Jeanne Stuart VS Faron Joseph Benoit
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NOT DESIGNATED FOR PUBLICATION STATE OF LOUISIANA COURT OF APPEAL FIRST CIRCUIT NUMBER 2010 CA 0599 JEANNE STUART VERSUS FARON JOSEPH BENOIT Judgment Rendered October 29 2010 Appealed from The Family Court In and for the Parish of East Baton Rouge Louisiana Trial Court Number 139 944 Honorable Lisa Woodruff White Judge Attorney for Plaintiff Appellant Harley M Brown Baton Rouge LA Jeanne Stuart Vincent A Saffiotti Attorney for Baton Rouge LA Defendant Appellee Faron Joseph Benoit BEFORE CARTER C GAIDRY AND WELCH JJ J J dj Y sfi C w to i FdsJ WELCH J Jeanne Stuart appeals a judgment sustaining a peremptory exception raising the objections of res judicata and no cause of action and dismissing her motion to increase child support For reasons that follow we affirm the judgment of the trial court FACTUAL AND PROCEDURAL HISTORY Jeanne Stuart and Faron Joseph Benoit are the parents of Jonathon Joseph Benoit who was born on July 26 1999 Pursuant to a stipulated judgment signed on April 30 2002 the parties were awarded joint custody of the child with Jeanne Stuart designated as the domiciliary parent subject to specific physical custodial periods in favor of Faron Benoit Faron Benoit was ordered to continue paying child support to Jeanne Stuart in the amount of t50 per month plus 50 of the 00 s child extraordinary medical dental eye care and orthodontia expenses not covered by health insurance On December 16 2003 Jeanne Stuart filed a motion requesting among other things an increase in child support This motion resulted in another stipulated judgment rendered on March 2 2004 and signed on June 22 2004 providing that Faron Benoit would pay child support to Jeanne Stuart in the amount of 200 per month retroactive to December 16 2003 00 On June 26 2009 Jeanne Stuart filed another motion alleging that there has been a change in circumstances since child support was set on March 2 2004 such that an increase in child support is warranted Mover alleges and avers that respondent is earning more and the child expenses have increased s After a hearing on July 7 2009 the trial court rendered judgment denying the motion to increase child support A judgment in accordance with the trial court ruling was s The parties were never married and Faron Benoit executed an authentic act acknowledging paternity of the child See egnerally La R 9 S 392 2 signed on July 27 2009 Jeanne Stuart filed a motion for new trial which the trial court denied in open court on September 22 2009 The same date that the motion for new trial was denied Jeanne Stuart filed another motion to increase child support alleging that there has been a change in circumstances since child support was set on March 2 2004 such that an increase in child support is warranted Mover alleges and avers that respondent is earning more and the child expenses have increased and other factors to be shown at a s hearing on the merits In response to this motion Faron Benoit filed a peremptory exception raising the objections of res judicata and no cause of action After a hearing on the objections the trial court rendered judgment sustaining the exception and dismissing the September 22 2009 request for an increase in child support A written judgment in conformity with the trial court oral ruling was signed on s November 10 2009 and it is from this judgment that Jeanne Stuart appeals LAW AND DISCUSSION Modification of Child Support The basic elements of a cause of action for modification of child support are set forth in La C art 142 and La R S 9 Louisiana Civil Code article A 311 142 provides that a award of child support may be modified if the n circumstances of the child or of either parent materially change Under La R S A 311 9 the party seeking the modification must demonstrate a material change in circumstances of one of the parties between the time of the previous award and z Jeanne Stuart sole assignment of error is that the trial court legally erred in failing to s conduct an evidentiary hearing on the September 22 2009 motion for an increase in child support by granting Faron Benoit peremptory exception without receiving any evidence s However since the trial court sustained the peremptory exception and dismissed the September 22 2009 motion see La C art 934 it was clearly proper for the trial court not to conduct P an evidentiary hearing on the child support matter Thus Jeanne Stuart assignment of error has s no merit Although generally this court will only review issues that are submitted to the trial court and contained in the specifications or assignments of error in the interest of justice we will consider the merits of the peremptory exception sustained by the trial court See Uniform RulesCourts of Appeal Rule 1 3 3 the time of the rule for modification of the award3 To be material the change in circumstances must have real importance or great consequences for the needs of the child or the ability to pay of either party La R 9 Comment a S 311 2001 No Cause ofAction The function of the peremptory exception raising the objection of no cause of action is to question whether the law extends a remedy against the defendant to anyone under the factual allegations of the pleading Industrial Companies Inc v Durbin 20020665 p 6 La 1 837 So 1207 1213 The peremptory 03 28 2d exception of no cause of action is designed to test the legal sufficiency of the pleading by determining whether the particular plaintiff is afforded a remedy in law based on the facts alleged in the pleading Id The exception is triable on the face of the pleading and for the purpose of determining the issues raised by the exception the well pleaded facts in the pleading must be accepted as true Id In reviewing a trial court ruling sustaining an exception of no cause of action the s court of appeal should subject the case to de novo review because the exception raises a question of law and the trial court decision is based only on the s sufficiency of the pleading Id 20020665 at p 7 837 So at 1213 Simply 2d stated a pleading should not be dismissed for failure to state a cause of action unless it appears beyond doubt that the plaintiff can prove no set of facts in support of any claim which would entitle him to relief Every reasonable interpretation 3 The term previous award means the last time the child support award was setnot the last time a motion for modification was considered and denied Deshotels v Deshotels 93 2026 pp 3 4 La App I Cir 6 638 So 1199 1201 94 24 2d 4 2001 La Acts No 1082 2 added the adverb materially modifying the verb change 1 of the same act added the adjective material modifying change in La C art 142 and circumstances in La R 9 These amendments legislatively overruled the holding in S 311 A Stogner v Stogner 98 3044 pp 1013 La 7 739 So 762 769770 that any change 99 2d in circumstances was sufficient to justify a modification of