Lisha M. McRae v. Mark McRae

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

09-289

LISHA M. MCRAE

VERSUS

MARK MCRAE

**********

APPEAL FROM THE
NINTH JUDICIAL DISTRICT COURT
PARISH OF RAPIDES, NO. 198,304
HONORABLE GEORGE C. METOYER, JR., DISTRICT JUDGE

**********

MARC T. AMY
JUDGE

**********

Court composed of Ulysses Gene Thibodeaux, Chief Judge, Marc T. Amy, and
Shannon J. Gremillion, Judges.

REVERSED AND REMANDED.

Gremillion, J., concurs and assigns written reasons.

Henry H. Lemoine, Jr.
Lemoine & Wampler
607 Main Street
Pineville, LA 71360
(318) 473-4220
COUNSEL FOR PLAINTIFF/APPELLANT:
Lisha M. McRae

Mark McRae
2106 Nolan Trace
Leesville, LA 71446
COUNSEL FOR DEFENDANT/APPELLEE:
In Proper Person

AMY, Judge.

The plaintiff alleged that the defendant owed child support payments for the

summer months of 2002 through 2008. The defendant asserted that the support

judgment, as modified, did not include support for these months. The trial court

found in favor of the defendant. The plaintiff appeals. We reverse and remand with

instructions.

Factual and Procedural Background

The plaintiff, Lisha McCurry Vanderlick (formerly McRae), and the defendant,

Mark McRae, were divorced in 1992. One child was born of the marriage. In the

initial implementation plan for joint custody of the child, signed by the trial court in

February 1992, the plaintiff was designated the domiciliary parent. The order

awarded the defendant designated periods of physical custody. As for the summer,

the defendant was provided with six weeks of physical custody during the child’s

school vacation. The order provided that: “Any child support payments shall be

suspended during the summer visitation.” Support of $700.00 per month was

ordered.

In December 1997, the custody plan was amended. The amended judgment

included a change in the summer physical custody schedule to provide that the minor

child:

[S]hall reside with her father during June of each year and with her
mother during July of each year. The child will spend the second (2nd)
weekend of each of those months with the non-custodial parent.
Additionally[,] the father will have visitation in August for five (5)
consecutive days in August of each year, to include a Saturday and
Sunday, prior to the beginning of the school year.

As for support of the child, the amended judgment again required the defendant

to pay $700.00 per month. It stated that: “The child support payment by MARK

MCRAE for the month of June is suspended.”

The summer schedule was once again amended by an August 2003 order,

which provided for shared physical custody throughout the summer as follows:

The summer visitation schedule will be amended to give to
McRae visitation in the following manner:

He will have visitation for the first two weeks of June and July
and the first ten (10) days of August. He will be allowed to pick up the
child at 6:00 P.M. on the day preceding the first of each month. The
only exception to this will be if the exercise of this visitation interferes
with the child’s normal school schedule. There will be no weekend
visitation for Vanderlick during these summer visitations. For clarity’s
sake, a week is considered a seven (7) day period for purposes of this
ruling.

The order provided that “[a]ll other provisions of the previous implementation not

otherwise amended herein shall remain in effect as written.”

After a period of litigation concerning the appropriate venue for further

proceedings, the trial court increased the defendant’s support in October 2003. The

judgment stated that “the child support previously set herein in September of 1992,

is increased to $1,350.00 per month, effective from the date of the filing of this rule,

November 3, 2001[.]” The plaintiff sought to make the judgment executory in

January 2003. As a result, the trial court entered an executory judgment in May 2004,

reflecting a total of $12,903.17 in unpaid child support payments and interest. A

judgment of satisfaction was later entered.

