support amount determined. The trial court must also consider any expenses

actually paid by Ayres as an offset against what is to be determined as the

total amount of child support due from the rendering of the August 2014

consent judgment to the age of majority for each child. This would include,

but not be limited to, any amount previously paid for arrearages as of the

August 2014 judgment considered to be excessive per the guidelines, any

visitation travel expenses, and any other expenses paid for and on behalf of

the minor children.

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CONCLUSION

For the foregoing reasons, this Court AFFIRMS the trial court’s

judgment rendered on August 16, 2021, ordering Vogler to execute a

quitclaim deed conveying all her interest in the property to Ayres in

accordance with the October 2014 judgment, and directing the clerk of court

to cancel the notice of lis pendens recorded by Vogler. However, this matter

is REMANDED to the trial court for determination of child support pursuant

to La. R.S. 9:315.1 and as consistent with this opinion. Each party is to bear

his or her own costs of the appeal.

AFFIRMED AND REMANDED.

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