Annette Bilello Hagen VS David Hagen

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STATE OF LOUISIANA COURT OF APPEAL FIRST CIRCUIT 2011 CA 1130 ANNETTE BILELLO HAGEN VERSUS DAVID HAGEN Judgment Rendered AUG 15 2012 On Appeal from the 32nd Judicial District Court In and For the Parish of Terrebonne Trial Court No 146 637 The Honorable Timothy C Ellender Jr Judge Presiding EWMMMMMMMM Kentley R Fairchild Houma Louisiana Counsel for PlaintiffAppellant Annette Bilello Hagen Steven J Lane Counsel for DefendantAppellee New Orleans Louisiana David Hagen BEFORE GAIDRY McDONALD AND HUGHES JJ oe HUGHES J This is an appeal from a judgment reducing child support For the reasons that follow we affirm FACTS AND PROCEDURAL HISTORY The parties to this divorce action Annette Bilello Hagen and David Hagen were married on June 27 1986 and thereafter established their matrimonial domicile in Terrebonne Parish Of this marriage five children were born the names of the children and their approximate ages at the time of the filing of this suit for divorce on October 24 2005 were Stephen 16 David 15 Andrew 13 and twins Ben and Eli 16 months At the time of the filing of the suit Annette Hagen though a registered nurse was not employed outside the home and David Hagen was employed as a physician in an ENT clinic in Houma Louisiana Initially the parties entered into a consent judgment agreeing to the joint custody of David Andrew Ben and Eli with Ms Hagen being the primary domiciliary parent Dr Hagen also agreed in a subsequent consent judgment to pay Ms Hagen the lump sum of 6 per month for both child support and 00 000 temporary periodic spousal support pending a hearing on the issues The consent judgment declared that for tax purposes only the 6 00 000 monthly payment would be considered as being comprised of 4for 00 000 child support and 2 for spousal support 00 000 further declared The consent judgment This apportionment shall be to the prejudice of neither party and shall not be considered in any future modifications of child support or the establishment of final spousal support obligations A final judgment of divorce was signed on October 25 2006 The domiciliary status of Stephen was not specified in a judgment as he was away at boarding school at the time ofhis parents separation However it was evident from the record that Dr Hagen ultimately assumed custody of Stephen during the remainder ofhis minority 2 On August 13 2007 Dr Hagen sought to be named the domiciliary parent for David and Ms Hagen later consented Thereafter Dr Hagen sought a reduction in child support and the discontinuation of spousal support In a January 29 2009 consent judgment which also dealt with the partition of community property the parties agreed to the waiver of claims related to spousal support and the discontinuation of Dr Hagen monthly s 00 000 6 support payment effective February 1 2009 The parties further agreed to exchange financial information for a recalculation ofthe amount of child support owed which would be retroactive to February 1 2009 and that i meantime Dr Hagen would pay 4 per month in child n the 00 000 support without prejudice to either party Subsequently Ms Hagen filed a rule to set child support and issues were raised concerning who should have domiciliary custody of Andrew During a December 2 2009 hearing on other matters the parties agreed to Dr Hagen having domiciliary custody of Andrew Briefs on the child support issue were afterward filed with the trial court and Dr Hagen petitioned for a reduction in child support additional physical custody time with his children and for contempt on related issues against Ms Hagen After a hearing on August 1011 2010 on the issues of child support physical custody of the children and Dr Hagen motion for contempt s against Ms Hagen the trial court fixed Dr Hagen schild support obligation for the minor children Ben Eli and Andrew at 3 per month 00 200 retroactive to February 1 2009 and decreeing that Dr Hagen would be responsible for 93 and Ms Hagen 7 of the children unreimbursed s z Though we note that there was extensive litigation on a variety of other issues between the parties only relevant procedural history is set forth herein ki medical school and extracurricular expenses the trial court judgment was signed on November 15 2010 Ms Hagen has appealed this judgment asserting the trial court erred in failing to follow statutory mandates by modifying a basic child support obligation downward to an amount less than the highest amount set forth in the Louisiana Child Support Guideline Schedule of Basic Child Support Obligations Subsequent to the filing of the appeal the parties entered into a partial settlement and stated in a Notice of Partial Settlement filed September 14 2011 with this court the following I On August 15 2011 the parties entered into a Consent Judgment in which the parties agreed that beginning September 1 2011 Dr Hagen will pay child support for the two remaining minor children in the amount of 3 per month Further the 000 parties have agreed to maintain the 93 direct expenses 7 allocation of II Based on the attached Consent Judgments there is no longer an issue before