Martin C. Willrige, III. v. Letitia B. Willrige

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

23-47

MARTIN C. WILLRIGE, III.

VERSUS

LETITIA B. WILLRIGE

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APPEAL FROM THE
SIXTEENTH JUDICIAL DISTRICT COURT
PARISH OF ST. MARTIN, NO. 90752
HONORABLE CURTIS SIGUR, DISTRICT JUDGE

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WILBUR L. STILES
JUDGE

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Court composed of Elizabeth A. Pickett, Ledricka J. Thierry, and Wilbur L. Stiles,
Judges.

REVERSED IN PART; AFFIRMED IN PART. REMANDED.

Rudy Willie Gorrell, Jr.
Attorney at Law
1215 Prytania Street, Ste 223
New Orleans, LA 70130
(504) 553-9588
COUNSEL FOR PLAINTIFF/APPELLANT:
Martin C. Willrige, III.

Lucretia P. Pecantte
Attorney at Law
124 W. Washington St, Ste B
New Iberia, LA 70560
(337) 374-1202
COUNSEL FOR DEFENDANT/APPELLEE:
Letitia B. Willrige

STILES, Judge.

Appellant Martin Willrige appeals the trial court’s judgment adopting the

hearing officer’s recommendation and granting Appellee Letitia Willrige’s Rule for

Contempt without considering his Objection to the Hearing Officer Conference

Report. For the reasons set forth below, we reverse the trial court’s judgment

adopting the hearing officer’s February 2, 2022 recommendations as a final

judgment and remand the matter to the district court to conduct a hearing on the

singular issue of Mr. Willrige’s objection to said recommendations. We further

affirm the remainder of the trial court’s June 13, 2022 judgment.

FACTS AND PROCEDURAL HISTORY

Martin Willrige and Letitia B. Willrige were married on November 5, 2005.

They have two children, a son born on May 5, 2006, and a daughter born on August

8, 2007. On July 26, 2021, Mr. Willrige filed a Petition for 103(1) Divorce with

Minor Children and a Rule for Custody, Visitation, Child Support, Spousal Support,

Paternity or Other Relief. In response thereto, Mrs. Willrige filed on August 9, 2021

Answers and Reconventional Demand and Answers to Rule for Custody, Visitation,

Child Support, Spousal Support, Paternity or Other Relief.

On August 19, 2021, both Mr. Willrige and Mrs. Willrige attended a hearing

officer conference to address the issues of custody and child support. It is noted that

while Mrs. Willrige was represented by counsel at this hearing officer conference,

Mr. Willrige appeared in proper person. At the conclusion of the conference, the

hearing officer issued a Hearing Officer Conference Report in which she made the

following recommendations for custody and child support: the parties shall share the

joint custody of the children, approximately shared on a 40/60 split; Mrs. Willrige is

designated as the domiciliary parent; Mr. Willrige shall pay child support to Mrs.

Willrige in the amount of $1,484.00 per month, payable in equal installments of

$742.00 on the fifth and twentieth days of each calendar month1; Mr. Willrige owes

approximately $989.00 prorated from August 10 until August 31, 2021, due to the

retroactivity of the award of child support; Mrs. Willrige shall pay the registration,

private school tuition, and other mandatory school expenses of the children in a

timely manner; Mrs. Willrige shall maintain health and hospitalization insurance

coverage on the children; Mr. Willrige shall be entitled to claim their son as

dependent for all state and federal income tax purposes; Mrs. Willrige shall be

entitled to claim their daughter for all state and federal income tax purposes; for any

advanced credit for the children that Mr. Willrige may receive after August 9, 2021,

he shall give Mrs. Willrige thirty-five percent of the payments, within thirty days of

payment by the IRS; Mrs. Willrige does not show a need for interim spousal support;

Mr. Willrige shall have the exclusive use and possession of the Navigator and two

pick-ups, for which he shall be responsible for all associated consumer credit

obligations and insurance obligations; and Mrs. Willrige shall have the exclusive use

and possession of the BMW, for which she shall be responsible for all associated

consumer credit obligations and insurance obligations.

Both parties timely filed objections to the Hearing Officer Conference Report

and the matter was scheduled for trial on December 14, 2021. While awaiting trial,

a Judgment Adopting the Hearing Officer’s Recommendations was signed by the

trial court on October 1, 2021, adopting the hearing officer’s recommendations of

August 19, 2021 as a temporary judgment of the court. Mr. Willrige, having retained

1
The hearing officer noted in her recommendation that Mr. Willrige was given a credit for
the 40% of time he spends with the children, which is a deviation insofar as the child support
calculation was done using worksheet B.