The ruling now under review stems from the plaintiff’s September 2008 Rule

for Contempt of Court. She referenced the October 2003 order in which the

defendant’s support obligation was increased to $1,350.00 per month and alleged that

the defendant failed to pay support for the months of June, July, and August in the

years 2002 through 2008. She argued that, because the most recent judgment does

not address suspension of the support during the summer months, it was owed by the

2

defendant. In response, the defendant argued that the October 2003 judgment only

changed the amount of support and left the pre-existing provisions for suspension of

support for summer visitation unchanged. At the hearing on the rule, he confirmed

that he “prorated” the support “during the period of time when the child was with

[him].”1

The trial court found in favor of the defendant, concluding that the only area

changed in the October 2003 judgment was the amount of support. It explained that

“the suspension of the child support as stated by prior judgments remains in force and

effect.” It denied the plaintiff’s request for a finding of contempt and for a finding

of an arrearage.

The plaintiff appeals, assigning the following as error: “The trial court erred

in holding that a subsequent judgment did not supersede preceding judgments

resulting in an erroneous finding that the defendant is not in arrears.”

Discussion

The plaintiff argues that the October 2003 judgment superseded the previous

judgments providing for a suspension of the support obligation during summer

months. Thus, due to the defendant’s failure to pay support during June, July, and

August from 2002 to 2008, she seeks a determination that the defendant owes

$12,646.00 in back child support.

As observed by the trial court, the October 2003 judgment related solely to the

amount of support. It did not alter or amend the previous orders relating to the

1
The rule for contempt listed the amounts paid by the defendant for the months June, July,
and August for the years 2002 through 2008. During his testimony, the defendant confirmed that
the listing accurately reflected the amounts that he paid. The petition indicates that the defendant
paid $675 in June 2002 through 2008. It also reflects that the defendant paid $675 of the $1350 due
for July 2002 through 2008, that he paid $891 of the $1350 due for August 2002 through 2007, and
that he paid $918 of the $1350 due for August 2008.

3

summer schedule of physical custody.2 The trial court ordered that the previous

judgments remained in effect, denying the plaintiff’s claim for relief. Although the

trial court correctly determined that the October 2003 judgment only related to the

amount of support and, therefore, did not supersede the previous suspension of

summer support payments, it erroneously denied the plaintiff’s claim for the July and

August payments.

The original 1992 implementation plan generally suspended the defendant’s

support obligation during his period of summer visitation. However, the December

1997 amended judgment changed that designation, providing for the suspension of

support for the month of June. This suspension was limited to June, despite the fact

that the defendant was also given physical custody of the minor child during a portion

of August. Thereafter, the August 2003 amendment changed the custody schedule,

but retained other provisions of the previous implementation. Thus, the suspension

of support for June remained in effect.

In short, the trial court correctly determined that the defendant was not required

to provide support for the month of June. It erred, however, in failing to recognize

that the series of judgments required the defendant to provide support in July and

2
The judgment provides only that:

This matter came on for hearing on August 18, 2003, on Mover’s Motion to
Modify Child Support. Considering the pleadings, the documentary evidence, and
the testimony, the Court finds in favor of mover and;

IT IS ORDERED, ADJUDGED, and DECREED that the child support
previously set herein in September of 1992, is increased to $1,350.00 per month,
effective from the date of the filing of this rule, November 13, 2001; and

IT IS FURTHER ORDERED, ADJUDGED, and DECREED that the
Respondent, MARK MCRAE, is ordered to pay all costs of court.

JUDGMENT RENDERED by Written Reasons on October 14, 2003, and
SIGNED in Open Court on the 29th day of October, 2003.

4

August. In light of this determination, we remand this matter to the trial court for

determination as to the amount of the arrearage and for the entry of the related

judgment.

DECREE

For the foregoing reasons, the trial court’s judgment is reversed insofar as it did

not order the appellee, Mark McRae, to pay child support for the months of July and

August for the years 2002 to 2008. We remand this matter to the trial court to

determine the arrearage and amend the judgment accordingly. Costs of this

proceeding are assessed equally between the appellant and the appellee.

REVERSED AND REMANDED.

5

09-289

LISHA M. MCRAE

VERSUS

MARK MCRAE

GREMILLION, Judge, concurs.

I would reverse and render judgment as to the amount in which Mr. McRae is

in arrears because the amount can be determined from the record.

1