Cori Cox Nelson VS Roy Andrew Nelson
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NOT DFS1t F PUBLICATION ED T NA R STATE UF LOUISIANA COURT Or APPEAL FIRST CIRCUI I ZO10 CA 1857 CORI COX NELSON VERSUS ROY NDREW NELSnN Judgment Rendered 1 Q 2011 APPEALED FROM TWENTY JUDICiAL DISTRICT COURT SECOND PARISH OI ST TAMMANY THE STATE OF LOUISIANA DOCKET NUMI3 2006 DIVISI4N L R 13478 THE HONORABLE DAWN AMACKER JUDG Kasi E3rannan Moorman James Attorneys or laintiff Appellant TII Cori Cox N Ison Covington Louisiana Mark 1 Mansfield Frank P Tranchina Jr Attorneys for Uefendant Appellee Roy Andrew Nelson Covington Louisiana BEFORF WHIPPLE McDONALD AND McCLENDON JJ McDONALD J hoy Andrew Nelson and Cori Cox Nelson were tnarried on April 21 2001 and l acl one child Presli born on 1 Nvvember 19 20 Mrs N tiled a lson petition for divc on August 9 2006 and also prayed for child and spousal port su The Nelsons divorced were on May 14 2U07 Mr Nelson had not worked full since 2002 but enjoyed substantial income as an 1 pErcent time 99 shareholder in a held closely owned family company the Elmer Candy ation Corpot Elmer M Nelson did not work after Presli was born n August 21 2006 the parties signed a consent judg providing that ment Mr Nelson would pay Mrs Nelson 8 per month in interim child support and 000 000 1 per month in interim spousal support Further the parties agreed to joint custody with Nlrs Nelson as the domiciliary parent The hearing on cl support ild was repeatedly continued as a result of ongoin discovery disputes and Mr Nelsor continued to pay the 0per month On October 2 2008 pursuant to a consent judgment attorney R Scott Buhrer was appointed as a Special Master to render an opinion on all issues pending in the case including child support On December 15 200 and January l6 20Q9 the Sp Master held hearings at which time both parties and their cial d accouaiting xperts testified On April 1 2049 the Special Master issu a report g containir his findings and s Nelson ii7come for child recommendations support purposes to be The report deterinined Mr 200 605 per year The report recommended that child support based on shared custody be calculated using orksheet V1 B and determined it should be s at 3 per month and further t 600 recominended that Mr Nelson pay all private school tuition re and istration mandatory expenses plus health insurance and all medical expenses for Presli 2 unreimbursed uncovered Mr Nelson objected to specitic portions o1 the Special s r Mast endatiorts recoml to the cour including the lac of retroactivity of the child t support award the calculation af Mr Nelson income regarding spcculative s capital gains and the determination of Mr Nelson tax c and corporate s redits distributions A trial was held on August 1 24Q9 Financial information from the latter art of th ycar 200 and from the year 2 regarding distributions to Mr Nelson 49 which had not been available to the Special Master was introduced into evidence The trial court issued its r for judgment on October 15 2009 but the asons twas not signed until April 13 2Q10 The trial court dthat child judgmer termined suppcart would not be retroactive to th date of filing and that Worksheet 3 would be used to calculate child support The trial court agr with many o findings d the by the Special Mast but also determined that the Special Master had incorrectly i imputed capital gains income to Mr Nelson which it Found was purely speculative and not appropriate under I R 9 determined that a potential a S 315 ZUNE GO passive Ioss car Mr Nelson could receive sometiine in the forward y future could not be imputed as incoine and determined that only income which Mr Nelson actually received as a minority shareholder in the corporation could be properly i incoir nputed as e Further the trial court found that Mr Nelson gross annual income f child s or support pui was set at 325 per year for the year 2009 and forward that 79 Mrs Nelson income was not an issue since her voluntary un status s oyment mp was not obj to by Mr Nelson that using Worksheet B Mr Nelson child cted s suppoi was set at 1 pe rnonth retroactive to April 1 2409 and that Mr 874 Nelson sh pay 100 percent of Presli tuition registration mandatory school uld s expenses health insurance and medical expenses not cover dby insurance Mrs N is appealing that judgment and makes three assignments of error lson 3 l It was nanifestly erroneous and an abuse of discretion for the trial court to reduce that portion of appellee income derived from s investment tax credits corporation from 00 274 278 the and distributions mor accurate from his family owned 00 006 igure of 419 to 2 Th trial court ntwhich completely excluded capital gains sjudgm from app income is in direct conflict with Louisiana law which s llce mandates the inclusion of capital gains when determining a child support obli ation 3 he trial cou judginent which does not appear to have even red consid the child best interest the disparity in the parties s incomes or the obvious ability of the appellee to provide a mueh more lavish lifestyle than the appellant was clearly wrong THE STANDARD OF REVIEW The standard of review in a child support case is manifest error Generally an appellate court will not disturb a child support order unless there is an abuse of discretion or manitest error State Department of Social Se ex rel D v vices F T L Jr 0 La 7934 So G87 690 1965 5 06 G 2d ASSIGNMENT OF ERROR NO 1 In this nt assignm of error Mrs Nelson asserts that the trial court ously erron analyzed Mr Nelson income with