2

counsel, filed on November 10, 2021 a Motion for a Watermeier Hearing. When the

matter came up for trial on December 14, 2021, the trial court noted on the record

that Mrs. Willrige’s attorney had requested a continuance due to the extensive

testimony expected at the trial and the Watermeier hearing requested by Mr. Willrige.

Thus, the Watermeier hearing was rescheduled for March 22, 2022, with the trial to

immediately follow.

On December 28, 2021, Mrs. Willrige filed a Rule for Contempt alleging that

Mr. Willrige had willfully failed and refused to comply with the October 1, 2021

judgment in that he had not paid the court ordered child support for September,

October, and November 2021, and had not paid Mrs. Willrige thirty-five percent of

the money he received from the IRS for advanced credit for the children within thirty

days of payment. The Rule for Contempt was scheduled for a hearing officer

conference on February 2, 2022, with the trial to be held on March 22, 2022 should

either party file an objection to the hearing officer’s recommendations.

Mrs. Willrige and her attorney attended the February 2, 2022 hearing officer

conference; however, Mr. Willrige and his attorney did not. After considering Mrs.

Willrige’s evidence, the hearing officer recommended that Mr. Willrige be found in

contempt of the October 1, 2021 judgment for failing to pay to Mrs. Willrige the full

amount of child support for September 2021 through January 2022 and failing to pay

any of the tax credit. The hearing officer calculated the total amount of Mr. Willrige’s

arrearages to be $3,289.00 as of January 31, 2022, said amount to be made executory.

She further recommended that he pay attorney fees in the amount of $750.00 directly

to Mrs. Willrige’s counsel, on or before March 21, 2022 at 4:30 p.m., and that he be

ordered to pay the costs associated with the filing of Mrs. Willrige’s rule for

contempt. Due to Mr. Willrige’s failure to remain current in his child support

3

obligation, the hearing officer recommended that the right to claim both children as

dependents for tax purposes should be allocated to Mrs. Willrige, the domiciliary

parent. It was further recommended that, having been found to be in contempt of

court, Mr. Willrige be sentenced to serve thirty days in the parish jail and fined

$500.00, said sentence to be suspended on the following conditions: (1) he become

current in the amount of arrears owed to Mrs. Willrige by or before March 21, 2022

at 4:30 p.m., and remain current in his ongoing support obligation; (2) he pay all

court costs and attorney fees by March 21, 2022 at 12:00 p.m.; and (3) he not be

found to be in arrears or in contempt of court in any further proceedings.

On February 9, 2022, Mr. Willrige filed an Objection to Hearing Officer

Conference Report, objecting to the February 2, 2022 hearing officer

recommendations on the grounds that (1) he did not willfully disobey an order of the

court, (2) he was never ordered to pay arrears, thus he cannot be held in contempt

for any failure to pay any arrears, and (3) Mrs. Willrige refused to pay her portion of

the car insurance for the BMW. Also on February 9, 2022, Mr. Willrige filed his own

Rule for Contempt, alleging that Mrs. Willrige failed to pay their son’s private school

tuition for the months of June, July, August, and September 2021 and refused to give

Mr. Willrige credit or reimbursement for his having paid the tuition for those months.

He further alleged that Mrs. Willrige failed to pay the car insurance and car note for

the BMW, as ordered by the October 1, 2021 judgment, forcing him to pay the car

insurance. Mr. Willrige’s rule for contempt was not scheduled for a hearing officer

conference. It was simply scheduled for trial on March 22, 2022, the same date as

all other pending matters.

The trial of these matters was held over the course of two days, March 22 and

March 30, 2022. The court first addressed Mrs. Willrige’s rule for contempt against

4

Mr. Willrige. Mrs. Willrige’s attorney informed the trial court that neither Mr.

Willrige nor his attorney appeared at the February 2, 2022 hearing officer

conference, and therefore, per the local rules of the 16 th Judicial District Court, Mr.

Willrige had waived his right to object to the hearing officer’s recommendations.

She asked the trial court to adopt the hearing officer’s February 2, 2022

recommendations finding Mr. Willrige in contempt as the judgment of the court

since no objection had been properly filed.

