Leisa Ann C. Henry v. Joseph Rodney Henry

STATE OF LOUISIANA

COURT OF APPEAL, THIRD CIRCUIT

07-284

LEISA ANN CROOKSHANK HENRY

VERSUS

JOSEPH RODNEY HENRY

**********
APPEAL FROM THE
FOURTEENTH JUDICIAL DISTRICT COURT
PARISH OF CALCASIEU, NO. 1997-9362
HONORABLE LILYNN A. CUTRER, DISTRICT JUDGE
**********

GLENN B. GREMILLION
JUDGE

**********

Court composed of Sylvia R. Cooks, Glenn B. Gremillion, and James T. Genovese,
Judges.

AFFIRMED.

John Edward Fitz-Gerald
One Lakeshore Drive, Suite 1460
Lake Charles, LA 70629
(337) 494-1200
Counsel for Plaintiff/Appellee:
Leisa Ann Crookshank Henry

Richard Dean Michels
Child Support Enforcement Agency
P. O. Box 1465
Lake Charles, LA 70616
(337) 491-2624
Counsel for Plaintiff/Appellee:
Leisa Ann Crookshank Henry

Alvis J. Roche
1515 Common Street
Lake Charles, LA 70601
(337) 436-9457
Counsel for Defendant/Appellant:
Joseph Rodney Henry

GREMILLION, Judge.

This case involves the modification of a child support award in which

the trial court declined to reduce the award paid by the defendant-appellant, Joseph

Rodney Henry, to his ex-wife, Leisa Ann C. Henry, the plaintiff-appellee. For the

following reasons, we affirm.

FACTUAL AND PROCEDURAL BACKGROUND

This case has an extensive litigious history beginning in 1997. Leisa

filed for divorce in December 1997, which was granted in July 1999. A November

2001 judgment granted Leisa child support of the two minor children, Aleis and

Joseph (Kade), in the monthly amount of $1,697.1 The judgment of child support was

rendered in November 2001, and was an in globo award for both children. In March

2002, Joseph filed a Rule for Reduction of Child Support urging that his

circumstances had changed in that his income was substantially less. Pursuant to

local court rules, a hearing officer was thereafter appointed to determine the child

support award. The hearing officer recommended that the child support award be

reduced from $1,697 per month to $1,091 per month. In May 2003, the trial court

ordered that the interim child support be reduced to $1,091 until a formal hearing

could be held.

In July 2005, Joseph filed a Rule to Show Cause urging that Leisa should

not be allowed to continue in the matter as a pauper, and that as of 2003, Aleis had

reached majority status, and he, therefore, should be allowed to terminate child

support of Aleis and was due a refund of child support once Aleis reached the age of

1
Aleis was born 9/15/85, and Kade was born 2/12/91.

1

majority. He further alleged that he was entitled to a decrease in child support as to

Kade due to a reduction in his income and an increase in Leisa’s income.

Leisa appealed the hearing officer’s recommendation which was heard

before the trial court. Various other pleadings and motions were filed in the interim,

and the matter was ultimately set for trial in March 2006.

Following the March 2006 trial, the trial court dismissed Joseph’s Rule

for Reduction of Child Support and reinstated the original child support award in the

Judgment of November 21, 2001. It further dismissed Joseph’s Rule for Contempt

filed in July 2002. The trial court made various other findings not at issue herein.

Written reasons for judgment were filed into the record on October 4, 2006, and the

judgment was rendered on November 28, 2006. Despite this judgment, Joseph’s

counsel, in a letter dated July 10, 2006 to the trial court, requested that a hearing be

set pertaining to the “Answer to Pending Rules Filed by Leisa Ann C. Henry and Rule

to Show Cause that was filed on behalf of my client on July 20, 2005.”

In September 2006, Joseph filed a motion and order to terminate and

modify child support, medical insurance coverage, and tax dependency. He again

urged that the garnishment of his wages on behalf of his major child should be

discontinued and that he was due a refund of $20,620.08 for overpayment.

Joseph now appeals and assigns as error:

1. The trial court’s dismissal of the “interim order” of the
hearing officer recommending that the child support award
be reduced from $1,697 per month to $1,091 per month.

2. The trial court’s dismissal of his rule to show cause filed in
July 2005, which denied him his right to try the case on the
merits.

2

DISCUSSION

The trial court has great discretion in determining a child support award,

and its findings of fact regarding financial matters underlying an award of child

support will not be disturbed in the absence of manifest error or a clear abuse of

discretion. McCorvey v. McCorvey, 05-889 (La.App. 3 Cir. 2/1/06), 922 So.2d 694,

writ denied, 06-0435 (La. 4/28/06), 927 So.2d 295; Murphy v. Murphy, 04-1332

(La.App. 3 Cir. 2/2/05), 894 So.2d 542, writ denied, 05-0983 (La. 11/28/05), 916

So.2d 144.

RULE FOR REDUCTION OF CHILD SUPPORT

In his first assignment of error, Joseph urges that the trial court erred in

dismissing the interim order in which the hearing officer reduced the in globo child

support award from $1,697 to $1,091 and in reinstating the November 21, 2001

award. Louisiana Civil Code Article 142 governs the modification of a child support

award and states: “An award of child support may be modified if the circumstances

of the child or of either parent materially change and shall be terminated upon proof

that it has become necessary.”

The trial court stated in its lengthy written reasons that subpoena duces

tecums were issued by Leisa’s counsel on at least two different occasions requesting

that Joseph produce various financial documents and information and that Joseph

failed to produce the information.