this Honorable Court as to the amount of child support that Dr Hagen should pay from September 1 2011 forward The only issue now before this Honorable Court is the amount of child support Dr Hagen should be paying from the date of the filing of his Rule to Reduce Child Support on February 9 2010 through August 31 2011 III In addition the parties have agreed that the percentage of payment of direct expenses should be 93 to Dr Hagen and 7 to Mrs Hagen Therefore the issue of what percentage of expenses should have been paid from February 9 2010 through the present is no longer before this Honorable Court Accordingly we limit our review of this case to the appropriate amount of child support owed by Dr Hagen to Ms Hagen during the period of February 9 2010 through August 31 2011 CI LAW AND ANALYSIS The prernise of the Guidelines for Determination of Child Support as well as the provisions of the Civil Code relative to child support is that child support is a continuow obligation of both parents children are entitled to share in the current income of both parents and ahhdr should not be the en economic vic of divorce or outof w bi The economic data tirns edlock underlying these guidelines which adopt the Income Shares Model and the guideline calculations atterript to simulate the percentage of parental net income that is spent on children in intact families incorporating a consideration of the expenses of the parties such as federal and state taxes and FICA taxes While the legislature acknow that the expenditures of two household divorced separated or non formed families are different from intact fart ijy households it is very important that the children of this state not be forced to live in poverty because of family disruption and that they be afforded the same opportunities available to children in intact families consisting of paivrits with similar financial means to those of their oven parents LSA R 9 S 31 The Incdrnes Shares approach to child support guidelines incorporates a numerical schedule of support arnounts The sched provides econoi is estimates of childrearing expenditures for v in ieuels and us ario numbers of children in the household The schedule is composed of economic data utilizing a table of national averages adjusted to reflect s Louisiana status as a loveincome state and to incorporate a self sufficiency reserve for lowincome obligors to fbrm the basic child support obligation LSAR 9 1 In intact families the income of both parents is S B 5 pooled and spent fbr the benefit of all household members including the children Each parent contribution to the combined income of the family s 5 5 represents his relative sharing of household expenses This same income sharing principle is used to determine how the parents will share a child support award LSA R 9 S 315 2 B The Louisiana Child Support Guidelines Schedule of Basic Child Support Obligations is set forth in LSA R 9 and there is a S 315 19 rebuttable presurription that the amount of child support obtained by use of the guidelines Is the proper amount of child support See LSARS A 1 315 9 The court may deviate from the guidelines if their application would not be in the best interest of the child or would be inequitable to the parties The court must give specific oral or written reasons for the deviation including a finding as to the amount of support that would have been required under a mechanical application of the guidelines and the particular facts and circumstances that warranted a deviation from the guidelines The reasons must be made part of the record of the proceedings LSA R B 1 315 9 S As provided in LSAR 9 in determining whether to S 315 C 1 deviate from the guidelines the court considerations may include 1 that s the combined adjusted gross income of the parties is not within the amounts shown on the schedule in LSA R 9 2 the legal obligation of a S 315 19 party to support dependents who are not the subject of the action before the court and who are in that party household 3 that in a case involving one s or more families consisting of children none of whom live in the household of the noncustodial or nondomiciliary parent but who have existing child support orders multiple families 4 the extraordinary medical expenses of As stated in LSAR 9 b if the combined adjusted gross income of the parties is S 315 and a C 1 less than the lowest sum shown on the schedule the court shall determine an amount of child support based on the facts of the case except that the amount awarded shall not be less than the minimum child support provided in R 9 315 but if the combined adjusted gross income of the parties exceeds the highest S 14 sum shown on the schedule the court shall determine an amount of child support as provided in R S B 13 315 9 Col a party or extraord npaa yied ca pxper ses da which a part1 may be responsible not o ier ise taken into consideration under the guidelines 5 an extraordinar community debt of the parties 6the need foi immed and temporary support for a child when a itall Kear on the iss tof sup ing port is pending but caihnot be timely held in such cases the Court at the full hearing shall use the provi ons of LSA RS 9 et seq