Mirla Gonzalez Martinez v. David Andrew Martinez

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

17-74

MIRLA GONZALEZ MARTINEZ
VERSUS

DAVID ANDREW MARTINEZ

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APPEAL FROM THE
TENTH JUDICIAL DISTRICT COURT
PARISH OF NATCHITOCHES, NO. C-86720, DIV. B
HONORABLE LALA B. SYLVESTER, DISTRICT JUDGE

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VAN H. KYZAR
JUDGE

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Court composed of Sylvia R. Cooks, Shannon J. Gremillion, and Van H. Kyzar,
Judges.

AFFIRMED.

Andrew B. Freyer

Law Office of Bryce Denny, L.L.C.

209 Polk Street

Mansfield, LA 71052

(318) 871-5007

COUNSEL FOR DEFENDANT/APPELLANT:
David Andrew Martinez

Robert C. Owsley

Murchison and Murchison, L.L.C.

P.O. Box 226

Natchitoches, LA 71458-0226

(318) 352-2302

COUNSEL FOR PLAINTIFF/APPELLEE:
Mirla Gonzalez Martinez

KYZAR, Judge.

The defendant, David Andrew Martinez, appeals from a trial court judgment
denying his motion to modify his child support obligation. For the following
reasons, we affirm.

DISCUSSION OF THE RECORD

David Andrew Martinez and Mirla Gonzalez Martinez were married on May
19, 2004. The parties have one child, Andrew Allen Martinez, who was born on
December 15, 2010. On February 5, 2014, Mirla filed a petition for divorce, in
which she requested that she and David be granted joint custody of their son, with
her being designated as the domiciliary parent. David answered and filed a
reconventional demand in which he also requested that joint custody of their son be
awarded him and Mirla, with him being designated the domiciliary parent. Both
parties alleged the need for child support from the opposing party. An interim
judgment was rendered on May |, 2014, which awarded joint custody of the child
to both parties, named Mirla as the domiciliary parent, subject to David’s
reasonable visitation rights, and ordered David to pay child support of $188.00 on
the first and fifteenth of April and May 2014.

Thereafter, the parties entered into a consent judgment in open court on July
22, 2014. The parties agreed that they would share joint custody of their son, with
Mirla being designated the domiciliary parent, subject to David’s visitation nghts.
They further agreed that David would pay child support to Mirla in the amount of
$750.00 per month, beginning on August 1, 2014. A written judgment was
rendered by the trial court and filed of record on January 22, 2015. A judgment of
divorce was further rendered by the trial court on April 14, 2015.

On August 2, 2016, David moved to modify his child support obligation due

to a significant change in his circumstances caused by his change of employment

from an associate professor to a real estate agent. He stated that as of September 1,
2015, he was no longer employed by the University of Texas — Pan American, but
was currently residing in Michigan, where his gross monthly income was based
solely on the commissions he earned selling real estate. He claimed that he
experienced a drastic decrease in his income as a result, which warranted a
modification in his child support obligation. He further requested that Mirla be
ordered to court to show cause why the child support obligation should not be set
according to Louisiana’s uniform child support guidelines.

In response to this motion, Mirla presented her child support award to the
State of Louisiana, Department of Children and Family Services, which filed an ex
parte motion to have the trial court’s January 22, 2015 child support order
transferred to the state for enforcement and modification pursuant to La.R.S.
46:236.2(A)(1). An order transferring the matter to the state was issued by the trial
court on September 19, 2016. The state then filed an ex parte motion for entry of
an immediate income assignment pursuant to La.R.S. 46:236.3. This order was
issued by the trial court on September 22, 2016.

Following an October 12, 2016 hearing, the trial court denied David’s
motion to modify his child support obligation, finding that he was voluntarily
underemployed. A written judgment was rendered by the trial court on October
24, 2016. It is from this judgment that David appeals.

David raises three assignments of error on appeal:

1. The trial court erred in determining that Mr. Martinez was
[voluntarily underemployed.

2. The trial court erred in declining to reduce Mr. Martinez’s child
support obligation to a level consistent with the income offered
by Arkansas State University.

