Natalie Jeanne Edmonds Lord v. Brett Kenneth Lord

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

09-457

NATALIE JEANNE EDMONDS LORD

VERSUS

BRETT KENNETH LORD

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APPEAL FROM THE
THIRTY-SIXTH JUDICIAL DISTRICT COURT
PARISH OF BEAUREGARD, NO. C-2004-1100 “B”
HERMAN I. STEWART, DISTRICT JUDGE

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JAMES T. GENOVESE
JUDGE

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Court composed of Marc T. Amy, Billy H. Ezell, and James T. Genovese, Judges.

AFFIRMED.

Mitchel M. Evans II
416 North Pine Street
DeRidder, Louisiana 70634
(337) 462-5225
COUNSEL FOR DEFENDANT/APPELLANT:
Brett Kenneth Lord

Elvin C. Fontenot, Jr.
110 East Texas Street
Leesville, Louisiana 71446
(337) 239-2684
COUNSEL FOR PLAINTIFF/APPELLEE:
Natalie Jeanne Edmonds Lord

GENOVESE, Judge.

Brett Kenneth Lord (Brett) appeals the trial court’s judgment in favor of

Natalie Jeanne Edmonds Lord (Natalie) increasing the amount of his child support

obligation from $1,350.00 to $1,783.00 per month. For the following reasons, we

affirm.

FACTS

Two children were born of the marriage of Brett and Natalie Lord: namely,

Braddock Russell, born November 9, 2001; and Jackson Kenneth, born June 11,

2004. In December 2004, the parties entered into a Stipulated Judgment relative to

the custody and support of the children which provided that they would have joint

custody of the children and which set Brett’s child support obligation at $1,350.00

per month. The parties were divorced in November of 2005.

In February of 2007, Natalie filed a Rule To Increase Child Support. The

hearing officer’s recommendation to increase Brett’s child support obligation to

$1,783.00 became the judgment of the trial court in May of 2007. Brett appealed this

judgment, and this court reversed and remanded the matter for further proceedings.

Lord v. Lord, 07-1267 (La.App. 3 Cir. 4/23/08), 981 So.2d 210.

Natalie’s Rule to Increase Child Support came before the hearing officer again

on June 24, 2008. The hearing officer again recommended that Brett’s child support

obligation be increased to $1,783.00 per month. Brett appealed the hearing officer’s

recommendation to the trial court. On August 11, 2008, the trial court found no error

in the hearing officer’s recommendation and affirmed the hearing officer’s upward

modification of the child support obligation. A judgment consistent therewith was

signed on December 30, 2008. It is from this judgment that Brett appeals.

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ASSIGNMENTS OF ERROR

Brett presents the following assignments of error for our review:

1. The [t]rial [c]ourt committed an abuse of discretion in failing to
deviate from the guidelines as a result of the extraordinary community
obligations assumed by [Brett] and memorialized in a Stipulated
Judgment.

2. The [t]rial [c]ourt failed to consider that [Natalie’s] change of
circumstances should not have been considered as they were already
addressed in a Consent Judgment entered into by and between the
parties as it pertains to the claim for child care costs; and, as it pertained
to increased medial expenses, [Brett] should not have been penalized
because of [Natalie’s] unilateral decision to seek medical treatment
outside of the service plan provided by [Brett’s] medical insurance
provider, Tricare.

LAW AND DISCUSSION

On appeal, Brett argues that the trial court erred in not deviating from the child

support guidelines “because of the extraordinary financial obligations assumed by

[him].” Additionally, he contends that the trial court “should have given legal

efficacy to a Joint Stipulation which addressed the issue of child care costs, such that

it should not have been considered as a basis for [Natalie’s] claim of a ‘change in

circumstances.’” Finally, Brett argues that Natalie’s claim that there had been the

requisite “change in circumstances” should not have been considered “based on

medical expenses incurred by [Natalie] solely because of her refusal to utilize

[Brett’s] medical insurance through Tricare, which would have covered all of

[Natalie’s] medical expenses and expenses relative to travel to and from the medical

provider.”

Standard of Review

The party seeking modification of a consent judgment [relative to
the award of child support] has the burden of proving that there has been
a change in circumstances from the time of the award and the time of the
motion for modification of the award. Riggs v. LaJaunie, 98-304

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(La.App. 3 Cir. 10/7/98), 720 So.2d 114; Stogner v. Stogner, 98-3044
(La. 7/7/99), 739 So.2d 762. In arriving at a child support award, the
totality of relevant circumstances must be considered. Rosenbloom v.
Rosenbloom, 94-1762 (La.App. 4 Cir. 4/26/95) 654 So.2d 877, writ
denied, 95-1320 (La. 9/1/95), 658 So.2d 1266. The trial court has great
discretion in decisions concerning modification of child support decrees,
and such decisions will not be disturbed on appeal absent a clear abuse
of discretion. La. R.S. 9:311(A); Young v. Young, 95-1154 (La.App. 3
Cir. 4/17/96), 673 So.2d 1154; Rosenbloom, supra.

