Michael Steven Ledet v. Christine Diapaul

Judgment rendered August 23, 2023.
Application for rehearing may be filed
within the delay allowed by Art. 2166,
La. C.C.P.

No. 55,137-CA

COURT OF APPEAL
SECOND CIRCUIT
STATE OF LOUISIANA

*****

MICHAEL STEVEN LEDET Plaintiff-Appellee

versus

CHRISTINE DIAPAUL Defendant-Appellant

*****

Appealed from the
First Judicial District Court for the
Parish of Caddo, Louisiana
Trial Court No. 577,772

Honorable Karelia R. Stewart, Judge

*****

WEEMS, SCHIMPF, HAINES, Counsel for Appellant
& MOORE, APLC
By: Kenneth Patrick Haines

JAMES HARRY ASKEW, APLC Counsel for Appellee

*****

Before THOMPSON, ROBINSON, and HUNTER, JJ.

ROBINSON, J.

Christine Diapaul (“Diapaul”) appeals the December 15, 2021,

judgment that awarded final child support to be paid by Michael Steven

Ledet (“Ledet”) unto Diapaul in the amount of $700 per month, a reduction

from $2500 per month as set forth in the interim orders dated August 28,

2014, and July 15, 2015. This judgment was applied retroactively and a

money judgment was rendered in favor of Ledet against Diapaul for

repayment of the total overpayment of child support in the amount of

$206,182.86, together with legal interest from date of judgment until paid.

The judgment provided that the money judgment could be retired either by

Diapaul’s direct monthly payment to Ledet in the amount of $200, or by

Ledet’s deduction of $200 from the monthly support amount owed to

Diapaul.

Ledet answered Diapaul’s appeal seeking relief from the restrictions

placed upon repayment of the money judgment. For the following reasons

this judgment is reversed and remanded with instructions.

FACTS AND PROCEDURAL HISTORY

Ledet initiated this case with his filing of a petition to establish

paternity and for child custody on June 27, 2014, when the minor child was

approximately two years old. Diapaul filed a reconventional demand

seeking child support on July 22, 2014.

An interim order was issued on the consent of the parties and signed

on August 28, 2014. It granted the parties joint legal custody, with Diapaul

as domiciliary parent, subject to physical custody with Ledet on specific

dates and times set forth in the order. Ledet was ordered to pay child

support in the amount of $2,500 per month, plus 100% of the costs of health

care insurance and uncovered health care for the child. Diapaul was ordered

to pay 100% of the costs of the child’s daycare expenses.

A second interim order was signed on July 15, 2015. The parties

maintained joint legal custody of the child, but agreed to an equally shared

physical custody arrangement. Child support obligations remained the same.

Ledet filed a motion to reduce child support on May 12, 2017, which

is at issue in this appeal. He requested that the matter be set for trial, he be

designated domiciliary parent, and child support be set “in accordance with

the Louisiana Child Support Guidelines.” Ledet specifically requested,

among other items, that the parties pay a percentage of noncovered

healthcare costs and extracurricular activity expenses, and he be allowed to

claim the child as a dependent for income tax purposes. A trial was held and

two judgments were entered regarding custody issues, but there was no final

determination of child support.

Both parties changed lawyers in 2018 and a series of discovery

disputes ensued with each party attempting to reset “all pending rules,”

delaying the matter. Ledet moved to reset on April 12, 2021, and Diapaul

objected May 21, 2021, due to counsel unavailability. On October 5, 2021,

the parties appeared before the trial court and entered a consent judgment

resolving all custody issues. The trial judge also signed an order on October

6, 2021, setting the trial on Ledet’s motion to determine final support for

November 29, 2021, and establishing a discovery schedule. Diapaul’s then

lawyer was also allowed to withdraw, but the trial court specifically

2

provided that the withdrawal would not be grounds to continue the child

support trial.

