Authement v. AuthementAuthement v. Authement
Jerri G. Smitko, Houma, for Defendant/Appellee Sharlen Lafont Authement.
Plaintiff-appellant, Lenis A. Authement, Jr., appeals the trial court‘s decision in a family dispute involving child support and visitation. The court ordered Mr. Authement to pay increased child support, child support arrearages, and attorney‘s fees. We affirm.
The issues presented in this appeal are:
- Does the support obligation addressed in
La. R.S. 9:315.22C for a major child under the age of nineteen, who is a full-time student in good standing in a secondary school, become effective when the child meets these eligibility requirements, or does the obligation become effective only after suit is filed (by the primary domiciliary parent or the child) seeking these support payments? - Do the facts of this case establish the major child was in “good standing” in a secondary school and is “dependent” upon her mother?
- Do the factors of the increase in the incomes of the mother, the father, and the father‘s second wife, along with the major child becoming ineligible for continued support, constitute a “substantial change in circumstances,” warranting a recalculation of the father‘s support obligation to his minor child?
- When should a trial court deviate from the statutory guidelines for calculating a support obligation pursuant to
La. R.S. 9:315.1 , based upon a party‘s claim that he has other dependent children to support, who are not the subject of the action before the court and who are in that party‘s household? - Does the record support the trial court‘s implicit finding of “good cause” not to award attorneys’ fees to the prevailing party in this action to enforce child visitation rights pursuant to
La. R.S. 9:375 ?
II. FACTS AND PROCEDURAL BACKGROUND
Mr. Authement married defendant-appellee, Sharlen Lafont Authement, on June 15, 1974. Two children, Sadie and Roman Authement, were born of the marriage. Sadie was born on September 21, 1976, and Roman was born on December 21, 1983. Mr. Authement filed a petition for divorce during June of 1988, and a judgment of divorce was signed on June 29, 1988. Pursuant to that judgment, the court ordered the parties would have joint custody of Sadie and Roman, with the physical custody of the children given to Mrs. Authement. Mr. Authement was ordered to pay support in the amount of $200.00 per month for each child. The judgment further provided for alternate, weekend visitation by Mr. Authement, and stated Mr. Authement was responsible for all of the children‘s medical and dental expenses.
In response to a rule to increase child support filed by Mrs. Authement, the parties entered into a consent judgment, which was signed on December 17, 1991. This judgment increased Mr. Authement‘s child support obligation, ordering him to pay $350.00 per month for each child.
On January 6, 1995, Mrs. Authement filed a rule for contempt claiming Mr. Authement was in contempt for failing to pay child support. Mrs. Authement asserted she was entitled to recover support for eighteen-year old Sadie while Sadie was enrolled in secondary school and had not reached the age of nineteen. Mrs. Authement also asserted she was entitled to recover reimbursement for medical expenses. Mrs. Authement requested that Mr. Authement be found in contempt of court for his failure to pay child support and medical expenses, and that he be ordered to pay the attorneys fees she incurred in urging the rule.
In response, Mr. Authement filed a rule alleging Mrs. Authement “has refused to allow, has interfered with and/or has not encouraged” Roman to visit with his father, and requesting that Mrs. Authement be found to be in contempt of court.2 Mr. Authement maintained he was not obligated to pay child support for Sadie after she attained the age of majority.
On June 8, 1995, Mrs. Authement also filed a rule to increase child support. She asserted that since Sadie had reached the
The trial court considered the pending rules on June 9, 1995. In oral reasons for judgment, the trial court found Mr. Authement‘s obligation to pay support did not automatically terminate when Sadie reached the age of eighteen. Based on
The court determined Mrs. Authement had not been “affirmatively encouraging and making sure that Mr. Authement gets his visitation” with Roman. The court found Mrs. Authement had been allowing Roman to decide for himself whether he wanted to visit his father. After directing Mrs. Authement to enforce the visitation, the trial court found her actions were a violation of the previous visitation order and constituted contempt. Both parties were sentenced to sixty days in the parish jail, with the sentences suspended upon compliance with future orders of the court. The court deferred imposition and execution of the sentences.
In addressing Mrs. Authement‘s request for increased child support, the court found there had been a change of circumstances based upon an increase in Mr. Authement‘s income. The trial court then recalculated Mr. Authement‘s child support obligation to Roman, increasing it from $350.00 per month to $536.00 per month, and concluded there were no outstanding or unusual circumstances warranting deviation from the child support guidelines.
On February 14, 1996, a written judgment was signed in accordance with the oral reasons. Mr. Authement has appealed, raising the following assignment of errors:
1) The trial court erred in continuing an award of support for a major child under R.S. 9:315.22(C) retroactive to a pre-petition date.
2) The trial court erred in continuing an award of support to Sharlen Authement for a major child without a finding of “good standing” and dependency upon either parent for support.
3) The trial court erred in finding a change of circumstances to justify an award increasing child support for the minor child.
4) The trial court erred in awarding an increase in the child support obligation for the minor child without any consideration to deviate from the guidelines in consideration of Lenis Authement‘s obligation to his second family.
