Marilyn Williams Hedlesky v. Steven Hedlesky

STATE OF LOUISIANA

COURT OF APPEAL, THIRD CIRCUIT

15-117

MARILYN WILLIAMS HEDLESKY

VERSUS

STEVEN HEDLESKY
************

APPEAL FROM THE
FOURTEENTH JUDICIAL DISTRICT COURT
PARISH OF CALCASIEU, NO. 2009-4392, DIVISION “C”
HONORABLE GUY E. BRADBERRY, DISTRICT JUDGE

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JAMES T. GENOVESE
JUDGE

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Court composed of Sylvia R. Cooks, Marc T. Amy, and James T. Genovese,
Judges.

REVERSED AND REMANDED.

Oliver “Jackson” Schrumpf
Law Office of Oliver “Jackson” Schrumpf
and Charles Schrumpf, (A PLC)
3801 Maplewood Drive
Sulphur, Louisiana 70663
(337) 625-9077
COUNSEL FOR PLAINTIFF/APPELLANT:
Marilyn Williams Hedlesky

B. Thomas Shea
Walter M. Sanchez
The Sanchez Law Firm, L.L.C.
901 Lakeshore Drive, Suite 1050
Lake Charles, Louisiana 70601
(337) 433-4405
COUNSEL FOR DEFENDANT/APPELLEE:
Steven Hedlesky

GENOVESE, Judge.

In this domestic proceeding, Plaintiff, Marilyn Williams Hedlesky (Ms.

Williams), appeals the trial court’s judgment dismissing her Rule for Contempt

against her former spouse, Defendant, Steven Hedlesky (Dr. Hedlesky) for non-

payment of child support. For the reasons that follow, we reverse and remand for

further proceedings.

FACTS AND PROCEDURAL HISTORY

Ms. Williams and Dr. Hedlesky were married on January 15, 1998.

Subsequent to their marriage, Dr. Hedlesky adopted two of Ms. Williams’s

children from a prior marriage, neither of which are the subject of this contempt

proceeding. Thereafter, only one child was born of their marriage, Emily

Hedlesky, who is presently sixteen years of age. Ms. Williams and Dr. Hedlesky

divorced, and Dr. Hedlesky’s child support obligation for Emily was fixed at

$3,761.00 per month, beginning September 25, 2010. This child support

obligation was the subject of an Income Assignment Order of February 13, 2014.

After litigation over the division of their community property, a partition

judgment was rendered on December 3, 2013. A by-product of that community

property judgment was judgment in favor of Dr. Hedlesky against Ms. Williams

for $263,485.10.

The facts in this case are not in dispute. Beginning March 27, 2014, Dr.

Hedlesky began reducing his child support payments on the grounds that he was

entitled to offset his child support obligation to Emily with the amount owed to

him by Ms. Williams pursuant to the partition judgment. Dr. Hedlesky paid

$1,000.00 in child support for March and April 2014. For May 2014, Dr. Hedlesky

paid the full child support obligation of $3,761.00, due to Ms. Williams’s then

pending bankruptcy proceedings. Dr. Hedlesky made no further child support

payments thereafter. On July 15, 2014, Ms. Williams filed a Rule for Contempt

due to Dr. Hedlesky’s failure to pay child support for Emily.

Ms. Williams’s Rule for Contempt was considered by the hearing officer on

September 16, 2014. For reasons provided on September 29, 2014, the hearing

officer denied Ms. Williams’s Rule for Contempt. Ms. Williams’s appealed the

hearing officer’s decision. Following a hearing on October 30, 2014, the trial court

made the recommendation of the hearing officer the judgment of the court on

November 5, 2014. From said judgment, Ms. Williams appeals.

ASSIGNMENTS OF ERROR

Ms. Williams presents the following assignments of error for our review:

1. The trial court erred in failing to hold Dr. Hedlesky in contempt,
thereby condoning “self-help” to terminate or offset child support
obligations.

