Denise Morales Genusa VS Louis Genusa, Jr.
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STATE OF LOUISIANA COURT OF APPEAL FIRST CIRCUIT NUMBER 2009 CA 0917 DENISE MORALES GENUSA VERSUS LOUIS GENUS A JR Judgment Rendered In December 23 2009 Appealed from Eighteenth Judicial District Court and for the Parish of West Baton Rouge State of Louisiana Docket Number 31 583 Honorable William C Dana K Dupont Judge Counsel for Larpenteur Plaquemine LA Plaintiff Appellee Denise Morales Genusa Deborah P Gibbs Counsel for Baton Defendant Appellant Rouge LA Louis Genusa Jr BEFORE fJ 9 rr CARTER Il E w T J C GUIDRY AND PETTIGREW n VJ Jn1LAA GUIDRY J A divorced father who receives social judgment based the full on the trial of social amount failure court s security benefits to security disability benefits appeals credit received against his support by his children as a a obligation result of his disability FACTS AND PROCEDURAL HISTORY Denise Morales Genusa filed In March 2001 Genusa Jr Pending the grant of stipulated judgment signed a 2001 which that Louis would pay child support in the couple s first child Victoria retroactive couple s second child Olivia increase 35 Louis to to amount 1 April of in provided divorce Louis The June 13 2001 maintain medical insurance 2001 on agreed to a pertinent part 400 00 per month for the pending the birth of the which time Louis s child support 650 00 per month to obligated at to divorce decree Denise and Louis June 13 on petition a obligation would stipulated judgment further Denise and Victoria and to pay percent of all reasonable and necessary medical and dental expenses incurred by or on behalf of Victoria that were not covered by the medical insurance provided by Louis Denise and Louis officially The divorce decree 30 2002 stipulated judgment the were requirement that Louis divorced provided be maintained and that Louis by that the on judgment signed provisions on October of the June 13 2001 incorporated herein by reference but for maintain insurance maintain insurance a on Denise and both of his minor children adding thereto Victoria Genusa and Olivia Genusa In 2004 paid paid to applied for and began receiving social security disability In December 2004 benefits was Louis to Louis and Denise on a a lump lump sum sum of benefits in the amount of of benefits in the behalf of Victoria and Olivia 2 amount of 26 500 00 12 500 00 was Thereafter from December 2004 to May 2006 Louis began paying Denise which half of the was sum in Consequently mandated under the June 13 2001 May 2006 Denise filed found in contempt of court for his failure as ordered in the June 13 Louis refused and dental to pay a 2001 to a rule nisi stipulated judgment that Louis be requesting pay the proper amount of child support Denise also stipulated judgment incurred by the children Denise stated that both children alleged amicable despite enrolled in were that period of time however Louis did demand Holy Family school and had been enrolled in the school for private support his 35 percent share of the reasonable and necessary medical expenses Additionally School 325 00 per month in child significant a assist in the payment of the expenses not related thereto In response to the rule nisi filed by Denise Louis filed a rule to modify child support requesting that if any arrearage should be determined it should be offset by the lump the children the sum social Louis also security disability benefits received by Denise requested that his monthly support obligation monthly social security disability benefits paid to Denise on behalf of on be offset by behalf of the children This court matter was but upon both hearing officer the which both parties initially heard by was testified and set hearing officer before the trial court documentary evidence the income and expenses claimed appointed by Following was by the parties the trial and medical and dental expense arrearages in the credited half of the December 2004 Denise on behalf of the children lump sum against the total 3 amount social amount a introduced of by the hearing to at establish rendered judgment of 6 850 00 17 119 64 The trial court finding that Louis owed basic child support arrearages in the court the trial with certain determinations made parties disagreeing matter a amount security benefits paid of arrearages Louis to was determined to Louis owe therefore found was to owe arrearages in the amount of obligations at 17 719 64 The court also the percentages of the parties child support set 49 07 percent for Denise and 50 93 percent for Louis based parties respective incomes monthly child support owed by Louis by the amount of social monthly be maintained in ordered the parents the date of filing school private to pay of this ordered the parents their which 41 746 be at court calculated the basic was benefits Holy Family their to Denise Louisiana respective share of amount Finally the trial medical that Louis tutoring but did on and not to court tuition allow Louis monthly social security disability benefits paid on behalf of the children exceeded the child support he owed paid in Port Allen which is June 29 2006 credit towards these expenses for the monthly completely offset further ordered that the minor children educational fees and other medical educational expenses a its calculation of the assigned percent of tuition and fees retroactive matter to pay to court security disability the trial behalf of the