5) The trial court erred in finding Sharlen Authement in contempt for interference of (sic) Lenis Authement‘s visitation rights by failing to award attorney fees for the enforcement of said visitation rights.
III. ANALYSIS
A. Support Obligation for a Major Child
Fathers and mothers have the obligation to support, maintain and educate their children.
The obligation to support is also imposed by
A. When there is a child support award in a specific amount per child, the award
for each child shall terminate automatically without any action by the obligor upon each child‘s attaining the age of majority.... * * * * * *
C. An award of child support continues with respect to any unmarried child who attains the age of majority ... as long as the child is a full-time student in good standing in a secondary school, has not attained the age of nineteen, and is dependent upon either parent. Either the primary domiciliary parent or the major or emancipated child is the proper party to enforce an award of child support pursuant to this Subsection. (Emphasis added.)
Prior to January 1, 1994,
An order or judgment of child support may continue with respect to any unmarried child who attains the age of majority as long as the child is a full-time student in a secondary school, has not attained the age of nineteen, and is dependent upon either parent. The major child shall be the proper party to enforce an order or judgment of child support which is continued beyond the age of majority pursuant to this Subsection.
Although appellant cites both
Sadie became eighteen on September 21, 1994. The record establishes Mr. Authement paid support through September of 1994, but ceased paying support for Sadie after that time. Mr. Authement contends 1) he does not owe additional support for Sadie because she is not eligible pursuant to the terms of
1. Continuing Obligation of Support
Mr. Authement contends his obligation to support Sadie automatically terminated upon her reaching eighteen pursuant to the terms of
Appellant relies on the case of Savage v. Savage, 589 So.2d 95 (La.App. 2d Cir.1991). In Savage, the court addressed the issue of whether a major child, upon reaching the age of majority, must petition the court pursuant to Subsection C of
We decline to follow the Savage decision for the reasons set forth in the Freeman case. As the Freeman court noted, the legislature varied the language in
Mrs. Authement is not requesting a new child support order or the modification of the pre-existing support order. Rather, she is seeking the enforcement of her right under
2. Sadie‘s Eligibility for Continued Support
Pursuant to the terms of
Mrs. Authement testified that at the time Sadie reached the age of eighteen, she was enrolled in Genesis, a school that is part of the Terrebonne Parish school system. She described Sadie as an excellent student, who made A‘s, B‘s and C‘s. Sadie graduated from Genesis and received a high school diploma on May 20, 1995.
Regarding Sadie‘s support after she reached the age of eighteen, Mrs. Authement testified she paid for Sadie‘s car insurance, car note, clothes, medical expenses, graduation and prom expenses, and other miscellaneous expenses. Mrs. Authement also testified that after Sadie‘s eighteenth birthday, Sadie resided with her until the latter part of February 1995, when she moved into an apartment with her boyfriend.
Sadie Authement testified she was a student in good standing at Genesis and received a high school diploma when she graduated. She testified that at the beginning of 1994, she resided with her boyfriend‘s parents about three days a week, the days she worked at Rally‘s; and she spent about two to three days each week at her mother‘s house. After being involved in a car accident in June of 1994, she quit her job and resided solely with her mother until moving into her boyfriend‘s apartment during the middle of February 1995. She stated she lived in the apartment until the end of April 1995 when she moved back in with her mother. She began working as a nurse‘s aide on January 5, 1995. As of the time of the hearing on June 9, 1995, she was employed on a full-time basis. Sadie explained that when she first began the job, she worked as a “call-in,” which meant that sometimes she would work two to three days a week; other times, she would not be called to work for two to three weeks at a time.
Mr. Authement confirmed that he ceased paying support for Sadie in September of 1994. He testified that most communications with his daughter had ceased around the time she was thirteen years old, and that he did not even receive a graduation invitation from her. He stated his daughter had not asked for money for support between September
During the hearing, the trial court took judicial notice of certain information regarding Genesis. The court stated:
Genesis is part of the public school system for those children who are having particular problems, whether it be disciplinary or otherwise, it is part of the regular curriculum. They have a modified curriculum. Some of them go to Vo-Tech, and some of them because of the trouble they have had, it is considered part of the secondary school system. They do receive a high school diploma if they finish the requirements.
Appellant neither assigns error to the court‘s action of taking judicial notice of these facts, nor does he dispute that Genesis is a secondary school. Additionally, appellant does not dispute that Sadie was unmarried during the pertinent time period or that she was a full-time student. Mr. Authement challenges the court‘s failure to address whether Sadie was a student in “good standing” and whether she was dependent on either parent during this time period.
In addressing Mr. Authement‘s support obligation to Sadie, the court stated the following:
The Court ... finds that due to Sadie still being enrolled in a recognized curriculum in the Terrebonne Parish Public School, after she reached the age of 18, that being Genesis, and has in fact received a high school degree, that Mr. Authement had no right to automatically terminate. However, the statute does provide that the award will continue as long as the child is enrolled in school in good standing in a secondary school, has not attained the age of 19, and is dependent upon either parent. The Court finds that when Sadie moved in with her boyfriend, she was no longer dependent upon either parent. So, for those two months, or three months, they are not entitled to that child support. The Court will award a Judgment for back due child support for 5 months, $350.00 per month, being a total of $1,750.00.
