Craig Wilson Cole v. Joy Teressa Bonnette Cole

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

13-1442

CRAIG WILSON COLE

VERSUS

JOY TERESSA BONNETTE COLE

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APPEAL FROM THE
TWELFTH JUDICIAL DISTRICT COURT
PARISH OF AVOYELLES, NO. 2008-2414-B/A
HONORABLE MARK A. JEANSONNE, DISTRICT JUDGE

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JOHN E. CONERY
JUDGE

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Court composed of John D. Saunders, James T. Genovese, and John E. Conery,
Judges.

AFFIRMED.

Rodney M. Rabalais
Attorney at Law
Post Office Box 447
Marksville, Louisiana 71351
(318) 253-4622
COUNSEL FOR PLAINTIFF/APPELLANT:
Craig Wilson Cole

Cory P. Roy
Brandon J. Scott
Benjamin D. James
Roy & Scott Attorneys at Law
107 North Washington Street
Marksville, Louisiana 71351
(318) 240-7800
COUNSEL FOR DEFENDANT/APPELLEE:
Joy Teressa Bonnette Cole

CONERY, Judge.

In this child support case, the father, Craig Wilson Cole, appeals the trial

court’s judgment increasing the child support award for their minor child from

$288.00 to $872.12 per month, finding a material change of circumstances from

the last time the child support award was set. The trial court based its ruling on

evidence presented that Craig’s custody of the minor child was no longer a shared

custody arrangement, but a de facto joint custody arrangement. Support was set

pursuant to statute using the joint custody guidelines required by the application of

Worksheet A and not Worksheet B, shared custody, for a proper determination of

the child support award. The trial court also found that Craig’s income increased

due to regular and consistent overtime earnings. Finding no abuse of discretion, we

affirm.

FACTS AND PROCEDURAL HISTORY

Joy Teressa Bonnette Cole and Craig Wilson Cole were married on

December 5, 1998, and are the parents of one minor child, a son born August 30,

2005. There is a history of disputes between the parties concerning the terms of

both the custody arrangement and the amount of child support.

On August 4, 2008, the parties filed a joint petition for divorce seeking joint

custody and a designation as co-domiciliary status. A consent judgment was

signed by the trial court appointing Joy as the domiciliary parent and awarding

Craig visitation privileges. Craig agreed to and was ordered to pay Joy $500.00 a

month in child support for their minor child.

Since the original consent judgment in 2008, the parties have entered into

four other consent judgments relating to both custody and child support. On

October 18, 2012, the parties agreed to the last of the four consent judgments. The

October 18, 2012 Consent Judgment allowed Craig additional time with the minor

child, including extended alternating four-day weekends, two weekdays per week,

and additional time during the summer. The addition of these days changed the

custody of the minor child from joint to shared custody, requiring coordination

with the “father’s work schedule so that each parent enjoys an equal amount of

time with the child.” Craig’s monthly child support award was reduced from

$774.04 to $288.00 using the child support guidelines for shared custody contained

in Worksheet B.

Following the entry of the October 18, 2012 Consent Judgment, Joy filed a

motion asking that an evidentiary hearing be re-fixed to address a change in

circumstances. Joy claimed that the October 18, 2012 Consent Judgment was no

longer in the best interests of the minor child and sought a hearing to address

“custody, visitation and support.” The trial court held a hearing on February 15,

2013, and issued oral reasons from the bench. On March 19, 2013, a considered

decree was signed. However, the record of the February 15, 2013 hearing only

addressed the issue of custody. There is no evidence in that record of any

testimony relating to the issue of child support.

In the March 19, 2013 Considered Decree, the trial court determined that

custody between the parents remain shared. However, the trial court modified the

October 18, 2012 Consent Judgment by increasing Craig’s every other weekend

schedule to five days, beginning on Thursday at 10:00 a.m. and concluding on

Tuesday at 5:00 p.m. The weekday schedule was reduced to “One two-day, one

night block each and every month commencing at 10:00 a.m. and ending at 5 p.m.

the next day.” The trial court also ordered Craig to choose the two days and one

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night upon receiving his work schedule each month and to notify Joy immediately

of the time he wished to exercise custody.

The March 19, 2013 Considered Decree provided that “all other provisions

contained in any previous judgment that are not in conflict with this Judgment shall

remain in force and effect.” Per the provisions of the March 19, 2013 Considered

Decree, the $288.00 award for monthly child support remained “in force and

effect” as ordered in the October 18, 2012 Consent Judgment.