3. The trial court exceeded its authority to question Mr. Martinez.

OPINION
The law and jurisprudence pertaining to modification of child support
awards was set out in Bonnecarrere v. Bonnecarrere, 09-1647, pp. 9-10 (La.App. |
Cir. 4/4/10), 37 So.3d 1038, 1045-46, writ denied, 10-1639 (La. 8/11/10), 42 So.3d
381, as follows:

The party seeking modification of a child support award bears
the burden of proving that a material change in circumstances has
occurred since the time of the previous award and the time of the rule
for modification of the award. La. R.S. 9:311{A); see La. C.C. art.
142; see also Barton v. Barton, 05-1190, p. 5 (La.App. Ist Cir.6/9/06),
938 So.2d 779, 781. Louisiana jurisprudence distinguishes between
voluntary and involuntary changes in circumstances. An involuntary
change in circumstances results from fortuitous events or other
circumstances beyond a person’s control, such as loss of one’s
position or illness and may support a modification of child support. A
voluntary change in circumstances, however, generally does not
justify a reduction in the support obligation. . When a parent
voluntarily terminates his or her employment upon which the original
support obligation was based, the child support obligation may be
reduced if the obligor parent can show that: (1) a change in
circumstances has occurred; (2) the voluntary change in circumstances
is reasonable and justified; (3) the parent is in good faith and not
attempting to avoid his or her alimentary obligation; and (4) the action
will not deprive the child of continued reasonable financial support.
Strange v. Strange, 42,318, p. 7 (La.App. 2nd Cir.6/20/07), 960 So.2d
1223, 1228-1229.

The trial court is afforded wide discretion in determining
whether the facts of a particular case warrant modification of an
obligor parent’s child support obligation. Accordingly, such
determinations will not be disturbed on appeal absent a clear abuse of
discretion. See Folse v. Folse, 01-0946, p. 4 (La.App. Ist Cir.5/10/02),

818 So.2d 923, 925; Strange, 42,318 at p. 8, 960 So.2d at 1229.

David testified that he currently lives in Milan, Michigan, where he is
licensed to sell real estate and health insurance. He said that he has only had these
licenses for five and six months, respectively, and that previously, he received
weekly unemployment benefits of $428.00 for four and one-half months. After
these benefits ran out, David testified that he lived off of $12,000.00 he realized

from selling his home in Texas. He stated that he is now paid strictly by

commission and that he will soon receive $3,500.00 from a house closing. He
stated that his expenses in Michigan include his vehicle insurance, food, office
fees, and a $1,000.00 per year realtors’ fee. He said that he lives with his mother
and does not pay rent, although he does help with the utilities. He stated that he is
paying a $13,000.00 credit card bill from his and Mirla’s marriage. Additionally,
he admitted that he has a retirement account in Texas, with a balance of
$167,000.00, and an inactive retirement account in another state, which has a
balance of approximately $5,000.00.

Prior to moving to Michigan, David testified that he was employed as a
tenured associate professor of graphic design at the University of Texas-Pan
American (UTPA), where he earned approximately $60,000.00 per year. He said
that he has taught for fourteen years at four or five universities. David testified
that both he and Mirla were teaching at UTPA when they decided to move to
Natchitoches and teach at Northwestern State University (NSU). He stated that he
taught at NSU for one semester and then returned to UTPA, while waiting for NSU
to offer him a permanent position. While teaching at NSU, he said that he taught
online courses for UTPA, with the approval of his dean. However, when he
returned to UTPA, David stated that he lost his position there because he failed to
fill out paperwork in regards to the number of hours he worked. It was at this time
that he also received notice that Mirla, who was still teaching at NSU, had filed for
divorce. He stated that NSU never offered him a position.

After he was let go by UTPA, David testified that he applied for teaching
positions at approximately twenty universities, including UTPA. He stated that he
was offered a one-year position at Arkansas State University for $42,000.00, but
that he declined the position because it was not a tenured position and was only for

a one year contract at the time it was offered. Instead, David testified that he

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decided to move to Michigan in order to spend time with his father, who had lung
cancer. Although he admitted that he would have been closer to his son had he
taken the position in Arkansas, he said that he felt that it was more important for
him to be with his father in Michigan. He stated that he moved in with his parents
and helped care for his father, who passed away a week prior to the hearing.