The trial court confirmed with the minute clerk that the service return in the

record verified Mr. Willrige was personally served through his attorney of record on

January 7, 2022 with notice of the February 2, 2022 hearing officer conference.

Neither Mr. Willrige nor his attorney gave any explanation to the trial court why they

did not attend the February 2, 2022 hearing officer conference. Mr. Willrige’s

attorney did, however, argue vehemently that he felt Mr. Willrige had properly and

timely filed an objection to the February 2, 2022 hearing officer’s recommendations

and the trial court should hold a trial de novo on the allegations of contempt. After

carefully considering the matter and applicable court rules, the trial court provided

counsel for both parties with a copy of the local rule for the 16th Judicial District

Court, Appendix 35.5, directing their attention to section E, which the judge read

aloud into the record:

A party who, after having been duly cited and served with process, fails
to appear or remain for the duration of a Hearing Officer Conference
waives the right to file an objection to the recommendations contained
in the Hearing Officer Conference Report, unless the Hearing Officer
has excused the failure to appear or to remain for the duration of the
Hearing Officer Conference.

5

La.Dist.Ct.R.35.5, App.35.5, 16th JDC (E).2 The trial court indicated it would follow

the rule and adopt the hearing officer’s February 2, 2022 recommendations as though

no objection had been filed. Mr. Willrige’s attorney noted for the record that he

believed the local rules were contrary to La.R.S. 46:236.5, and he intended to appeal

the issue to the appellate court.

Testimony and evidence were then introduced on the issues of custody and

child support. Mr. Willrige argued that certain business expenses should have been

deducted from his income when calculating his gross income for child support

purposes since he is self-employed. Specifically, he indicated that he believed

expenses for gas and maintenance on his trucks (Mr. Willrige is self-employed as a

truck driver) should be considered ordinary and necessary business expenses. 3 The

only evidence produced at trial for the purpose of calculating child support were the

parties’ tax returns for the years 2018, 2019, and 2020, which were filed and

introduced into the record by Mrs. Willrige’s attorney. Mrs. Willrige’s attorney

questioned Mr. Willrige at length on the income and deductions listed on his tax

returns. The attorneys then presented arguments to the court on what income and

what deductions could be considered for calculating child support, relying

2
To clarify for the record, this court notes that argument on Mrs. Willrige’s rule for
contempt had begun on March 22, 2022, but due to extreme weather conditions, the trial court
allowed everyone to leave early and return on March 30, 2022 to complete the trial. It was when
arguments resumed on March 30, 2022 that the trial court informed the parties it had identified the
specific local rule and presented them with copies.
3
This court notes that Mr. Willrige did not produce any documents or other such evidence
at trial indicating which business expenses he wanted the court to consider deducting from his
income. No receipts or even a list of gas and maintenance expenses were produced at trial. Mr.
Willrige did, however, provide the hearing officer at the August 19, 2021 hearing officer
conference with copies of bank statements for both his personal account and his business account
for Platinum Haulers, LLC. The hearing officer attached to her August 19, 2021 Report, as Exhibit
A, a sheet of paper detailing her calculations for the support issues. Included on this Exhibit A is
a calculation for “Income” as well as a calculation for “Expenses-Business”. Exhibit A indicates
that the business expenses were subtracted from the income.

6

specifically on La.R.S. 9:315(C)(3)(c). 4 The trial court advised the parties that it

would take the matter of child support under advisement and allow the parties to

submit post-trial memoranda. Mr. Willrige was given fifteen days to file his post-

trial memorandum, with Mrs. Willrige given an additional seven days to respond.5

Mr. Willrige’s rule for contempt against Mrs. Willrige for her failure to pay

the son’s tuition, the car note on the BMW, and the insurance on the BMW was then

considered by the trial court. After hearing testimony from both parties and

considering what evidence had and had not been presented at trial, the trial court

found that it could not find Mrs. Willrige in contempt for failing to pay the son’s

4
Louisiana Revised Statute 9:315(C)(3) defines “Gross income” for purposes of
calculating child support, and provides as follows, with specific emphasis on subsection (c):

(3) “Gross income” means:

(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 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 of 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. [Emphasis added.]
5
There are indications in Mr. Willrige’s appellant brief that he did submit a post-trial
memorandum to the trial court. However, it is not in the appellate record, and therefore cannot be
considered for purposes of this appeal. Mrs. Willrige’s post-trial memorandum is included in the
appellate record.