Two months later, on May 21, 2013, Joy filed a rule to increase child

support on the basis that the modification of visitation in the March 19, 2013

Considered Decree changed the child custody arrangement from shared back to

joint custody, and justified an increase in the child support award. Additionally,

Joy also sought an increase in child support due to an increase in Craig’s income

from regular overtime pay.

On August 19, 2013, the trial court held a hearing to address the issues

raised in Joy’s May 21, 2013 rule. The trial court issued a ruling on September 4,

2013, and assigned written reasons for judgment. The trial court found that the

actual time that the minor child was in Craig’s physical custody did not conform

with the custodial times set forth in either the March 19, 2013 Considered Decree

or the October 18, 2012 Consent Judgment and, therefore, no longer met the

statutory and/or jurisprudential definition of shared custody. The $288.00 per

month child support award had been calculated premised on a shared custody plan

where each party would have the child equally. In its September 4, 2013 ruling,

the trial court found factually that a de facto joint custody scheme was in effect

between the parties and not a shared custody plan. The actual time the minor child

was in the parents’ custody was found to be 61% with Joy and 39% with Craig

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and, therefore, was commensurate with the statutory definition of joint custody.

This finding resulted in a material change in circumstances. The trial court

exercised its considerable discretion and applied Worksheet A, rather than

Worksheet B, for a determination of Craig’s child support obligation under the de

facto joint custody plan then existing between the parties.

The trial court then considered the issue of Craig’s overtime pay as an

additional basis for a material change in circumstances. Craig testified that his

income had increased since the October 18, 2012 Consent Judgment based on his

overtime work schedule. Craig testified that he consistently worked overtime and

was expected to continue to do so for the foreseeable future.

The trial court found that based on Craig’s new income figures, the

“payment of $288.00 is not fair or adequate for the child.” The trial court ruled

Craig’s increase in income, based on his pay for consistent overtime work,

provided another basis for a material change in circumstances.

The trial court ordered that Craig’s child support obligation be modified

using Worksheet A, “because joint custody instead of shared custody is applied

between the parties in the amount of the time that each parent has physical custody

of the child” and “to reflect a material change in circumstances due to an increase

in Craig’s income, from the time the previous child support judgment was

rendered.” The modification based on joint custody and the use of Worksheet A,

coupled with Craig’s increase in income, resulted in an increase in the child

support award from $288.00 based on shared custody using Worksheet B to

$872.12 per month, and was more in line with the $774.04 amount that Craig was

paying prior to the October 18, 2012 Consent Judgment.

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The trial court’s September 4, 2013 ruling is memorialized in its October 9,

2013 judgment, which is the source of Craig’s one assignment of error on appeal

wherein he alleges that “The trial court erred in increasing support.”

LAW AND ANALYSIS

Standard of Review

In the absence of manifest error or unless it is clearly wrong, an appellate

court may not set aside a trial court’s findings of fact. Rosell v. ESCO, 549 So.2d

840 (La.1989). The standard of review for child support awards is well established

in this circuit and others. “The trial court has great discretion in decisions

concerning modifications of child support decrees, and such decisions will not be

disturbed on appeal absent clear abuse of discretion.” Stelly v. Stelly, 02-113

(La.App. 3 Cir. 6/26/02), 820 So.2d 1270.

In McCorvey v. McCorvey, 05-174, p. 4 (La.App. 3 Cir. 11/2/05), 916 So.2d

357, 362, writ denied, 05-2577 (La. 5/5/06), 927 So.2d 300, this court stated, “The

basis for this principle of review is grounded not only upon the better capacity of

the trial court to evaluate live witnesses, but also upon the proper allocation of trial

and appellate functions between the respective courts.”

Louisiana Civil Code Article 142 provides in pertinent part, “An award of

child support may be modified if the circumstances of the child or of either parent

materially change.”1 Louisiana Revised Statutes 9:311(A)(1) provides, “An 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

1
Louisiana Civil Code Article 142 Comment–2001 states, in pertinent part, “The
amendment adds materially to describe the change in circumstances necessary to obtain a
modification . . . of child support.”

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previous award and the time of the rule for modification of the award.”2 The party

seeking modification of the child support award, in this case Joy, has the burden to

prove there has been a material change in circumstances. Lord v. Lord, 09-457

(La.App. 3 Cir. 11/4/09), 22 So.3d 1134, writ denied, 09-2634, (La. 2/12/10), 27

So.2d 849. “This implies that the parties must return to court with their evidence.”

Walker v. Walker, 02-606, p. 3 (La. App. 3 Cir. 12/4/02), 832 So.2d 1098, 1101.

