139 So. 3d 1225
La. Ct. App.2014Background
- Joy Bonnette Cole and Craig Wilson Cole are the parents of one child; divorce proceedings began in 2008 with joint custody and Joy as domiciliary parent, Craig paying $500/month in child support.
- A 2012 consent judgment reduced Craig’s support from $774.04 to $288.00 under a shared custody framework (Worksheet B).
- March 2013 decree maintained shared custody but modified Craig’s visitation schedule; all other provisions remained in force, including the $288.00 support.
- In May 2013 Joy sought to modify child support based on a presumed return to joint custody and Craig’s allegedly increased overtime income; the 2013 August hearing led to findings of a de facto joint custody (61% Joy/39% Craig) and overtime-based income increase.
- The trial court applied Worksheet A (joint custody) and increased Craig’s child support to $872.12/month, grounded on the de facto joint custody and overtime, which Joy appealed, arguing improper modification timing.
- The appellate court upheld the trial court’s ruling, affirming the increase.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether there was a material change in circumstances. | Joy contends a material change exists due to altered custody. | Craig argues no material change since March 2013 decree. | Yes; there was a material change based on custody and income. |
| Whether Worksheet A (joint custody) was correctly used instead of Worksheet B (shared custody). | Joy argues joint custody applies due to de facto arrangement. | Craig contends shared custody should apply if time was equal. | Worksheet A properly applied; custody was de facto joint, not shared. |
| Whether Craig’s overtime income constitutes a material change in circumstances. | Joy asserts increased overtime supports higher child support. | Craig claims overtime is not material unless extraordinary. | Yes; overtime income constitutes a material change warranting modification. |
| Date of the “previous award” for modification purposes under La.R.S. 9:311(A)(1). | Joy argues last award was October 18, 2012 Consent Judgment. | Craig contends March 19, 2013 decree controls; no change to support issued there. | The October 18, 2012 Consent Judgment constitutes the previous award for modification. |
Key Cases Cited
- Deshotels v. Deshotels, 638 So.2d 1199 (La.App. 1 Cir. 1994) (defines ‘previous award’ for modification analysis)
- Starks v. Starks, 671 So.2d 1224 (La.App. 2 Cir. 1996) (supports using the last award when evaluating changes over time)
- Rousseau v. Rousseau, 685 So.2d 681 (La.App. 3 Cir. 1996) (emphasizes that not all changes must be substantial to be material)
- Ezernack v. Ezernack, 899 So.2d 198 (La.App. 3 Cir. 2005) (recognizes overtime may be included in support calculations when not extraordinary)
- Lea v. Sanders, 890 So.2d 764 (La.App. 3 Cir. 2004) (supports determining custody-based worksheets based on actual arrangements)