Allen Jay Todtenbier VS Tara Lee Todtenbier

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STATE OF LOUISIANA COURT OF APPEAL FIRST CIRCUIT 2010 CA 0304 V ALLEN JAY TODTENBIER V VERSUS TARA LEE TODTENBIER Judgment Rendered OCT 2 2010 7 APPEALED FROM THE FAMILY COURT IN AND FOR THE PARISH OF EAST BATON ROUGE STATE OF LOUISIANA DOCKET NUMBER F164096 DIVISION A THE HONORABLE PAMELA J BAKER JUDGE Randy J Fuerst Attorney for Plaintiff Appellee Appellant Lake Charles Louisiana Allen Jay Todtenbier Wendy L Edwards Attorneys for Defendant AppelleeAppellant Jack M Dampf Baton Rouge Louisiana Tara Lee Todtenbier BEFORE WHIPPLE McDONALD AND McCLENDON JJ y McDONALD J Allen Jay Todtenbier and Tara Lee Todtenbier were married in May of 2000 and in November of 2000 they had a daughter Bailey Dean Todtenbier In February of 2001 Mrs Todtenbier was diagnosed with a large acoustic neuroma tumor situated on her brain stem that required an emergency craniotomy Thereafter Mrs Todtenbier underwent two more craniotomies and a gamma knife radiation treatment to remove the acoustic neuroma Due to ongoing complications she later underwent a left eye corneal transplant and a second corneal transplant after a rejection of the first corneal transplant She eventually underwent around thirty eye surgeries due to her ongoing complications with the left eye as a result of the nerve damage from surgery Mrs Todtenbier was left with deafness in her left ear partial facial paralysis and frequent severe headaches as well as an ongoing left eye condition that requires monitoring The Todtenbiers separated in October of 2005 and in January 2006 a petition for dissolution of the marriage was filed in Arizona The Todtenbiers were divorced on September 1 2006 in Arizona but were living in Baton Rouge at the time ofjudgment The judgment of divorce granted the parties joint custody of the child with no designation of a domiciliary parent but provided that the child should live primarily with Mrs Todtenbier The judgment further states THE COURT FINDS that Father left his job at Cisco Systems where he earned between 135 150 per year The Court 000 000 finds that Father presented evidence that although his leaving Cisco was voluntary his position there was tenuous at best The Court further finds that Father job change was for reasons other than in s anticipation of dissolution of the marriage Accordingly THE COURT FINDS that Father income for s purposes of child support is 6 per month However the Court 000 fully expects Father to continue to seek higher paying employment When said employment occurs Mother shall be entitled to an upward modification 1 Pursuant to Arizona law and as noted by the court in Arizona at least one of the parties had been domiciled in the State of Arizona for more than 90 days immediately preceding the filing of the Petition 2 Dr Cavalier testified that he believed that Mother was disabled as does the Social Security Administration and not capable of working either fulltime or parttime Father failed to present evidence to refute Dr Cavalier opinion Accordingly s THE COURT FINDS that Mother income shall be calculated s at 1 which is her disability income 00 027 The Arizona court ordered Mr Todtenbier to pay Mrs Todtenbier 1 per 00 250 month in spousal support and 209 per month in child support and ordered Mr 67 Todtenbier to pay Bailey tuition at St James Episcopal Day School in Baton s Rouge Mr Todtenbier filed motions with the Arizona court for review or a new trial The minute entries from January 29 2007 in the Arizona court records indicate that the Arizona court denied his request for a modification of custody and denied his request to modify the spousal support award and that thereafter the parties stipulated that Mr Todtenbier would pay for Bailey medical insurance s and that Mr Todtenbier schild support was set at 249 per month 00 On December 14 2007 Mr Todtenbier filed a petition in the Family Court in East Baton Rouge Parish to modify custody reduce child support and terminate or reduce his spousal support obligation Mrs Todtenbier filed a motion to increase child support and spousal support By judgment dated August 18 2009 the family court awarded the parties joint custody of Bailey and named Mrs Todtenbier as the domiciliary parent Mr Todtenbier was given visitation on Wednesday nights and every other weekend As to the financial issues after a hearing the family court took the matter under advisement Thereafter the family court issued written reasons for judgment on W 2 note that the Arizona court did not consider Bailey social security payment in determining s the child support obligation and that Mr Todtenbier was unaware of that payment at the time 3 At Mr Todtenbier request