In Re: Savannah Grace Touchet
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STATE OF LOUISIANA COURT OF APPEAL FIRST CIRCUIT NO 2013 CU 0815 IN RE SAVANNAH GRACE TOUCHET Judgment Rendered September 13 2013 iC 1 sF iC F 9r iC X A Appealed from the Family Court In and for the Parish of East Baton Rouge State of Louisiana Case No 165 526 The Honorable Pamela J Baker Judge Presiding x k k x k aF k ie Mark D Plaisance Thibodaux Louisiana Counsel for Appella t Adam Pepitone Scott P Counsel for Appellee Baton Rachel Touchet aspard ouisiana Rauge I t x BEFORE KUHN HIGGINBOTHAM AND THERIOT JJ THERIOT J In this case a father appeals a ts court judgment regarding custody ial child support and other incidental matters We affirm FACTS AND PROCEDURAL HISTORY The minor child at issue in this matter was born November 22 2005 The child parents Rachel Touchet and Adam Pepitone were never s married On April 17 2008 f2achel filed a petition to determine the paternity of the child to award custody of the child to the parties and to set child support A consent judgment was signed by the court on July 22 2008 The judgment decreed that Adam was the father of the minor child the parties would have joint custody of tl child and Rachel would be the e domiciliary parent although medical and educational decisions would be made by both parents The trial court appointed a parenting coordinator to assist the parties in resolving any disputes that might arise regarding medical and educational decisions and in implementing a formal physical custody plan The trial court further oi thaf any conflicts which could not be dared resolved by the parenting coordinator would be submitted to the court for resolution The trial court ordered Adam to pay child support in the amount of 255 per month and ordered the parties to share equally the cost of 00 health insurance for the ebild and for medical and dental expenses not covered by insurance Finally the trial court c the parties to alternate rdered use of the dependent child income tax deduction On May 19 2009 the trial court signed another stipulated judgment establishing a physical custody schedule addressing school choice modifying the parties percentage shares of inedical and dental expenses and health insurance ordering the parents to alternate the right to claim the minor child as a deduction on federal and state income tax returns and other 2 incidental matters Regarding sohool choioe the May 19 009 judgment states The parties agree that 1 if Mom as the domiciliary parent chooses to send the minar child to any other school than St Jean Vianney and 2 the parents are unable to reach a mutual agreement then Dad reserves his right for the Court to make a determination regarding the school that the minor child will attend This conse judgment declared all prior judgments including the consent t judgment ordering Adam to pay child support to Racbel null and void and the judgment did not order either party to pay direct child support payments to the other On March 9 2012 Rachel filed a rule to change custody to modify child support and to request both a custody and psychological evaluation The impetus for the rule was that Adam was married in May of 2010 and was arrested in SeptemLer of 20 for domestic abuse battery of his wife 11 The minor child was in Adam custody at the time of the alleged domestic s battery and the minor child had reported to Rachel on previous occasions that Adam and his wife yell and fight Based on these facts Rachel alleged that Adam is unable to provide a stable home for the child and it would be in the child best interests to have the physical custody plan changed s Rachel also sought to have the court order Adam to pay his percentage share of private school tuition registration books and supply fees Rachel also requested that the court modify child support and reassess the parties percentage shares of insurance premiums and dental medical and extraordinary expenses based on Adam alleged underemployment the s s child enrollment in private school Rachel graduation and change in s employment the child increased expenses and the changes in physical s 3 custody of the child Finallv Kachel s iexclusive right to claim the i ue minor chIld as a dependent on her federal and state taxes After a trial the court leund that there had been a material change in circumstances and that it was in the child best interest to modify the s physical custody schedule The trial court rendered judgment modifying the physical custody schedule setting child support ordering Rachel to obtain health insurance for the minor child and far Adam to pay his percentage share of the premium to Rachel ordering Adam to pay his percentage share of the minor child private school tuition and awarding Rachel the s exclusive use of the dependent child tax deduction Adam appealed this judgment arguing that the trial court erred in ordering him to pay a share of private school tuition in setting child support in denying him the use of the tax deduction and in ordering him to pay a share of the cbild health insurance s premium He did not appeal the modification of the physical custody schedule DISCUSSION Private School Tuition