State of Louisiana VS Linda Duncan
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NOT DESIGNATED FOR PUBLICATION STATE OF LOUISIANA COURT OF APPEAL FIRST CIRCUIT NO 2010 CA 0426 STATE OF LOUISIANA VERSUS LINDA DUNCAN Judgment Rendered October 29 2010 Appealed from the 32nd Judicial District Court In and for the Parish of Terrebonne State of Louisiana Case No 014827IVD The Honorable Timothy C Ellender Judge Presiding Joseph L Waitz Jr District Attorney Ellen Daigle Doskey Assistant District Attorney Counsel for Appellee State of Louisiana Houma Louisiana Rowena T Jones Counsel for Defendant Appellant Amanda M Furst Linda Duncan New Orleans Louisiana BEFORE CARTER C GAIDRY AND WELCH JJ J GAIDRY J luOUT II7W M11 1 I1 9 C1 The defendant the noncustodial mother of a minor child whose guardian received support enforcement services SES benefits appeals a judgment of the 32nd Judicial District Court in favor of the State of Louisiana through the Department of Social Services the State accepting the findings and recommendations of a hearing officer relating to child support pursuant to La R 46 For the following reasons we S 236 C 5 vacate the judgment and remand this matter to the district court for further proceedings The State initiated these proceedings by filing a contradictory Motion to Set Child Support for Medical Support and for Income Assignment Order against defendant pursuant to La R 46 S 236 2 3 236 46 and Rule 14A 32nd Judicial District Court 7 The motion was fixed for hearing on September 10 2009 by a hearing officer appointed by the district court See La R 46 and Rule 14A 32nd Judicial S 236 1 C 5 District Court Defendant was unrepresented at the hearing The minute entry reflects that evidence was introduced and that defendant sworn s testimony was heard after which the hearing officer issued his Parenthetically we note that the record contains a minute entry dated February 4 2010 relating to a review hearing on that date before the hearing officer The minute entry states A the request of the non custodial parent Linda Duncan the h o t earing ffrcer ordered that the appeal previously filed herein and any objections filed previously are hereby dismissed The record contains no order signed by either the hearing officer or the district court purporting to dismiss this appeal Even if it did the district court was already divested of jurisdiction when the district court granted the order of devolutive appeal on November 6 2009 and any such order would be null and without effect See Dev 593 So 665 666 2d La C art 2088 and Washington v La Dep ofTransp P t 2 n La App 1st Cir 1991 Further it stands to reason that if the district court has no jurisdiction to dismiss a pending appeal the hearing officer whose authority is limited to that expressly granted by statute has no such authority See La C art 2162 La P S 236 R 46 and State Dept of Soc Services Office of Family Support v 4 3 C 5 Pickins 42 pp 4 5 La App 2nd Cir 12 972 So 1225 1227 28 721 07 5 2d A recommendations fixing child support at 245 per month with a 5 00 administrative fee among other recommendations The recommendations were embodied in a preprinted form entitled Rules Hearing Officer Recommendations The form contains a paragraph notifying defendant of her right to file a written objection to the recommendation on or before 4 p on September 15 2009 and that 30 m failure to file an objection to any finding or recommendation would be deemed an acceptance See La R 46 and Rule 14A 32nd S 236 7 C 5 4 Judicial District Court Defendant signature and address appear beneath s that notice On the same page of the form beneath the hearing officer s signature there is a certificate of the clerk of court dated September 16 2009 verifying that no objection was timely filed Finally the form contains a completed judgment form signed by the district court on September 16 2009 approving the hearing officer recommendations s Defendant assigns as error the district court approval of hearing s officer recommendations that 1 contained insufficient findings of fact and no conclusions of law and 2 were apparently based upon receipt of supplemental security income SSI benefits excluded by statute from the definition of income Defendant further contends that to the extent that SSI benefits were considered by the district court its action was preempted by federal law Because we find merit in defendant first two assignments of s error we pretermit consideration of the third Louisiana Revised Statutes 46 provides