The matter was tried over the course of three separate days:

November 29, 2021, December 8, 2021, and December 15, 2021. Diapaul

was not represented by counsel during trial. A judgment was rendered on

December 15, 2021, and signed on January 3, 2022, ordering Ledet to pay

Diapaul $700 per month in child support, pay the child’s private school

tuition, maintain the child on insurance, pay 100% of noncovered medical

expenses, and pay 50% of agreed extracurricular activities for the child. The

December 2021 judgment also granted Ledet a money judgment against

Diapaul in the amount of $206,182.86 for overpayment of child support.

Diapaul was allowed to “retire” the money judgment by paying Ledet $200

per month or by Ledet paying $200 a month less in child support.

Diapaul timely appealed the December 2021 judgment on January 24,

2022. However, on May 6, 2022, the court reporter sent a letter to the trial

court and counsel indicating that the December 15, 2021, transcript of

proceedings had been lost and could not be reproduced due to a malfunction

of the court reporting equipment.

Diapaul filed a motion for narrative of facts pursuant to La. C.C.P. art.

2131 on May 24, 2022. Both parties filed their respective proposed

narrative of facts on August 5, 2022, and Diapaul filed a response to Ledet’s

proposed narrative the same date. The trial judge held a hearing on October

4, 2022, and “adopted” Ledet’s proposed narrative of facts, rejecting

Diapaul’s. The court did not construct its own separate narrative of facts.

3

Ledet filed an answer to Diapaul’s appeal on February 3, 2023,

claiming the trial court erred by placing restrictions upon repayment of the

money judgment owed to him by Diapaul.

DISCUSSION

Incomplete Record

There is no transcript of the third and last day of trial, December 15,

2021, due to a malfunction of the court reporting equipment. The trial itself

actually concluded on the second day, December 8, but oral reasons for

judgment were given on the third day.

Upon discovery of the missing portion of the trial transcript, Diapaul

filed a motion for narrative of facts pursuant to La. C.C.P. art. 2131 on May

24, 2022. La. C.C.P. art. 2131 provides:

If the testimony of the witnesses has not been taken down in
writing the appellant must request the other parties to join with
him in a written and signed narrative of the facts, and in cases of
disagreement as to this narrative or of refusal to join in it, at any
time prior to the lodging of the record in the appellate court, the
judge shall make a written narrative of the facts, which shall be
conclusive.

Both parties filed their respective proposed narrative of facts on August 5,

2022, and Diapaul filed a response to Ledet’s proposed narrative the same

date. A hearing was held on October 4, 2022, in which it “adopted” Ledet’s

proposed narrative of facts and rejected Diapaul’s, rather than construct its

own separate narrative of facts.

Diapaul argues that the case should be remanded for a new trial based

on an incomplete record, due to the missing portion of the trial transcript and

the fact that the trial court did not construct its own narrative of facts, but

rather merely adopted Ledet’s proposed narrative of facts. She also noted

4

that the trial court erred by reviewing information submitted by Ledet’s

counsel “off the record” that was not admitted into evidence. She urges that

critical information is missing such that this Court may not adequately

review the trial court’s proceedings.

Diapaul, citing Minton v. Acosta, 21-1180 (La. App. 1 Cir. 6/03/22),

343 So. 3d 721; and Tillery v. State Dept. of Public Safety & Corrections,

07-1228 (La. App. 1 Cir. 2/8/08), 984 So. 2d 742, further urges that the

matter be remanded for a new trial because she, as the appellant, bears the

responsibility of securing either a transcript or a narrative of facts, and

because the judgment, without a transcript or narrative, would be entitled to

a presumption of correctness.

This Court in Rose v. Rose, 44,467 (La. App. 2 Cir. 6/24/09), 2009

WL 1782811, speaks to the presumption that a judgment is supported by the

evidence when a trial transcript is not included in the record, as follows:

The appellant has the duty to secure either a transcript of the trial
or a narrative of facts; the inadequacy of the record is imputable
to the appellant. Steinhoff v. Steinhoff, 03-24 (La. App. 3 Cir.
4/30/03), 843 So. 2d 1290; Preuett v. Preuett, 517 So. 2d 848
(La. App. 3 Cir. 1987). In the case of a lack of a transcript or
narrative of facts in the appellate record, the judgment of the trial
court is presumed to be supported by competent
evidence. Succession of Rock v. Allstate Life Ins. Co., 340 So.
2d 1325 (La. 1976); Raia v. WWL–TV, 247 La. 1095, 176 So. 2d
390 (1965); Maurer v. Haefner, 192 La. 929, 189 So. 579
(1939); Williams v. Burnham, 185 La. 791, 171 So. 33
(1936); City of Shreveport v. Maroun, 134 La. 148, 63 So. 857
(1913); Simmons v. Yelverton, 513 So. 2d 504 (La. App. 2 Cir.
1987); Succession of Walker, 276 So. 2d 372 (La. App. 2 Cir.
1973), writ granted, 279 So. 2d 691 (La. 1973), affirmed, 288
So. 2d 328 (La. 1974). Said another way, review is limited to
determining whether the trial court correctly applied the law to
the facts it found. Steinhoff, supra. An exception to this rule
exists when the trial court has supplied extensive written reasons
for judgment which the appellate court may consider in lieu of a
transcript or a narrative of facts. Simmons, supra.

5

La. C.C.P. art. 2131 provides that if the testimony of a witness has not

been taken down in writing, the appellant has a duty to provide a narrative of

facts joined in by both parties; but in the absence of agreement, the trial

judge has the duty to make a narrative of facts. Jacobs v. Grayson, 421 So.

2d 394 (La. App. 1 Cir. 1982). However, La. C.C. P. art. 2131 – and its

burden on the appellant – does not apply where the testimony of the

witnesses has been recorded or taken down during trial, but due to

mechanical failures or some other cause beyond the control of the parties, all

or part of the testimony cannot be transcribed. Id., citing Willis v. Gulf Bldg.

Services of Baton Rouge, 372 So. 2d 635 (La. App. 1 Cir. 1979), and Kay v.

Home Indemnity Company, 301 So. 2d 705 (La. App. 3 Cir. 1974). In such

instances, the case should be remanded for the purpose of taking the

testimony of those witnesses who testified at trial. Id. The court in Jacobs

remanded the matter to the trial court, but for the limited purpose of retaking

the testimony of the witnesses who testified at trial. Id.

In other words, when the missing testimony is due to no fault of the

parties, the court is to remand for the limited purpose of obtaining only the

missing testimony, so as not to prejudice either party. As to the remaining

record, there is a presumption that the judgment is supported by competent

evidence, such that review is limited to determining whether the trial court

correctly applied the law to the facts it found.

First, we do not find that La. C.C.P. art. 2131 imposes any obligation

on the trial court to separately construct its own narrative of facts, or that it

bars the court from “adopting” one party’s narrative that it supports.

Second, and most importantly, this article appears to apply to a missing

6

transcript of witness testimony. In this case, the missing trial transcript was

for the last day of trial when no evidence was introduced and no testimony

was taken. The court solely provided its reasons for judgment after the trial

had concluded. The purpose of constructing a narrative of facts per Article

2131 is so that it can be used in lieu of a missing transcript or recording of

trial testimony. In this case, there is no missing testimony. Nevertheless,

whether or not a 2131 hearing was proper or necessary, the court did provide

a narrative of facts by virtue of its adoption of Ledet’s narrative and gave

some insight as to its reasons for the December 2021 judgment during the

hearing, however vague those reasons may have been.

As to Diapaul’s concerns regarding the information submitted by

Ledet’s counsel “off the record” that was not admitted into evidence, this

particular item was merely a revised worksheet. This worksheet reflected

the removal of Ledet’s payment of the child’s tuition from the expenses in

the child support calculations, per the court’s order and instruction on the

first day of trial. The court never requested or required it be submitted into

evidence, since it was merely to assist the court in its calculations. The

original worksheet was included in Ledet’s bench book, which was timely

provided to Diapaul and the court, and was admitted into evidence. The

revised worksheet was also provided to Diapaul between the first and second

days of trial (not the third day for which the transcript is missing), prior to

submission to the court.