7

tuition or the car insurance. It did, however, find Mrs. Willrige in contempt of court

for failing to pay the car note for the BMW.

The trial court rendered two separate Reasons for Judgment on May 13, 2022.

In the first Reasons for Judgment, the trial court analyzed the legal factors to be

considered for custody and child support. Joint custody was awarded to the parties

on a 50/50 split, with the parties to exchange custody each Sunday at 6:00 p.m.,

effective May 1, 2022.6 Mrs. Willrige was designated as the domiciliary parent. The

trial court adopted all other custody recommendations of the hearing officer “not

inconsistent with the 50/50 weekly split,” as well as “the holidays and special

occasions visitation recommendations of the Hearing Officer.” As for child support,

the trial court accepted the hearing officer’s recommendations for the gross income

of both parties and ordered Mr. Willrige to pay to Mrs. Willrige child support

payments in the amount of $1,030.13 per month, payable in equal installments of

$515.06 on the fifth and twentieth days of each calendar month. The trial court then

noted that it “accepts all other recommendations of the Hearing Officer as it relates

to child support.”

The second Reasons for Judgment addressed Mrs. Willrige’s rule for contempt

and the February 2, 2022 hearing officer conference. The trial court found that the

record shows that Mr. Willrige’s attorney was served with notice of the February 2,

2022 hearing officer conference and March 22, 2022 trial date; however, neither Mr.

Willrige nor his attorney attended the hearing officer conference. There is nothing in

the record to indicate that the hearing officer excused Mr. Willrige’s failure to appear.

6
The trial court’s award of a 50/50 split custody arrangement varies slightly from the
hearing officer’s recommendation of a 60/40 split. The trial court’s downward deviation in the
child support award reflects the fact that Mr. Willrige will be exercising a longer custodial period
than previously recommended by the hearing officer.

8

Citing La.Dist.Ct.R.35.5, App.35.5, 16th JDC (E), the trial court held that Mr.

Willrige’s objection to the Hearing Officer Conference Report was waived by his

failure to appear at the hearing officer conference. The judgment of contempt was

therefore made final.

A judgment was signed by the trial court on June 13, 2022, and included the

court’s orders for custody and child support as specified in its reasons for judgment.

The judgment further ordered that the hearing officer’s recommendations pursuant

to Mrs. Willrige’s rule for contempt are “granted and the recommendation dated

February 2, 2022, shall be adopted, and made an order of the court.” It was further

ordered that Mr. Willrige’s rule for contempt against Mrs. Willrige be granted,

finding Mrs. Willrige in contempt of court, and ordering her to pay Mr. Willrige

attorney fees in the amount of $750.00. Mrs. Willrige’s claim for interim spousal

support was dismissed without prejudice.7 It was ordered that the issues of credit and

retroactivity regarding child support be set at a future proceeding. Finally, it was

ordered that the parties shall each pay one half of the costs of these proceedings.

On July 18, 2022, the trial court granted Mr. Willrige’s petition for devolutive

appeal.8 Mr. Willrige asserts three Assignments of Error:

7
It was agreed at trial that Mrs. Willrige had not objected to the hearing officer’s
recommendation that Mrs. Willrige had not shown a need for interim spousal support.
8
Mr. Willrige is appealing from the June 13, 2022 Judgment, which adopts the hearing
officer’s recommendations of August 19, 2021 and February 2, 2022, incorporating those
recommendations as orders of the court. While the Judgment references these recommendations,
it is not apparent in the record before us that they were attached to the June 13, 2022 Judgment.
They are, however, filed elsewhere in the record and available for consideration. On this point, we
note that a final judgment generally cannot require reference to extrinsic documents or pleadings
in order to discern the court’s ruling. Camalo v. Courtois, 19-15 (La.App. 3 Cir. 10/2/19), 280
So.3d 956, writ denied, 19-1776 (La.1/14/20), 291 So.3d 682, and writ denied, 19-1766
(La.1/14/20), 291 So.3d 686. To the extent, however, the Judgment under review lacks certain
hallmarks of a final judgment, we may consider this matter under supervisory jurisdiction.
Rigmaiden v. Dellafosse, 22-816 (La.App. 3 Cir. 3/29/23), 364 So.3d 472.

