Madeleine Bergeron v. Brian Bergeron

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

CA 11-130 C/W CA 11-131, CA 11-132, & CA 11-133

MADELEINE BERGERON

VERSUS

BRIAN BERGERON

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APPEAL FROM THE
FIFTEENTH JUDICIAL DISTRICT COURT
PARISH OF LAFAYETTE
NO. C-963223 C/W 993701 C/W 99-5668 C/W 03-2145
HONORABLE PHYLLIS M. KEATY, DISTRICT JUDGE

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SHANNON J. GREMILLION
JUDGE

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Court composed of Elizabeth A. Pickett, Billy Howard Ezell, and Shannon J.
Gremillion, Judges.

AFFIRMED.

James Louis Daniels
Attorney at Law
110 E. Kaliste Saloom, Ste 210
Lafayette, LA 70508
(337) 706-8931
Counsel for Defendant/Appellee:
Brian Bergeron

Thomas Robert Shelton
Shelton Law Firm
P. O. Drawer 52548
Lafayette, LA 70505-2548
(337) 237-3000
Counsel for Plaintiff/Appellant:
Madeleine Bergeron

GREMILLION, Judge.

The plaintiff/appellant, Madeleine C. Bergeron, appeals the trial court’s

findings regarding various child support determinations in favor of the

defendant/appellee, Brian A. Bergeron. For the following reasons, we affirm.

FACTUAL AND PROCEDURAL BACKGROUND

Brian and Madeleine were married in January 1983 and divorced in May

2004. Of that union, six children were born. The parties have litigated various

issues over the years. 1 On April 21, 2005, the parties confected a consent

judgment regarding child support for the three remaining minor children, which

stated in part:

IT IS FURTHER ORDERED, ADJUDGED AND DECREED
that effective June 1, 2005, the child support obligation for BRIAN A.
BERGERON will be refixed to One Thousand Eighty Three Dollars
and 68/100 ($1083.68), in accordance with the worksheet-child
support obligation attached to this Judgment and marked as Exhibit B.
This amount shall remain in effect until the minor child, Matthew
Bergeron, reaches the age of eighteen (18) and graduates from high
school at which time the parties will agree to the modification of the
child support obligation by BRIAN A. BERGERON[.]

Matthew turned eighteen in September 2006 and graduated high school in

2007. Prior to his graduation, Madeleine prepared a child support worksheet

providing the child support calculation with a modified amount based on two

minor children rather than three, due to Matthew’s graduation. Brian began paying

the new amount of $869.99 beginning June 2007. In September 2007, one of the

remaining minors, Daniel, began living with his father. Another child support

worksheet was prepared reducing Brian’s payment to $482.00 per month. Daniel

resumed living with his mother in June 2008, and Brian resumed paying her

$869.99 per month in child support.

1
This case (CA 11-130) is consolidated with CA 11-131, 132, and 133.

In December 2008, Madeleine filed a “Rule to Show Cause for Back Child

Support Arrearages, Modification and Increase of Child Support (9:311) and

Income Assignment (9:303),” essentially arguing that Brian owed $1,083.63 as

agreed upon in the April 2005 Consent Judgment. She further requested an

increase in child support, citing a substantial change in circumstances in that she

was still supporting twenty-year-old Matthew while he attended college and

resided in her home, and further alleging that Brian’s income had substantially

increased. She also filed a “Request for Production of Documents” in December

2008.

In March 2009, Brian and Madeleine appeared before a hearing officer, who

made various findings and recommendations. Madeleine filed an objection to the

hearing officer’s recommendations, and a hearing was scheduled before the trial

court. In the interim, Madeleine filed several motions to compel Brian to produce

detailed financial documents, including copies of every cancelled check, deposit

slip, and check registers for several accounts over a span of multiple years. In

September 2009, Madeleine filed a first amending rule to show cause for child

support arrearages, modification and increase of child support, and income

assignment. Thereafter, Brian filed peremptory exceptions of no right and no

cause of action, arguing that Madeleine had no right or cause of action to bring a

claim for a child over eighteen years of age.

Following a late September 2009 hearing on the contempt motions, the trial

court found Brian in contempt and ordered him to pay attorney’s fees and court

costs for failing to comply with the court’s March 16, 2009 and September 18,

2009 orders, in that he failed to produce copies of every deposit slip for three

different accounts.

