Alys L. Melancon VS Paul Mire Melancon, Jr.
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NOT DESIGNATED FOR PUBLICATION STATE OF LOUISIANA COURT OF APPEAL FIRST CIRCUIT NO 2007 CA 0576 ALYS L MELANCON VERSUS PAUL MIRE MELANCON JR Judgment Appealed Family rendered November 2 2007 from the Court Parish of East Baton Rouge Louisiana Trial Court No 156 581 The Honorable Jennifer Luse ATTORNEY FOR BRENT B BOXILL BATON ROUGE PLAINTIFF APPELLEE LA ALYS L MELANCON BRIAN J ATTORNEY FOR PRENDERGAST BATON ROUGE DEFENDANT APPELLANT LA PAUL MIRE MELANCON BEFORE CARTER C J PETTIGREW AND WELCH JJ JR PETTIGREW J In this child matter support the father challenges family a court judgment finding that certain capital gains and dividends allegedly received by the mother not to LSA part of her gross income for purposes of calculating child support pursuant For the 5 R 9 315 reasons that follow we were affirm BACKGROUND Paul Mire Melancon 1987 an On December 1 award of child the separation Jr and Alys Lopiccolo Melancon 2005 Ms Melancon filed married were petition seeking a a on divorce support for the three children born of the marriage parties entered into extra an July 21 2006 this matter primary contested issue Red Stick purposes was came At the trial Frank donated a children or The parties income tax purposes that listed the rather was or a funds were distributions to the members Lopiccolo who were its was the None of his a a Schedule K 1 for capital gains and income attributable to her interest However since Mr testified that he had member of Red Stick and owned properly listed no Holdings other consideration to Red Stick As were Lopiccolo testified that father in the company to each of his children capital gains the funds s Every year Ms Melancon received interest in the company with Mr Melancon interest in Red Stick The calculating her gross income for child support their spouses contributed any cash These s support contributed all of the cash to Red Stick and Lopiccolo s daughter Ms Melancon Red Stick Melancon planning device as an estate percentage of ownership in Red Stick the issue of child on Lopiccolo Ms Melancon manager of the company at all times 21 82 as judicial agreement providing for joint for trial whether Ms should be considered in formed Red Stick in 1999 Mr well ultimately divorced by judgment rendered January 24 2007 On L Lc as After their custody with the parties sharing equal physical custody of the children were June 26 on the joint actually distributed retained and reinvested inception in 1999 Red tax returns she filed to Ms Melancon from by the company Stick has not Mr made any other than distributions to pay for the increased tax 2 burden the members incurred result of the as a offer any evidence to contradict this written reasons for the on judgment finding that Ms should not be considered in the child testimony requesting post trial memoranda After the issue Melancon calculating her gross income the family court issued interest in the company s In deciding to deviate from support guidelines the family court specifically found that the application of guidelines would be inequitable to the parties application of the guidelines would Ms Melancon authority Mr Melancon did not capital gains The court further found that the not be in the best interest of the children because actually receiving any money from the company and she had was not to cause distributions to be made However no the court ordered that the matter would be reviewed every six months to determine whether Ms Melancon had The court found that Mr Melancon had received any distributions from the company monthly income of gross 5 449 60 from his Louisiana while Ms salary teacher at Catholic as a Melancon had between those Melancon accordance with these attorney for the State of 2 75 620 High School These calculations resulted Thus 489 82 figures as an monthly income of gross and 944 66 for Mr Melancon support obligation of 454 84 for Ms a salary Mr as a reasons was a a from her in a basic child corresponding obligation of Melancon owed Ms Melancon the difference 2 monthly child support payment A judgment in signed on October 11 2006 and this appeal by Mr Melancon followed DISCUSSION As a case matter preliminary is manifest Generally error note that the standard of review in a child an appellate court will not disturb abuse of discretion order unless there is an Social Services rei ex we D f l T v or manifest 2005 1965 p error 6 La a child support support State Department of 7 6 06 934 So 2d 687 690 1 liability she and Mr Melancon owed without capital gains were included Mr Lopiccolo would then the so that the