9

(1) The Trial Court erred in granting Appellee Mrs. Willrige’s Rule for
Contempt and denying Appellant Mr. Willrige’s timely objection to
the Hearing Officer’s Recommendation.

(2) The Trial Court erred in denying Appellant Mr. Willrige’s timely
objection to the Hearing Officer’s Recommendation, finding Mr.
Willrige in contempt of court for failing to pay his child support
obligation and arrears.

(3) The Trial Court erred in determining that Louisiana District Court
Rules, Appendix 35.5(E) for the 16th Judicial District Court was not
in conflict with Louisiana District Court Rule 35.5 and La.R.S.
46:236.5, depriving him of his due process rights to be heard.

DISCUSSION

Standard of Review

The standard of review for an appellate court in a child support case is

manifest error. “An appellate court cannot set aside a trial court’s findings of fact in

the absence of manifest error or unless those findings are clearly wrong.” Barlow v.

Barlow, 11-1286 (La.App. 3 Cir. 4/11/12), 87 So.3d 386, 391. Furthermore, “[a] trial

court is vested with great discretion to determine whether a party should be held in

contempt for willfully disobeying a trial court judgment.” Id., at 395 (quoting Barnes

v. Barnes, 07-27, p. 9 (La.App. 3 Cir. 5/2/07), 957 So.2d 251, 257)).

Objection to Hearing Officer Conference Report

Mr. Willrige argues in his appellant brief that the trial court should have

considered his timely filed objection to the February 2, 2022 Hearing Officer

Conference Report and held a contradictory hearing on the allegations contained in

Mrs. Willrige’s rule for contempt. He contends that the local rules for the 16 th

Judicial District Court, followed by the trial court during the March 2022 trial,

conflict with Louisiana statutory law and severely prejudice him by depriving him

of his day in court.

10

Louisiana Revised Statute 46:236.5 provides for an expedited process for the

establishment and enforcement of custody and child support matters in district courts

using hearing officers. The judges of a district court are authorized to appoint hearing

officers “to hear paternity, support, and other domestic and family related matters.”

La.R.S. 46:235.5(C)(1). The specific authority of the hearing officer is further

delineated in Subsection (C):

(3) The hearing officer shall act as a finder of fact and shall make
written recommendations to the court concerning any domestic and
family matters as set forth by local court rule, including but not limited
to the following matters:

(a) Hear and make recommendations on establishment and
modification of child and spousal support, child custody
and visitation.

(b) Hear and make recommendations on the method of
collection of child and spousal support.

(c) Hear and make recommendations on enforcement of
child and spousal support, including but not limited to
proceedings under Children's Code Articles 1352 through
1355, and on enforcement of child custody and visitation.

(d) Hear and make recommendations on contested and
uncontested paternity cases.

(e) Hear and make recommendations on default orders
or rules to show cause, if the absent parent does not
respond to notice.

(f) Hear and make recommendations on the
punishment by the court for the constructive contempt
of an order of the court or hearing officer.

(g) Hear and make recommendations regarding
confirmation of domestic and family default judgments,
provided that no judgment shall be effective until
signed by a district judge.

(h) Hear and make recommendations regarding the
granting of uncontested divorces and approve domestic
and family consent judgments provided that no judgment
shall be effective until signed by a district judge.

11

(i) Hear and make recommendations regarding the
resolution of disputes concerning discovery or the
issuance of subpoenas.

(j) Hear and make recommendations regarding the referral
of parties to mediation, medical and psychological
evaluation, and drug testing in accordance with R.S. 9:306
and 331 et seq., and to make recommendations regarding
the referral of parties to counseling and substance abuse
treatment.

(k) Hear and make recommendations on all protective
orders filed in accordance with R.S. 46:2131 et seq., R.S.
46:2151 et seq., R.S. 46:2171 et seq., R.S. 46:2181 et seq.,
and the Children's Code and on all injunctions filed in
accordance with R.S. 9:361 et. seq., 371, and 372 and
Code of Civil Procedure Articles 3601 et seq., which
involve personal abuse, terrorizing, stalking, or
harassment; and hear and make recommendations on all
motions for contempt of court and motions to extend,
modify, or dissolve protective orders and injunctions.

La.R.S. 46:235.5(C)(3) (emphasis added).