Louisiana Revised Statutes 9315 provides that expenses of 1 6 tuition registration books and supply fees required for attending a private school to meet the needs ofthe child may be added to the basic child support obligation either by agreement of the parties or order of the court The needs of the child met by the private school need not be particular educational needs rather they may include such needs of the child as the need for stability ar continuity in the child educational program s See official comment to La R 9 subsequent to its amendment by La S 315 6 Acts 2001 No 1032 1 4 i The trial court decision to add private school expenses to the basic s child support obligation is subject to the abuse of discretion standard of review Valure u Ttalure 96 La 1 Cir 6 696 So 685 1684 App 97 20 2d 687 After considering the evidence offered at trial including testimony that the child currently attends St Jean Vianney private school that the parties previously agreed tbat she would attend St Jean Vianney that the child is doing well in school that the public school she would have to attend lacks school supplies and is not up to standards and that the child did not qualify for the gifted and talented program in the public school the trial court concluded that it is in the child best interest to continue to attend St s Jean Vianney for the sake of stability The trial court noted that the child has had enough turmoil witb the constant changes in the Pepitone household A change in schools at this time would not serve her best interests Accordirigly the trial court ordered the parties to share the cost r of private schoal tuition regi books and supply fees required for tration attendance in proportion to their percentage share of the child support obligation Adam argues on appeal that the trial court erred in ordering the child to continue to attend private school and in ordering him to pay his percentage share of the private school expenses Adam first argues that the frial court erred in taking judicial notice of tl public school e sperformance rating using an outdated perforn3ance rating and basing much of its decision to order private school on that erroneous rating Although the trial court did note in its reasons forjudgment that it was taking judicial notice of Adam points out in his brief that the D perforniance rating was the rating for the 2010 2011 school year not the 2011 school year in which the school performance rating 2012 was a C 5 the public school D perforinance ratina we disagree that the trial court s based much of its decision to order private school on that rating It is clear from a reading of the court reasons for judgment that the court placed more s weight on the child need for stability in reaching its decision We tind no s abuse of discretion in the trial court finding s Adam further avers that the trial court erred in relying on its finding that the parties had initially agreed to send the child to private school suggesting that the court misunderstood the testimony that Adam wanted the child to attend Parkview Elementary an East Baton Rouge Parish Public School and thought Adam wanted the child to attend Parkview Baptist a Baton Rouge private schooL This argument has no merit The May 19 2009 consent judgment signed when the child was three and a half years old provides for the trial court to make a detennination regarding the child s school if Rachel as the domiciliary parent chooses to send the minor child to any other school than St Jean Vianney Clearly at some point Adam agreed to send the child to St Jean Vianney At the time of the trial the child was going into her fifth year at the school having attended the school since preschool We find no error in the trial court finding that the parties s initially agreed to send the child to St Jean Vianney Child Support The standard of review in a child support case is manifest enor Generally an appellate caurt will not disturb a child support order unless there is an abuse of discretion or manifest error State Department of Social Services ex rel D v L OS p 6 7 934 So 687 690 F T 1965 La 6 06 2d Adam argues on appeal that the trial court erroneousiy calculated s Rachel gross monthly income resulting in his share of the child support obligation being too low There was evidence before the court that Rachel 6 I became a Registered Nu oir I o U12 and received a pay raise se ebruary as a result Rachel testified t1 when preparing her Income at Expense Affidavit for the court she averaged all income earned from January 2012 to June 2012 to calculate her monthly gross income That calculation included monthly income from the lower rate of pay she was earning before being promoted to Registered Nurse as well as the higher rate ofpay she began to receive once she became a Registered Nurse Rachel testified in response to questions from Adam attorney that filie higher rate of pay 28 per hour s 00 which she achieved when she became a Registered Niuse would continue going forward s Adam trial attomey argued that he had computed her I I monthly gross income based upon her payroll records and that the conect monthly gross income is higher than what Rachel listed on