and may re s 315 determine support without the necessity of a change of circumstances being shown 7 the permanent or temporary total disability of a spouse to the extent such disability diminishes his present and future earning capacity his need to save adequately fZ uninsurable fature medical costs and other r additional costs associated with such disability such as transportation and mobility Frosts medical expenses and higher insurance premiums and 8 any other consideration that would In e application of the guidelines not in the beset interest ofthe child or children or fwquitable to the partie s In the instant case the parties combined adjusted monthly grass incorne more than 40 per month exceeds the highest sum shown 00 000 on the LS R 9 schedule 30 per wreath and thus in A S 315 19 00 000 accordance with L SA R S 9 315 1 the court must deterxari an b Cry ne amount of child support pursuant to 1 9 Paragraph R 13 SA 315 S 1 1 B of LSAR 9 provides that if the combined adjusted gross S 315 13 income ofthe parties exceeds the highest level specif i in the sc d contained in LSAx 9the court dust use its discretion in setting S 315 19 the amOLnt of the basic child support obligation in accordance with the best interest of the child and the circumstances of each parent as provided in Civil Cade Article 141 Louisiana Civil Code Article 141 requires that child support be based on the needs of the child and the ability of the parents to 7 provide support Importantly LSAR 9 S 315 further states that 1 B 13 no event shall it the basic child support obligation be less than the highest amount sot forth in the schedule Emphasis added Ms Hagen contends on appeal that the trial court erred by fixing Dr schild support obligation in this case downward to an amount less Hagen than the highest amount set forth in the child support guidelines Dr Hagen asserts that LSA R 9 authorizes a trial court to reduce the S 315 E 8 amount of child support owed by a nondomiciliary parent based on the amount of time the child spends with him LSAR 9 S 315 provides E 8 Joint Custody means a joint custody order that is not shared custody as defined in R 9 S 315 1 In cases ofjoint custody the court shall consider the period of time spent by the child with the nondomiciliary party as a basis for adjustment to the amount of child support to be paid during that period of time 2 If under a joint custody order the person ordered to pay child support has physical custody of the child for more than seventy three days the court may order a credit to the child support obligation A day for the purposes of this Paragraph shall be determined by the court however in no instance shall less than four hours of physical custody of the child constitute a day 3 In determining the amount of credit to be given the court shall consider the following a The amount of time the child spends with the person to whom the credit would be applied The court shall incl4de in 4 The circumstances of the parents and the child best interest are determinative considerations as are the s parents ability to pay and the lifestyle that the child otherwise would have enjoyed if the parents had not separated Therefore children are entitled the same standard of living that they would have enjoyed if to they lived with the nondomiciliary parent if the nondomiciliary parent financial circumstances are s sufficient to permit it Thus one parent comfortable lifestyle should be extended to his minor children s who should not be disadvantaged in their lifestyle because of their parents divorce and their living primarily with the other parent See Dejoie v Guidry 2010 1542 La App 4 Cir 7 71 So 11 13 3d 1111 1122 writ denied 2011 1779 La 9 68 So 520 11 2 3d Paragraph B ofLSAR 9 provides 1 S 315 13 If the combined adjusted gross income of the parties exceeds the highest level specified in the schedule contained in R 9 S 315 19the court 1 Shall use its discretion in setting the amount of the basic child support obligation in accordance with the best interest of the child and the circumstances of each parent as provided in Civil Code Article 141 but in no event shall it be less than the highest amount set forth in the schedule j W such consideration the continuing expenses of the domiciliary party b The increase in financial burden placed on the person to whom the credit would be applied and the decrease in financial burden on the person receiving child support c The best interests of the child and what is equitable between the parties 4 The burden of proof is on the person seeking the credit pursuant to this Subsection 5 Worksheet A reproduced in R 9 or a S 315 20 substantially similar form adopted by local court rule shall be to determine child support in accordance with this used Subsection In his oral reasons for judgment the trial court stated that he was ing deviat from the schedule because of the amount of time that Dr Hagen has actual physical custody ofthe children and because of the ninety three 93 percent of the expense that he is paying s Dr Hagen maintains that LSAR 9was properly applied to this case while S 315 E 8 Ms Hagen contends that the trial court should not have awarded less than the