Michael Gregory Thevenot, Sr. v. Christine Dronet Thevenot

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

03-684

MICHAEL GREGORY THEVENOT, SR.

VERSUS

CHRISTINE DRONET THEVENOT

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APPEAL FROM THE
TWENTY-SEVENTH JUDICIAL DISTRICT COURT,
PARISH OF ST. LANDRY, NO. 97-4887,
HONORABLE JAMES T. GENOVESE, DISTRICT JUDGE

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MICHAEL G. SULLIVAN
JUDGE

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Court composed of Ned E. Doucet, Jr., Chief Judge, Sylvia R. Cooks, and Michael G.
Sullivan, Judges.

REVERSED.

David L. Carriere
Attorney at Law
322 South Market Street
Opelousas, Louisiana 70570
(337) 948-6217
Counsel for Defendant/Appellant:
Christine Dronet Thevenot

Thomas E. Gibbs
Thomas E. Gibbs & Associates
10988 North Harrell’s Ferry Road, Suite 19
Baton Rouge, Louisiana 70816
(225) 272-0020
Counsel for Plaintiff/Appellee:
Michael Gregory Thevenot, Sr.

SULLIVAN, Judge.

Christine Thevenot appeals the trial court’s refusal to enforce an extrajudicial

agreement she had with Michael Thevenot, Sr., her former husband, for him to pay her

child support for their son, Michael Thevenot, Jr. For the following reasons, we

reverse the judgment of the trial court.

Facts

The facts are not in dispute. Michael and Christine were married and had one

child, Michael, Jr. They were divorced on July 31, 1998. After the divorce, Michael,

Jr. lived with Christine until January 1999. At that time, the trial court designated

Michael as domiciliary parent due to Christine’s relocation to Houston. In August

1999, Christine was again designated domiciliary parent and has remained domiciliary

parent since that time.

Various pleadings filed by the parties in this matter reflect that at different times

each party requested child support from the other, but support was never established

by the court. Instead, in August 1999, Michael and Christine agreed between

themselves that he would pay her $250.00 per month support for Michael, Jr. In July

2001, Michael filed a rule to modify custody. In response, Christine filed exceptions

to the rule and filed a rule seeking arrearages in child support or, alternatively, to have

child support set. In her rule, Christine alleged that Michael owed her $5,500.00 for

the period August 1999 through August 2001. A hearing was held on August 21,

2001. After the hearing, the trial court maintained Christine as the domiciliary parent

and ordered that the issue of support be referred to the hearing officer. There was

never a referral to the hearing officer.

In June 2002, Michael filed another rule, seeking designation as domiciliary

parent. Christine again filed a rule for child support arrearages; she also sought to

establish support in accordance with the child support guidelines set forth in La.R.S.

9:315-315.22. In her rule, Christine sought the $5,500.00 she had previously

requested and an additional $350.00 in arrearages which she asserted arose from a

second agreement she and Michael made in September 2001.

On September 26, 2002, these rules were considered by the hearing officer, who

recommended that Michael be ordered to pay Christine $5,500.00 in arrearages.

Michael objected to the recommendation, and a hearing was held before the trial court.

During the hearing, the trial court recited the following facts which Michael admitted

and counsel for the parties stipulated were correct:

And this is what I understand the facts to be: That at one point in time
[Michael] had agreed to pay $250 a month. And during a period of time
from January of ‘99 to August of ‘99, [Michael] actually kept the child,
but there was no support being paid by the mother while [Michael] kept
the child. It is not disputed that from August of ‘99 to July of 2001 the
child has been predominantly with the mother and that [Michael has]
paid only $500 during that period of time. And the question is whether
or not an arrearage is owed from August of ‘99 through July of 2001 at
the rate of an alleged agreement of $250 a month and whether or not that
can be made executory in a court of law.

....

I consider that to be a stipulation, because I just gave you the
opportunity to present any evidence to the contrary. If there’s no
evidence to the contrary, that’s what I consider having taken place.

The parties also stipulated that in September 2002 they amended their original

support agreement, increasing Michael’s monthly support obligation from $250.00 to

$325.00, and that Michael had not paid $325.00 for the month of July 2002.

After taking the matter under advisement, the trial court determined “there is

no legal authority for the legal enforcement of child support created by extra-judicial

agreement” and “[a] court order of child support, with a delinquency, must be

established before this court can make a judicial determination of an arrearage.”

Consequently, the trial court refused to award Christine a judgment for the child

support arrearages Michael agreed to pay her but did not.

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Discussion

The basis for the payment of child support is found in La.Civ.Code art. 227

which provides:

Fathers and mothers, by the very act of marrying, contract together
the obligation of supporting, maintaining, and educating their children.

