Misty Luneau Noland v. Ryan Michael Noland

NOT DESIGNATED FOR PUBLICATION

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

17-39

MISTY LUNEAU NOLAND

VERSUS

RYAN MICHAEL NOLAND

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APPEAL FROM THE
NINTH JUDICIAL DISTRICT COURT
PARISH OF RAPIDES, NO. 232,274
HONORABLE THOMAS M. YEAGER, DISTRICT JUDGE

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D. KENT SAVOIE
JUDGE

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Court composed of Elizabeth A. Pickett, Phyllis M. Keaty, and D. Kent Savoie,
Judges.

JUDGMENT AFFIRMED; MOTION TO DISMISS RENDERED MOOT.

Michael H. Davis
Law Office of Michael H. Davis
2017-A MacArthur Drive
Building 4, Suite “A”
Alexandria, LA 71301
(318) 445-3621
COUNSEL FOR PLAINTIFF/APPELLEE:
Misty Luneau Noland

Gregory N. Wampler
Law Office of Gregory N. Wampler
607 Main Street
Pineville, LA 71360
(318) 473-4220
COUNSEL FOR PLAINTIFF/APPELLEE:
Misty Luneau Noland

Bradford H. Felder
G. Andrew Veazey
Veazey, Felder & Renegar, LLC
2 Flagg Place
Lafayette, LA 70508
(337) 234-5350
COUNSEL FOR DEFENDANT/APPELLANT:
Ryan Michael Noland

SAVOIE, Judge.

Ryan Michael Noland (Ryan) appeals the trial court judgment, denying his

Rule for Modification of Child Support and finding him in contempt of court.

Misty Noland (Misty) filed an answer to appeal in the trial court requesting certain

amendments to the judgment, and Ryan Noland filed a Motion to Dismiss the

Answer. For the reasons set forth herein, we affirm the judgment and grant the

motion to dismiss, declining to consider Misty’s Answer to Appeal.

FACTS AND PROCEDURAL HISTORY

Ryan and Misty were married on June 16, 2007. The couple has two minor

children – Conner on February 11, 2005, and Lillian on August 20, 2007. A

Petition for Divorce, including a request for child custody and support, was filed

by Misty on July 23, 2008. The petition designated Misty as the primary

domiciliary custodian of the minor children with Ryan entitled to specific periods

of custody.

This court recently rendered a ruling on custody in Noland v. Noland, 16-

641 (La.App. 3 Cir. 4/26/17), 218 So.3d 215. We are now tasked with deciding on

issues regarding child support. In its October 17, 2016 Judgment, the trial court

ruled:

ORDERED ADJUDGED AND DECREED that RYAN
MICHAEL NOLAND pay to MISTY LUNEAU NOLAND, child
support for the support of their minor children in the sum of $1,851.81
per month, beginning date of judicial demand, November 6, 2015, and
payable in increments of $925.40 on the 1st and 15th days of each
month, with credit for all sums previously paid;

FURTHER ORDERED, ADJUDGED AND DECREED that
the parties pay for extracurricular activity expense for the children by
RYAN MICHAEL NOLAND paying 80% and MISTY LUNEAU
NOLAND paying 20%. RYAN MICHAEL NOLAND is to pay his
80% within 30 days of receipt of proof of the expenses.
Extracurricular activities include Lily’s dance, Lily’s gymnastics, and

Connor’s tennis lesson. Any additional extracurricular activities that
may be added in the future will be divided as set forth herein only if
the parties agree to adding the extracurricular activities. The cost of
Camp Ozark and the cost of tutoring is not considered as an
extracurricular activity and will require no monetary participation by
RYAN MICHAEL NOLAND;

FURTHER ORDERED, ADJUDGED AND DECREED that
the parties uncovered medical expenses (co-pays and deductibles) in
the proportion of RYAN MICHAEL NOLAND PAYING 80% and
MISTY LUNEAU NOLAND 20%. RYAN MICHAEL NOLAND is
to pay 80% to MISTY LUNEAU NOLAND and MISTY LUNEAU
NOLAND is to pay 20% to RYAN MICHAEL NOLAND if he
incurred the expense[.]

....

FURTHER ORDERED, ADJUDGED AND DECREED that
RYAN MICHAEL NOLAND is found to be in contempt for failing to
pay medical expenses in the sum of $2,456.53. RYAN MICHAEL
NOLAND is hereby sentenced to serve 7 days in the Parish Jail, but
said sentence is deferred provided that he pays the uninsured medical
expenses as previously ordered by the Judgment of July 31, 2012 and
pays all additional expenses incurred until such time as the children
reach the age of majority.

....

JUDGMENT RENDERED by Written Reasons dated June 10,
2016[,] at Alexandria, Rapides Parish, Louisiana.

In the Written Reasons of June 10, 2016, the trial court found that Misty’s

monthly gross income is $3,000.00, while finding Ryan’s to be $12,500.00. This

resulted in the trial court setting Ryan’s monthly obligation at $1,850.81. Ryan

now appeals the trial court’s judgment.

