Lanclos v. LanclosLanclos v. Lanclos
- Reporters:
- ,
- Before:
- Thibodeaux, Laborde, Woodard
Sandra appeals and asserts that the trial court erred:
(1) in finding that Donald‘s income was $27,350.00 per year;
(2) in finding that Donald was self-employed and entitled to a deduction for ordinary and necessary expenses of his business;
(3) in failing to apply the Louisiana Child Support Guidelines;
(4) in deviating from the Louisiana Child Support Guidelines without a determination that the deviation was in the best interests of the children or inequitable to the parties; and,
(5) in failing to determine which factors required a deviation from the guidelines.
We affirm the trial court judgment regarding Donald‘s self-employed status and reverse its judgment on child support and award $580.00 in child support.
FACTS
On August 29, 1991, Donald filed for divorce from Sandra. A hearing was fixed for and held on October 14, 1991 on various ancillary issues, including child support. The parties were awarded joint custody and Sandra was named the custodial parent by stipulation. Donald‘s child support obligation was set at $450.00 per month, or $225.00 per child. The trial judge calculated this amount on the basis of $7.50 per child per day and commented in his oral reasons for judgment that the application of the Louisiana Child Support Guidelines would result in an “excessive” award of $501.00.
Sandra contends Donald is not self-employed but an employee of several companies. Donald argues he is a self-employed welder who contracts his services to several companies. The issue is whether or not Donald is a self-employed welder thereby allowing him to deduct certain expenses from his income tax which lowers the amount of his gross income for purposes of
LAW AND DISCUSSION
On these assignments of errors, our review is limited to whether the trial judge committed manifest error or was clearly wrong. Arceneaux v. Domingue, 365 So.2d 1330 (La.1979), Rosell v. Esco, 549 So.2d 840 (La.1989). Whether Donald was self-employed and therefore entitled to deduct his business expenses from his gross receipts is a factual finding to be made by the trial judge. Rosell at 844-845 teaches that:
Where documents or objective evidence so contradict the witness‘s story, or the story itself is so internally inconsistent or implausible on its fact, that a reasonable fact finder would not credit the witness‘s story, the court of appeal may well find manifest error or clear wrongness even in finding purportedly based upon a credibility determination. But where such factors are not present, and a factfinder‘s finding is based on its decision to credit the testimony of one of two or more witnesses, that finding can virtually never be manifestly erroneous or clearly wrong. (citations omitted)
Robert R. Hicks, accountant for Donald, produced Donald‘s income tax return which was prepared by Mr. Hicks in 1990. Mr. Hicks also produced Donald‘s W-2 forms and 1099 forms. Mr. Hicks testified that for income tax purposes, Donald had gross receipts from two different items or groups of items from the companies for whom he worked. The 1099 forms came from companies for which Donald did contract welding work and reflect self-employment on the tax schedule. Mr. Hicks further testified Donald‘s business expenses were listed on a separate schedule and deducted only from the total income as reflected on the 1099 forms which would equal Donald‘s taxable income. Mr. Hicks determined Donald‘s net profit for the year 1990 to be $27,371.00. On cross examination, Mr. Hicks testified that a lot of companies which do not want to pay employee benefits use the 1099 form and call it contract work.
Donald‘s testimony supported Mr. Hicks’ testimony in that he stated he was a self-employed welder who owned his own torch and did welding work for various companies. Moreover, Sandra testified on direct examination and cross examination that Donald was self-employed.
Our review of the record convinces us that the trial judge committed no error in accepting, rejecting or in weighing the testimony and documentary evidence. Thus, the finding by the trial court that Donald was self-employed is not clearly wrong.
ASSIGNMENTS OF ERRORS NOS. 3, 4, AND 5
Sandra contends, in the event this court finds the trial judge was correct in finding Donald was a self-employed welder, that the trial judge incorrectly deviated from the Louisiana Child Support Guidelines in awarding as child support $225.00 per month per child for a total of $450.00 per month and in failing to give a proper explanation for the deviation. The trial court was required to apply the child support guidelines in
The correct statutory provision is
C. In determining whether to deviate from the guidelines, the court‘s considerations may include:
(1) That the combined adjusted gross income of the parties is not within the amounts shown on the schedule in
R.S. 9:315.14 . If the combined adjusted gross income of the parties is less than the lowest sum shown on the schedule, the court shall determine an amount of child support based on the facts of the case. If the combined adjusted gross income of the parties exceeds the highest sum shown on the schedule, the provisions ofR.S. 9:315.10(B) shall apply.(2) The legal obligation of a party to support dependents who are not the subject of the action before the court and who are in that party‘s household.