The statute does not otherwise define “material.” The court in Walker references

Comment (A) under La.R.S. 9:311. The comment is not part of the statute, but

nevertheless discusses “material” as “a change in circumstance having real

importance or great consequences for the needs of the child or the ability to pay of

either party.”

Date of Modification of the Child Support Award

Craig argues that the trial court erred in finding that he was not exercising

the shared custody ordered by the trial court in its March 19, 2013 Considered

Decree. Craig urges that there have been no material changes in the circumstances

of either parent or the minor child, as required by La.R.S. 9:311(A)(1), between the

March 19, 2013 Considered Decree and the August 19, 2013 hearing on Joy’s rule

for an increase in child support. Craig also argues that the trial court erred in

considering any time period prior to the March 19, 2013 Considered Decree and

that the trial court should have been precluded from considering not only the

2
Louisiana Revised Statues 9:311 was amended by the Louisiana Legislature in Acts
2001, No. 1082, § 1, to clarify the burden of proof required for a modification of child support.
The amendment to La.R.S 9:311 included the terms “material change in circumstances,” which
legislatively superseded that portion of the supreme court opinion in Stogner v. Stogner, 98-3044
(La. 7/7/99), 739 So.2d 762, holding that a “substantial change in circumstances” was not
required for a modification of child support.

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October 18, 2012 Consent Judgment, but also the February 15, 2013 hearing which

resulted in the March 19, 2013 Considered Decree.

However, the term “previous award” contained in La.R.S. 9:311(A)(1) has

been defined as “the time the last award was set, not the last time a motion was

considered and denied.” Deshotels v. Deshotels, 93-2026, p. 4 (La.App. 1 Cir.

6/24/94), 638 So.2d 1199, 1201. The transcript from the February 15, 2013

hearing, when reviewed in conjunction with the March 19, 2013 Considered

Decree, reflects that the trial court changed Craig’s custody of the minor child

from the October 18, 2012 Consent Judgment. Both judgments, however,

attempted to set forth a plan of shared custody on an almost equal basis.

A review of the record of the February 15, 2013 hearing confirms that only

evidence on the issue of custody was heard and ultimately determined by the trial

court. No evidence on the issue of child support was submitted into the record at

that hearing. Moreover, the trial court did not make any factual determination of

the percentage of time each parent would have physical custody under either the

revised custody provisions contained in the October 28, 2012 Consent Judgment or

in the March 19, 2013 Considered Decree, though both judgments were intended to

provide for shared custody.

The trial court found that the evidence at the last hearing on August 19,

2013, demonstrated that the increase in physical custody that was granted to Craig

in the October 18, 2012 Consent Judgment and modified in the March 19, 2013

Considered Decree resulting in shared custody was creating confusion for the

minor child. Though no motion to change custody had been filed, the trial court

factually found that Craig had failed to take advantage of the additional time

granted by the trial court in its previous rulings. The trial court found that an equal

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sharing of custody was problematic due to Craig’s erratic work schedule. The

situation was further complicated by the lack of communication between Craig and

Joy involving changes in Craig’s work schedule, resulting in confusion for the

minor child and unnecessary conflict between the parents.

The meaning of “previous award” when applied to the facts of this case

confirms that the trial court was correct in its ruling that any material change in

circumstances for the child and/or either of the parents must be measured from the

date of the October 18, 2012 Consent Judgment, which was “the last time the child

support award was set” in the amount of $288.00 per month based on shared

custody and use of Worksheet B. The March 19, 2013 Considered Decree did not

address the issue of child support except to say that all previous rulings not in

conflict would remain in effect. La.R.S. 9:311(A); Deshotels, 638 So.2d 1199.

This court finds it helpful to state the rationale of the court in Deshotels for

the meaning of “previous award” with which we agree applies to the facts of this

case. The first circuit stated:

If a “previous award” is defined as the last time a motion was
considered and denied, as in this case, incremental changes in
circumstances between motions may not justify a finding that
circumstances have changed enough to modify support. Over time,
however, incremental changes can build up. If the court is limited to
considering changes between rules only, then it cannot take into
account incremental build-up of small changes, which can
dramatically change the circumstances. The best interest of the child
is not served in this way.

On the other hand, when the court looks at the circumstances at the
time the last award was set, rather than the last time a motion to
modify the award was made, then the court would always be able to
decide whether circumstances have changed based on the whole
picture and the time frame would encompass any incremental changes.

Deshotels, 638 So.2d at 1201.

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In Starks v. Starks, 29-237 (La.App. 2 Cir. 4/3/96), 671 So.2d 1224, the

second circuit considered a case with similar circumstances. A consent judgment

had been signed addressing custody and child support in August, 1993.