Based on this reasoning, we find the trial court implicitly found that Sadie was dependent upon her mother during the five months for which support was awarded. Based on the testimony of Sadie and her mother, we find the record supports a finding that Sadie resided with her mother and received monetary support from her mother during at least five months from the time she reached the age of eighteen until the time of her graduation from Genesis. Accordingly, we find no manifest error in the trial court‘s implicit factual findings regarding this issue.
Regarding the issue of good standing, we also find the trial court implicitly found that Sadie was a student in “good standing” while enrolled at Genesis. Mrs. Authement‘s testimony that Sadie earned good grades was not contradicted. Sadie ultimately graduated and there was no negative testimony regarding her status at the school. We find no error in the trial court‘s interpretation of the term “good standing” or the court‘s implicit factual findings regarding this issue.
B. Change in Circumstances Warranting an Increase in Support for Minor Child
Appellant contends the evidence does not support the trial court‘s determination that he had a sufficient change in income to justify an increase in the child support for Roman. He asserts that his income and Mrs. Authement‘s income increased by approximately $2,000.00, and that such an increase does not constitute a substantial change in circumstances.3
A. An award for support shall not be reduced or increased unless the party seeking the reduction or increase shows a change in circumstances of one of the parties between the time of the previous award and the time of the motion for modification of the award.
The courts have demanded the showing of a substantial change in circumstances as a prerequisite for modifying child support judgments. In order to warrant modification of a child support award, the petitioning party must show the circumstances have substantially shifted in a positive or negative direction consistent with the adjustment sought. Bordenave v. Bordenave, pp. 3-4, 93-1183 (La.App. 4th Cir. 1/13/94); 631 So.2d 519, 520; writ denied, 94-0409 (La.4/4/94); 635 So.2d 1108.
The $350.00 per month award for Roman was set on December 17, 1991. During 1991, Mr. Authement earned $45,301.26, and his second wife, Catherine Authement, earned $11,804.06. Mrs. Authement earned $10,010.04 during 1991. During 1991, Sadie was still a minor and Mrs. Authement was receiving support payments from Mr. Authement for Roman and Sadie.
Mrs. Authement filed the rule to increase child support on June 8, 1995. During 1994, Mr. Authement earned $46,935.44 and Catherine earned $21,680.41. During 1994, Mrs. Authement earned $12,100.00. Since Sadie had already graduated from Genesis at the time this rule was filed, Mr. Authement‘s obligation to pay child support for Sadie had terminated.
These facts indicate several changes. Mr. Authement‘s income increased by $1634.18 from 1991 to 1994, and he and his second wife‘s joint income increased by $11,510.53 during that period of time. Mrs. Authement‘s income increased by $2,089.96.
We recognize that
Another change in circumstance which supports the trial court‘s modification of the amount of Mr. Authement‘s monthly support obligation is the fact that he is no longer paying child support for Sadie. See Ward v. Ward, 535 So.2d 782, 784 (La.App. 2d Cir. 1988). Since the child support guidelines have been implemented based upon the recognition that living expenses are not incurred on a pro-rata basis for each child, we consider this factor to be a substantial one.
We believe the combined effect of these factors, i.e., the increased incomes and the fact that Mr. Authement‘s support obligation to Sadie has terminated, results in a significant change in circumstances. The trial court properly recalculated the increased support obligation for Roman based on the increased incomes of Mr. and Mrs. Authement.
C. Deviation From Child Support Guidelines
Appellant testified he and Catherine have been married for six years and have a three-year old son. He also testified that his wife has a sixteen-year old son from a prior marriage, who resides with them. Appellant
D. Attorneys’ Fees
When the court renders judgment in an action to enforce child visitation rights it shall, except for good cause shown, award attorney‘s fees and costs to the prevailing party. (Emphasis added.)
Appellant asserts the trial court erred in failing to award attorneys’ fees in his favor after finding Mrs. Authement in contempt for interfering with his visitation rights. He contends that when a party has been found in contempt in an action to enforce visitation rights, the statute does not afford the court the discretion to determine whether the party should be ordered to pay attorneys’ fees.
The trial judge denied appellant‘s request for attorneys’ fees, stating he felt that Mr. Authement‘s rule for contempt was filed “basically because [Mrs. Authement] filed [her] Rule first.” Mr. Authement‘s limited visitation with his son did not prompt him to take legal action until after Mrs. Authement sought to recover child support arrearages. Although the trial judge did find Mrs. Authement to be in contempt for failing to encourage and failing to enforce Mr. Authement‘s visitation with Roman, the trial judge did not find she had acted deliberately to prevent the visitation.
In applying
IV. CONCLUSION
For the above reasons, the judgment of the trial court is affirmed. Costs of this appeal are assessed against plaintiff-appellant, Lenis A. Authement, Jr.
AFFIRMED.
KUHN, J.