that the hearing 3 C 5 236 officer shall act as a finder of fact and shall make written recommendations to the court Emphasis added Subsection C sets forth the mandatory 5 contents of the written recommendations 3 The written recommendation of the hearing officer shall contain all of the following a A statement of the pleadings b A statement as to the findings of fact by the hearing officer c A statement as to the findings of law based on the pleadings and facts including his opinion thereon d A proposed judgment Emphasis added The preprinted form has a section entitled Findings of Fact with four blank lines provided for insertion of the hearing officer statement of s the findings of fact The hearing officer handwritten statement in the space s provided is limited to the following notations NCP CP 25 4 1256 E I get SSI for Seizures Weddle Duncan 25 X56 0 Deceased We agree with defendant that the hearing officer statement of the s findings of fact is ambiguous or cryptic at best For all practical purposes it fails to comply with the statutory mandate of La R 46 that S 236 C 5 the hearing officer recommendations contain statements of the findings of s fact The hearing officer recommendations likewise contain no minimal s statement of the findings of law based on the pleadings and facts The Obligation Worksheet A the statutory form set forth in La R 9 S 315 20 was attached to the Hearing Officer Recommendations Rules form and listed Ms Duncan monthly gross income as 1 a figure nearly s 57 256 identical to that listed in the hearing officer statement relative to the receipt s of SSI for Seizures As emphasized by defendant to the extent that the recommendations may be read as being based upon SSI benefits they 2 We assume that NCP is an abbreviation for noncustodial parent and that CP Duncan might refer stands for custodial parent The notation relating to Weddle to the deceased father of the minor child but this is only speculation on our part Cl conflict with the statutory exemption of such benefits from gross income under La R 9 If such is the case the recommendations S 315 i d 3 C also deviate substantially from the statutory child support guidelines and would require that specific reasons be given for such deviation and placed in the record See La R 9 and Rule 14A 32nd Judicial S 315 B 1 6 District Court The record contains no transcript of the testimony taken and no copies of any exhibits introduced into evidence The State argues that the hearing s officer recommendations were based upon a finding that defendant was voluntarily unemployed and that the monthly gross income figure of 57 256 1 was based upon earnable income of Federal minimum hourly wage for fulltime employment See La R S 11 315 9 However it concedes in its brief that t is no supporting evidence in the record to here review the correctness of the h o findings It also urges us earing fficer s to remand this case to the district court to conduct a contradictory hearing pursuant to La R 46 to remedy the evidentiary deficiencies S 236 6 C 5 of the record Because of the legal deficiencies described above we conclude that defendant is not precluded from contesting the hearing s officer recommendations by reason of her failure to file a written objection or exception within three days Defendant cannot be expected to present a cogent objection to factual and legal findings that are not reasonably understandable and amount in effect to no findings at all See State v Vallot 05 0532 pp 1011 La App 3rd Cir 4 926 So 98 103 04 06 5 2d The district court committed legal error by rendering judgment approving and adopting the legally deficient recommendations of the hearing officer 5 Accordingly we vacate the judgment of the district court and remand this matter to the district court for further proceedings consistent with this opinion directing that the hearing officer issue recommendations complying with the requirements of La R 46 after which either party S 236 C 5 may request a contradictory hearing pursuant to La R 46 and S 236 6 C 5 Rule 14A 32nd Judicial District Court See Crawford v Crawford 02 4 168 La App 3rd Cir 11 833 So 361 All costs of this appeal in 02 13 2d the amount of 121 are assessed to the plaintiff the State of Louisiana 50 through the Department of Social Services This memorandum opinion is issued pursuant to Rule 2 16 of the Uniform Rules of Louisiana Courts B 1 of Appeal JUDGMENT VACATED AND CASE REMANDED INSTRUCTIONS 2 WITH
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