regard to investmet s ttax credits and distributions from the owned family business Mrs Nelson asserts that thE Special Master determinations regarding distributions by Elmer to the Whitney s Bank account and the Special Master recommendations regarding the it s vestment tax credit were erroneously disregarded by the trial court Further she asserts that Mt Nelson expert witness agreed with the Special Master findings in that s s regard The trial court heard the testimony o Mrs Nelson sexpert witness forensic accountant Mary Hammatt and Mr Nelson expert witness forensic accountant s Gregory Ver and chose to accept the testimony and calculations of Mr Verges es After a thorou review ot th cas we cannot say that the trial court manifestly h erred or abused its discretion in this determination 4 ASSIGNMENT OF ERROR NO 2 In this nment assi of error Mrs Nelson asserts that the trial court eously erro excluded capital gains fram Mr Nelson income in conflict with s a Louisiat law Louisiana Revised Statute 9 S provides that the gross 31 C a 3 income of a party to be used for calculating the child support obligation includes capital gains Mr Nelson opened stock market accounts with Charles Schwab and M rrill Lynch in the 1990 with money inherited trom his parents The trial court noted in s its reasons for judgment that Mr Nelson did realize significant capital gains on a ly yeai basis rom 2004 and that during those years he paid Mrs Nelson 2007 000 8 per month in child support while paying the child tuition and other s rases exp during which time the parties had shared custody However Mr Nelson expert witness Mr Verges produced testimony and s evidence confirming that Mr Nelson had a net loss on investments in 2008 and 2Q09 Fur the trial court had access to the latE 200 and the 20Q9 figures for hear t n loss which the Special Master did not have The Special Master report even s without tl later infortnation found that Mr Nelson only realized 14 in e 281 capital gains through Uctober 31 2008 and had little or no unrealized capital gains left in his investment accounts and would have no capital gains to report in the foreseeable future The Special Master found that the current economic situatior and depressed stock market had probably caused the elimination of Mr Nelson s d aliz unr capital ains and urther that market conditions were subject to es chan and any projections regardin future capital ains would be purely culative sp Based on the updated information the trial court rejected th Special s Nlaster addition of 13 per year as avera capital gains and fiound no b70 e S capital gains should be add to his gross income for purposes of settin child d support After a thorough review we find no manifest error or abus ot discretion by the trial court in this determination ASSIGNMENT OF ERROR NU 3 In this assi af error Mrs Nelson asserts that the trial court erred in nment failing to consider the best interest of the child the disparity in the parties incoYnes and the obvious inability oi Mrs Nelson to provide a lifestyle for the child that is comparable to that of Mr Nelson 1VIrs Nelson argues that it is obvious that Mr Nelson can enjoy a lavish lifestyle without having to work while she cannot She relies upon Earle v Earle 925 43 La App 2 Cir 12 99 So 828 834 wri denied 09 La 0 3 2d 0117 09 13 2 999 S 1151 in arguing that the parent ability to pay child support 2d s and the lif that the child would have enjoyed if the parents had stayed estyle together should be considered Sh also cites Harang v Ponder 09 2 La 2 App I Cir 3 36 So 954 965 writ denied 10 La S 10 2G 3d 967 0926 10 19 36 So 219 in her ar that th trial court should take into consideration 3d ument that the child is entiitled to the same standard of living that she would enjoy if living in the support payor home if the payor circumstances are sufticient to s s allow this and that the trial court should striv to maintain th lifestyle of the child when possible Louisiana Civil Gode article 14l provides that in a proceeding for divorce or thereafter the court may order either or both of th parents to provid an interim allowance or final support for a child based on the needs of the child and the ability of the parents to provide support Louisiana R Statute 9 provides vised 1A 315 that the guidelines are to be used to establish or modify child support and that th re shall be a rebuttable presumption that the amount of child support obtained by use 6 ox the guidelines is the proper amount of child support The trial court used the guidelines in setting child support he I party urgin a deviation bears the burden of provin the guideline amount is not in the best int oF the rest child or would be inequitable Guillot v Munn 99 La 356 So 29p 297 2132 00 24 2d In the cases cit by Ms Nelson the payors income exceeded the highest d amount refl in the Louisiana Child Suppoz guidelines at that time Therefore cted t the trial court had the discretion to set the basic support obligation in accordance with the best interest of the child and the circumstances of each parent Iowever in this case the Nelsons combined gross income is below 400 30 per month which is the highest level in the child support guideline schedule Thus we find no manifest error or abuse of discretion in the trial court s nination deter to use the child support guidelin schedule DECREE For the foregoing reasons the trial court judgment dated April 13 2Q10 is affirmed Costs of this appeal are assessed against Ms Nelson D AFFIRM 7
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