Patrick Murphy v. Susan Lynn Murphy

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

04-1332

PATRICK MURPHY

VERSUS

SUSAN LYNN MURPHY

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APPEAL FROM THE
FOURTEENTH JUDICIAL DISTRICT COURT
PARISH OF CALCASIEU, NO. 2002-1792
HONORABLE GUY E. BRADBERRY, DISTRICT JUDGE

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MARC T. AMY
JUDGE

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Court composed of John D. Saunders, Marc T. Amy, and Michael G. Sullivan,
Judges.

AFFIRMED.

M. Steven Beverung
Book and Beverung
620 Esplanade Street, Suite 103
Lake Charles, LA 70607-6363
(337) 478-8706
COUNSEL FOR DEFENDANT/APPELLANT:
Susan Lynn Murphy

Walter M. Sanchez
Lorenzi & Sanchez, L.L.P.
518 Pujo Street
Post Office Box 3305
Lake Charles, LA 70602-3305
(337) 436-8401
COUNSEL FOR PLAINTIFF/APPELLEE:
Patrick Murphy

AMY, Judge.

This matter concerns the appeal of a final child support judgment by the

mother, who is the domiciliary parent. The final judgment decreased the interim

support amount and was made retroactive to the date of the filing of the original

petition. The mother appeals both rulings, as well as the district court’s deviation

from the child support guidelines to account for time spent by the father with the

child. For the following reasons, we affirm.

Factual and Procedural Background

The parties in this case, Patrick Murphy and Susan Book Murphy, were married

in Calcasieu Parish on July 12, 1997. Patrick works for his father’s corporation,

Black Lake Marsh, Inc. He is also the sole owner of his own corporation, Gulf Coast

Nursery Supply, Inc. Susan is the sole proprietor of her own business, a gift shop

named Expressions. One child was born of the marriage on July 13, 2000. Patrick

filed suit for divorce on April 8, 2002; Susan also filed a divorce suit on April 9,

2002. Following a conference, the trial court entered an order on August 9, 2002

setting child support at $969.51 per month. A judgment of divorce was granted on

April 17, 2003. The parties stipulated to a joint custody plan1 and submitted

economic data to the court relating to child support. The trial court rendered a

judgment on January 6, 2004, reducing the monthly child support to $508.00 per

month, retroactive to the date of filing on April 8, 2002. The judgment was signed

on June 24, 2004 and the plaintiff filed the instant appeal,2 alleging the following as

error:

1
We note that, although the parties agreed to a visitation schedule, the trial court held
proceedings and rendered a judgment regarding the issue of unsupervised visitation with Jordan’s
paternal grandfather. This ruling was appealed to this court separately. See Murphy v. Murphy, 04-
1053 (La.App. 3 Cir. 12/8/04), __ So.2d __.
2
Because each of the parties filed a petition of divorce, this matter proceeded to this court
under two docket numbers. For decretal information in the companion case, see Murphy v. Murphy,
04-1333 (La.App. 3 Cir. _/_/05), __ So.2d __.

1. The trial court was manifestly erroneous in reducing the
recommended child support from $969.51 per month to $508.00 per
month.

2. The trial court erred in deviating from the guidelines of La. R.S.
9:315 by allowing a credit for time the child spent with the non-
domiciliary parent.

3. The trial court was manifestly erroneous in making the change
in child support rendered in 2004 retroactive to the filing of the suit in
2002.

Discussion

Standard of review

The trial court has great discretion in determining the amount of a child support

award, and that determination should not be disturbed by an appellate court unless the

trial court has committed a clear abuse of discretion or manifest error in factual

appreciations. Gautreau v. Gautreau, 96-1548 (La.App. 3 Cir. 6/18/97), 697 So.2d

1339, writ denied, 97-1939 (La. 11/7/97), 703 So.2d 1272; Widman v. Widman, 96-

613 (La.App. 3 Cir. 2/2/94), 631 So.2d 689.

Child Support Reduction

For her first assignment of error, Susan asserts that the district court erred in

reducing Patrick’s monthly child support payments from $969.51 to $508.00. She

suggests that the figure used by the trial court in calculating the final support amount

did not include income Patrick allegedly receives from other sources.

The worksheet attached to the hearing officer’s second recommendation, which

was used as the basis for the support amount at issue, states that Patrick’s gross

monthly income is $1500 and Susan’s is $893. The comments at the bottom of the

worksheet state, “Fathers [sic] Income Taken From Est. Mo. gross. Min. Wage

Imputed to Mother.”