Hansel v. Hansel, 00-1914, p. 4 (La.App. 4 Cir. 11/21/01), 802 So.2d 875, 879, writ

denied, 01-3365 (La. 3/8/02), 811 So.2d 880.

Change of Circumstances

Louisiana Revised Statutes 9:311(A)(1) provides that “[a]n award for support

shall not be modified unless the party seeking the modification shows a material

change in circumstances of one of the parties between the time of the previous award

and the time of the rule for modification of the award.” In her Rule to Increase Child

Support, Natalie alleged that circumstances had changed such that she was entitled

to an increase in the child support awarded for the following reasons:

A. [t]hat the medical cost on the minor child, Braddock Russell
Lord[,] [has] significantly increased since the Judgment dated
December 30, 2004;

B. [t]hat the mover now has to pay day care for the two minor
children; [and]

C. [t]hat BRETT KENNETH LORD has had an increase in income
since the court[-]ordered support of December 30, 2004.

Clearly, although Brett contends that the increased medical expenses occurred

as a result of Natalie’s own volition and, thus, should not have been considered, this

is not the only change in circumstance upon which Natalie relied. It is also not the

only change in circumstance for which evidence was adduced at trial.

The only witness to testify at the hearing on Natalie’s Rule to Increase Child

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Support was Natalie. It was her testimony that, at the time the parties entered into the

consent judgment, she “had not been working[.]” However, at the time the increase

in child support was sought, Natalie was employed which necessitated daycare for the

two children. Additionally, it was her testimony that she was now having to pay for

the medical expenses of one of the children. Further, based upon her testimony, it

was established that following the original child support obligation award, Brett, who

was in the military, had received a promotion and had been assigned to a new duty

location for his employment. It was also Natalie’s testimony that both she and Brett

had remarried in the interim. Based upon this unrefuted testimony, we find no merit

to Brett’s contention that Natalie failed to establish that a change in circumstances

had occurred. Even if we were to accept his contention that the medical expenses

should not have been considered, the record contains sufficient evidence that a

change of circumstances had occurred. We, therefore, find no merit to this

assignment of error.

Deviation from Child Support Guidelines

Brett also argues on appeal that the trial court “should have deviated from the

guidelines in awarding [Natalie] child support because of the extraordinary financial

obligations assumed by [Brett]” as contemplated by La.R.S. 9:315.1(C)(5).1 We

1
Louisiana Revised Statutes 9:315.1 (emphasis added) provides in pertinent part:

C. In determining whether to deviate from the guidelines, the court’s
considerations may include:

(1) That the combined adjusted gross income of the parties is not within the
amounts shown on the schedule in R.S. 9:315.19.

(a) If the combined adjusted gross income of the parties is less than the lowest
sum shown on the schedule, the court shall determine an amount of child support
based on the facts of the case, except that the amount awarded shall not be less than
the minimum child support provided in R.S. 9:315.14.

(b) If the combined adjusted gross income of the parties exceeds the highest

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disagree.

On this issue, we note that “[t]he guidelines are mandatory and provide limits

and structure to the trial court’s discretion in setting the amount of support.” Jones

v. Jones, 44,201, p. 7 (La.App. 2 Cir. 4/8/09), 6 So.3d 1275, 1279. “A trial court’s

factual findings cannot render the guidelines inapplicable, although some factual

findings may warrant a deviation from the guidelines.” Hildebrand v. Hildebrand,

626 So.2d 578, 580 (La.App. 3 Cir. 1993). Additionally, in a previous matter wherein

sum shown on the schedule, the court shall determine an amount of child support as
provided in R.S. 9:315.13(B)(1) and may order the placement of a portion of the
amount in a trust in accordance with R.S. 9:315.13.

(2) The legal obligation of a party to support dependents who are not the
subject of the action before the court and who are in that party’s household.

(3) That in a case involving one or more families, consisting of children none
of whom live in the household of the noncustodial or nondomiciliary parent but who
have existing child support orders (multiple families), the court may use its discretion
in setting the amount of the basic child support obligation, provided it is not below
the minimum fixed by R.S. 9:315.14, if the existing child support orders reduce the
noncustodial or nondomiciliary parent’s income below the lowest income level on
the schedule contained in R.S. 9:315.19.