Differences ensued between the parties in arranging visitation times which resulted

in Mrs. Starks seeking a joint custody implementation plan in which the court

provided in an August, 1994 consent judgment, “No change was made in the

amount of child support awarded pursuant to the August, 1993, Judgment.” Id. at

1225.

At a subsequent hearing, Mr. Starks sought and was granted a reduction in

his child support obligation dating from the original August, 1993 consent

judgment. Mrs. Starks appealed, urging error by the trial court in using the original

1993 consent judgment in setting the child support award, rather than the date of

the modified custody plan in 1994. The second circuit affirmed the trial court’s

ruling that the original 1993 consent judgment was the correct date of the

“previous award.” The second circuit stated:

The instant August 1994 consent judgment did not modify or award
child support, nor was child support at issue. The language in the
joint custody implementation plan indicates that there was no new
agreement or judgment on the child support issue, but only that the
previous award was still in effect.

Id. at 1226.

In this case, the March 19, 2013 Considered Decree also did not address the

issue of child support. We, therefore, agree with the trial court’s determination

that the last “previous award” of child support was in the October 18, 2012

Consent Judgment, which was the correct starting point for the trial court’s

analysis of the issue of Joy’s request for an increase in the child support award.

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Material Change in Circumstances – Shared Versus Joint Custody

The trial court found that a material change in circumstances occurred as a

result of the modification of the October 18, 2012 Consent Judgment. The March

19, 2013 Considered Decree rearranged Craig’s visitation schedule. Following the

August 19, 2013 hearing, the trial court found in its reasons for ruling filed on

September 4, 2013 that Joy had the child 61% of the time and Craig only 39%

since the March 19, 2013 Considered Decree. This change, the trial court found,

represented a material change in circumstances from the intended shared custody

plan to a de facto joint custody plan.

Louisiana Revised Statutes 9:315.9(A)(1) provides, “‘Shared custody’

means a joint custody order in which each parent has physical custody of the child

for an approximately equal amount of time.” In such a situation, Louisiana

Revised Statutes 9:315(B) requires the application of Worksheet B, contained in

La.R.S. 9:315.20.

Louisiana Revised Statutes 9:315.8(E) states, “‘Joint Custody’ means a joint

custody order that is not shared custody as defined in R.S. 9:315.9.” Louisiana

Revised Statutes 9:315.8(E)(5) provides, “Worksheet A reproduced in R.S.

9:315.20 or a substantially similar form adopted by local court rule, shall be used

to determine child support in accordance with this Subsection.”

In DeSoto v. DeSoto, 04-1248 (La.App. 3 Cir. 2/2/05), 893 So.2d 175, the

parties had a custody agreement that provided for a 54.5/45.5 split in custodial

time. The trial court set support using Worksheet A for joint custody. A panel of

this court found that such a custodial split could be defined as shared custody, but

nevertheless affirmed the trial court’s decision to use Worksheet A based on the

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facts in that case. The panel affirmed the trial court’s vast discretion in setting

support based on a fact intensive inquiry on a case-by-case basis.

The court in DeSoto also discussed an additional factor for the trial court to

consider in determining whether to apply Worksheet A, joint custody, or

Worksheet B, shared custody, in setting child support. The court stated, “the court

must determine that the application of the guidelines in the particular case under

consideration would not be in the best interest of the child or would be inequitable

to the parties.” Id. at 179-80.

In choosing to apply Worksheet A for joint custody, the trial court in this

case specifically held:

Since shared custody is not being used[,] worksheet B is not
applicable to determine child support because it would not be in the
best interests of the child and would be inequitable to the parties.
Therefore, worksheet A should be used to calculate child support
because joint custody is what is actually being exercised between the
parties.

The trial court’s ruling was fully supported by the evidence at the August 19,

2013 hearing. Joy testified that since the March 19, 2013 Considered Decree, she

had prepared a breakdown of Craig’s court-ordered as opposed to physically-

exercised custody. Joy Exhibit 1 confirmed that Craig had custody of the minor

child 39% of the time, and Joy had custody for 61% of the time, based on a 365

day year. The trial court so found. Joy Exhibit 2, also submitted into evidence,

consisted of the parties “Obligation Worksheet,” with supporting documentation,

which included financial information of the parties and Joy’s expenses for the

minor child’s medical and dental insurance, as well as the daycare expenses she

was paying.