2. The trial court over[-]extended and misinterpreted the 1950 case
of [Saunier v. Saunier, 47 So.2d 19 (La.1950)], because
[Saunier] allowed only a partial offset of the portion of the
support (combined spousal and child support) to be taken or
offset by the obligor spouse; [Saunier] did not authorize the
taking of 100% of the child support to offset a community
property claim.

3. The trial court erred in failing to apply affirmative, remedial
legislation that strictly prohibits “self-help” and strongly opposes
taking child support to pay debts of one spouse to another,
without holding a hearing to determine whether or how much of
an offset can be applied.

4. The result is inequitable, taking the child support from a [fifteen-
year-old] (now [sixteen-year-old]) child to pay a claim allegedly
owed to a spouse earning $600,000[.00] per year in order to
partially offset a community property claim.

5. The trial court failed to consider and apply recent legislation that
would change the result in [Saunier].

2

LAW AND DISCUSSION

Although broken down into five individual assignments of error, Ms.

Williams summarizes her argument to this court as follows:

Self-help is not authorized in stopping child support payments.
Even the cases cited by defendant, though ancient and preceding
modern child support statutes, did not authorize a 100% offset of child
support to enforce a community property claim the obligor spouse has
against his former spouse for a community property equalization
payment. Modern statutes put a priority on protecting child support.
The lower court has abused its discretion in permitting the self-help of
Dr. Hedlesky stopping 100% of the child support and in failing to
punish his contemptuous act of stopping child support without first
involving a judicial proceeding.

We agree with Ms. Williams.

The hearing officer reached what he termed “[t]his unsavory result” by

concluding that the decision of our supreme court in Saunier v. Saunier, 47 So.2d

19 (La.1950), was controlling and in Dr. Hedlesky’s favor. We have considered

Saunier and find it to be distinguishable from the instant case. Further, there have

been subsequent statutory and jurisprudential developments since 1950 that lead us

to a different conclusion.

In Saunier, a husband was ordered to pay a total of $200.00 per month in

alimony and child support. He later reduced his payment to $150.00 contending

that the debt of his wife, arising from their community property agreement,

allowed compensation to occur such that the amounts could be offset. The wife

filed a rule for contempt. The supreme court considered whether the wife’s debt

could “be pleaded in compensation of the judgment which condemned him to pay

alimony.” Id. at 22. The court noted that the underlying judgment failed to

allocate “how much of the amount of $200[.00] a month is allotted to the support

of the two minor children, and how much to the wife[,]” but did not find that to

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“make any difference for the judgment is one in her favor[,] and the money is to be

spent in [sic] her for the support of both herself and the children.” Id. After

finding the debts to be “liquidated and demandable[,]”1 the supreme court next

considered whether the minor children were “third persons” in order to preclude

compensation by the husband due to resultant prejudice to the children.2 On this

issue, the court stated:

[I]t is contended that compensation cannot take place because it would
lead to the prejudice of the two minor children in whose favor, as well
as plaintiff’s, the judgment of alimony was rendered, and article 2215
of the Civil Code specifically provides that compensation cannot take
place to the prejudice of the rights acquired by a third person. Whilst
it is true that the amount awarded by the judgment of alimony in the
sum of $200[.00] payable each month is for the maintenance and
support of both the plaintiff and the two minor children[,] it is
nevertheless a judgment in plaintiff’s favor, the amount awarded to be
used by her for the joint support of them all. With relation to her and
to the judgment awarded in her favor in such manner, the two children
are not third persons within the meaning and contemplation of the
article of the Code relied on.

Id. at 23. Thus, it was the holding of the supreme court in Saunier that the husband

was not in contempt of court for pleading compensation and reducing, in part, the

amount of his joint alimony and child support obligation to offset a debt owed to

him by the wife.

We find Saunier to be factually distinguishable. The judgment underlying

the offset in Saunier was a judgment in favor of the wife. In this case, the

underlying judgment is in favor of the minor child, Emily. Additionally, the

judgment in Saunier was an in globo award comprising both alimony and child

1
Then La.Civ.Code art. 2209 provided: “Compensation takes place only between two
debts, having equally for their object a sum of money, or a certain quantity of consumable things
of one and the same kind, and which are equally liquidated and demandable.”
2
The supreme court cited former La.Civ.Code art. 2215, recognizing that it “specifically
provides that compensation cannot take place to the prejudice of the rights acquired by a third
person.” Saunier, 47 So.2d at 23.