The only information missing in the record is the transcript from the

last day of trial that supposedly included the court’s reasons for judgment.

Those reasons were ultimately provided by way of the 2131 hearing. There

7

is no missing testimony as a result of the mechanical failure that would

warrant remanding the matter to obtain that testimony. Therefore, even

though the court’s reasons for judgment were inadequate as far as providing

insight into its ruling, the court’s review is limited to determining whether

the trial court correctly applied the law to the facts it found, due to the

presumption that the judgment is supported by competent evidence.

Retroactive Application of Judgment

In this case, a trial was held for the sole issue of determining final

child support. Following the trial, the court rendered the December 2021

judgment setting final child support in the amount of $700 per month

payable by Ledet to Diapaul, with payments to commence January 1, 2022.

However, the judgment also provided that the two interim orders were to be

modified retroactively such that Ledet was to be reimbursed for his total

overpayment made prior to the date of judgment, which was calculated by

determining the allegedly proper support amounts per year based on

evidence submitted at trial. It does not appear from the record that the final

child support amount itself ($700 per month payable by Ledet to Diapaul)

was applied retroactively; rather, there was simply a retroactive recalculation

of the support amounts determined on an annual basis. In other words, the

trial court made a final determination of child support, for which the amount

was to be applied prospectively, but also retroactively modified the interim

orders (though not by applying the final support amount retroactively, but

instead just recalculating several years of support amounts).

8

It is apparent that the trial court either misapplied or misread the

provisions in La. R.S. 9:315.21 regarding the retroactivity of child support

judgments. The statute provides, in relevant part, as follows:

A. Except for good cause shown, a judgment awarding,
modifying, or revoking an interim child support allowance shall
be retroactive to the date of judicial demand, but in no case prior
to the date of judicial demand.

B. (1) A judgment that initially awards or denies final child
support is effective as of the date the judgment is signed and
terminates an interim child support allowance as of that date.

(2) If an interim child support allowance is not in effect on the
date of the judgment awarding final child support, the judgment
shall be retroactive to the date of judicial demand, except for
good cause shown, but in no case prior to the date of judicial
demand.

C. Except 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.

D. Child support of any kind, except that paid pursuant to an
interim child support allowance award, provided by the
judgment debtor from the date of judicial demand to the date the
support judgment is signed, to or on behalf of the child for whom
support is ordered, shall be credited to the judgment debtor
against the amount of the judgment.

[Emphasis added.]

Retroactivity of the child support award depends on whether it is derived

from an interim allowance versus a final child support determination, as well

as whether an interim allowance is in place at the time of a final

determination.

If there had only been a modification of an interim order – that is, no

final child support had been set – the judgment modifying the interim order

would be retroactive to the date of judicial demand, per La. R.S.

9:315.21(A). That is not the case at hand. Here, there was a determination

9

of final child support when an interim child support allowance had been in

place, such that La. R.S. 9:315.21(B)(1) would apply.

The Louisiana Supreme Court’s decision in Vaccari v. Vaccari, 10-

2016 (La. 12/10/10), 50 So. 3d 139, is the controlling authority regarding the

retroactivity of a final child support judgment when an interim award is in

place, under La. R.S. 9:315.21(B)(1). In Vaccari, the payor spouse, Mr.

Vaccari, grossly misrepresented his income in an affidavit at the hearing to

set interim support to be $262,000 per year, when it was actually more than

$3.5 million for the year in question. Id. Based upon the misrepresentation,

the trial court ordered Mr. Vaccari to pay interim child support of $7,000 per

month. Id. When the court-appointed forensic accountant discovered the

discrepancy, the trial court found that Ms. Vaccari was entitled to a final

child support award of $16,546 per month, retroactive to the date of judicial

demand. Id. The Court of Appeal reversed the trial court’s ruling, finding

no statutory authority to make the award retroactive. Id. The Supreme

Court reversed the court of appeal and reinstated the trial court’s judgment,

finding that La. R.S. 9:315.21(B)(1) did not expressly forbid a court from

making a final child support award retroactive when an interim allowance

was in place, and may do so upon a showing of good cause. Id.