child support La C art 142 Comment2001 La R 9 Comment a2001 Therefore the amendments implicitly S 311 restored the validity of the prior appellate jurisprudence requiring that a change in circumstances justifying modification of child support be substantial See Richardson v Richardson 2002 2415 p 1 n La App I Cir 7 859 So 81 87 n Gaidry J concurring l 03 9 2d l El must be accorded the language of the pleading in favor of maintaining its sufficiency and affording the plaintiff the opportunity of presenting evidence at trial Id As previously noted Jeanne Stuart June 26 2009 motion to increase child s support was denied by the trial court in July 2009 The present motion to increase child support was filed three months later on September 22 2009the same day the trial court denied the motion for new trial on the June 26 2009 motion The September 22 2009 motion did not raise any new grounds for an increase in child support that were not raised by the June 26 2009 motion that had been denied In fact the September 22 2009 motion made the exact same factual allegationsthat Faron Benoit was earning more and that the child expenses ha increased s d and the same conclusory allegation that such facts constituted a change in circumstances since the previous award of child support The September 22 2009 motion is different from the June 26 2009 motion only in that it also alleged that there were other factors to be shown at a hearing on the merits constituting a change in circumstances Assuming as true the facts that Jeanne Stuart alleged in her motionthat Faron Benoit is earning more and that the child expenses have increased s we find these allegations insufficient to state a cause of action for modification of child support Notably absent from Jeanne Stuart pleading are factual allegations s that a material change in circumstances of the parties or of the child had occurred Although earning more or an increase in the child expenses may constitute s changesany change is not sufficient to justify a finding that a material change in circumstances has occurred Rather the alleged change in circumstances must be material or of real importance or of great consequences for the needs of the child or in the ability of the other party to pay Therefore after de novo review we find that the trial court properly sustained Faron Benoit peremptory exception raising s 5 the objection of no cause of action CONCLUSION For all of the above and foregoing reasons the November 10 2009 judgment of the trial court sustaining the peremptory exception and dismissing Jeanne Stuart motion is affirmed All costs of this appeal are assessed to the s plaintiff appellant Jeanne Stuart 6 AFFIRMED Having found merit to the peremptory exception raising the objection of no cause of action we pretermit discussion of the merits of the objection of resjudicata 6 Accord Lavespere v Lavespere 20080904 La App 1 Cir 10131108 unpublished STATE OF LOUISIANA CKI111 I 11 R17 IT FIRST CIRCUIT NO 2010 CA 0599 JEANNE STUART VERSUS FARON JOSEPH BENOIT GAIDRY J concurring I concur in the result reached only as I disagree with the legal basis of the trial court judgment sustaining the peremptory exception and certain s reasoning employed by the majority In summary I believe that the judgment sustaining the exception was properly based upon res judicata rather than the failure to state a cause of action A trial court judgment sustaining the peremptory exception of no s cause of action is subject to de novo review by an appellate court employing the same principles applicable to the trial court determination of the s exception See Stroscher v Stroscher 01 2769 p 3 La App lst Cir 03 14 2 845 So 518 523 2d Any doubts are resolved in favor of the sufficiency of the petition Id Louisiana Code of Civil Procedure article 934 provides When the grounds of the objection pleaded by the peremptory exception may be removed by amendment of the petition the judgment sustaining the exception shall order such amendment within the delay allowed by the court If the 1 grounds of the objection raised through the exception cannot be so removed or if the plaintiff fails to comply with the order to amend the action claim demand issue or theory shall be dismissed Emphasis added I conclude that the trial court committed an abuse of its discretion and legal error in failing to allow Ms Stuart to amend her motion to remove the grounds of the objection See Ramey v DeCaire 03 1299 pp 910 La 04 19 3 869 So 114 11920 2d If a petition allegations are merely s conclusory and fail to specify the acts that establish a cause of action then the trial court should permit the plaintiff the opportunity to amend the petition Badeaux v Southwest Computer Bureau Inc 05 0612 p 11 La 06 17 3 929 So 1211 1219 I disagree with the majority conclusion 2d s that Ms Stuart failure to use the adjective material or the adverb s materially to qualify the alleged change in circumstances was fatal to her Rather I believe that the proper attempt to state a cause of action disposition of the new motion should have been based upon comparison of the facts alleged to constitute a change in circumstances weighed in light of the time period within which such changes could have occurred The general rule of res judicata in our state is set forth in La R S 4231 13 Louisiana Revised Statutes 13 establishes limited exceptions 4232 to the general rule of res judicata and subsection B expressly provides that in most domestic matters including an action for determination of incidental matters under Civil Code Article 105 which include custody visitation or support of a minor child res judicata applies only to causes of action actually litigated From a conceptual standpoint a parent cause of action to modify an s award of child support by definition may only occur between the time of 2 the previous award and the time of the motion for modification of the award La R 9 Thus a cause of action for modification cannot S 311 A be extinguished by the original judgment awarding child support simply because it was not existing at the time of the judgment 1 4231 13 2 See La R S However where a new cause of action to modify child support is shown to be based upon the same alleged change in circumstances previously litigated and rejected by the trial court res judicata would apply to bar relitigation of such circumstances occurring prior to the judgment Here the pertinent allegations and extremely brief interval between the judgment denying the motion for new trial and the new motion a matter of hours at most clearly demonstrate that Ms Stuart was attempting to reassert the same cause of action Despite my differences with the majority opinion on the foregoing issues I agree that the peremptory exception was properly sustained albeit on the other objection raised and that denial of the motion was appropriate I accordingly concur in the result 3
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