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support. In this case, the judgment is solely for child support. Lastly, the offset

taken in Saunier was only partial and resulted in a reduction of child support

payments.3 In this case, the offset taken was for the total amount of the child

support obligation, thereby eliminating it entirely. For these reasons, we do not

find Saunier to be controlling herein.

Additionally, we do not find such an expansive application of Saunier to be

proper. Certainly, Saunier has been subsequently cited in the jurisprudence and

relied upon in support of the right of compensation;4 however, in none of those

cases was a parent allowed to offset a child support obligation. In our opinion, the

distinction between the utilization of the right of compensation to offset a

judgment of alimony and/or a community property partition and its use for the

purpose of eliminating a child support obligation is critical. In the first instance,

where compensation has been held to be permissible, it involved rights of the

former spouse. In the latter instance, where we find compensation to be

impermissible, it involves the rights of the minor child. This is a critical

distinction mandating a different result.

The supreme court decision of Saunier relied upon by the hearing officer

and the trial court was also decided sixty-five years ago. Although we agree that it

has not been legislatively or jurisprudentially overruled expressly, it has also not

been cited since 1983.5 Moreover, extensive legislative developments have

3
Arguably, the offset taken was only in proportion to the alimony portion of the
underlying judgment. Regardless, it was not a 100% offset of the entirety of a child support
obligation.
4
The language of the supreme court in Saunier has been cited relative to the law on
compensation and what constitutes a liquidated debt.
5
In Massie v. Massie, 436 So.2d 739, 743 (La.App. 3 Cir. 1983), this court considered
Saunier and found that the wife’s debt was “definitely not ‘equally liquidated and

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occurred in the interim,6 and the jurisprudence interpreting same clearly protects

the rights of the minor child. These pertinent statutes, some mandatory in nature,

require judicial intervention before a reduction in child support is taken.

Specifically, La.R.S. 9:311 is germane to our consideration herein.

Louisiana Revised Statutes 9:311(A)(1) expressly 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

previous award and the time of the rule for modification of the award.” Further,

absent certain circumstances, La.R.S. 9:315.14 provides a mandatory minimum

amount of child support of $100.00.

While the jurisprudence does allow for out-of-court modifications to a child

support obligation, it must be by agreement of the parties; and, the maintenance

and support of the child must be maintained. The legal duty of a parent arises not

from marriage, but from paternity/maternity, and that duty is a legal duty owed to

the child. See Dubroc v. Dubroc, 388 So.2d 377 (La.1980).

Moreover, the ability of a parent to unilaterally reduce child support

obligations, or to engage in “self-help,” has been considered by the courts. In

Guidry v. Guidry, 535 So.2d 1272, 1274 (La.App. 3 Cir. 1988) (emphasis added),

this court stated:

In Dubroc v. Dubroc, 388 So.2d 377, 378-379 (La.1980), the
Louisiana Supreme Court commented on its decision in Halcomb[ v.
Halcomb, 352 So.2d 1013 (La.1977)], as follows:

demandable[;]’” thus, compensation was “not available in these proceedings to offset or reduce
the debt owed by [the husband] for past due alimony.”
6
Ms. Williams refers this court to the provisions of La.R.S. 9:315, La.R.S. 9:315.30,
La.R.S. 9:311, and La.R.S. 9:315.14, as examples.