members were not adversely affected by Ms Melancon testified that her accountant would calculate the tax the capital gains order a income as well as what distribution fi om Red Stick to inclusion ofthese capital gains they cover owed once the the difference in their taxable incomes school tuition recreational activities and However because Mr the remaining 32 5 extra ordinary medical or dental expenses with Ms Melancon to pay his monthly child support obligation was reduced by Ms Melancon had obtained health insurance for the children Melancon s share 32 5 ofthe amount paid monthly for the health insurance premium 2 Mr Melancon was also ordered to pay 67 5 of the children percentage 3 s private Income for the purpose of income v the or establishing child support is dependent upon gross McKneely parties financial condition at the time of the determination McKneely 98 2472 p 6 La App 1 Cir 6 14 00 support purposes gross income is defined by LSA 764 So 2d 1157 5 R 9 315C 3 a For child 1162 to include The income from any source including but not limited to salaries dividends severance commissions bonuses pay pensions wages interest trust income recurring monetary gifts annuities capital gains social benefits security workers benefits compensation basic and 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 variable allowances for presumption that the amount of child support obtained by There is a the child support guidelines the be rebuttable is the proper amount On to the deviate from the child As noted above Melancon gross income tax returns Melancons challenged the family Lopiccolo that Nevertheless the family no relying McKneely In to be on McKneely the court income as were ever gross income in calculating Ms alleged distributions from Red Stick are Mr Melancon was testimony actually distributed from substantive proof of a McKneely 98 2472 at p 6 764 So 2d at 1162 s party financial s We do not find an attempt by a party to have his gross by subtracting certain anticipated expenses from his actual defined by LSA 5 R however 9 315 appeal the on did income court determined that not encompass anticipated future of the income expenses that had not been incurred at the time of the assessment court went on to say that if such expenses did 4 Mr position faced with The trial court allowed this subtraction gross s to court should have used the income listed on the which included the supportive of income calculated funds Mr Melancon contends that Melancon contends that actual tax returns condition court s determination Mr Melancon did not introduce any evidence to rebut the Red Stick to its members s has support guidelines in determining Ms Melancon from Ms Melancon and Mr Melancon however the court may deviate from LSA R S 9 315 1 parties Mr appeal of not be in the best interest of the child or would guidelines if their application would inequitable use occur the party could seek a The reduction in the child 9 311 support award based upon McKneely 98 2471 In the case at p a change in circumstances pursuant to LSA R S 6 764 So 2d at 1162 before this court Mr Melancon is attempting to have Ms Melancon undisputed she has gross income calculated to include distributions that it is received and that she has Melancon who has a no salary support payments from her children nor is it equitable 3 authority to order Such than twice that of Ms Such a to the never calculation would result in Mr a more result is s Melancon clearly not in the best receiving child interest of the parties particularly when Ms Melancon does not have control of the funds upon which such an We further note that the award is based family court has arranged for this matter to be reviewed every six months to determine Melancon has received any distributions whether Ms the distributions Accordingly after abuse of the family a court may thorough family court s 4 If Ms Melancon receives any modify the original child support award then review of the record we find no manifest error and no discretion CONCLUSION For the appeal this foregoing are assessed reasons we affirm judgment of the family court to Paul Mire Melancon All costs of Jr AffIRMED 3 Indeed utilizing the income figures supplied by Ms Melancon to Mr Melancon of 4 In keeping seek a with the modification Mr Melancon results in a monthly child suppOli payment from 37 893 reasoning ofMcKneely Mr Melancon s remedy if such distributions from the family cOUli based on a change of circumstances However court has ordered that the matter be reviewed every six months for 5 just that purpose were made would be to in this case the family
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