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At the August 19, 2013 hearing on the issue of child support, Craig did not

dispute Joy’s calculations, or claim they were not consistent with the actual amount

of physical custody he had exercised with the minor child. After the close of

evidence at the August 19, 2013 hearing, Craig submitted a post-trial “hypothetical

calendar for August 2013,” which was not introduced into evidence, was not

considered by the trial court, and, therefore, cannot be considered on appeal.

Hamilton v. Progressive Sec. Ins. Co., 10-1005 (La.App.3 Cir. 3/16/11), 59 So.3d

504.

Under the facts found by the trial court based on the evidence introduced at

trial, we find that the trial court did not abuse its discretion in making the

determination that Worksheet A, and not Worksheet B, was applicable to the actual

physical custody arrangement existing between the parties. In its reasons for

ruling, the trial court cited Lea v. Sanders, 04-762 (La.App. 3 Cir. 12/22/04), 890

So.2d 764, writ denied, 05-183 (La. 3/24/05), 896 So.2d 1046, and found the

factual circumstances in Lea were quite similar to those before the court in this

case:

The Third Circuit held that the father’s visitation of 43% and his
pattern was typical of joint legal custody arrangement. The court
looked at the fact that the father did not present evidence that he is
bearing a greater financial responsibility under this arrangement or
that he is decreasing the financial burden of the domiciliary parent.
The court found that the father’s visitation does not fall within the
shared custody of La.R.S. 9:315.9, where each parent expends time
and resources equally in caring for his children. From the evidence,
Craig spends 39% of the time with the child and is below the 43%
threshold set forth in this case. Further, Craig has made no argument
that he has decreased the financial burden of Joy who is paying the
minor child’s health insurance and day care costs.

(Emphasis added.) Thus, we find no manifest error in the trial court’s findings and

its application of Worksheet A in setting the amount of child support.

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Material Change in Circumstances - Increased Income - Overtime Work

The trial court also found a material change in circumstances occurred due

to an increase in Craig’s income. Craig testified at the August 19, 2013 hearing

that although his actual hourly pay had not changed, his income had increased due

to his consistently picking up overtime shifts. Craig further testified that he was

“expecting to work overtime shifts indefinitely at his place of employment.” A

trial court is allowed to consider overtime pay in its calculation of child support if

there is a finding that the overtime work is not extraordinary. Ezernack v.

Ezernack, 04-1584 (La.App. 3 Cir. 4/6/05), 899 So.2d 198.

Craig argued to the trial court that the increase in his income from the

overtime pay was not sufficient to warrant a material change in circumstances,

triggering a modification of child support. However, the trial court found as

follows:

“The party asking for an increase need only prove a change of
circumstances sufficient to justify the increase in child support ...
Sometimes the change in circumstances will be substantial and
sometimes not; the magnitude of the change of circumstances is
peculiar to the facts of a particular case. Simply stated, the type of
change in circumstance is presented and determined on a case by case
basis.” Rousseau v. Rousseau, 96-502 (La.App. 3 Cir. 12/26/96), 685
So.2d 681, 682; [Stogner v. Stogner], 98-3044 (La. 7/7/99), 739 So.
2d 762, 769. Craig argues that his income has not increased to be a
material change in circumstances. As stated in the Rousseau case, the
change does not have to be substantial for the trial court to find that a
material change in circumstances has occurred. Therefore, an increase
in income of Craig is a material change of the parent that may warrant
a modification of child support.[3]

3
Although the trial court references the supreme court case in Stogner, which held that
the change in circumstances for an increase in child support did not have to be “substantial,” but
that any change in circumstances could be considered by the trial court, the trial court’s reasons
clearly indicate that it relied on Rousseau v. Rousseau, 96-502 (La.App. 3 Cir. 12/26/96), 685
So.2d 681, 682, in making its determination that a material change of circumstances existed due
to the decrease in Craig’s physical custody of the minor child and the increase in Craig’s salary
due to his overtime work.

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We find no manifest error in the trial court’s finding that the increase in

Craig’s income due to his consistent overtime work schedule constituted a material

change in circumstances, which, when coupled with the decrease in the amount of

time the child spent with his father, warranted the trial court’s modification of the

child support award. Ezernack, 899 So.2d 198.

The trial court properly found a material change in circumstances and

properly exercised its discretion to use Worksheet A, relative to joint custody,

based on a 61% to 39% custody split, and Craig’s increased overtime earnings, in

calculating the proper amount of child support.

DISPOSITION

For the foregoing reasons, we affirm the judgment of the trial court

increasing the monthly child support award from $288.00 to $872.12 payable by

Craig Wilson Cole to Joy Teressa Bonnette Cole for the support of the minor child.

All costs of this appeal are assessed against Craig Wilson Cole.

AFFIRMED.

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