2

Over the course of several days in March and May 2010, a hearing was held

on Madeleine’s original December 2008 Rule, the objections to the hearing

officer’s recommendations, contempt, and attorney’s fees and costs for the two

contempt hearings in September 2009. Brian also filed a motion to strike, which

was denied.

The trial court rendered extensive written reasons for judgment and made the

following findings: that an extrajudicial agreement modifying the April 21, 2005

Consent Judgment existed between the parties effective June 1, 2007 modifying

the award from $1,083.63 to $869.99; that no extrajudicial agreement was

confected from September 1, 2007 until May 31, 2008 reducing the award when

Daniel moved to his father’s house; that Brian owed $3,491.91 in arrearages; that

Brian’s income was $57,186.00 per year; that Brian was owed credits for

overpayment resulting in a net amount owed to Madeleine of $2,772.28; and, that

Madeleine was awarded $1,875.00 in attorney’s fees and Brian will pay $350.00 in

filing fees for the motion for contempt and motion to compel. The trial court

declined to award any other attorney’s fees and cast each party with his or her costs

for the Rule. Madeleine now appeals and assigns as error:

1. The trial court failed to consider the in globo status of the April 21,
2005 “Consent Judgment” and failed to properly apply the law as to
how and when such judgments may be amended or modified.

2. The trial court manifestly erred in its determination of Brian’s current
income/expenses.

3. The trial court erred in determining that there was an extrajudicial
agreement between the parties modifying the April 21, 2005 Consent
Judgment.

4. The trial court erred in determining the amount of arrearages Brian
owed between April 21, 2005 and the trial court’s judgment of August
11, 2010.

5. The trial court erred in determining the appropriate attorney’s fees and
court costs specifically in connection with the motions to compel and
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two contempt hearings, resulting in contempt judgments, made
necessary by Brian’s actions because he failed and/or refused to
provide complete disclosure of his financial status as required by law.

6. The trial court manifestly erred in determining that an award for
attorney’s fees for all proceedings below should not be taxed to Brian
pursuant to the provisions of La.R.S. 9:374.

7. The trial court erred in failing to address the facts and circumstances
in the instant case as to how to properly apply the income tax
dependency issue pursuant to La.R.S. 9:315.19

MODIFICATION OF THE CONSENT JUDGMENT/ARREARAGES

We review child support determinations using the manifest error standard of

review, and we will not disturb the trial court’s support order unless it committed

manifest error or an abuse of discretion in its determination. State, Dep’t of Soc.

Servs. v. L.T., Jr., 05-1965 (La. 7/6/06), 934 So.2d 687.

In assignments of error one and three, Madeleine argues that pursuant to

Chambers v. Saucier, 06-1290 (La.App. 3 Cir. 2/7/07), 949 So.2d 662, Brian could

only have the child support award reduced by filing a motion with the court and

being granted a judgment reducing the in globo award set forth in the April 2005

consent judgment. We disagree. We review a trial court’s factual determinations

regarding whether an extrajudicial modification of a consent judgment has

occurred under the manifest error standard. Cosey v. Cosey, 00-0567 (La.App. 4

Cir. 5/2/01), 785 So.2d 1051. Madeleine and Brian testified at trial.

Brian testified that Madeleine filled out the child support worksheet and told

him how much he needed to pay and that he began paying her that amount. The

child support worksheet was admitted into evidence. He said he paid the modified

amount for two-and-a-half years based on their agreement. Regarding the second

modification, Brian testified that this worksheet had been filled out by him, but that

Madeleine agreed to the reduction. He admitted he never asked the court to

“modify” the original consent judgment.
4

Madeleine testified that she never agreed to a modification of the April 2005

consent decree. She admitted filling out the child support worksheet but testified

she only did it because Brian had asked what the amount would be once Matthew

graduated. She testified that she thought the court would have to approve the

reduction before it could go into effect. She stated that she never agreed to the

second reduction when Daniel left her home to live with his father. Madeleine

testified that her rent had increased from $850.00 to $1,100.00 per month and that

she had more expenses. She testified that she needed an increase of $350.00 from

the original judgment of $1,083.68 in order to meet her current expenses.