2

The record contains a letter submitted by Patrick’s attorney dated November

24, 2003, and an attached worksheet which states that Patrick’s average monthly

income for the years 2001 through 2003 was $1,388.00. This figure includes his

wages from Black Lake Marsh, which were $9,600 for the years of 2001 and 2002,

and only approximately $720.00 per month for 2003. Therefore, the letter and

worksheet imputed the minimum wage of $900.00 per month to Patrick for 2003.

The letter and worksheet also included in the gross income an annual payment of

$7,440.00 for seismographic and oil exploration activities on property owned by

Patrick. The letter and worksheet impute the minimum wage, or $900.00 monthly

gross income, to Susan. The record also contains an expense and income affidavit

that was submitted by Patrick which states that his adjusted gross monthly income is

$1,574.05.

Susan asserts in her appellate brief that Patrick’s gross income should be

calculated using the figures from tax returns for the years 1999 through 2003, which

appear in the record. However, the child support calculation statutes do not require

the trial court to ascertain the child support obligation using figures dating

approximately four years prior to the court’s judgment. While the statutes also do not

prohibit the use of such figures, it is within a trial court’s broad discretion to

determine which figures are proper to calculate the amount of Patrick’s monthly gross

income. Templeton v. Templeton, 00-536 (La.App. 1 Cir. 12/22/00), 774 So.2d 1257.

“The determination of the amount of [a parent’s] gross monthly income is a finding

of fact subject to manifest error review, and one which cannot be set aside by a

reviewing court unless it is clearly wrong or manifestly erroneous.” Piccone v.

Piccone, 01-1086, p. 5 (La.App. 3 Cir. 5/22/02) 824 So.2d 427, 430.

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The record contains numerous documents with various representations relating

to the parties’ incomes, including depositions by each party and their accountant, tax

records, affidavits, and other documents. Although the trial court did not describe in

detail which figures were used in calculating the amount of Patrick’s monthly gross

income, its determination is supported by the tax returns and payroll records which

appear in the record. The trial court was not clearly wrong in making a finding of fact

that Patrick’s gross monthly income was $1,500.00. Neither was the trial court

required to accept the assertion that Patrick was under-reporting his income based

upon the evidence presented. Thus, this assignment is without merit.

Adjustment of Child Support Obligation Based on Time Spent with Child

For her next assignment, the defendant asserts that the trial court erred in

reducing Patrick’s monthly child support obligation by one-twelfth on account of the

amount of time Patrick has physical custody of the child. Susan argues in her

appellate brief that the reduction amounted to a deviation from the child support

guidelines, which she states is subject to the test outlined by the Louisiana Supreme

Court in Guillot v. Munn, 99-2132 (La. 3/24/00), 756 So.2d 290. Susan further cites

Guillot, as well as La.R.S. 9:315.1, for the proposition that the trial court is required

to provide specific reasons, either orally or written, for a deviation.

Considering the argument that a deviation was justified based on the amount

of time that the non-domiciliary parent had physical custody of the child, the Guillot

court created a three-pronged test for determining the sufficiency of a deviation in

such a circumstance. First, the court must determine whether the visitation at issue

goes beyond a “typical” amount of time, creating an extraordinary visitation that

would warrant deviation. Id. Second, the court must ascertain whether the increased

custody causes the non-domiciliary parent increased financial burden, and results in

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a lesser financial burden on the custodial parent. Id. Finally, “the court must

determine that the application of the guidelines in the particular case under

consideration would not be in the best interest of the child or would be inequitable

to the parties.” Id. at 300.

Louisiana Revised Statutes article 9:315.8, which provides the guidelines

for calculating the child support obligation, addresses this issue, stating, in relevant

part:

E. “Joint custody” means a joint custody order that is not shared
custody as defined in La.R.S. 9:315.9.

(1) In cases of joint custody, the court shall consider the period of
time spent by the child with the nondomiciliary party as a basis for
adjustment to the amount of child support to be paid during that period
of time.

(2) If under a joint custody order, the person ordered to pay child
support has physical custody of the child for more than seventy-three
days, the court may order a credit to the child support obligation. A day
for the purposes of this Paragraph shall be determined by the court;
however, in no instance shall less than four hours of physical custody of
the child constitute a day.

(3) In determining the amount of credit to be given, the court shall
consider the following:

(a) The amount of time the child spends with the person to whom
the credit would be applied.

(b) The increase in financial burden placed on the person to whom
the credit would be applied and the decrease in financial burden on the
person receiving child support.

(c) The best interests of the child and what is equitable between
the parties.

(4) The burden of proof is on the person seeking the credit
pursuant to this Subsection.

