John Scott Pousson v. Therese Ann Langley Pousson

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

03-0111

JOHN SCOTT POUSSON

VERSUS

THERESE ANN LANGLEY POUSSON

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APPEAL FROM THE
FOURTEENTH JUDICIAL DISTRICT COURT
PARISH OF CALCASIEU, NO. 97-8188
HONORABLE LILYNN CUTRER, DISTRICT JUDGE

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JOHN D. SAUNDERS
JUDGE

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Court composed of Sylvia R. Cooks, John D. Saunders, and Jimmie C. Peters, Judges.

AFFIRMED.

R. Scott McClain
Attorney at Law
616 Broad Street
P.O. Box 1239
Lake Charles, LA 70602-1239
(337) 439-2924
COUNSEL FOR PLAINTIFF/APPELLANT:
John Scott Pousson

Michael R. Garber
Attorney at Law
1801 Ryan St.
Lake Charles, LA 70601
(337) 494-5500
COUNSEL FOR DEFENDANT/APPELLEE:
Therese Ann Langley Pousson

SAUNDERS, J.

John Pousson appeals the judgment of the trial court setting the amount of his

child support obligation. For the reasons stated below, we affirm the ruling of the trial

court.

FACTS

John Scott Pousson and Therese Ann Langley Pousson were married on August

15, 1986. Two children, Jonathan and Jacob, were born of the marriage. John filed

for divorce on October 14, 1997. A judgment for divorce was granted on November

20, 1997, and the parties were granted joint custody of the children. Therese was

designated domiciliary parent of both children, and John was ordered to pay child

support in the amount of $222.00 per month.

On July 24, 2000, John filed a “Motion to Change Domiciliary Status,” seeking

domiciliary custody of Jacob. Following court-ordered mediation and family

counseling a stipulated judgment was filed on October 11, 2001. In the stipulated

judgment each party was granted domiciliary parent status of one of the children. John

was granted domiciliary custody of Jacob and Therese domiciliary custody of

Jonathan. On October 11, 2001, a hearing officer calculated John’s child support

obligation at $231.00 a month. The amount of child support was appealed, and the

trial court heard the matter on January 17, 2002.

The trial court heard the parties’ arguments regarding the hearing officer’s

calculation of child support. The parties stipulated that John’s monthly income is

$2,830.00, and Therese’s monthly income is $1,489.00. Additionally, as a result of

Therese’s disability each child receives $363.00 a month in social security benefits.

In computing each parent’s child support obligation, the trial court deducted the

$363.00 received by Jacob, domiciled with John, from Therese’s child support

obligation. However, in calculating John’s child support obligation for Jonathan the

hearing officer did not deduct the same $363.00 in monthly income. As a result, the

mechanical calculation of each party’s child support obligation using the worksheet

indicated that John owes Therese $395.00 a month in child support , and Therese owes

John $99.00 a month in child support. Offsetting the child support owed by each

party, the court determined that John owes Therese a balance of $296.00 a month.

In his sole assignment of error John alleges the trial court erred by inaccurately

interpreting La.R.S. 9:315.7.

DISCUSSION

The standard of review for child support awards is well established in this

circuit, and others. “The trial court has great discretion in decisions concerning

modifications of child support decrees, and such decisions will not be disturbed on

appeal absent clear abuse of discretion. Stelly v. Stelly, 02-113 (La.App. 3 Cir.

6/26/02); 820 So.2d 1270.” Rougeau v. Rougeau, 02-484, p. 2 (La.App. 3 Cir.

10/30/02), 829 So. 2d 1125, 1126. In Hudnall v. Hudnall, 00-0330, p. 7 (La.App. 1

Cir. 5/11/01), 808 So.2d 641, 646, the first circuit clearly set forth the standard of

review for child support awards calculated using the child support guidelines set forth

in the Louisiana Revised Statutes as follows:

The guidelines for determination of child support are set forth in
La.R.S. 9:315.1, et seq., and apply to any proceeding to establish or
modify child support filed after October 1, 1989. There shall be a
rebuttable presumption that the amount of child support obtained by use
of these guidelines is the proper amount of child support. La.R.S.
9:315.1. Generally, the trial court’s order of child support is entitled to
great weight and will not be disturbed on appeal absent clear abuse of
discretion. Campbell v. Campbell, 95-1711, p. 4 (La.App. 1 Cir.
10/10/96), 682 So.2d 312, 316.