Madeleine said that Brian paid her $869.00 per month from June 1, 2007

through December 2007; $3,048.00 for the period from January 2008 through May

2008 which amounts to $609.00 per month, and $869.99 from June 2008 through

November 2008.

The trial court found in pertinent part:

This Court finds that there was an extrajudicial agreement
between the parties regarding BRIAN’s support obligation for two
minor children, effective June 1, 2007. MADELEINE, in her
“Objection to the Hearing Officer’s Recommendation” states that she
“obtained a child support worksheet and basically tracked the
numbers and information from the statutory guidelines.” Under oath,
BRIAN testified that “MADELEINE gave [him] the form and told
him this is [my] new payment since Matthew graduated.” . . .

....

. . . No evidence was presented, nor was testimony given to
suggest that capacity, object or cause were missing from the parties’
agreement to modify BRIAN’s obligation. The only allegation made
was that MADELEINE did not consent to the extra judicial
modification of the agreement.

The parties testified that MADELEINE obtained the worksheet,
filled in all the numbers and presented it to BRIAN who then began
paying that amount to MADELEINE. The court finds that this was an
obvious expression of consent on her part. BRIAN’s acceptance was
evidenced by his immediately paying the amount assigned to him on
the worksheet.
5

For these reasons, the Court finds that an extrajudicial
agreement existed between BRIAN and MADELEINE beginning in
June 2007 and no arrearages are owed for the months of June, July,
and August 2007 or for the months of June-December, 2008.

The trial court further found that no extrajudicial agreement existed from

September 1, 2007 through May 31, 2008.

An in globo award can be modified by agreement of the parties. Gomez v.

Gomez, 609 So.2d 263 (La.App. 3 Cir. 1992), Timm v. Timm, 511 So.2d 838

(La.App. 5 Cir. 1987), Cosey, 785 So.2d 1051. The party who claims that an

extrajudicial modification has occurred bears the burden of proving the agreement

by clear and convincing evidence. Cosey, 785 So.2d 1051; Timm, 511 So.2d 838.

The trial court found that Brian proved by clear and convincing evidence

that Madeleine agreed to a modification, and we find no error in that ruling.

Madeleine agreed to the future modification in the August 2005 consent judgment,

and she prepared the worksheet evidencing the modification. The trial court was in

a superior position to assess the credibility of the witnesses, and we will not

second-guess its determinations on appeal. See Gomez, 609 So.2d 263.

Assignments of error one and three are without merit.

ARREARAGES

Although Madeleine’s assignment of error number four pertains to the

arrearages awarded by the trial court, she fails to argue this assignment in brief.

Nevertheless, we surmise she believes that arrearages are due based on the original

$1,089.63 judgment from April 2005. The trial court found arrearages were owed

for the time period of September 1, 2007 through May 31, 2008. The trial court

determined the arrearages by multiplying $869.99 times nine months, which equals

$7,829.91 and subtracting the amounts credited to Brian by Madeleine in her

6

pleadings for that period of time ($4,438.00) leaving him with arrearages of

$3,491.91.

We find no error in the trial court’s calculations based on its determination

that an extrajudicial agreement was confected beginning June 2007 that reduced

the award to $869.99. This assignment of error is without merit.

INCOME

In assignment of error two, Madeleine argues that the trial court erred in its

determination of Brian’s current income/expenses. The trial court calculated

Brian’s income at $162,026.39 for the twenty-four month period from December

22, 2006 to December 22, 2008 in its February 2010 judgment. However, that

judgment specifically stated:

IT IS FURTHER ORDERED, ADJUDGED AND
DECREED that defendant in rule, Brian A. Bergeron may introduce
evidence contrary/contradictory to the Court’s ruling that the earned
income for the aforesaid twenty four (24) month period be set for
$162,026.39[.]

Brian produced substantial evidence to rebut the presumption including that

various deposits were gifts from his mother during that time period ($25,000.00 to

buy a new vehicle and a cash gift of $12,135.00) and that several accounts were

actually the kids’ accounts. In its reasons for judgment, the trial court listed over

fifty individual transactions that it determined were not earned income. In all, it

found $47,654.54 of the $162,026.39 was not earned income after considering

Brian’s tax records, bank statements, and the testimony. It determined that Brian’s

actual earned income was $57,186.00.