The process for the filing of objections to those hearing officer

recommendations is also provided for in La.R.S. 46:236.5(C):

(6) A copy of any written recommendations, orders, or uncontested
judgments rendered by the hearing officer shall be provided to the
parties and their counsel at the time of the hearing officer's ruling, if
present. Any party who disagrees with a judgment or ruling of a hearing
officer on a matter set forth in Paragraph (3) may file a written objection
to the findings of fact or law of the hearing officer within the time and
manner established by court rule. The objection shall be heard by the
judge of the district court to whom the case is assigned. Upon filing of
the objection, the court shall schedule a contradictory hearing where the
judge shall accept, reject, or modify in whole or in part the findings of
the hearing officer. If the judge in his discretion determines that
additional information is needed, he may receive evidence at the
hearing or remand the proceeding to the hearing officer.

(7) If no written objection is filed with the clerk of court within the time
and manner established, the order shall become a final judgment of the
court and shall be signed by a judge and appealable as a final judgment.
The judgment after signature by a district judge shall be served upon
the parties in accordance with law.

12

More specific rules concerning attendance at hearing officer conferences and

the filing of objections to hearing officer recommendations are contained in the local

rules for Louisiana district courts. Pursuant to La.Dist.Ct.R. 35.5, a party shall file

any objection to the hearing officer’s recommendations within five days, exclusive

of legal holidays, from the date the recommendation was issued. That rule further

provides, “For court-specific rules concerning objections to hearing officer

recommendations…, see Appendix 35.5.” La.Dist.Ct.R. 35.5 (emphasis in original).

Louisiana District Court Rule 35.3 provides that when any party who has been cited

with notice of a hearing officer conference fails to appear, “the hearing officer may

impose or recommend a finding of contempt and appropriate sanctions in accordance

with La.R.S. 46:236.5(C)(3)(f) and La.R.S. 46:236.5(C)(4)(g), or any other remedy

provided by law.”9 La.Dist.Ct.R. 35.3.

The local rule to which Mr. Willrige objects in this appeal is in the District

Court Appendices, Appendix 35.5, which is referenced in La.Dist.Ct.R. 35.5, above.

Appendix 35.5(E) for the 16th Judicial District Court provides:

A party who, after having been duly cited and served with process, fails
to appear or remain for the duration of a Hearing Officer Conference
waives the right to file an objection to the recommendations
contained in the Hearing Officer Conference Report, unless the Hearing
Officer has excused the failure to appear or to remain for the duration
of the Hearing Officer Conference.

La.Dist.Ct.R. 35.5, App. 35.5, 16th JDC(E) (emphasis added). He argues that the 16th

Judicial District Court’s adoption of this rule deprives a person of his due process

rights to a hearing and that this deprivation of due process rights was never intended

by Louisiana statutory law or the district court rules. Specifically, he contends that

9
Louisiana 46:236.5(C)(3)(f) permits a hearing officer to make a recommendation for
constructive contempt, while 46:236.5(C)(4)(g) permits a hearing officer to fine and punish a party
for direct contempt of court.

13

the rule deprives a person who has timely filed an objection of his right to a hearing

by the trial court based on the simple fact that he has failed to appear at the hearing

officer conference. Neither La.R.S. 46:236.5 nor La.Dist.Ct.R. 35.3 provides such a

harsh penalty for the failure to attend a hearing officer conference. Mr. Willrige

acknowledges that a court is allowed “to adopt rules for the conduct of judicial

business before it, including those governing matters of practice and procedure that

are not contrary to the rules provided by law.” La.Civ.Code art. 193. Local rules of

court, however, cannot conflict with legislation and will be declared null and void to

the extent they conflict with a statute. Rodrigue v. Rodrigue, 591 So.2d 1171

(La.1992). Additionally, Mr. Willrige acknowledges the legislature’s intention for

parties to recognize the importance of appearing for court hearings for which they

were properly noticed. He, however, believes a finding of contempt and sanctions,

such as those provided for in La.R.S. 46:236.5 and La.Dist.Ct.R. 35.3, would have

been appropriate, rather than the trial court’s action of disallowing his objections to

the hearing officer recommendations.

In her appellee brief, Mrs. Willrige cites La.Dist.Ct.R. 35.0, which provides,

in part:

In those courts where hearing officer conferences are required, the
following rules are applicable:

(a) Upon filing pleadings on family proceedings, all
parties will be required to attend a hearing officer
conference with a hearing officer unless specifically
waived by the court.

Louisiana District Court Rule 35.3 provides consequences for a duly served

individual who fails to appear at the court-ordered hearing officer conference,

including “sanctions in accordance with La.R.S. 46:236.5(C)(3)(f) and La.R.S.