(4) The extraordinary medical expenses of a party, or extraordinary medical
expenses for which a party may be responsible, not otherwise taken into
consideration under the guidelines.

(5) An extraordinary community debt of the parties.

(6) The need for immediate and temporary support for a child when a full
hearing on the issue of support is pending but cannot be timely held. In such cases,
the court at the full hearing shall use the provisions of this Part and may redetermine
support without the necessity of a change of circumstances being shown.

(7) The permanent or temporary total disability of a spouse to the extent such
disability diminishes his present and future earning capacity, his need to save
adequately for uninsurable future medical costs, and other additional costs associated
with such disability, such as transportation and mobility costs, medical expenses, and
higher insurance premiums.

(8) Any other consideration which would make application of the guidelines
not in the best interest of the child or children or inequitable to the parties.

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the propriety of a child support award was appealed, this court stated as follows:

The child support guidelines promulgated in LSA-R.S. 9:315 et
seq. apply to the present case. LSA-R.S. 9:315.1 creates a rebuttable
presumption that the amount calculated under the guidelines is the
proper amount of a child support award. LSA-R.S. 9:315.1(B) allows
the trial court to deviate from the guidelines if their application would
not be in the best interest of the child or would be inequitable to the
parties. A downward deviation requires a showing that application of
the guidelines would be inequitable to the parties as such a downward
deviation would obviously not be in the best interest of the child.
Montgomery v. Waller, 571 So.2d 765, 768 (La.App. 2nd Cir.1990).
Section (C) recognizes the court’s discretion to consider various
obligations in deviating from the guidelines. . . . If the court deviates
from the guidelines, it must, in accordance with section (B), give oral or
written reasons for the deviation on the record.

Miller v. Miller, 610 So.2d 183, 184 (La.App. 3 Cir. 1992).

Thus, in the instant matter, there is a rebuttable presumption that the proper

amount of the child support award is that which is calculated pursuant to the child

support guidelines.2 Brett, as the parent seeking a deviation from the guidelines, has

the burden of proving that an application of the child support guidelines would be

inequitable to him because of what he classifies as “extraordinary financial

obligations” that he assumed at the time of the community property partition.

Following the hearing, the trial court concluded that Brett had not established

grounds for a deviation from the child support guidelines.

Brett refers this court to the case of Savoie-Moore v. Moore, 98-235 (La.App.

4 Cir. 9/16/98), 719 So.2d 551, wherein the fourth circuit affirmed a child support

award which was in deviation of the child support guidelines based upon the

existence of extraordinary community debt. However, the evidence relative to the

“extraordinary community debt of the parties” in Savoie-Moore differs significantly

2
The transcript reveals that the parties agree that the amount of the child support award was
correctly determined in accordance with the guidelines assuming that no deviation therefrom was
warranted.

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from that of the case at bar. In Savoie-Moore, the amount of the community debt

which was assumed by one of the parties was not only established but, in addition

thereto, there was “credible” evidence of an inability of that party “to service the debt

and pay child support as provided in the interim agreement.” Id. at 555. The father,

in that case, “juggled his obligations and borrowed from his parents” in an effort to

fulfill his child support obligations. Id. It was his testimony that “he had considered

bankruptcy as an option but that he was trying to avoid doing so.” Id.

In the case at bar, the amount of the community debt which was voluntarily

assumed by Brett was established. However, the record indicates that Brett failed to

present any evidence at the hearing on Natalie’s Rule to Increase Child Support to

establish his ability or inability to fulfill his obligation of paying those debts

contemporaneous with fulfilling his child support obligation. Moreover, although

Brett asserts that he assumed in excess of $130,000.00 in community debt, we note

that this occurred in 2004 when the consent judgment was reached by the parties.

Even if this was an “extraordinary community debt of the parties,” the requisite

showing of it being an “inequity” to Brett years after these debts were assumed was

not established. Considering the totality of the circumstances, including the years

which have elapsed, the amount of the community debt which was assumed by Brett,

the absence of any showing of his inability to pay, and the absence of proof of any

inequity resulting therefrom, we find no abuse of the trial court’s discretion in

refusing to deviate from the child support guidelines in this case.

DECREE

Based upon the foregoing, the judgment of the trial court increasing the child

support obligation of Brett Kenneth Lord from $1,350.00 to $1783.00 per month is

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affirmed. Costs of this appeal are assessed to Brett Kenneth Lord.

AFFIRMED.

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