minor children the trial Accordingly on amount of the basic appeals ASSIGNMENTS OF ERROR Louis the decree alleges that the trial court committed the following errors in rendering appealed herein 1 The Trial Court erred in finding 2 The Trial Court erred in failing that tuition medical expenses tutoring expenses and other medical educational expenses do not constitute child support to give Louis Genusa Jr a full credit for the social children due to security benefits received by his minor his earning in accordance with La R S 9 315 7 D 3 The Trial Court erred in credit against any give Louis Genusa Jr a full arrearages owed for the lump sum disability failing payment of to 12 500 00 paid on behalf of the minor children in December of 2004 based upon Mr Genusa s earnings 4 The Trial Court erred in 4 failing to give Louis Genusa Jr credit for child support paid by Louis Genusa Jr of his basic support obligation 5 to Denise Genusa in excess issuing an Income Assignment Order disposable income of Louis Genusa Jr The Trial Court erred in of the up to 50 for DISCUSSION Louis court s first second s failure to credit the full the minor children that the parties were of extent ordered to pay did obligation as La R S that the parties or agree private enhance the health athletic the he to the trial benefits paid to found to owe was court social et or parent is comprised of the basic Louisiana Child orders owed by 2 I Support and such additional 2 315 E To the extraordinary medical expenses See La R S 9 seq cultural obligation obligation a by using the so incorrectly expenses of the children Support Obligations table 9 315 court constitute child support school attendance the basic child support the total child support not determined provided by to obligation alleges that the trial obligation owed by as expenses related to added Louis error Guideline Schedule of Basic Child amounts all relate security disability extraordinary medical and educational The total child support child support of social error assignments assignment determined that the amount assignments of the total child support against We find merit in these In his first and fourth and other expenses development of a intended child These expenses then become the parents can a to be part of See La R S 9 315 5 and 315 6 In the June 13 extraordinary medical I 2001 stipulated judgment expenses to the basic child the parties agreed support obligation to add which See La RS 9 315 19 2 According to La R S 9 5 315 to the extent that extraordinary medical expenses exist they support obligation of the parents Extraordinary medical which exceed two hundred fifty dollars per child medical expenses must be added to the basic child expenses are unreimbursed per calendar year La RS 9 315 5 5 relative Louis resulted in to child support obligation a total child support 650 00 per month of medical and dental expenses that maintained the children on 3 were The provided tuition that Louis was educational children and to obligated fees continue The obligation added his allotted to consequence of his benefits received child support against judgment social to disability by the court 2001 at the total child support And in obligation not to the earnings of with fees incurred of that allow for Denise on commencement owed a parent an by him the by in to pay February to 4 court social s to as a security parent shall be credited as it is based by crediting the In the 13 February behalf of the children of Denise failed the minor children immediate credit of the receipt 2009 monthly against Louis s of such benefits in Louis to maintain health insurance determination that the educational expenses the in the that the trial added to the basic child support owed See La R S 9 4 315 our agreed to pay 9 315 7 D earning record was obligation conformity asserts RS stipulated judgment obligated minor children which also 4 did security benefits paid The June 13 to potential obligation the trial further judgment portion of the basic child support to La According child due ordered security benefits paid the parent upon whose existing obligation 3 a 13 2009 expenses Louis was assignment of error Louis accord him full credit for the social amount later constituted the total child support In his second Louis s basic child to set maintain health insurance coverage for the children stipulated judgment and judgment judgment appealed percent of all medical tutoring to pay 50 93 the June 13 2001 2009 s the health insurance Louis by February extraordinary medical and educational 13 percent of all the children and other medical educational to that included his basic 13 2009 support the Hence 35 stipulated judgment per month 41 746 at support obligation plus covered not February herein modified the June 13 2001 obligation by on the Louis to establish his extraordinary medical expenses and parties were ordered to pay constitute child support we reject Louis s assignment alleging that if such expenses were not a part of the child support obligation he owed then the trial court erred in issuing an income assignment order for arrearages based on the extraordinary medical expenses and educational expenses that the trial fifth court found he of error owed 6 January 2005 but instead decreed that the credit would be applied only child support obligation owed by Louis beginning Denise argues that the trial paragraph D legislature added it the child She further points preamble E were