The Supreme Court in Vaccari found good cause for the final child

support award to be retroactive to the date of judicial demand. First, the

Court judicially recognized Mr. Vaccari’s continuing obligation to support

his children in accordance with his true income, noting that, “This holding is

in accord with the stated policy goals of Louisiana’s child support statutes

and affirms long held civilian concepts regarding the ongoing nature of the

10

child support obligation.” Id. at 144. It further stated that, “While

ultimately guided by the legislation, we are also persuaded by the equities of

this case.” Id. The Court explained, “This is not to say a final child support

award must be retroactive, or even that it should be made retroactive in

every proceeding. But in cases such as this one, where a party files a false

affidavit in an effort to avoid the full extent of his child support obligation, it

is only proper to make the award retroactive so he will not benefit from his

own misdeeds.” Id. at 141. The Court pointed out that Mr. Vaccari had long

avoided paying what he rightfully owed in child support by misleading the

trial court through his “obfuscatory tactics,” so retroactivity of the final

support award merely treated him as if he had been truthful all along. Id.

Case law following Vaccari supports that the “good cause” exception

to La. R.S. 9:315.21, allowing retroactivity of a final child support award

retroactive when an interim allowance is in place, is a very limited one.

“While [Vaccari] clearly opens the door for trial courts to make final child

support judgments retroactive to the date of judicial demand when an interim

support award had been in effect, retroactivity is the exception, not the rule.”

Shaw v. Shaw, 46,993 (La. App. 2 Cir. 4/5/12), 87 So. 3d 235, 240. This

Court further noted in Shaw that the Supreme Court’s decision in Vaccari

shifted the burden of proof to the obligee to show good cause in order for the

final award to be retroactive. Id.

In Shaw, the parties entered into an interim agreement in which Mr.

Shaw paid a nominal amount of child support due to his unemployment. Id.

When a final determination of support was made, Mr. Shaw’s income had

increased due to obtaining gainful employment, and the court set a much

11

higher monthly support amount. Id. The trial court made the final support

award retroactive to the date of judicial demand. Id. This Court reversed

the trial court, holding that the court erred in making the final child support

award retroactive to the date of judicial demand because the underlying facts

did not rise to the level of egregiousness in Vaccari. Id. It noted that the

parties had agreed to the terms of the interim support award – the amount,

effective date, and retroactivity (lack thereof) – and there were no

allegations that Ms. Shaw was deceitfully induced into the agreements or

that Mr. Shaw misrepresented his finances. Id.

In Coleman v. Coleman, 47,080 (La. App. 2 Cir. 2/29/12), 87 So. 3d

246, an interim award of $200 per month payable by Mr. Coleman was in

place as of August 2009, which he voluntarily increased at some point to

$600 per month, before the trial court set a final support amount of $879.30

per month beginning on June 1, 2011. Ms. Coleman initially reported that

she was unconcerned with the amount of child support prior to the final

judgment, but later argued that the award should be retroactive. Id. This

Court found no showing of good cause why the final award of child support

should be made retroactive to the date of demand, and even amended the

judgment to reflect that support be paid beginning four weeks later on June

28, 2011, the exact date of the judgment. Id.

The Fifth Circuit in Rutland v. Rutland, 13-70 (La. App. 5 Cir.

7/30/13), 121 So. 2d 776, held that the trial court did not err in finding that

good cause did not exist to make the child support award retroactive to the

date of judicial demand. Per an interim order in April 2011, Mr. Rutland

was paying $200 per month in child support to Ms. Rutland, the custodial

12

parent, based on his unemployed status. Id. The court ultimately awarded a

final support amount of $474.90 effective September 2012, based on Mr.

Rutland’s obtaining employment by that time, and concluded that the record

did not support a finding of misrepresentation of material facts or other

misdeeds by Mr. Rutland to such an extent as to justify a conclusion that the

trial court abused its discretion in applying the Vaccari standard. Id. It

noted that, “Clearly the facts of this case do not rise to the level of atrocious

misrepresentations that led to the holding in Vaccari.” Id. at 781.