Madeleine argues at length that the trial court erred in failing to include as

current income the value of Brian’s offshore lodging when he is at work and the

room and board he receives because he lives with his mother. Madeleine makes

the argument that the room and board at his mother’s house should be assigned a
7

value as income because he helps his mother around the house. This argument

lacks merit. In fact, the testimony revealed that Brian’s living arrangement has

only benefited Madeleine by allowing Brian to have a larger disposable income in

order to meet various needs of the children and his child support oligation.

Having reviewed the record, we find no error or abuse of discretion in the

trial court’s determination of Brian’s income. This assignment of error is without

merit.

ATTORNEY’S FEES

The vast majority of Madeleine’s brief discusses the attorney’s fees that

Brian should pay.2 The trial court’s discretion regarding sanctions it imposes for

failure to comply with its discovery orders is vast, and we will not reverse its

award absent an abuse of discretion. Hutchinson v. Westport Ins. Corp. 04-1592

(La. 11/8/04), 886 So.2d 438. In assignment of error five, Madeleine argues the

trial court erred in the amount of attorney’s fees it awarded in connection with the

motion to compel and contempt hearings. The trial court did find Brian in

contempt for failing to timely produce copies of the handwritten deposits slips,

even though the deposits were evidenced on the bank statements that were

produced. Madeleine argues she should be awarded $14,622.70 in attorney fees.

The trial court specifically found that $14,622.70 “is an unreasonable amount for

one motion to compel and one motion for contempt.” The trial court cast Brian

with $1,875.00 in attorney’s fees plus $350.00 in court costs for the delay in

providing the copies of the handwritten deposit slips. We find no abuse of

discretion in that amount, and, in fact, tend to agree with Brian that this award of

2
We note that Madeleine worked for her attorney and paid him $25 out of every
paycheck for his services.
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fees is quite high in light of the relevant facts. The trial court did not abuse its

discretion in failing to award Madeleine additional attorney fees.

In assignment of error six, Madeleine also argues that pursuant to La.R.S.

9:375 she should be awarded $5,000.00 in attorney’s fees.3 The trial court found

that La.R.S. 9:375 was inapplicable to the case at hand since it only allows for an

award of attorney’s fees in situations making child support or spousal support

awards executory.4 We find no error in the trial court’s ruling that the statute is

inapplicable to the case at hand. Even if it does apply, we find good cause was

shown that Brian should not be cast with any attorney’s fees under this statute. See

Gomez, 609 So.2d 263. This assignment of error is without merit.

TAX DEPENDENCY EXEMPTION

Although Madeleine does not list this error in her assignments, this

assignment numbered “V” addresses the fact that the hearing officer granted Brian

the tax dependency exemption each year beginning with the 2009 tax year. The

trial court did not specifically discuss the tax dependency exemption except to note

that the hearing officer “granted the tax dependency exemptions to BRIAN

beginning with the 2009 tax year, provided he is not in arrears. She [the hearing

officer] granted Madeleine all head of household IRS tax credits.” Madeleine

objected to every finding by the hearing officer, but she did not raise the tax

dependency exemption issue at the hearing. Although it is difficult to discern, it

3
We note that the trial court’s judgment refers to La.R.S. 9:374 in its discussion
of attorney’s fees. We presume this to be a typographical error as La.R.S. 9:374 refers to
the use of the family residence. The trial court clearly intended to discuss La.R.S 9:375
stating “Louisiana Revised Statute 9:374 governs attorney’s fees in cases concerning
child support.” Madeline concedes that the trial court’s error was typographical.
4
La.R.S. 9:375(A) states:
When the court renders judgment in an action to make executory past-due
payments under a spousal or child support award, or to make executory past-due
installments under an award for contributions made by a spouse to the other spouse’s
education or training, it shall, except for good cause shown, award attorney’s fees and
costs to the prevailing party.
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appears Madeleine argues that she is entitled to the credit based on the April 2005

consent judgment. We disagree. Brian is entitled to the exemption pursuant to

La.R.S 9:315.18(B). This assignment of error is without merit.

CONCLUSION

The judgment of the trial court is affirmed. All costs of this appeal are

assessed against the plaintiff/appellant, Madeleine C. Bergeron.

AFFIRMED.

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