hWe granted this writ application to address whether military allowances for housing and subsidies must be included in gross income for the calculation of child support. The State of Louisiana, Department of Social Services (hereinafter referred to as “State”), filed this writ application to review the lower courts’ decisions to exclude the father’s military allowances for housing and subsistence from his “gross income” for the purpose of calculating his child support obligation to his two minor | ¡¡children. For the following reasons, we reverse and remand the case to the trial court to reassess the father’s child support obligation and include his military allowances in his gross income.
FACTS AND PROCEDURAL HISTORY
This matter involves a United States Navy officer, who fathered six children, but only two minor children born of different women are аt issue. Officer Legredis Taylor serves in the Navy as a non-commissioned officer, Grade E-6. He earns a monthly base salary of $2,763.30 and also enjoys the benefits of basic allowance housing (“BAH”) in the amount of $995.00 a month in addition to basic allowance subsidies (“BAS”) in the amount. of $254.46.
Subsequently, the matters were heard on November 8, 2004, by the trial court judge, who determined that the BAH and BAS should not be included as income when calculating child support.
[/These appeals were consolidated as they reflected identical issues of law. See, LSA-C.C.P. art. 1561.
Under the clear terms of LSA-R.S. 9:315(C)(4)(a), the definition of gross income includes the. disputed allowances, as these allowances constitute income from “any source.” Further, as stated in La. R.S. 9:315(C)(4)(b), where expense reimbursements received by a parent are significant and reduce the parent’s personal living expense they are considered for purposes of child support calculations to be part of the parent’s gross income. The fact that these allowances are paid by the military branch of federal government and not subject to income tax does not exclude them from the definition of gross income under the applicable child support guidelines.
In fact, in the calculation of child support, Louisiana courts have imputed income to a parent who eliminated housing costs by living in a new wife’s home. Thus, the benefit a parent receives in the form of reducеd housing expenses have been determined as constituting income. See, Shaw v. Shaw, 30,613 (La.App. 2 Cir. 6/24/98),714 So.2d 906 , writs denied, 98-2414, 98-2426 (La.11/20/98),729 So.2d 556 , 558.
The trial court correctly recognized that the housing and subsistence allowances paid, to Mr. Taylor are distinguishable from .a per diem allowance which is specifically excluded from gross income pursuant to La. R.S. 9:315(C)(4)(d)(ii). However, in my view, the trial court erred in relying on the federal tax code to exclude this income where there are specific provisions in Louisiana governing the calculation of child support which provides otherwise. For these reasons, I would reverse |Bthe judgment of the trial court and reinstate the recommendation of the hearing officer in setting*690 the child support of defendant, Legredis Taylor, Jr.
The State applied for a rehearing, which the court of appeal refused. Upon application of the State, this Court granted a writ. State, Dept. Of Social Services, ex rel. D.F. v. L.T., 05-1965 (La.2/10/06),
DISCUSSION
The sole issue before this Court is whether the military allowances for housing and subsidies are to be included in Taylor’s gross income for the calculation of child support to his two minor children. We note that this case is res nova, an issue of first impression in Louisiana, and thus, it is appropriate to look to the law of other jurisdictions for guidance after reviewing the statutory law of Louisiana.
Before reviewing the persuasive authority of other jurisdictions, we note that LSA-R.S. 9:315 et seq., provides the guidelines for the determination of child support, which relies on the combined adjusted monthly gross income of both parents. According to LSA-R.S. 9:315(A), child support is a continuous obligation of both parents, whose current income the child is entitled to share, as the child should not be the economic victim of a divorce or an оut-of-wedlock birth. These guidelines are mandates applicable to both military personnel and civilians. Further, the trial court’s discretion in setting the amount of child support is structured and limited. James v. James, 34,567 (La.App. 2 Cir. 4/6/01),
We also note that 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 manifest error. Reeves v. Reeves, 36,259 (La.App. 2 Cir.2002),
Definition of “gross income” and Legislative Intent
First, the State argues that the lower courts erred in determining that Taylor’s BAH and BAS constituted income for thе purpose of calculating child support. The State argues that the lower courts misinterpreted LSA-R.S. 9:315(C)(4)(b), which is presently LSA-R.S. 9:315(C)(3)(b), as military allowances fall squarely within the parameters of “gross income” as defined in the statute.
LSA-R.S. 9:315(0(4) states, in pertinent part, that:
*691 (a) The income from any source, including but not limited to salaries, wages, commissions, bonuses, dividends, severance pay, pensions, interest, ... ' and spousal support received from a preexisting spousal support obligation ...
(b) Expense reimbursement or in-kind payments received by a parent in the course of employment, self-employment, or operation of a business, 17if the reimbursements or payments are significant and reduce the parent’s personal living expenses. Such payments include but are not limited to a company car, free housing, or reimbursed meals ...
(Emphasis added).
In contrast, Taylor contends that the statute is clear and unambiguous. Taylor points out that LSA-R.S. 9:315 contains specific enumerated sources of income, and none of these sources includes military allowances. Taylor submits that the lower courts’ rulings are clearly supported by the legislative intent. Accordingly, Taylor asserts that BAH and BAS should not be included as income when calculating child support under Louisiana law. We disagree.