In Miles v. Hunter, 14-0669 (La. App. 1 Cir. 11/20/14), 168 So. 3d

430, the parties entered into an initial stipulated judgment on January 23,

2013, that ordered Mr. Miles to pay interim child support in the amount of

$200 per month. The parties entered into a second stipulated judgment on

July 9, 2013, that increased interim child support payable by Mr. Miles to

$796.66 per month, which stated that the retroactive child support issue

would be determined at trial. Id. Following trial on September 30, 2013, the

court set Mr. Miles’ monthly support obligation in the amount of $1,006.32

commencing October 1, 2013. Id. However, child support for the period of

October 29, 2012 (date of judicial demand), to September 30, 2013, was set

for $1,035.16 per month, with a credit for all payments made pursuant to the

previous interim orders. Id. The judgment also provided that all child

support arrearages were made executory. Id. Although Ms. Hunter argued

that the interim award was set without full review of the parties’ financial

records, the Fifth Circuit held that there was no evidence that Mr. Miles

misrepresented material facts regarding his finances to avoid his child

support obligation, and vacated the portion of the trial court’s judgment

13

retroactively setting child support for the period of October 29, 2012 to

September 30, 2013. Id. The portion of the judgment ordering that

arrearages be made executory was also vacated. Because final child support

was no longer applied retroactively, there were no longer any arrearages. Id.

In McClanahan v. McClanahan, 14-670 (La. App. 5 Cir. 3/25/15),

169 So. 3d 587, the trial court made a June 20, 2007, support awards

judgment retroactive to the point at which it believed the parties had reached

an off-record agreement as to the effective date of a child support award,

March 28, 2003, although the parties had entered into an informal agreement

regarding interim support on or about April 30, 1998. Id. The trial court

held that, because it considered the informal agreement between the parties

merely a “letter agreement” that was not made a judgment of the court, there

was no valid interim agreement regarding child support in effect at the time

of the judgment. Id. As a result, it applied the reasoning under La. R.S.

9:321(B)(2), whereby the default effective date of the final support award

was retroactive to the date of judicial demand, February 4, 1999. Id.

However, the court found that good cause existed for the award not to be

made retroactive to the date of judicial demand because of the parties’ off-

record agreement to commence support payments as of March 28, 2003. Id.

The Fifth Circuit in McClanahan found that the trial court committed

legal error by not giving full legal effect to the terms of the parties’ “interim

agreement” on support because it was a valid and enforceable contract

despite not being made a judgment of the court. The Court emphasized in its

ruling that the agreement clearly provided for interim support “allowances,”

and was in place at the time the judgment granting final support was

14

rendered. Id. As a result, La. R.S. 9:315.21(B)(1) should have been applied

so that the default effective date of support was the date of judgment, unless

good cause were shown to make the award retroactive. Id. It further found

that Vaccari was inapplicable in the case and there was no good cause for

retroactivity of the support amount because the parties agreed to the terms of

the “interim agreement” without reference to any specific income

information, and no fraud or misdeeds were alleged to have been committed

in the confection of the parties’ interim agreement. Id.

Vaccari was also not followed in Keith v. Keith, 18-1222 (La. App. 1

Cir. 3/20/19), 2019 WL 1292361. Following a status conference, an order

was entered on May 9, 2017, in which the parties stipulated to an interim

award of $3,000 per month payable by Mr. Keith. Id. After trial, judgment

was entered on March 22, 2018, setting final child support in the amount of

$2,698.00 per month to be paid by Mr. Keith as of the date of the hearing,

March 2, 2018. Id. Mr. Keith argued that the award should have been

applied retroactive to the date of judicial demand, January 3, 2017, because

there was no evidence of either party’s income at the time of the interim

order, and that based upon tax returns, the interim award should have been

set at $1,475.56; therefore, he should be entitled to a return of his total

overpayment. Id. The First Circuit agreed with the trial court and held that

it did not abuse its discretion in finding that there had been no showing of

good cause to apply the final support award retroactively. Id.

