A.S. v. D.S.
165 So. 3d 247
La. Ct. App.2015Background
- Parties divorced in 1998; mother (Mrs. Iron) domiciliary parent; child Alex lived primarily with mother in New Orleans. Mother filed to set child support in December 2010.
- Trial on support held May 8, 2014; Alex was 18 and graduating high school.
- Trial court found father (Mr. Iron), a Baton Rouge attorney, voluntarily underemployed for 2011–2012 and imputed income using the Louisiana Occupational Employment Wage Survey.
- Court set monthly basic support for 2010–2013+ (specific amounts in judgment) and ordered father to pay pro rata share of Alex’s private high school expenses based on best-interest findings.
- Father appealed, arguing (1) manifest error in finding voluntary underemployment and imputed income, (2) abuse of discretion in excluding his expert (Louis Lipinski), and (3) error in ordering payment of private school costs.
Issues
| Issue | Plaintiff's Argument (Mrs. Iron) | Defendant's Argument (Iron) | Held |
|---|---|---|---|
| Whether father was voluntarily underemployed for 2011–2012 | Father made insufficient job-search efforts and evidence supports imputed income under Title 9 | Father argued he searched for jobs and had low actual earnings; imputing wage survey figures was improper | Court affirmed: trial court not manifestly erroneous; evidence supported finding of voluntary underemployment and imputation using wage survey |
| Proper method/amount for imputing income | Use wage survey per La. R.S. 9:315.11 when underemployed | Father opposed using Louisiana Occupational Employment Wage Survey for 2011–2012 | Court affirmed use of wage survey and imputed $58,843 (lower percentile) as reasonable |
| Exclusion of proposed expert (Louis Lipinski) | N/A (mother objected) | Lipinski proffered to challenge wage-survey use and opine on wages; claimed vocational-rehab expertise | Court affirmed exclusion: trial judge did not abuse discretion; Lipinski not shown qualified to critique or interpret the wage survey or act as economist |
| Order requiring father to pay pro rata share of private high school costs | Private school necessary to meet Alex’s needs (academic, social, anti-bullying, scheduling); testimony from treating psychiatrist supports need | Father argued public school could accommodate Alex and mother’s unilateral placement was not automatically chargeable to him | Court affirmed: trial court did not abuse discretion; evidence (Dr. Sands and mother) supported that private placement met child’s needs under La. R.S. 9:315.6 |
Key Cases Cited
- Stobart v. State through Dept. of Transp. and Development, 617 So.2d 880 (La. 1993) (standard for appellate review of factual findings: whether trier of fact’s conclusion is reasonable)
- Rosell v. ESCO, 549 So.2d 840 (La. 1989) (when two permissible views of evidence exist, factfinder’s choice cannot be manifestly erroneous)
- Hall v. Folger Coffee Co., 874 So.2d 90 (La. 2004) (appellate standard for manifest error review in civil cases)
- Brasseaux v. Town of Mamou, 752 So.2d 815 (La. 2000) (manifest error standard applies to mixed questions of law and fact)
- Cheairs v. State ex rel. Dept. of Transp. & Dev., 861 So.2d 536 (La. 2003) (trial court’s decision to qualify an expert reviewed for abuse of discretion)