46:236.5(C)(4)(g), or any other remedy provided by law.” (Emphasis added.) Mrs.

14

Willrige contends that an “other remedy provided by law,” as specified in

La.Dist.Ct.R. 35.3, is provided for in Appendix 35.5(E) of the 16 th Judicial District

Court, which instructs that when a party who has been duly cited and served with

process fails to appear at the hearing officer conference, he waives the right to file

an objection to the hearing officer’s recommendations. Mr. Willrige was personally

served through his attorney of record with notice to appear at the hearing officer

conference. Neither Mr. Willrige not his attorney appeared at the conference. Mrs.

Willrige and her attorney did attend the hearing officer conference, at which she

presented her evidence to the hearing officer. The local district rules and the court

specific rules provide for consequences of a duly served individual who fails to

appear at the hearing officer conference. Thus, Mrs. Willrige argues the trial court

was correct in declining to consider Mr. Willrige’s objection and adopting the

hearing officer’s recommendations as the order of the court.

Per Louisiana Revised Statutes 46:235.5(C)(3), a hearing officer is only

empowered to make findings of fact and recommendations on default orders and

rules to show cause, as well as hear and make recommendations on punishment for

constructive contempt. The effect of the local rule of the 16th Judicial District Court

at Appendix 35.5(E), by which a party failing to appear at a hearing officer

conference waives the right to file an objection and have the matter considered by

the trial court judge, is to give the authority to the hearing officer to issue a

recommendation that automatically becomes a final judgment pursuant to La.R.S.

46:236.5(C)(7), which states:

If no written objection is filed with the clerk of court within the time
and manner established, the order shall become a final judgment of the
court and shall be signed by a judge and appealable as a final judgment.

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However, as recognized above, La.R.S. 46:236.5(C)(3)(e) only authorizes the

hearing officer to make recommendations when an absent parent fails to respond to

notice on default orders and rules to show cause. The statute contemplates that a

district court judge will ultimately review the findings of the hearing officer and

issue a judgment if an objection is timely filed.

While La.Dist.Ct.R. 35.3 allows a hearing officer to impose or recommend a

finding of contempt if a party fails to appear at the conference, that language is

modified by the phrase “in accordance with La.R.S. 46:236.5(C)(3)(f) and La.R.S.

46:236.5(C)(4)(g)[.]” Thus, the hearing officer in this case had the authority to make

a recommendation that Mr. Willrige was in constructive contempt for his failure to

appear, but that finding was still subject to review by the district court judge.

Mr. Willrige timely filed his objection to the hearing officer’s February 2,

2022 recommendation. Under La.R.S. 46:236.5(C)(6), when a party files a “written

objection to the findings of fact or law of the hearing officer within the time and

manner established by court rule[,] . . . [t]he objection shall be heard by the judge of

the district court to whom the case is assigned.” (Emphasis added.) Under basic rules

of statutory interpretation, the “shall” in this statute is mandatory. Mr. Willrige was

therefore entitled to have the recommendation of the hearing officer reviewed by a

district court judge. We find that the 16th Judicial District’s local court rule, Appendix

35.5(E), impermissibly expands the authority of the hearing officer to issue

judgments without the proper oversight by a district court judge where a party timely

files an objection to the recommendations of the hearing officer, thereby conflicting

with La.R.S. 46:236.5(C). As noted above, a local rule of court which is in conflict

with legislation is null and not enforceable. Rodrigue, 591 So.2d 1171.

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For these reasons, we remand this matter to the trial court to conduct a hearing

on Mr. Willrige’s objection to the hearing officer’s February 2, 2022

recommendation that he be held in contempt of court.

Calculation of Income for Purposes of Child Support

Although not designated in this appeal as an assignment of error, Mr. Willrige

includes in his appellant brief under Issues Presented his claim that the hearing

officer failed to accurately calculate his income as self-employed truck driver,

violating his substantive and due process rights. Mr. Willrige asks this court to

remand the matter back to the hearing officer for a recalculation of his income,

subtracting any “ordinary and necessary expenses required to produce income”, such

as the cost of gas for his trucks. We briefly address this claim.