The only case this Court is aware of in which good cause for

retroactivity was found was St. Philip v. Montalbano, 16-0254 (La. App. 1

Cir. 10/31/16) 206 So. 3d 909. An interim judgment making a provisional

15

award of child support to Ms. St. Phillip was entered on March 26, 2015,

three years after Ms. St. Philip filed a motion to set child support. Id. It

appears that Mr. Montalbano paid little or no child support during the three-

year period before the interim judgment. Id. The judgment specifically

reserved Ms. St. Philip’s right to pursue “a permanent and retroactive child

support award to the date of demand.” Id. A hearing was held on June 16,

2015, after which the trial court ordered Mr. Montalbano to pay $666.00 per

month in support to Ms. St. Philip. Id. An additional hearing was held on

October 26, 2015, in which the court awarded Ms. St. Philip the following

amounts of child support: $1,325 per month from March 6, 2012, through

December 31, 2012; $1,042 per month for the full year of 2013; $1,407 per

month for the full year of 2014; and $666.00 per month from January 1,

2015, through June 30, 2015, subject to credits for any prior payments made

during those periods. Id.

The First Circuit upheld the trial court’s finding of retroactivity. Id.

The Court pointed out that the interim judgment reserved Ms. St. Philip’s

right to pursue retroactive support, which was later determined at a separate

hearing. Id. The Court also noted that Mr. Montalbano had repeatedly

delayed Ms. St. Philip’s request for child support by filing multiple motions

to continue, resulting in a three-year gap in the child’s support. Id. It

emphasized that the trial court’s award of support retroactive to the date of

demand remedied the gap in support and was consistent with Louisiana’s

civilian concept that the child support obligation pre-exists the judgment. Id.

In the matter at hand, the parties stipulated to the terms of the two

interim orders in which Ledet was to pay child support to Diapaul in the

16

amount of $2,500 per month. The parties agreed to the terms and there was

no provision in the order that a final determination was to be retroactive to

the date of judicial demand, other than a reference that the orders were

entered “without prejudice.” The record indicates that Ledet made regular

payments pursuant to the agreements from at least the date of the first

interim order, August 22, 2014, until the judgment was entered setting final

child support on December 15, 2021 – a period of over seven years. Ledet

filed a motion to reduce child support on May 12, 2017, but the matter

continued to be delayed for various reasons seemingly attributable to both

parties. There were no allegations or evidence of any fraudulent or

egregious behavior by either party. As a result of the extensive delay, Ledet

made a large total overpayment in excess of what his obligation would have

been had a final determination been made at a much earlier, timely date.

There was never any “gap” in child support in which the child was not

adequately provided for by either party. In addition, there is no indication

that Diapaul underpaid (at least until just prior to trial when her income

exceeded Ledet’s), nor did she ever agree that Ledet was overpaying or

believe that she would be expected to reimburse him for overpayments – in

fact, she strongly expressed her shock at the trial court’s judgment, noting

that her income had never been sufficient enough to absorb such an impact.

Ledet focuses on the fact that the interim orders in place leading up to

the judicial determination of child support were “without prejudice” in order

to provide support until such time that the parties secured the appropriate

evidence and trial time was available, arguing that they were left open to

“modification” by way of the final determination. His reasoning is

17

misplaced. As supported by the jurisprudence discussed hereinabove, the

fact that the interim orders were in place for the purpose of providing

support until trial speaks only to the “interim” status of the orders – it does

not imply that they can be retroactively modified. The inclusion of the

phrase, “without prejudice,” without further description, would simply mean

that any terms and provisions included in the interim agreements could not

be factors for consideration in the final determination of support, such that

either party was prejudiced. In other words, the court cannot, for example,

let the fact that Ledet agreed to pay $2500 per month at the time of the

interim order sway its decision in how much either party should ultimately

be ordered to pay or not pay because it has a duty to comply with the

Louisiana child support guidelines. Ledet argues that he made the ongoing

support payments because he was operating under the assumption that

“without prejudice” equated to the retroactive application of the final

support amount, but no specific provision regarding that assumption was

included in either interim order when it easily could have been addressed.