to was by pointing proper to court s to La enacted and added to that in paragraph A that in 2006 La Acts No 386 being applied of the credit allowed under enacting the provision La R S 9 315 7 which is titled out the 1 RS of La R S 9 315 7 and in the reference is made We obligation the Deductions for income of legislation wherein paragraphs 9 315 7 the basic child support the basic June 29 2006 application out to are to D and deductions persuaded by not this reasonmg Denise preamble such correctly points Act 386 refer to applies to R S 8 paragraph v as La 9 315 7 and the R S being a deduction and However obligation Salles 04 1449 p 12 considered amounts A of La the income of the child the basic child support concluded in Salles 2d 1 to that out under this court as 12 2 05 928 So paragraph A of La App 1st Cir income of the child as 9 315 7 must be deducted from the calculation of the undivided basic child support obligation owed by the parents and thus such income benefits both parents since it reduces the between the parents apportioned by the children children see as 952 So paragraph D Moreover as amount a v such income is we not to disability 05 2228 find that be as of the basic child support owed but security benefits Emphasis for whose added 7 App 4 5 La pp a it is security benefits received according applied obligation before considered income of the are to the not simply to shall be credited disability 1st Cir plain language deduction but stated in paragraph D the credit is potential obligation of that parent social And while the social Flickinger 2d 70 73 74 plainly of the basic child support result of Louis s Flickinger 12 28 06 the amount the children as a be credit applied to against are of the receiving This construction of of Act 386 wherein history The paragraph D is further paragraphs D and E supported by were added version of House Bill 539 of the 2006 original the to La legislative R S 9 315 7 Regular Session which eventually became Act 386 read Section the prOVISIOns of Subsection C of this income of the child received from social security benefits whether paid by lump D Notwithstanding from the basic child E In security where there is a child support arrearage due in part deduct from the basic child support obligation social cases the failure to shall be deducted monthly payments support obligation sum or to benefits received for the benefit of the child the deduct such benefits in order to reduce the arrearages obligor may owed by the obligor The wording of the original bill would support the trial court s decree and Denise s argument regarding how the social security benefits received by the minor children should be used in obligated provide the indicates not a only pay however language that the amount of a party limiting application s paragraphs application child support the 13 D and E of La of the credit to 9 315 7 RS only the basic and Hence obligation to the trial court of the credit accorded Louis under La R S 9 315 7 D offset the basic amount of the child support that Louis owed We further find merit in Louis s fourth asserts personally legislature s amendment of the original bill exists in now of child support Louis is amount clear rejection of limiting the total erred in to to calculating the that the trial court 650 00 basic child 2001 decree This failed to give him credit for the support obligation he agreed error occurred as a of the payment of behalf of the children As monthly recognized by social this declared that its amendment of La R S 9 315 7 8 to pay La RS security court to add error amounts the wherein he paid in excess of pursuant result of the trial immediately grant Louis the credit afforded under commencement of assignment to failure court s 9 315 7 D benefits to the June to with the Denise on legislature expressly paragraph D was merely such that the interpretative legislation retroactive effect See court erred in failing to beginning in must La R S be recalculated she was on on behalf of the children on for the We sums amount a lump of arrearages owed Louis paid behalf of the children on Thereafter by Louis Denise in addition the to security benefits In 12 500 00 in social Denise behalf of the children in the can from the extrapolate by Denise testimony began receiving of amount 10 148 00 amount amount 842 00 325 00 per month in child support in addition she was receiving of 6 500 00 beginning January obligation of 650 00 through beginning June by the behalf of the children remaining portions Louis 842 00 in social benefits 2005 which exceeded Louis 192 00 resulting According a a to an the basic were of Louis s child support a credit paid to child support at least February 13 2009 judgment obligation security benefits being paid balance of 9 s to additional credit of basic child support 900 00 in social leaving in security paid 842 00 per month least June 2006 by the 2006 amounting 29 2006 Louis owed offset to May benefits for the children security at of past due basic child From December 2004 to Denise Moreover documentary of arrearages owed should be by in social and the parties reduced at least of the establish the to support allegedly owed by Louis that the was to payment of sum by the trial beginning in January 2005 evidence submitted 3 648 00 committed errors behalf of the children in social monthly social security benefits per month the 9 315 7 D to account receiving security benefits which given Thus the trial 952 