her Income Expense Affidavit due to her promotion In response the court agreed to compute the monthly gross income itself The court recalculated Rachel s monthly gross income to be 4and found Adam monthly gross 00 368 s income to be 4resulting in a child support award to Rachel in the 00 000 amount of 535 per month 57 Adam argues on appeal that the trial court should have simply accepted Rachel monthly gross income as listed on the Income s Expense Affidavit and assigned 3in monthly gross income to her We find 00 170 no error in the trial caurt recalculation of Rachel monthly gross income s s based on her increased rate of pay This assignment of error is without merit It appeazs Yhat the court calculated Rachel smonthiy gross income as follows Rachel testified that she warks close to full ho two to three twelve shifts a week at time urs hour an hourly rate of 28 per hour 40 Thirty six hours a week at that pay rate equals 00 1008 per week which comes out to an average of 4per month 00 368 7 Tax Dependency Deductions Louisiana Revised Statutes 9315 provides that the non 1 B 18 domiciliary parent whose child support obligation equals or exceeds fifty percent of the total child support obligation shall be entitled to claim the federal and state tax dependency deductions if after a contradictory motion the judge finds both that no arrearages are owed by the obligor and that the right to claim the dependency deductions would substantially benefit the domiciliary non parent without significantly harming the domiciliary parent Adam argues on appeal that the trial court error in determining s s Rachel monthly gross income resulted in his share of the child support obligation being forty percent which prevented him from seeking the eight use of the tax dependency deductions Since we have concluded that the trial court did not err in calculating Rachel monthly gross income this s assignment of error is without merit Health Insurance Premiums In a child support case the court may order one of the parties to enroll or maintain an insurable child in a health benefits plan policy or program The cost of health insurance premiums incurred on behalf of the child shall be added to the basic child support obligation La R 931 The S 4 A trial court is vested with much discretion on the issue of health insurance and medical expenses State ex rel Metcalf v Samuels 34 p 52 402 App La Cir 12 775 So 1162 00 20 2d 165 At the time of the trial the child was insured through Medicaid and was scheduled for eligibility review in November of 2012 Both Adam and Rachel testified that they anticipated the minor child would no longer be eligible for Medicaid after the review Both Adam and Rachel wanted to be 8 the one to obtain health insurance coverage for the minor child and have the other spouse contribute to the premium Adam testified at trial that he did not currently have health insurance because he is uninsurable because his wife is pregnant however he testified that by the time of the minor child Medicaid eligibility review in s November 2012 his second child would be born and he would be able to obtain family coverage for his wife and second child and at that time he could add the minor child to the coverage at no additional cost Adam argued it would be more cost if the court would allow him to effective obtain health insurance for the minor child rather than paying a share of the premium for a policy obtained by Rachel Adam testified that he did not know if the coverage he would be able to obtain far the child would be as good as the coverage Rachel would be able to obtain but that it would be adequate because he was going Yo also insure his second child He further stated that he had not looked into the potential cost of providing this coverage Rachel testified at trial that she currently has health insurance through BlueCross B1ueShield but that the minor child is not currently covered under that policy because she is eligible for Medicaid Rachel testified that after the November 2012 Medicaid eligibi review she would like to ity obtain coverage for the child Rachel had looked into the cost of the coverage and testified it would cost approximately 100 per month to 00 provide coverage for the child The statute instructs the court to consider each parent individual s group or employee health insurance program employment history and s personal income and other resources in deteimining which parent should obtain health insuranee for the child La R 9315 Based on the S 4 A I 9 evidence before the court iti Rachei svas ct only parent who currently e at e had a policy of insurance that Rachel had already begun investigating providing coverage for the child and that Adam was only speculating on the type and cost of coverage he may be able to obtain in the future we cannot say the court abused its discretion in ordering Rachel to obtain insurance for the child and Adam to contribute his percentage share This assignment of error is without merit CONCLUSION The January 7 2013 judgment of the East Baton Rouge Family Court is affirmed Costs of this appeal are assessed to appellant Adam Pepitone AFFIRMED 10
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