For that matter, it is apparent from the record that Diapaul assumed the

opposite – because the orders were silent as to retroactivity, she would not

be required to reimburse for any possible overpayment.

Case law supports that there are very limited “good cause” exceptions

to the rule in La. R.S. 9:315.21(B)(1) that the final child support judgment is

effective as of the date the judgment is signed and terminates an interim

child support allowance as of that date. The obligee in this case, Ledet, has

the burden of proof to show that good cause exists for applying the

December 2021 judgment retroactively to the date of judicial demand,

18

consistent with Vaccari and its progeny. Although it does not appear from

the record that Ledet has met his burden of showing good cause, there is a

presumption that the trial court’s December 2021 judgment is supported by

competent evidence, such that review is limited to determining whether the

court correctly applied the law to the facts it found. Rose, supra.

It is clear in this case that the trial court misinterpreted or misapplied

the provisions of La. R.S. 9:315.21. Since the trial court, as fact-finder, is in

the best position to determine whether good cause exists to support the

application of the final child support award in the December 2021 judgment

retroactive to the date of judicial demand, we are remanding this matter to

for a proper determination pursuant to La. R.S. 9:315.21(B)(1) and Vaccari,

as consistent with this opinion.

Child Support Guidelines

The December 2021 judgment ordered Ledet to pay Diapaul $700 per

month in child support, pay the child’s private school tuition, maintain the

child on insurance, pay 100% of noncovered medical expenses, and pay 50%

of agreed extracurricular activities for the child. However, the record shows

that by the parties’ most current financial information, Diapaul’s income

exceeded Ledet’s, such that Diapaul should actually be the support obligor,

not Ledet. The trial court provided sufficient reasons for ordering Ledet to

pay the child’s tuition and omitting it from the child support calculations,

being that the parties agreed to the arrangement at a previous hearing on the

issue. The court gave no reasoning as to Ledet’s payment of $700 per month

plus all medical expenses.

19

It is uncertain to what extent the trial court reviewed and/or complied

with the child support guidelines provided in La. R.S. 9:315 because the

only reasons for judgment in the record were those derived from the 2131

hearing, which provided no insight as to the support figures. 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.

La. R.S. 9:315.1(C) provides a list of the court’s considerations in

determining whether to deviate from the guidelines. There were no oral or

written reasons for any potential deviations from the guidelines. The trial

court erred due to its failure to comply with the guidelines set forth in La.

R.S. 9:315 to obtain the proper amount of child support, and to provide any

reasons for deviation therefrom.

Motion in Limine

Ledet filed a motion in limine just before trial, on November 24,

2021, seeking an order prohibiting Diapaul from calling any witnesses to

testify other than herself at the trial, and further prohibiting her from

introducing any documentary evidence. The record supports Ledet’s

contention that Diapaul failed to comply with the trial court’s scheduling and

discovery orders, which included the failure to provide a bench book upon

commencement of the trial. However, the court deferred its ruling on the

20

motion and provided extensive leeway to Diapaul during trial, even allowing

her to introduce new evidence. We find that the trial court must rule on

Ledet’s motion in limine prior to any additional proceedings in this matter

upon remand.

CONCLUSION

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

judgment rendered on December 16, 2021, as it pertains to: (1) the

retroactive application of the final child support award and order for Diapaul

to repay Ledet’s overpayment of child support made during the period of the

two interim orders; and (2) the setting of final child support in the amount of

$700 per month payable by Ledet unto Diapaul, plus Ledet’s maintenance of

the child’s health insurance and payment of 100% of uncovered medical

expenses. We REMAND to the trial court for a determination of (1) the

application of the final child support award retroactive to the date of judicial

demand in accordance with La. R.S. 9:315.21 and applicable jurisprudence;

and (2) final child support in accordance with the guidelines set forth in La.

R.S. 9:315; as consistent with this opinion. Court costs related to appeal are

to be taxed proportionately between the parties.

REVERSED AND REMANDED WITH INSTRUCTIONS.

21