So 2d at 74 foregoing legal the December 2004 Denise received Denise D should be against the monthly child support owed by Louis the considering construing amounts credit paragraph in January 2005 Therefore court at 5 Flickinger 05 2228 of security benefits Denise received of social amount provisions of to 41 746 Denise on 153 59 to be credited towards the obligation Nevertheless because there is by Louis we cannot in the record nothing In personally definitively calculate the which indicates he may have of the matter observe by the trial however court that the medical arrearages owed amounts trying were to left amount child support the children and any sum court amounts 2009 by Louis after We further holds Louis liable for judgment simultaneously ordering to June 29 amounts were matter to giving failing he to give him a error 2006 and what paid the trial court to him full credit So against re his behalf of on in support of the children personally paid of 2006 ultimate resolution judgment of support retroactive assignment any arrearages owed not amount mandate or we full credit lump require Unlike paragraph D the trial of arrearages owed be granted evidentiary hearing a 2009 will remand this we paid must equal reject his assertion that the to the amount of the lump payment of social security benefits that Denise received in December 2004 against does erred in 13 pending to June 29 obligation for social security benefits received As for Louis s third trial 13 February and estimate what extrapolate owing amount March 22 2007 while through calculate the arrearages owed potential with the February that he owed the increased rather than that reduced paid was parties stipulated that Louis s basic 318 00 retroactive monthly child support obligation would be by Louis how much support stating exactly 2006 the September arrearages owed sum court to Instead paragraph E grant Louis credit a before any arrearage is reduced based payment Absent language mandating that there be not construe La R any arrearage In this S 9 315 7 E by the full case critical of Louis s as requiring the amount of the the trial court farming hobby income he received from the lump did hold trial sum an reduce the to only mandates that E paragraph of La R S 9 315 7 court to a on receipt reduction reduce the we an of do amount of payment evidentiary hearing and was openly wherein he claimed expenses that exceeded the operation by 10 18 000 00 Louis explained that since he had been declared disabled equipment able to to close out maintain the the he had been because he farming operation Yet he operation off his cattle stock and selling attempted to was no justify longer physically his failure to pay his percentage of the extraordinary medical expenses incurred by his children despite to do his agreement stating that he could Further pursuant so not the trial to the June she was heard court job due the children and her too to her a new and suitable expressed her commitment explained supplement to in February 2007 constant job absences her to the court half of the Moreover owed to in amount reduce the of the lump keep to La R to amount sum a number of of learning was but available an resumes job loss Denise Holy Family School her that the trial trial the court benefits s job 401K to court abused its by Louis by only paid to Denise application of the amount of arrearages less such that the owes on to credit owed by amount payment may be sufficient any residual arrearages that the trial court may determine he 11 missing was using her savings and security social sum appointments for felt she of arrearages owed significantly granted Louis for the lump time up with her household expenses S 9 315 7 D be quite cannot say light of our rulings regarding the Louis should be determined reduction we to same She testified that she the children in the that she had been to Louis pursuant supervisor even sum She stated that she had been experience Despite maintaining unemployment income by choosing or lump Denise also testified that appointments obtaining a 26 500 00 at the attend medical and had sent out Considering this evidence discretion to She said her her work to of amount payment for the children job been successful in not comparable She sum ailing parents for stipulated judgment by that Louis received testimony much time from work for the medical actively searching had lump terminated from her fired from her 2001 afford those expenses payment of Social Security benefits in the Denise received the 13 of the eliminate remand CONCLUSION For the foregoing decree that the amount reasons of social minor children shall be owed trial with instructions court by Louis Based owed by Louis based on a to subject to a proper reduction apportioned one half to application equal on to the total this amendment sums security benefits Denise received are on against recalculate the consideration of any additional children February security benefits paid credited fully obligation amend the we we amount Denise half of the to behalf of the on child support monthly remand this Louis in lump sum All Louis Genusa Jr and Denise Morales Genusa AMENDED IN PART AND REMANDED 12 judgment matter to the of the La R S 9 315 7 D credit and behalf of the children appellant 2009 of child support arrearages paid directly by to 13 support of the payment of social costs one of this half to appeal appellee
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