highest amount set forth in the LSA R 9 schedule for three S 315 19 children which was 4 per month 00 302 In this appeal we are called upon to determine whether LSAR S s 1 B 13 315 language stating that in no event shall the basic child 9 support obligation be less than the highest amount set forth in the LSA We note that the trial court failed to comply fully with LSAR 9315 directive that t S 1 s B he court shall give specific oral or written reasons for the deviation including a Ending as to the amount of support that would have been required under a mechanical application of the guidelines and the particular facts and circumstances that warranted a deviation from the guidelines The reasons shall be made part of the record of the proceedings Emphasis added There is no finding in the record as to what amount would have been required under a mechanical application of the guidelines Further the trial judge failed to comply with LSAR 315 315 and 315 in that he did not add the costs of net child S3 4 6 care health insurance premiums or the expenses of tuition registration books and supply fees of the sprivate school to the basic child support obligation In this case the trial court ordered Dr children Hagen to pay 93 of these costs but did not include these costs in the calculation of the total child support obligation Nor did the trial court follow LSA 315 instruction that Worksheet A S 1 R8 s 5 reproduced in R 9 or a substantially similar form adopted by local court rule shall be used to S 315 20 determine child support in accordance with this Subsection However in this particular case we were able to resolve the issues presented on appeal despite the deficiencies in the trial court record Therefore in the interest judicial economy and expediting the conclusion of this child support dispute we will forgo remanding for compliance with LSA R 9 L R 315 315 315 LSA R S 315 A S 3 4 6 B 1 S 5 E 8 315 and LSA R 9 S 315 20 9 exclusion of LSAk 9 directive to the trial court to consider S 315 EYs 8 the period of time spent by the chill with the nondornicifiary party as a basis for adj uistmenl to the amount of child support to be paid during that period of time When a law is clear and unambiguous and its application does not lead to absurd consequences the law shall be applied as written and no further interpretation may be made in search of the intent of the legislature LSAC art 9 C When die language of the law is susceptible of different meanings it must be interpreted as having the meaning that best conforms to the purpose of the law LSA C ark 10 The words of a law enlist be given their generally prevailing meaning Words of art and technical terms must be given their technical meaning when the law involves a technical matter C TC LSA art 11 When the words of a la are a rbiguous their Meaning r must be sought by examining the context in which they occur and the text of the law as a whole LSACE ark 12 Laws on the sane subject matter must be interpreted in reference to each other LSA C art 13 Words and phrases shall be read with thei tcontest and shall be construed according to the common and approved usage of the language Technical words and phrases and such others as may have acquired a peculiar and appropriate meaning in the law shall he construed and understood according to such peculiax and appropriate meaning The word shall is mandatory and the word may is permissive LSA 1 When the wording of a Section is S R3 clear and free of ambiguity the letter of it shall not be disregarded under the pretext of pursuing its spirit LSAR IA S 10 When interpreting a law the court should give it the meaning the lawmaker intended It is presumed that every word sentence or provision in the law was intended to serve some useful purpose that some effect is to be given to each such provision and that no unnecessary words or provisions were used Conversely it will not be presumed that the lawmaker inserted idle meaningless or superfluous language in the law or that it intended for any part or provision of the law to be meaningless redundant or useless The lawmaker is presumed to have enacted each law with deliberation and with full knowledge of all existing laws on the same subject The meaning and intent of a law is to be determined by a consideration of the law in its entirety and all other laws on the same subject matter and a should be placed on the provision in question that construction is consistent with the express terms of the law and with the obvious intent of the lawmaker in enacting it Where it is possible to do so it is the duty of the courts in the interpretation of laws to adopt a construction of the provision in question that harmonizes and reconciles it with other provisions A construction of a law that creates an inconsistency should be avoided when a reasonable interpretation can be adopted that will not do violence to the plain words of the law and will carry out the intention of the lawmaker When the expressions of a law are dubious the most effectual way of discovering the true meaning of the law is to consider the reason and spirit of it or the cause that induced the lawmaker to enact it When a law is susceptible to