Although he had no previous experience selling either real estate or health
insurance, David testified that he decided that he wanted to be his own boss. He
stated that he did not want to run the risk that he would build up a program and
then be dropped from it after he acquired tenure, as happened at UTPA.

At the close of evidence, the trial court denied David’s motion due to the
fact that he left a tenured position with UTPA for a speculative position with NSU,
and then after losing his position at UTPA, he turned down a position with
Arkansas State University. The trial court held that even though the school offered
David a non-tenured track position for one year at a lower salary, this position
could have led to further employment based on his job performance. It further held
that David’s child support obligation would remain at $750.00 per month.

After reviewing the record, we find that the trial court did not abuse its
discretion by finding that David was voluntarily underemployed and that his
underemployment was neither reasonable nor justified. Although David’s loss of
his position with UTPA was involuntary, it resulted from his failure to fill out
paperwork required by UTPA prior to or during his one-semester position at NSU.
See Anderson v. Anderson, 11-864 (La.App. 5 Cir. 5/31/12), 96 So.3d 1278.
Moreover, he turned down a teaching position paying $42,000.00, because it was
based on a one year contract and was a non-tenured position, and chose instead to
move fifteen hours away from his son and live off of unemployment benefits while

he pursued real estate and insurance licenses. Based on the foregoing, we affirm

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the trial court’s judgment denying David’s motion to modify his child support
obligation and maintaining his child support payment at $750.00 per month.
Accordingly, we find no merit in his first and second assignments of error.

We further find no merit in David’s third assignment of error.

Under Louisiana Code of Evidence Article 614, a judge may
question witnesses. Generally, a judge, in order to maintain the
impartiality which proper trial technique demands, should be very
careful, not only as to the number and type of questions propounded
by him to witnesses, but also as to the manner in which they are
propounded. Texas Pacific-Missouri Pacific Terminal R. of New
Orleans v. Welsh, 179 F.2d 880 (Sth Cir.1950); Patin v. DeStevens,
415 So.2d 1011 (La.App. 4th Cir.1982). In order to adjudicate a
matter fairly, the trial court is well within the scope of its duty when it
initiates questions from the bench. La. C.C.P. art. 1631; Midyett v.
Midyett, 32,208, (La.App. 2nd Cir.9/22/99), 744 So.2d 669; LaPierre
v. Gibson, 420 So.2d 990 (La.App. 4th Cir.1982), writ denied, 423
So.2d 1150 (La.1982); Williams v. Western Preferred Casualty
Insurance Company, 465 So.2d 191 (La.App. 3rd Cir.1985). As noted
by the Third Circuit in Williams:

[I]n a bench trial, as in this one, the dangers inherent in

questions from the bench are greatly mitigated because

there is no jury to confuse or mislead. The trial judge

was merely enabling himself to better understand the

crucial testimony of the claimant.
Ledet v. Ledet, 04-509, pp. 4-5 (La.App. 5 Cir. 3/29/05), 900 So.2d 986, 988
(quoting Williams v. Western Preferred Cas. Ins. Co., 465 So.2d 191, 194 (La.App.
3 Cir. 1985)).

Although David claims that the trial court exceeded its authority by asking
him thirty-one questions as opposed to the thirty questions asked by his own
counsel, we find, by our own count, that the trial court asked approximately fifteen
questions. The difference in numbers arises from the fact that David appeared at
the hearing via Skype from Michigan and experienced difficulty in hearing the trial
court’s questions, which required the trial court to ask the same questions muitiple
times. No matter the difference in the number of questions, the trial judge, in this

bench trial, certainly acted within her discretion by asking questions in order to

clarify the evidence in her mind. State v. Layssard, 310 So.2d 107 (La.1975).

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Accordingly, we find no merit in this assignment of error.
DISPOSITION
Based on the foregoing, the judgment of the trial court is affirmed. The
costs of this appeal are assessed to David Andrew Martinez.

AFFIRMED.