“A parent’s child support obligation is a primary continuous obligation.” Fink

v. Bryant, 01-987, p. 5 (La. 11/28/01), 801 So.2d 346, 349. It cannot be renounced

or suspended. Dubroc v. Dubroc, 388 So.2d 377 (La.1980). At issue in Dubroc was

an agreement by divorced parents to suspend one-half of the father’s child support

obligation when the child resided with the father. The trial court found the agreement

could not be enforced; the court of appeal reversed. The supreme court reviewed the

legal obligation of parents to support their children and the right of former spouses to

collect that support and found no legal prohibition to a parent’s agreement to suspend

the right to compel the payment of support, explaining:

Of course, an essential prerequisite to such a conventional modification
of a parent’s right to receive support payments is implied. The parent
may not, by suspension of this right, thwart the purpose for which the
right is established, i.e., the enforcement of the child’s right to support
and upbringing.

For these reasons, an agreement by a parent to suspend his right
to receive child support payments will not be enforced unless it meets the
requisites for a conventional obligation and fosters the continued support
and upbringing of the child. To allow the parent to suspend his right to
receive support payments under circumstances contrary to the child’s
interests, would be inimical to the ultimate goal of support and
upbringing of the child. On the other hand, if the parties clearly agree to
a suspension of the payments, and such agreement does not interrupt the
child’s maintenance or upbringing or otherwise work to his detriment,
the agreement should be enforceable.

Id. at 380.

Thereafter, in Aldredge v. Aldredge, 477 So.2d 73 (La.1985), the supreme

court determined that parties who entered into a consent judgment regarding the

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payment of child support could waive the requirement of proving a change in

circumstances for purposes of a later request for modification of those payments. The

court found that the requirement of proving a substantial change of circumstances for

modification of support awards was judicially created and that an agreement waiving

the requirement does not violate public policies because:

It merely allows the parties to come to an amicable agreement on the
amount of child support or alimony with the reassurance that the court
will be able to review this agreement at a later date to ensure its fairness.
Extrajudicial resolution of family matters without costly litigation will
be promoted, since the parties will be more willing to come to an
agreement between themselves, knowing that they may return to litigate
the issue should the need arise. As the trial court noted in this case, it
would be contrary to good public policy to preclude the parties to a
consent decree from stipulating that they could return to litigate the issue
of child support without proving a change of circumstances.

Id. at 75.

The overriding interest of the State in custody matters is the best interest of the

child. Baggett v. Baggett, 96-453 (La.App. 3 Cir. 4/23/97), 693 So.2d 264. A logical

extension of this tenet and the concepts approved in Dubroc, 388 So.2d 377, and

Aldredge, 477 So.2d 73, is that parents can agree between themselves to establish

child support. If they do, there must be proof of a specific agreement. Casey v.

Casey, 02-246 (La.App. 4 Cir. 5/22/02), 819 So.2d 1108. Such an agreement is

enforceable, if it satisfies “the requisites for a conventional obligation and fosters the

continued support and upbringing of the child,” Dubroc, 388 So.2d 380, and does not

“derogate from laws enacted for the protection of the public interest.” La.Civ.Code

art. 7.

Michael contends that there was no specific agreement for him to pay Christine

support for Michael, Jr. A close reading of the exchange between the trial judge and

Michael, as well as the stipulation entered by counsel, reveals that this contention is

without merit. Michael admitted to the trial judge that he agreed to pay Christine

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$250.00 per month in support but claimed the agreement was modified. However, he

failed to prove that Christine later agreed to a modification of the agreement.

By agreeing on their child support obligation, Michael and Christine simply did

what they are legally obligated to do under La.Civ.Code art. 227. There is no

indication that the agreement was not in Michael, Jr.’s best interest. The law does not

prohibit parents from mutually agreeing to support arrangements for their children,

nor does the law require that parents demand and obtain support from each other or

that they enforce child support judgments whether rendered by courts or stipulated by

the parties and approved by courts.

For these reasons, we reverse the trial court’s determination that Michael and

Christine’s agreement for Michael to pay $250.00 per month for Michael Jr.’s support

is not a valid, enforceable agreement. Further, we find that Michael owes Christine

$5,500.00 for the period of August 1999 to July 2001, which represents $250.00 per

month during that time period less $500.00 paid by Michael.

As previously noted, in September 2002, Michael and Christine agreed to

increase Michael’s child support from $250.00 per month to $325.00 per month.

Michael paid Christine $325.00 per month thereafter, except for the month of August

2002. Accordingly, Michael owes Christine an additional $325.00 for the month of

August 2002.

Our consideration of this matter includes the case of Stogner v. Stogner, 98-

3044 (La. 7/7/99), 739 So.2d 762, where the supreme court held that, when parties

stipulate in open court regarding their child support obligation, the adequacy of the

of amount of child support established by the stipulation must be reviewed and

approved by the trial court in light of the child support guidelines. Michael and

Christine did not stipulate before the trial court regarding child support; therefore,

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Stogner, 739 So.2d 762, is inapplicable to our determination herein. See La.R.S.

315.1(A).

Decree

The judgment of the trial court is reversed. Judgment is rendered in favor of

Christine Thevenot and against Michael Thevenot in the amount of $5,825.00,

together with legal interest thereon from the date of judicial demand until paid. All

costs of this appeal are assessed to Michael Thevenot.

REVERSED.

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