Geralyn Adgia Lambert Hartman v. Wesley Wood Lambert

NOT DESIGNATED FOR PUBLICATION

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

11-306

GERALYN ADGIA LAMBERT HARTMAN

VERSUS

WESLEY WOOD LAMBERT

**********

APPEAL FROM THE
TWENTY-SEVENTH JUDICIAL DISTRICT COURT
PARISH OF ST. LANDRY, NO. 07-2412-C
HONORABLE ALONZO HARRIS, DISTRICT JUDGE

**********

OSWALD A. DECUIR
JUDGE

**********

Court composed of Sylvia R. Cooks, Oswald A. Decuir, Jimmie C. Peters,
Elizabeth A. Pickett, and Billy H. Ezell, Judges.

Cooks, J., dissents in part and assigns written reasons.

REVERSED IN PART AND AFFIRMED
AS AMENDED IN PART.

Charles S. Lambert, Jr.
Attorney at Law
10537 Kentshire Court, Suite A
Baton Rouge, LA 70810
(225) 405-0660
Counsel for Defendant/Appellant:
Wesley Wood Lambert

Charles G. Fitzgerald
Cox Fitzgerald, L.L.C.
113 West Convent Street
Lafayette, LA 70501
(337) 233-9743
Counsel for Plaintiff/Appellee:
Geralyn Adgia Lambert Hartman

DECUIR, Judge.

Appellant, Wesley Lambert (Lambert), appeals a judgment of the trial court

involving child support and related payments. Appellee, Geralyn Lambert

Hartman (Hartman), answered the appeal alleging additional error on the part of

the trial court.

FACTS

Lambert and Hartman were married for eighteen months. On January 8,

1997, one child was born of their marriage. After their divorce, the obligations of

support between the parties were reduced to a consent judgment dated February 23,

1998. The consent judgment provided, in pertinent part, that Lambert would pay

$800.00 in child support to Hartman, and Lambert and Hartman would each pay

one-half of all medical and dental insurance premiums and one-half of all

uninsured medical and dental expenses for the minor child. In October 1998, the

consent judgment was modified to provide that Lambert was to withhold

Hartman’s portion of the medical and dental insurance premiums from his child

support payments to Hartman.

The parties generally agree that from August 1, 1998 through June 2009,

Lambert paid his monthly $800.00 child support payment. Lambert did not deduct

one-half of the medical and dental premiums owed by Hartman. In addition,

Lambert paid private school tuition for the minor child during this period. When

Lambert’s construction business ran on hard times, Hartman instituted this action

seeking to 1) modify custody, 2) recalculate child support, 3) recognize an alleged

extra-judicial agreement that Lambert would pay all private school tuition, 4)

recognize an extra-judicial agreement relieving Hartman of her obligation to pay

one-half of all medical and dental expenses, and 5) to have Lambert found in

contempt for non-payment of child support. Lambert countered seeking

reimbursement for one-half of the medical and dental expenses not paid by

Hartman for the previous twelve years.

Prior to taking of evidence, the parties stipulated that hearing would be

limited to issues surrounding the extra-judicial agreements, contempt, and

reimbursement claims. The trial court entered judgment finding that: 1) an

agreement existed wherein Lambert agreed to pay private school tuition, 2) no

agreement existed to alleviate Hartman of her medical expense obligations, 3)

Lambert was in contempt for non-payment of child support, and 4) Lambert is

entitled to reimbursement for Hartman’s non-payment of her medical expense

obligation. Based on these findings, the trial court entered judgment against

Lambert for $9,200.00 in child support arrearages to be offset by $9,200.00 owed

by Hartman for medical expense arrearages, ordering Lambert to pay $11,831.82

for 2009-10 tuition, and holding Lambert in contempt but deferring sentencing.

The trial court also denied Hartman’s claim for attorney fees.

Lambert appealed alleging the trial court erred in finding him in contempt,

finding an extra-judicial agreement regarding tuition, and ordering him to pay

$11,831.82 for tuition. Hartman answered alleging the trial court erred in not

finding an extra-judicial agreement regarding medical expenses, finding Lambert

was entitled to credit for those expenses unpaid by Hartman, allowing those credits

to offset child support arrearages, and denying her claim for attorney fees.

EXTRA-JUDICIAL AGREEMENTS

Lambert assigns as error the trial court’s finding that he is required to pay

$11,831.82 for private school tuition based on a ―pattern‖ of his paying tuition. He

argues that his obligation under the consent judgment cannot be modified absent a

finding of an extra-judicial agreement. Hartman assigns as error the trial court’s

2

failure to find that an extra-judicial agreement existed relieving her of her

obligation to pay one-half of the medical and dental expenses and premiums.

It does not violate public policy for parties who enter into a consent

judgment regarding child support to waive the requirement of proving a change in

circumstances for purposes of a later request for modification. Thevenot v.

Thevenot, 03-684 (La.App. 3 Cir. 12/23/03), 864 So.2d. 229, (citing Aldredge v.