The trial court stated: “Requests for Joseph’s financial information have

been ongoing for years. He has never complied, except to provide a few W-2's from

his employment.” Further, the trial court found that “Joseph admitted he had the

3

information and just failed to produce it.” The trial court’s written reasons further

state:

Due to Joseph’s refusal to produce any income and other financial
information, the Court can not [sic] determine whether Joseph is entitled
to a reduction in his child support obligation. The Court also notes that
during these pending proceedings, the parties’ oldest child reached the
age of majority on September 15, 2003. However, due to Joseph’s
refusal to produce any requested documents on more than one occasion,
the Court is not able to recalculate the child support. For the foregoing
reasons, the Court will dismiss Joseph’s “Rule for Reduction in Child
Support,” at his cost due to his continuous failure to produce the
financial information requested in order that a determination could be
made as to whether a reduction in child support is warranted. Thus,
Joseph’s child support obligation and all other related orders, shall
remain as set forth in the last judgment filed on November 21, 2001.

Our review of the testimony elicited the following facts: Joseph has not

filed income tax returns since 2001; his attorney had a box of financial information

in his car, but he was not sure what was in it; Joseph claims his financial papers were

destroyed in Hurricane Rita; and Leisa’s counsel requested extensive financial

documents on multiple occasions which Joseph has never produced and for which he

has been held in contempt. It was clear from Joseph’s own testimony that he had sold

multiple rental properties and purchased a home. It was further clear that he failed

to produce the requested documents long before Hurricane Rita hit in the late summer

of 2005.

Based on Joseph’s refusal to produce the evidence requested, we find no

error in the trial court’s ruling. Joseph has had multiple opportunities to produce the

evidence showing that his circumstances have materially changed to his detriment,

yet he has failed to do so.

4

Joseph further urges that we take judicial notice of the fact that Aleis

became a major on September 15, 2003. Louisiana Revised Statute 9:315.22 governs

the termination of child support upon majority and states:

A. When there is a child support award in a specific amount per child,
the award for each child shall terminate automatically without any action
by the obligor upon each child’s attaining the age of majority, or upon
emancipation relieving the child of the disabilities attached to minority.

B. When there is a child support award in globo for two or more
children, the award shall terminate automatically and without any action
by the obligor when the youngest child for whose benefit the award was
made attains the age of majority or is emancipated relieving the child of
the disabilities attached to minority.

The November 2001 award was an in globo award, thus the award does

not terminate until the youngest child reaches majority. See Chambers v. Saucier, 06-

1290 (La.App. 3 Cir. 2/7/07), 949 So.2d 662. Although a reduction in the in globo

award may have been possible, Joseph failed to produce the necessary evidence that

would have allowed the trial court to determine the amount of reduction warranted.

Accordingly, we find no error in the trial court’s ruling dismissing Joseph’s Rule for

Reduction of Child Support because of its inability to modify a child support award

or reduce the in globo award. We hold this is especially true when the trial court

lacks the information necessary to make that determination due to its finding that

Joseph refused to produce the requested documentation. This assignment of error is

without merit.

JULY 2005 RULE TO SHOW CAUSE

Joseph argues that the trial court erred in dismissing his July 2005 Rule

to Show Cause which denied him the right to try his case on the merits. The trial

court’s written reasons pertaining to this issue states:

5

On July 20, 2005 Joseph filed an “Answer to Pending Rules filed by
Leisa Ann C. Henry and Rule to Show Cause,” seeking numerous items
of relief. Specifically, Joseph sought the following:

1) Leisa should be prevented from proceeding in pauper status;

2) The Income Assignment Order be terminated or reduced to $848.50
per month per child, since one child had reached the age of majority;

3) He be awarded a judgment in the amount of $19,515.50 for
overpayment of child support since the one child became the age of
majority on September 15, 2003;

4) A decrease in the amount of child support he paid for Kade, due to
change in income for Leisa and him;

5) The percentages of unreimbursed medical expenses be reduced;

6) Leisa be ordered to apply for and maintain medical insurance on the
child;

7) He should be allowed to claim the minor child, Kade, on his state and
federal income tax returns every year;

8) His visitation with Kade should be modified to allow him to take the
child out of Louisiana during his visitations and be allowed to pick up
Kade on Friday after school and return him to school the following
Monday mornings on his alternating weekend visitations with Kade;

9) A new Income Assignment Order be issued by the Court regarding
the proper amount of child support for the minor child, Kade;

10) He should be allowed to have the first right of refusal when Leisa
can not [sic] exercise her visitation rights with the child; and

11) Leisa casts [sic] with all costs of the proceedings.

The Court will note at the outset that Joseph’s request for relief in
numbers 2 - 7 and 9, all relate to the money issues raised in Joseph’s rule
to reduce his child support obligation. Since Joseph failed to produce
the financial information requested and necessary to address these
issues, the Court is dismissing these requests.

As for Joseph’s request that Leisa be prevented from proceeding
in pauper status, the Court finds that Joseph presented absolutely no
evidence to support this claim. Thus, the court will dismiss this request.

6

In numbers 8 and 10, Joseph seeks to modify the Joint Custody
Plan. After hearing all of the evidence and testimony, the Court has set
forth previously the modifications to the Joint Custody Plan which it
deems are in the best interest of Kade. Thus, Joseph’s answer is
dismissed.

Again, based on the foregoing reasons and our careful review of the

record, we find the trial court did not err in dismissing Joseph’s Rule to Show Cause

for the reasons it enunciated. It is clear that the trial court addressed the issues Joseph

raised in his rule to show cause, filed nine months prior to the hearing on the merits,

in which testimony and evidence was presented on these issues. Accordingly, this

assignment of error is without merit.

CONCLUSION

The judgment of the trial court reinstating the November 2001 judgment

awarding the plaintiff-appellee, Lesia C. Henry, $1,697 in child support per month

is affirmed. All costs of this appeal are assessed against the defendant-appellant,

James Rodney Henry.

AFFIRMED.

7