the Arizona judgment was made executory and recognized in the s state of Louisiana 4 The custody issues and financial issues were bifurcated at Mr Todtenbier request s K July 9 2009 finding no significant change in the circumstances of the parties finding that Mr Todtenbier was voluntarily underemployed and finding that Mrs Todtenbier was disabled such that employment would be difficult if not impossible to obtain The family court denied Mr Todtenbier motion for reduction or s termination of spousal support denied Mrs Todtenbier motion to increase s spousal support modified the child support award to Mrs Todtenbier to 339 10 per month retroactive to February 3 2009 and ordered Mr Todtenbier to pay for and maintain Bailey health and hospitalization insurance s Further the family court ordered that Bailey remain enrolled in St James Episcopal Day School and that retroactive to February 3 2009 the percentage of the parties total monthly income attributable to Mr Todtenbier was 72 and to Mrs Todtenbier was 28 Further the court ordered that each party pay their percentage share of all mandatory fees and tuition required by Bailey enrollment in private school and s any and all medical dental and ocular expenses not covered by health insurance over and above the first 250 incurred per calendar year 00 Mr Todtenbier is appealing that judgment asserting that the family court erred in finding him voluntarily underemployed and assigning him an earning capacity in denying his motion for a reduction in child support and in failing to reduce his spousal support Mrs Todtenbier answered the appeal asserting that the family court erred by attributing the Social Security Administration payment received by Mrs Todtenbier on Bailey behalf based on the earnings of Mrs Todtenbier as s income to Bailey in contravention of the terms of La R 9 S 315 7 THE SPOUSAL SUPPORT ISSUE Louisiana Civil Code article 114 provides that An award of periodic support may be modified if the circumstances of either party materially change and 5 The judgment was signed on September 21 2009 11 shall be terminated if it has become unnecessary The trial court found that Mr Todtenbier failed to show a significant or substantial change in either party s financial situation and denied his request for a reduction or termination of his spousal support obligation Mr Todtenbier argues that Mrs Todtenbier has family help and support yet the testimony established that Mrs Todtenbier sonly income is social security disability and spousal support and her employment opportunities are limited due to her disability Mrs Todtenbier sstamina is limited also and being a full time mother to Bailey and dealing with her own medical issues appears to deplete her energy completely Mr Todtenbier has an MBA and prefers to work for himself in a start company rather than work for someone else arguing that while he makes up less money now he has the potential to make more money later We cannot say that the family court abused its discretion in finding no substantial change in either of the parties financial situation and denying Mr Todtenbier request for a s reduction or termination ofhis spousal support at this time THE CHILD SUPPORT ISSUE Mr Todtenbier asserts that the family court erred in failing to reduce his child support under La R 9which provides in part S 315 8E 1 In cases of joint 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 G The family court found that Mr Todtenbier earning capacity was 6per month while s 00 000 Mrs Todtenbier sdisability income was 1052 per month 00 7 On the record before us we further find no merit to Mr Todtenbier claim that the purported s brief length of the marriage i approximately 6z years was an important factor that was e either never considered or was not given sufficient weight by the courts as alleged by Mr Todtenbier In fact the Arizona court judgment specifically states The Court has considered the duration of the marriage approximately 6 years Likewise we find no abuse of discretion by the family court in refusing to find that his spousal support obligation should be reduced on the basis of the purported testimony of Dr Cavalier which appellant argues would mandate such a modification Instead we find Dr Cavalier stestimony clearly supports the determination of the family court that no reduction or termination of the spousal support award was warranted 5 2 If under a joint custody order the person ordered to pay child support has physical custody of the child for more than seventythree 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 include in such consideration the continuing expenses ofthe 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 Under the circumstances of this case