(3) The extraordinary medical expenses of a party, or extraordinary medical expenses for which a party may be responsible, not otherwise taken into consideration under the guidelines.
(4) An extraordinary community debt of the parties.
(5) The need for immediate and temporary support for a child when a full hearing on the issue of support is pending but cannot be timely held. In such cases, the court at the full hearing shall use the provisions of this Part and may redetermine support without the necessity of a change of circumstances being shown.
(6) The permanent or temporary total disability of a spouse to the extent such disability diminishes his present and future earning capacity, his need to save adequately for uninsurable future medical costs, and other additional costs associated with such disability, such as transportation and mobility costs, medical expenses, and higher insurance premiums.
(7) Any other consideration which would make application of the guidelines not in the best interest of the child or children or inequitable to the parties.
In the present case, the trial judge made the following statements regarding the award of child support:
“All right the Court‘s prepared to rule. Now first of all I want to rule on the question of child support, support for the two children, Uh the children are ages, aged as I understand 5 and 12, is that correct?....
The Court has Uh, listened very carefully to the testimony concerning Uh, the Uh wages or the income, let‘s say the income made by Uh, Mr. Lanclos and Uh, the Court believes that it would, if were to impose the schedule upon them that would be $501.00. The Court thinks that that would be excessive....
Now for the two children I‘m going to allow $15.00 a day, that‘s $450.00 a month ... make it to each child, $225.00 per child....”
As can be seen from this excerpt, the trial court did not apply the statutory guidelines. The trial court‘s reasons for deviating from the child support guidelines fail to establish that such deviation would be in the best interests of the children or would be inequitable to the parties. Contrary
The child support guidelines clearly establish that the trial court‘s discretion in the amount of child support to be awarded is now structured. Under the child support guidelines, a rebuttable presumption exists that the amount contained in the statutory tables, factoring in the number of children and the parents’ income, is the proper amount to be awarded.
The guidelines would only allow a downward deviation, as in this case, where the guidelines amount would be inequitable to the parties since a deviation below the guidelines could never be in the best interests of the children. See, Montgomery, supra. When a perceived inequity exists, the court is required to explain orally or in writing its reasons for the deviation. Simply stating that imposing the guidelines is excessive is not a sufficient statement under the guidelines to support deviation.
Because of the failure of the trial court to give the required oral or written reasons for the deviation, the judgment is deficient. Not only must the court give its reasons for deviating from the guidelines, it must also provide an evidentiary basis for the deviation. Fancett v. Fancett, 590 So.2d 1250 (La.App. 1st Cir.1991). With clearly stated reasons, the reviewing court could more easily follow the trial court‘s reasoning in setting the basic support from the guidelines in considering any of the options allowed by
Hogan v. Hogan, 549 So.2d 267 (La. 1989) mandates the appellate court, upon determining that the trial court abused its discretion in making a child support order, to assess the evidence anew from the record and render a judgment on the merits as if it were the trial court rather than to remand the case for further proceedings below. In cases where the record contains adequate information upon which to make a child support determination under the guidelines, pursuant to
Sandra is unemployed due to serious health problems requiring surgery and the children are in need of at least the statutory amount of child support. Although the trial court‘s deviation is only $130.00 per month, there is no justification for depriving these children of the amount needed for their support without adequate reasons for deviation. Nor is Donald‘s prediction that his income will decrease due to depression in the oil industry a justification for deviation in this case. The record indicates that Donald‘s income for the year 1990 was $27,371.00. The guideline amount of support to be contributed, by Donald is proportionate to the number of children and his income.
In brief before this court, Donald argues that a debt exists because he is required to pay the monthly automobile loan note of $189.00 until the loan is paid and the trial court failed to consider Sandra‘s earning potential. These may be proper factors for consideration under
The record does not support a finding that an award of $580.00 per month for these two children would be inequitable to the parties, nor did the trial court articulate sufficient reasons to justify its action in lowering the award below the minimum statutory guidelines.
CONCLUSION
We find that the trial court erred in failing to apply the child support guidelines of
REVERSED IN PART, AFFIRMED IN PART, AND RENDERED.