MOTION TO DISMISS THE ANSWER

Although Ryan filed a motion to dismiss Misty’s answer to appeal due to

untimeliness, we need not address it. We decline to consider the answer to appeal

based on the following reasons, rendering the motion moot.

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Louisiana Code of Civil Procedure Article 2088(A) provides, in pertinent

part:

The jurisdiction of the trial court over all matters in the case
reviewable under the appeal is divested, and that of the appellate court
attaches, on the granting of the order of appeal and the timely filing of
the appeal bond, in the case of a suspensive appeal or on the granting
of the order of appeal, in the case of a devolutive appeal. Thereafter,
the trial court has jurisdiction in the case only over those matters not
reviewable under the appeal[.]

The record reflects that Ryan Noland filed a Petition for Appeal in the trial

court on November 4, 2016. The trial granted the appeal on November 15, 2016.

At that time, in accordance with La.Code Civ.P. art. 2088, the trial court became

divested of jurisdiction over all matters on appeal. Thereafter, Misty Noland filed

her Answer to Appeal on December 5, 2016, in the trial court. As such, the

Answer to Appeal was “improvidently filed in the wrong tribunal and, thus, will

not be considered.” Sorile v. Lott Oil Co., Inc., 14-1156, p. 1 (La.App. 3 Cir.

3/4/15), 160 So.3d 178, 179 n.1; See also, Noland v. Noland, 16-641 (La.App. 3

Cir. 4/26/17), 218 So.3d 215; Kelly v. Boise Bldg. Solutions, 11-1116 (La.App. 3

Cir. 5/2/12), 92 So.3d 965, writs denied, 12-1173, 12-1209 (La. 10/8/12), 98 So.3d

851; Smoot v. Hernandez, 08-1121 (La.App. 3 Cir. 3/4/09, 6 So.3d 352. Because

we decline to consider the answer to appeal, Ryan’s Motion to Dismiss Answer to

Appeal is moot.

ASSIGNMENTS OF ERROR

1. The trial court erred in finding that Misty’s income was only
$3,000.00 per month.

2. The trial court therefore erred in its calculation of the basic child
support obligation and the resulting percentages that each party
pay for extracurricular activities and unreimbursed medical
expenses.

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3. The trial court erred in finding that Ryan was in willful contempt
of the July 31, 2012 Judgment for failing to reimburse Misty for
his share of medical expenses.

LAW AND DISCUSSION

I. Assignments of Error Numbers One and Two

Trial courts have great discretion in determining the amount of a child
support award. Murphy v. Murphy, 894 So.2d 542 (La. 2/2/05). This
court has clearly defined this standard of review by noting, “[w]e
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.” Bergeron v. Bergeron, 11–130 (La.App. 3 Cir.
10/5/11), 75 So.3d 537, 540, writ denied, 11–2466 (La. 1/20/12), 78
So.3d 144; State, Dep’t of Soc. Servs. v. L.T., Jr., 05–1965 (La.
7/6/06), 934 So.2d 687.

Gary v. LeBlanc, 16-1054, pp. 9-10 (La.App. 3 Cir. 6/7/17), 222 So.3d 784,
791.

Louisiana Revised Statutes 9:315(C)(5) defines income as it relates to child

support obligations as:

(a) Actual gross income of a party, if the party is employed to full
capacity; or

(b) Potential income of a party, if the party is voluntarily unemployed
or underemployed. A party shall not be deemed voluntarily
unemployed or underemployed if he or she is absolutely
unemployable or incapable of being employed, or if the
unemployment or underemployment results through no fault or
neglect of the party.

(c) The court may also consider as income the benefits a party derives
from expense-sharing or other sources; however, in determining the
benefits of expense-sharing, the court shall not consider the income of
another spouse, regardless of the legal regime under which the
remarriage exists, except to the extent that such income is used
directly to reduce the cost of a party’s actual expenses.

Gross income, as defined by La.R.S. 9:315(C)(3), includes:

(a) The income from any source, including but not limited to salaries,
wages, commissions, bonuses, dividends, severance pay, pensions,
interest, trust income, recurring monetary gifts, annuities, capital
gains, social security benefits, workers’ compensation benefits, basic

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and variable allowances for housing and subsistence from military pay
and benefits, unemployment insurance benefits, disaster
unemployment assistance received from the United States Department
of Labor, disability insurance benefits, and spousal support received
from a preexisting spousal support obligation;

(b) Expense reimbursement or in-kind payments received by a parent
in the course of employment, self-employment, or operation of a
business, if the reimbursements or payments are significant and
reduce the parent’s personal living expenses. Such payments include
but are not limited to a company car, free housing, or reimbursed
meals; and

(c) Gross receipts minus ordinary and necessary expenses required to
produce income, for purposes of income from self-employment, rent,
royalties, proprietorship of a business, or joint ownership or a
partnership or closely held corporation. “Ordinary and necessary
expenses” shall not include amounts allowable by the Internal
Revenue Service for the accelerated component of depreciation
expenses or investment tax credits or any other business expenses
determined by the court to be inappropriate for determining gross
income for purposes of calculating child support.