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“In Halcomb we held that a husband could not
unilaterally reduce his child support payments by a
proportionate amount because one of several children has
reached the age of majority. The wife’s failure to
complain during the six years between the custody decree
and her rule to make past due child support executory
was of no moment, for under settled law, the wife’s mere
acquiescence in the husband’s failure to pay the full
amount of support does not amount to a waiver.
Pisciotto v. Crucia, 224 La. 862, 71 So.2d 226 (1954);
Gehrkin v. Gehrkin, 216 La. 950, 45 So.2d 89 (1950);
Snow v. Snow, 188 La. 660, 177 So. 793 (1937). We
stated in Halcomb,

‘Reduction of or discharge from a
judgment condemning one to pay alimony
must . . . be sued for by the party against
whom the judgment was rendered. . . . In
the absence of such suit, however, the
judgment cannot be altered or modified . . .
except in certain instances where the award
is terminated by operation of law. An
example of an automatic revocation of
alimony is when an award in favor of a wife
is revoked when she remarries.” La.C.C.
art. 160.

Our Halcomb opinion, though it dealt specifically
with unilateral action by the husband to reduce his child
support payments, may be read to apply to all cases in
which the parties attempt to change the support award out
of court.

Halcomb and the cases upon which Halcomb relies
(e.g., Pisciotto, supra ) rest on a strong policy in the
area of child custody judgments to safeguard the
sanctity of judgments and the orderly processes of
law, and to prevent husbands from invoking ‘self-
help.’ It is an effort by the courts to prevent overreaching
by husbands compelled to pay estranged wives support
for their children. The cases have interpreted Civil Code
Article 232 to require this result, namely, to require
parties to resort to the courts for any alteration in a
custody decree.”

The foregoing premise was reiterated by this court more recently in

McDaniel v. McDaniel, 03-1763 (La.App. 3 Cir. 5/19/04), 878 So.2d 686, where

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this court found a husband in contempt of court for unilaterally decreasing his child

support payments. In McDaniel, the husband argued that his former wife had

tacitly agreed to a reduction in child support by accepting less than had been

awarded by the court. This court affirmed the trial court’s judgment finding the

actions of the husband to be contemptuous, stating as follows:

The general rule in Louisiana is that an alimony or child support
judgment remains in effect until it is modified or terminated by
the court. Halcomb v. Halcomb, 352 So.2d 1013 (La.1977). “The
law does not want to encourage those owing alimony or child
support to become involved in ‘self-help’ by making their own
determinations as to when they have satisfied their alimony or
child support obligations by some method other than payment in
accordance with the court order.” Mizell v. Mizell, 37,004, p. 7
(La.App. 2 Cir. 3/7/03), 839 So.2d 1222, 1227. (citations omitted).
The only exception to this general rule is where the evidence shows
that the parties have clearly agreed to waive or otherwise modify the
court-ordered payments. Id. More importantly, mere acquiescence in
the obligor’s failure to pay the full amount of support is not a waiver.
Weldon v. Weldon, 98-1173 (La.App. 3 Cir. 2/3/99), 737 So.2d 812.
Not only did Dana not acquiesce in Richard’s failure to pay the full
amount to which she was entitled, she brought legal action to remedy
the situation. Thus, the trial court’s judgment that Richard is in
contempt of court for his failure to pay the full amount of his child
support obligation is not erroneous.

Id. at 690-91 (emphasis added).

In conclusion, we find Saunier to be factually distinguishable from the case

at bar, and the trial court legally erred in relying on same. In so concluding, we

also note that even in Saunier, a 100% offset of a child support obligation was not

allowed. Additionally, we find that the subsequent statutory and jurisprudential

authority is clearly aimed at protecting a minor child. Generally, a modification of

a child support award requires a judicial determination to determine if it is legally

warranted and, if so, in what amount. Although in some instances the parents may

agree to a modification, the unilateral action of one parent engaging in self-help is

not allowed under our law. Finally, such actions taken in contravention of a court

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order breed contempt. For the foregoing reasons, we find that the trial court

legally erred in its application of Saunier; therefore, we reverse the judgment of the

trial court. Additionally, because the record was not developed on the issue of

contempt, we remand this matter for the issue of contempt to be addressed and

decided by the trial court.

DECREE

For the reasons assigned, we reverse the judgment of the trial court and

remand the matter to the trial court for further proceedings in accordance with this

court’s ruling. Costs of this appeal are assessed to Steven Hedlesky.

REVERSED AND REMANDED.

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