we cannot say that the family court abused its discretion in declining to give Mr Todtenbier a credit for the amount of time that he has physical custody of Bailey every Wednesday after school to Thursday morning and every other weekend with more time during the summer and holidays considering the record herein and in particular the parties specific agreement in the August 18 2009 judgment that the formulation of the custody plan and granting of summer and holiday access would not constitute a change in circumstances or a shared custodial plan for purposes of child support In addition to the support provided by the parents Bailey receives 574 00 per month in social security payments Mrs Todtenbier asserts that the family court erred in crediting the Social Security Administration payment to Bailey which is based on Mrs Todtenbier sdisability and earnings as income to Bailey to be deducted from the basic support obligation of the parties Louisiana Revised Statutes 9 7provides in pertinent part 315 A Income of the child that can be used to reduce the basic needs of the child may be considered as a deduction from the basic child support obligation 0 B The provisions of this Section shall not apply to income earned by a child while a fulltime student regardless of whether such income was earned during a summer or holiday break C The provisions of this Section shall not apply to benefits received by a child from public assistance programs including but not limited to Family Independence Temporary Assistance Programs FITAP food stamps or any means tested program D Notwithstanding the provisions of Subsection C of this Section social security benefits received by a child due to the earnings of a parent shall be credited as child support to the parent upon whose earnings record it is based by crediting the amount against the potential obligation ofthat parent E In cases where there is a child support arrearage the court shall grant an evidentiary hearing before any arrearage is reduced based upon any lump sum payments received by the child Clearly under La R 9 the family court erred in crediting the S 3151 monthly Social Security Administration payment to Bailey as income to Bailey and deducting it from the basic support obligation of the parties See Flickinger v Flickinger 05 2228 pp 46 La App 1 Cir 12 952 So 70 73 74 06 28 2d Genusa v Genusa 090917 p 68 La App 1 Cir 12 30 So 775 779 09 23 3d 780 While the Social Security Administration payment received by Bailey as a result of Mrs Todtenbier disability is considered income to Bailey such income s is not to be applied as a deduction but as a credit The credit is not simply to be applied to the amount of basic child support owed but shall be credited against the potential obligation of that parent for whose disability the child is receiving social security benefits Genusa 09 0917 at p 7 30 So at 780 3d Thus the total child support obligation must be recalculated When the payment of 574 to Bailey is removed as a credit on line 5e of the child support 00 obligation worksheet the total support obligation is 1 rather than 20 299 20 725 Therefore Mr Todtenbier s72 share of the total child support obligation is 935 minus a credit of a direct payment of health insurance for Bailey in the 42 7 amount of 185 which makes his monthly child support obligation 750 00 42 rather than 339 retroactive to February 3 2009 10 Mrs Todtenbier child support obligation based on her 28 of the s combined monthly adjusted gross income increases from 201 to 363 Her 10 77 credit for Bailey sSocial Security Administration payment 574 is larger than 00 her child support obligation of 363 77 Thus we amend the family court judgment to reflect that Mr Todtenbier s monthly child support payment is increased to 750 In all other aspects the 42 family court judgment is affirmed Costs of this appeal are assessed against Mr Todtenbier AMENDED AND AS AMENDED AFFIRMED ANSWER TO APPEAL GRANTED 8 As Mrs Todtenbier is the domiciliary parent this is her potential child support obligation as she does not pay child support to Mr Todtenbier STATE OF LOUISIANA COURT OF APPEAL FIRST CIRCUIT 2010 CA 0304 ALLEN JAY TODTENBIER VERSUS TARA LEE TODTENBIER McCLENDON J concurs and assigns reasons I note that LSAR 9 requires that extraordinary expenses S 315 A 8 including tuition expenses be added to the basic child support obligation to determine the total child support obligation See LSAR 9 Accordingly S 315 6 the expenses should be included in the calculations on the child support obligation worksheet See LSAR 9 S 315 20 However because the outcome would be unchanged I respectfully concur with the result reached by the majority

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