(d) As used herein, “gross income” does not include:

(i) Child support received, or benefits received from public assistance
programs, including Family Independence Temporary Assistance
Plan, supplemental security income, food stamps, and general
assistance.

(ii) Per diem allowances which are not subject to federal income
taxation under the provisions of the Internal Revenue Code.

(iii) Extraordinary overtime including but not limited to income
attributed to seasonal work regardless of its percentage of gross
income when, in the court’s discretion, the inclusion thereof would be
inequitable to a party.

(iv) Any monetary gift to the domiciliary party when the objective of
the gift is to supplement irregular child support payments from the
nondomiciliary party.

(v) Any disaster assistance benefits received from the Federal
Emergency Management Agency through its Individuals and
Households Program or from any other nonprofit organization
qualified as a tax-exempt organization under Section 501(c) of the
Internal Revenue Code of 1954, as amended.

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Misty is the owner of Country Living Manufactured Homes, L.L.C. She

also owns twenty-five percent (25%) of Luneau Deville Properties and an

unspecified interest in Noland Luneau Properties. It is Ryan’s contention that

Misty’s income should be calculated as her percentage of the gross receipts of the

businesses in which she is an owner because sufficient documentation was not

provided to determine the ordinary and necessary expenses required to produce

those gross receipts. Taking into account the gross receipts of the businesses in

which Misty has an ownership interest, this equates to Misty having a total annual

income of $1,111,576.38 or $92,280.45 per month. Ryan alternatively argues that

Misty should be assessed, at a minimum, the total amount of money that she

deposits into her accounts, plus a five thousand dollar ($5,000.00) life insurance

premium that is paid on her behalf. This amount totals $278,233.01 or $23,186.08

per month. We disagree.

Misty’s Certified Public Accountant, Roland Kraushaur, testified regarding

her 2014 and 2015 tax returns. After analyzing all of the deposits made into

Misty’s bank account, Mr. Kraushaur determined that $35,690.00 constituted

income in 2014. The trial court, after hearing all of the evidence, found Mr.

Kraushaur’s testimony to be persuasive, setting Misty’s monthly income at

$3,000.00. While there was significantly more money deposited, much of it did

not constitute income. Those deposits included child support payments, a loan

repayment from Country Living Mobile Home, a line of credit loan, transfer of

money from a savings account, loans from Misty’s father, and deposits from

rentals. Misty’s income for 2015 can be explained in a similar fashion.

We cannot say that the trial court’s reliance on Misty’s expert regarding the

amount of her gross income was an abuse of discretion. This assignment of error

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is without merit. Based on this finding, assignment of error number two is also

without merit.

II. Assignment of Error Number Three

Ryan next argues that the trial court erred in finding that he was in willful

contempt of the July 31, 2012 Judgment for failing to reimburse Misty for his share

of medical expenses. “The trial court has vast discretion in determining whether a

party is in contempt of court[,] and its decision will not be reversed absent and [sic]

abuse of discretion.” McDonald v. McDonald, 08–1165, p. 4 (La.App. 3 Cir.

3/4/09), 10 So.3d 780, 783.

The trial court issued Written Reasons and a Judgment dated July 31, 2012,

wherein said judgment stated in pertinent part:

It is ordered that Ryan Nolan[d] (“Mr. Noland”) is not found to
be in contempt, but shall pay the outstanding medical balance of
$421.30 by 28 September, 2012. In addition, the court will order that
each party pay one-half of any uncovered or uninsured medical
expenses for the children with the party incurring the expense
providing a copy of the bill (after any deductions for insurance
reimbursements) to the other party, and the other party reimbursing
the party who incurred the expense one-half of the expense within
thirty days. Should any insurance refund be made after
reimbursement, the refund will be split equally.

In Written Reasons dated June 10, 2016, the trial court found Ryan in

contempt “for his failure to reimburse Misty his portion of medical expenses in the

amount of $2,456.53.” The trial court went on to state:

At trial, both parties agreed [Ryan] was in arrears, the amount of the
arrearage and that he paid the past due amount either on the trial date
or shortly before. The Court orders that he be sentenced to serve 7
days in the Parish prison but defers execution of the sentence provided
he pays the uninsured medical expenses as previously ordered by the
Judgment of July 31, 2012, until the children reach the age of
majority.

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Ryan complains that he does not trust Misty’s requests for reimbursement,

which means he must research to determine whether he, in fact, owes the amount

requested. While this may be, the July 31, 2012 Judgment provides a timeline

during which said research shall take place, namely, within thirty days of receipt of

the request. Ryan admitted at trial that he did not pay within the time allotted. We

do not find that the trial court abused its discretion in finding Ryan in contempt of

the July 31, 2012 Judgment. This assignment is without merit.

CONCLUSION

The trial court’s June 10, 2016 Judgment is affirmed. The Motion to

Dismiss Answer to Appeal filed by Ryan Michael Noland is rendered moot. All

costs of these proceedings are assessed to Ryan Michael Noland.

JUDGMENT AFFIRMED; MOTION TO DISMISS RENDERED
MOOT.

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

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