At the August 19, 2021 hearing officer conference, Mr. Willrige presented the

hearing officer with a copy of his personal bank statements and the bank statements

for his business, Platinum Haulers, LLC. The bank statements documented all credit

activity as well as electronic debits on a monthly basis. Thus, the hearing officer was

able to calculate Mr. Willrige’s monthly income and his monthly expenses, including

business expenses, per the statements for both himself and Platinum Haulers, LLC.

Mr. Willrige objected to the hearing officer’s recommendations for both custody and

child support, and those matters were scheduled for a trial de novo in March 2022.

At the March 22, 2022 trial, the trial court heard testimony from both Mr.

Willrige and Mrs. Willrige concerning their income and expenses. Both parties were

also questioned extensively concerning their 2018, 2019, and 2020 tax returns which

had been filed into the trial record by Mrs. Willrige’s attorney. After all testimony

and argument, the trial court took the matter under advisement. In written reasons

for judgment rendered May 13, 2022, the trial court stated that it accepted the

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findings of the hearing officer’s recommendations regarding the gross income of

both parties. Based on those calculations of gross income, the trial court adjusted

Mr. Willrige’s child support obligation based on the trial court’s award of shared

50/50 custody of the children.

Mr. Willrige contends that the hearing officer did not have sufficient

documentation to calculate all of his expenses as compared to his income. He

specifically notes that the hearing officer failed to review his tax returns. We do not

find this argument persuasive. When calculating income for purposes of child

support, the hearing officer was limited by the documents produced by the parties at

the hearing officer conference. If Mr. Willrige felt additional and/or different

documents were needed to calculate his income and expenses, it was incumbent

upon him to produce such documents at the trial de novo before the trial court in

March 2022. While Mr. Willrige was not represented by counsel at the August 19,

2021 hearing officer conference, he was represented by counsel at the March 2022

trial. We also note that the tax returns were introduced as evidence at the March 2022

trial. Thus, the tax returns were available for the trial court to consider when

determining Mr. Willrige’s income and expenses for purposes of calculating child

support.

Due process requires notice and an opportunity to be heard. Fairbanks v.

Beninate, 20-206 (La.App. 5 Cir. 12/23/20), 308 So.3d 1222, writ denied, 21-250

(La.3/23/21), 313 So.3d 272. See also Yepez v. Yepez, 21-477 (La.App. 1 Cir.

12/22/21), 340 So.3d 36, 41 n.4. We find that Mr. Willrige’s due process rights were

not violated by either the hearing officer conference or the trial de novo. He was

given notice and provided with the opportunity of an initial hearing before the

hearing officer on August 19, 2021, which he attended. He was further provided with

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notice and a trial de novo before the trial court in March 2022 due to his objection

to the hearing officer’s recommendations, which he attended with his attorney.

Documents showing his income and expenses were introduced and filed into the

record at both the hearing officer conference and the trial de novo, including bank

statements for Mr. Willrige’s personal account and his business account and the

parties’ tax returns for 2018, 2019, and 2020.

We further find that the trial court did not commit manifest error by accepting

the hearing officer’s recommendations regarding the gross income of both parties

for purposes of calculating child support. “The trial court is granted great deference

in fixing a child support award, and its determination of a parent’s gross monthly

income and his/her credibility is subject to a manifest error review.” Magnon v.

Magnon, 20-143 (La.App. 3 Cir. 11/18/20), 307 So.3d 1151, 1154. Moreover, “[t]he

trial court has broad discretion in determining which figures are appropriate to use

when calculating a parent’s monthly gross income.” Id. at 1155. The record indicates

that the trial court considered the testimony and documents presented to it at the

March 2022 trial, as evidenced by its frequent questioning of the parties and

attorneys. The trial court went further by allowing the parties to submit post-trial

memoranda arguing which expenses should be included when calculating the gross

income of the parties. There is nothing in the record to indicate that the trial court

was clearly wrong in its adoption of the hearing officer’s recommendations of

income.

DECREE

For the foregoing reasons, the trial court’s Judgment of June 13, 2022 is

reversed insofar as it adopted the hearing officer’s February 2, 2022

recommendation finding Appellant Martin Willrige in contempt of court. This issue

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is remanded to the trial court to conduct a hearing on the merits of Mr. Willrige’s

timely filed objection. The remainder of the June 13, 2022 judgment is affirmed.

Costs of this proceeding are assessed equally to Appellant Martin Willrige and

Appellee Letitia Willrige.

REVERSED IN PART; AFFIRMED IN PART. REMANDED.

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