Aldredge, 477 So.2d 73 (La.1985)). The Thevenot court continued:

The overriding interest of the State in custody matters is the best
interest of the child. Baggett v. Baggett, 96-453 (La.App. 3 Cir.
4/23/97), 693 So.2d 264. A logical extension of this tenet and the
concepts approved in Dubroc, 388 So.2d 377, and Aldredge, 477
So.2d 73, is that parents can agree between themselves to establish
child support. If they do, there must be proof of a specific agreement.
Casey v. Casey, 02-246 (La.App. 4 Cir. 5/22/02), 819 So.2d 1108.
Such an agreement is enforceable, if it satisfies ―the requisites for a
conventional obligation and fosters the continued support and
upbringing of the child,‖ Dubroc, 388 So.2d at 380, and does not
―derogate from laws enacted for the protection of the public interest.‖
La.Civ.Code art. 7.

Id. at 232-33.

After careful review of the record, we find the evidence is not sufficient to

establish the existence of an extra-judicial agreement for Lambert to pay tuition or

to suspend Hartman’s payment of medical and dental expenses and premiums.

Accordingly, the trial court erred in ordering Lambert to pay the entire amount of

tuition for 2009-10. However, given that the parents have maintained the minor

child in private schools for his entire life, we find it to be in the best interest of the

child that the tuition be paid for the 2009-10 school year. We also find Lambert’s

payment of Hartman’s medical and dental expense and premium obligation under

the consent judgment to be gratuitous. It is evident that, until his business fell

upon hard times, Lambert has gone over and above his agreed upon support

obligation. Likewise, it is clear that Hartman has benefited from Lambert’s

3

largesse. Therefore, considering that benefit, we order that the tuition for 2009-10

in the amount of $11,831.32 is to be paid by Hartman.

ARREARAGES AND OFFSET

Hartman argues that the trial court erred in offsetting Lambert’s child

support arrearages against his overpayments of dental and medical expenses. We

agree.

Hartman correctly argues that child support is satisfied only by payment to

the parent to whom it is due and payments to third parties will not satisfy that

obligation. Jones v. Jones, 99-35 (La.App. 3 Cir. 7/14/99), 747 So.2d 94.

Accordingly, the trial court erred in offsetting Lambert’s support arrearages against

his payment of medical and dental expenses owed by Hartman.

CONTEMPT, ATTORNEY FEES, AND COSTS

Lambert argues that the trial court erred in finding him in contempt for

nonpayment of child support. Hartman contends the court errs in failing to award

attorney fees and costs in light of the contempt finding. We find no merit to either

assignment of error.

Lambert did fall behind in his support obligations and, despite his past

overpayments, was not legally entitled to offset his present payments against those

previous overpayments. However, Hartman clearly enjoyed the benefit of

Lambert’s generous support of the minor child. Under these circumstances, we

find the trial court’s rulings were within its discretion.

DECREE

For the foregoing reasons, the judgment of the trial court is reversed insofar

as it: 1) grants a credit to Wesley Lambert for the $9,200.00 he paid in insurance

premiums, 2) orders Wesley Lambert to pay the outstanding tuition balance of

$11,831.32. The judgment is amended to provide that Geralyn Hartman is ordered

4

to pay the tuition balance outstanding in the amount of $11,831.32. In all other

respects the judgment is affirmed. All costs of these proceedings are taxed one-half

to Geralyn Hartman and one-half to Wesley Lambert.

REVERSED IN PART AND AFFIRMED AS AMENDED IN PART.

This opinion is NOT DESIGNATED FOR PUBLICATION. Uniform Rules—Courts of
Appeal, Rule 2–16.3.

5

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

11-306

GERALYN ADGIA LAMBERT HARTMAN

VERSUS

WESLEY WOOD LAMBERT

COOKS, J., dissenting in part.

I respectfully dissent from the portion of the majority’s opinion reversing the

trial court’s finding that an agreement existed between the parties that required

Wesley Lambert to pay the outstanding tuition balance. Although the majority

opinion states that “after a careful review of the record, we find the evidence is not

sufficient to establish the existence of an extra-judicial agreement for Lambert to

pay tuition,” no further explanation is given as to this alleged lack of evidence

supporting the existence of such an agreement. However, my review of the record

leads me to conclude that the record amply supports the trial court’s finding of fact

that there was a verbal agreement between the parties concerning the payment of

tuition.

It was testified to by Hartman, and accepted by the trial court in its role as

the finder of fact, that the parties agreed the minor child would attend private

school and Lambert would pay the costs associated with that enrollment. During

the years following this agreement, the minor child attended only private schools.

All costs of this schooling were paid for by Lambert, with the exception of a few

months when Lambert was enduring financial difficulties. Further, Lambert, and

not Hartman, signed the deposit for the minor child to attend Episcopal School of

Acadiana for the 2009-2010 year. The record established that throughout the

years, Lambert was the only parent to sign the contracts with the various schools

the minor child attended. This behavior is consistent with a parent who believed

the payment of tuition and associated fees was his responsibility. Therefore, I find

no error in the trial court’s finding of fact that the evidence established the

existence of an extra-judicial agreement for Lambert to pay the minor child’s

tuition.

I also dissent from the portion of the opinion ordering the judgment be

amended to provide that Hartman pay the outstanding tuition balance due in the

amount of $11,831.32. I find nothing in the record or briefs where Lambert

requested that Hartman be ordered to pay the outstanding tuition balance due.

Lambert merely asserted that he had not legally assumed the responsibility to pay

the tuition. It is error to amend the judgment to direct Hartman to pay the tuition

without any finding that she ever contractually obligated herself to do so with a

third-party or with an extra-judicial agreement with Lambert.