two or more interpretations that which affords a reasonable and practical effect to the entire act is to be preferred over one that renders If there is an irreconcilable conflict part thereof ridiculous or nugatory between the provisions of a law only one provision can prevail Bunch v Town of St Francisville 446 So 1357 1360 La App 1 Cir 1984 2d 11 Y See also Ransome vo Ransonic 2001 236 1 App 1 f6 8 1a 0 1 2 2d So 746 752 Auer a thorough review of the pertinent law we fi no ambiguity in ncl the language of LSAR 9 315 vis avis LSA R 9 S 13 1 B S 315 E 8 when the overall statutory frarnework set forth in the Guidelines for Determination of Child Support I SA R 9 et seq is taken into S 315 account The first step in calculating a child support obligation pursuant to LSAR 9 to combine the parties adjusted gross incomes Then S 315 2is each party proportionate share of the combined amount of the adjusted gross incomes is determined as a percentage the amount obtained for each party is his or her percentage share of the combined adjusted gross income LSAR 9 Next the court determines the basic child support S 31 Q 2 5 obligation amount from the schedule in LSAR 9 by cas the S 315 19 combined adjusted gross income of the parties and the number of children involved in the proceeding LSAR 9 S 3 D 2 15 In the instant case the basic child support obligation is determined in S 315 accordance with LSAR 9 since the 1 combined 13 1agens adjusted income is higher more than 40 per month than the highest 010 000 amount in the LSAR 9 schedule S 315 19 00 000 30 per month Pursuant to LSA R 9the trial court uses his discretion in setting S 315 13 the amount of the basic child support obligation in accordance with the best interest of the child and the circumstances of each parent but in no event is the basic child support obligation set at an amount lower than the highest airaount set forth in the schedule The highest amount in the schedule for three children is 4 See LSAR 9 00 312 S 315 19 Nevertheless once the basic child support obligation 4in 00 302 this case is determined the inquiry is not at an end After the basic child 12 support obligation has been established the total child support obligation is then calculated See LSAR 9 S 315 E 2 To accomplish this the following adjustments are made to the basic child support obligation adding net child care costs per LSA R S 9 315 adding childchildren health insurance premium cost per LSA 3 s S 315 R 9 adding uninsured extraordinary medical expenses if agreed by 4 the parties or ordered by the court per LSAR 9 adding other S 315 5 extraordinary expenses such as private school tuition expenses to enhance the health athletic social or cultural development of the child and transportation costs if agreed by the parties or ordered by the court per LSA R 9 S 315 6and deducting a child extraordinary income that is used s to reduce the costs of a child basic needs per to LSAR 9 and s S 315 7 LSAR S B 8 315 9 The resulting sum is the total child support obligation LSA R 9 S 315 A 8 Each party share of the total child support obligation is then s determined by multiplying his or her percentage share of combined adjusted gross income times the total child support obligation LSAR S 9315 The party without legal custody or the nondomiciliary party C 8 owes his or her percentage share of the total child support obligation as a money judgment of child support to the custodial or domiciliary party LSAR S 9 D 8 315 The adjustment authorized by LSA R 9 to be made if S 315 E 8 under a joint custody order the person ordered to pay child support has physical custody of the child for more than seventy three days is an adjustment that is made to the amount of child support to be paid Although not directly stated in the statute it is obvious that the credit authorized by LSAR 9 is applied against the nondomiciliary S 315 E 8 13 s parent proportional share of the total child support obligation since this provision follows Paragraphs A through D of the same statute LSAR S 8which gives instructions on how the total child support obligation 315 9 is calculated and since Paragraphs E directly states that the credit is to be applied against the amount of child support to be paid In this case the evidence presented showed that Dr Hagen had physical custody of his twins about forty 40 had Andrew about fifty 50 percent of the time while he percent of the time The trial court stated that he reduced Dr Hagen proportionate share of the total child support s obligation because of the amount of time that Dr Hagen has actual physical custody of the children and because of the ninetythree 93 percent of the expenses that he was ordered to pay After reviewing the record on appeal including the evidence presented by the parties we cannot say the trial court erred in its award of child support for the period of February 9 2010 through August 21 2011 CONCLUSION For the reasons stated herein the judgment of the trial court awarding Annette Billelo Hagen child support against Dr David Hagen for the period of February 9 2010 through August 21 2011 is affirmed All costs of this appeal are to be borne by Annette Billelo Hagen AFFIRMED 14