The trial court issued written reasons for judgment in which it notes that the

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2001 amendments to La.R.S. 9:315.7 added Subsection C, to read as follows:

A. Income of the child that can be used to reduce the basic needs
of the child may be considered as a deduction from the basic child
support obligation.

B. The provisions of this Section shall not apply to income earned
by a child while a full-time student, regardless of whether such income
was earned during a summer or holiday break.

C. The provisions of this Section shall not apply to benefits
received by a child from public assistance programs, including but not
limited to Family Independence Temporary Assistance Programs
(FITAP), food stamps, or any means-tested program.

The trial court further notes that when HB 1398 was initially introduced it also

included a Subsection D, which stated: “The provisions of this Section shall not apply

to social security benefits received by the child on account of the child’s own

disability or the disability of a custodial or domiciliary parent or stepparent.” The

court stated that, “it appears the House Committee on Civil Law and Procedure

amended the Section to remove Subsection D regarding social security disability

benefits.” The court found that this act by the legislature indicates its intent that the

court has discretion under Subsection A to determine whether to include a child’s

disability benefits as income to the child when calculating child support.

John argues that it was an abuse of discretion for the trial court to inconsistently

apply the children’s $363.00 disability income when calculating each parent’s child

support obligation. It is John’s position that by removing Subsection D, the

legislature did not render the inclusion of a child’s income via social security

disability payments permissive, but rather, it is mandatory and therefore the trial court

was required to include the payments when calculating Therese’s obligation as well.

Therese argues that, under the clear language of the statute, La.R.S. 9:315.7 (A)

states that a child’s income “may” be considered as a deduction. She claims that the

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language of the statute is clearly permissive and does not require the mandatory

inclusion of disability income as John claims. Therefore, it was within the trial court’s

discretion to apply the disability benefits as income only as it saw fit.

In the written reasons for judgment the trial court explained its reasons for

applying Jacob’s benefits as income on John’s child support worksheet, while refusing

to do the same with Jonathan’s benefits on Therese’s worksheet. The court stated:

After reviewing the jurisprudence and legislative history, the court
in its discretion declines to reduce the child support obligation by the
social security disability benefits received by Jonathan. The child
receives the benefits due to an injury to Therese, the obligee. The
benefits are provided to meet Jonathan’s needs due to Therese’s inability
to work and provide. They arise from monies paid by Therese and her
employer. The Court does not believe that John should be allowed to
reduce his child support obligation by income Jonathan receives from
social security because his mother is disabled and no longer able to
work.

Louisiana Revised Statutes 9:315.1 clearly states that the court may deviate

from the child support guidelines set forth in Sections 9:315 et. seq. Upon a finding

that the application of the guidelines would not be in the best interest of the children,

or would be inequitable to the parties, the trial court may deviate from those

guidelines. La.R.S. 9:315.1(B). The court must provide written reasons for the

deviation, which include a finding as to the amount of support that would have been

required under a mechanical application of the guidelines. Id. The trial court made

such a finding here and provided written reasons in this instance. In keeping with the

clear legislative intent that courts have great discretion in determining child support

matters, we agree with the trial court’s determination that it is ultimately at the

discretion of the trial court to determine whether or not to include disability payments

received by a child as income of the child in determining a parent’s child support

obligation.

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The factual circumstances of this case are quite unique, and we are unable to

find case law dealing with a similar circumstance. However, we find no clear abuse

of discretion by the trial court in its stated reasons for calculating the child support

awards that would warrant a reversal.

DECREE

For the reasons stated above, we affirm the ruling of the trial court. The costs

of this appeal are assigned to the appellant, John Pousson.

AFFIRMED.

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