Comment (b) to La.R.S. 9:315.8 states:

An adjustment in the form of a credit may be afforded the
nondomiciliary parent who has physical custody of the child for more
than seventy-three days, the definition of a day to be determined by the

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court but in no case can a day be less than four hours of physical custody
of the child. Physical custody of the child for seventy-three days
constitutes physical custody at least twenty percent of the year as a
threshold for the discretionary adjustment permitted by this Section.
The amendment adds specificity to the meaning of “extraordinary
visitation” in Guillot v. Munn, 756 So.2d 290 (La. 2000).

Susan correctly asserts that La.R.S. 9:315.13 requires a trial court to specify

reasons for a deviation from the child support guidelines. However, the adjustment

in this matter is properly reviewed using La.R.S. 9:315.8, which was amended in

2001 to address the effect of time the non-domiciliary parent has custody of the child

on the child support obligation. Louisiana Revised Statutes 9:315.8 requires the court,

in every case involving joint custody, to consider the amount of time spent by the

child with each parent in calculating the obligation amount. The statute then

specifically allows for an “adjustment” to the calculation, by allowing a “credit” to

be given to a non-domiciliary parent who meets the statute’s qualifications. The

references to Guillot throughout the comments, as well as the incorporation of the

three prongs of its test, demonstrate clearly the legislature’s awareness of the Guillot

decision.

In Guillot, the Louisiana Supreme court stated that Louisiana’s child support

guidelines assume a certain, typical level of visitation, and the presumptive force of

the guidelines would be undermined if a deviation is allowed where the visitation in

question amounts only to the “typical” amount of visitation already contemplated by

the guidelines. Guillot, 756 So.2d 290. The court held that the allowance of a

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Louisiana Revised Statutes article 9:315.1 states, in pertinent part:

(B.) 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.

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deviation should only be allowed in situations where that amount of visitation was

extraordinary, or non-typical. Id.

According to La.R.S. 9:315.8(E)(4), as the parent seeking a deviation, Patrick

bears the burden of proving the availability of a credit for time spent with the child.

The record reflects that Patrick submitted to the district judge an independent

calculation of the child support obligation, which included “a reasonable visitation

credit.”4

The record also contains the parties’ stipulation to joint care, custody, and

control of the minor child, with Susan designated as the domiciliary parent, subject

to the rights of structured visitation of Patrick. The parties also agreed to a visitation

schedule which provides for the parents to have the minor child in their custody for

a nearly equal amount of time. A chart, which outlines the two-week rotating

schedule, was entered into the record; it indicates that the child stays overnight with

each parent for seven nights during the cycle and has ten days of contact with each

parent. The record also includes a description of a portion of the parties’ agreement

regarding visitation on holidays. While we do not delineate the specific scheduling

of each holiday in this opinion, we note two important aspects of the agreement: first,

during the period between Thanksgiving and Christmas, the child will stay with

Patrick from Friday night until Saturday evening, and; second, that Patrick has three,

five-day “vacation” periods with the child annually.

Based just on the two-week rotating arrangement above, Patrick has physical

custody of the child approximately 50% of the time, in addition to the numerous

additional overnight holiday and vacation visits we noted above. It is not necessary

4
We note that, although his figures were slightly different than those reached by the trial
judge, the credit that Patrick apportioned in his calculation was a one-twelfth reduction from his
child support obligation amount.

7

to evaluate the exact number of “days” as defined by La.R.S. 9:315.8 that Patrick has

physical custody of the child, as it is clear that the amount of time he has custody of

the child far exceeds the statute’s 73-day requirement for consideration for a credit.

Susan points out that the trial court did not recount its consideration of the

three prongs of the Guillot test, specifically the financial burden a credit would cause

the parties and best interest of the child. However, while La.R.S. 9:315.8 requires the

court to consider specific factors in determining a credit, the statute does not state that

the court’s consideration must be reduced to written or oral reasons.

The trial court is vested with wide discretion in determining the amount of

child support. Gautreau v. Gautreau, 697 So.2d 1339 (La.App. 3 Cir. 6/18/97), writ

denied, 97-1939 (La. 11/7/97), 703 So.2d 1272. Taking into account the considerable

amount of time that Patrick has physical custody of the child, we do not find that the

trial court was clearly wrong in awarding him a credit for the joint custodial

arrangement of one-twelfth of the amount of his child support obligation. This

assignment is without merit.

Retroactivity of Award

Patrick made monthly child support payments in the amount of $969.51

pursuant to an August 9, 2002 order by the trial court until the June 24, 2004

judgment, which set Patrick’s child support obligation at $508.00 per month. The

judgment reducing the monthly child support obligation was made retroactive to the

date of the original petition, which was April 8, 2002. Susan suggests that the

amount of time between the initial demand for support and the signing of the

judgment constitutes “good cause” for not making the judgment retroactive to the

date of the original petition. In the alternative, she suggests that the August 9, 2002

8

order amounted to interim support and, as such, the June 24, 2004 judgment should

have been prospective.

La.R.S. 9:315.21 governs the effective date of child support judgments, stating

in relevant part:

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 award 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.

E. In the event that the court finds good cause for not making the
award retroactive to the date of judicial demand, the court may fix the
date on which the award shall commence, but in no case shall this date
be a date prior to the date of judicial demand.

The burden, in this case, is on Susan to demonstrate good cause for not making

the award retroactive. Tatum v. Tatum, 33,118 (La.App. 2 Cir. 5/15/00) 794 So.2d

854; Broussard v. Broussard, 532 So.2d 281(La.App. 3 Cir. 1988). “The trial court

is vested with considerable discretion in determining whether good cause exists not

to make an award retroactive.” Tatum, 794 So.2d at 860.

Our review of the record indicates that each party appealed the hearing

officer’s first child support recommendation, which set the original support amount

9

of $969.51. The district court entered into the record an order dated August 9, 2002,

which states “[i]t is hereby ordered that the Hearing Officer’s recommendation as to

child support referenced above shall constitute an interim order with which all parties

shall comply pending final disposition by the Court, but the interim nature of this

award shall not affect the retroactivity of the claims of either party[.]”

Susan argues that the child support obligation relating to the August 9, 2002

order had been prepared by Patrick’s attorney, suggesting that the support amount had

been determined using Patrick’s own figures and representations regarding his

income. Our review of the record reveals that the majority of the financial

information contained in the record, including the parties’ tax records and depositions

and information from the parties’ accountant, was entered in globo into the record on

May 18, 2004, making it impossible for us to surmise which information was

available to the hearing officer in 2002.

Finally, we consider Susan’s assertion that good cause exists in the instant

matter to make the final support judgment prospective, because judgment was

rendered in January, 2004, more than a month after the financial information was

submitted to the court, and was not signed until June, 2004, which was approximately

twenty-six months after the filing of the suit. “In some cases, an unreasonable delay

in bringing the rule to trial may make retroactive application unjust.” Tatum, 794

So.2d at 860. However, in this case, we note that the record clearly demonstrates that

the parties were engaged in litigation relating to the divorce and visitation matters

throughout the period that the August 9, 2002 order was in effect.

Susan cites jurisprudence in her appellate brief which she states stands for the

proposition that it would be unfair to make the child support obligation retroactive

where there is an extended length of time between the date of filing and final

10

judgment. However, it was within the trial court’s discretion to use the most recent

income figures as a basis for calculating the support obligation. Furthermore, we note

that the cases cited by Susan are clearly distinguishable from the instant matter. In

Saucier v. Saucier, 98-659, p. 12 (La.App. 3 Cir. 10/7/98), 719 So.2d 702, 708, this

court found that retroactive application would be unfair where the date of the original

judicial demand was more than five years prior to the date of the decision; however,

we stated that the “unique (and possibly bizarre) procedural circumstances” of the

case made it “fair” to instead set the payments retroactive to a date two-and-a-half

years prior to the decision. The two-year delay in the instant matter was due to the

parties’ litigation, not a complex procedural background as in Saucier. The fifth

circuit in Curet v. Curet, 02-212 (La.App. 5 Cir. 6/26/02), 823 So.2d 971, did find,

as Susan alleges, that the father’s child support obligation should have been based,

not solely on his income figures at the time of the hearing, but on the figures for the

time of filing as well. However, in Curet, the father had been terminated from his job

during the eighteen-month interim period and the mother was attempting to

demonstrate that the termination was due to the father’s fault in an attempt to become

unemployed for the purposes of avoiding child support. Although Susan has made

certain allegations with regard to fluctuations in Patrick’s income in the instant case,

our review of the record does not indicate any evidence, beyond Susan’s allegations,

of voluntary unemployment or underemployment.

We are also not persuaded by Susan’s bare assertion that the five-month interim

between the rendering and signing of the child support judgment constitutes good

cause against retroactivity. Again, it is within the trial court’s discretion to determine

whether or not good cause exists. Tatum, 794 So.2d 854. Based on the

circumstances in this case, we find that the trial court was not clearly wrong in

11

making the final support judgment retroactive to the date of the original petition,

April 8, 2002, in accordance with La.R.S. 9:315.21(B)(1). Therefore, this assignment

has no merit.

DECREE

For the foregoing reasons, the trial court’s judgment, setting the child support

obligation at $508.00 per month, retroactive to April 8, 2002, is affirmed. All costs

of this matter are assigned to the defendant, Susan Murphy.

AFFIRMED.

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