In reviewing a statute, we must determine whether the language of the statute is сlear or ambiguous. Also, we must determine what the legislature intended when promulgating the statute. Here, in analyzing LSA-R.S. 9:315(C)(4), we find that the statute does not limit income merely to the type of compensation listed, but instead, through the use.of the words “but are not limited to ... free housing or reimbursed meals,” includes any compensation for services, thereby including the military allowances at issue before this Court. LSA-R.S. 9:315 provides examples of what is not considerеd “gross income” and does not mention BAH and BAS. Thus, as noted in Judge Rothschild’s dissent, the fact that BAH and BAS are not included within the examples provided is not dispositive of the issue of whether they are income under Louisiana law. Louisiana courts have determined that the benefit a parent receives in the form of reduced housing expenses is income. See, Shaw v. Shaw, 30,613 (La.App. 2 Cir. 6/24/98),
Military Allowances dissimilar to Per Diem Allowances (Both NON TAXABLE)
Next, the State argues that the lower court erroneously concluded that because the Internal Revenue Code does not tax BAQ or VHA
Jurisprudence
We note that there is. nо statutory provision or .case law on point that would resolve this matter. Therefore, we recognized the precedent set forth in other jurisdictions. The United States Supreme Court in Rose v. Rose,
In that case, the inclusion of appellant’s BAQ and VHA payments as part of his income did not conflict with the federal law governing enforcement of support obligations. While the trial court did attach appellant’s military wages in order to ensure his payment of $400.00 child support, such payment was made directly from appellant’s monthly base salary of $1,121.40. Moreover, as the Supreme Court held in Rose, once appellánt received his BAQ and VHA, a state court can order him to use them to satisfy his child support obligations.
In Peterson v. Peterson,
Courts in Pennsylvania, Ohio and Minnesota havе determined that military allowances are a species of remuneration subject to child support payments. (See, Alexander v. Armstrong (1992),
In supporting the inclusion of BAH and BAS within income for the purpose of calculating child support, we note that Connors, Resolving Child Support Issues Beyond the Scope of AR 608-99, 132 Mil.L.Rev. 67, 78 (1991) provides that BAQ BAH, VHA, and BAS should be included when calculating a military person’s total income because thesе in-kind benefits received by the service person increase his/ her income. The article provides that a “standard of living allowance (SOLA)” should h?be calculated for the purpose of child support as “it allows a child to benefit from the higher living standard usually enjoyed by a noncustodial parent.” Id at 77. The article addresses the issue before us as follows:
In general, all of a soldier’s ... pay and аllowances should be considered as income for the purposes of setting the [child] support obligation. (Citation footnotes omitted) Many soldiers live in government accommodations and eat in the mess hall for free. This “in kind” income ... may justify an upward adjustment in support owed. Moreover, Basic Allowance for Quarters (BAQ), Basic Allowance for Subsistence (BAS) ... and military ... payments can constitute large portions of a soldier’s ... total income. These items, however, are not taxable. If the state guidelines are based on gross pay, ... the soldier’s income should be adjusted upward to account for the increased value of nontaxable income.
As determined above, neither Louisiana law nor federal law prohibits including BAH and BAS within the definition of gross income when calculating income for
Finally, relevant to our analysis is the fact that the Louisiana Child Support Guidelines, LSA-R.S. 9:315 et seq., are based-on the concept that the child should receive the same proportion of parental incomе that he or she would have received if the parents lived together. Explanatory Comment-1989, Pa.R.Civ.P.1910.16-5. If D.F. and J.T. were living with Taylor’s new family, they would share in the benefit from the allowances Taylor received from the Navy for housing and subsidies. However, because D.F. and J.T. do not live with Taylor or Taylor’s family, they do not receive any benefit from the allowances. Accordingly, in keeping with the guidelines, we must include in Taylor’s income his BAH and BAS when calculating 113child support. Thus, we find that the lower courts erred in their rulings. We reverse the lower courts’ judgments and remand the case to the trial court to reassess the father’s child support obligation.
REVERSED and REMANDED.
Notes
. Basic Allowance Housing ''BAH” is an additional sum, other than the salary, paid to a member of a uniformed service/qualified military person, who resides outside of the military quarters, paid monthly to supplement his housing expenses. See, 37 U.S.C.A. § 403. The rates are paid according to the member's grade level and "the costs of adequate housing for civilians with comparable income levels.” Id. Basic Allowance Subsistence "BAS” is paid to a qualified military person to supplement food expenses incurred while living "off base.” 37 U.S.C.A. § 402a.
. On September 8, 2004, the trial court issued a judgment of paternity finding that Taylor was the biological father of D.F. Thereafter, the record shows that Taylor formally acknowledged his child. The record is silent as to when the court determined that Taylor was the biological father of J.T.
. Although both matters were filed separately and assigned to different divisions, i.e. D.F.'s case (04-NS-447) was assigned to Division "B" and J.T.’s case (04-NS-1055) was assigned to Division "A,” hearing officer Samuel Stephens adjudged both cases.
. The rеcord demonstrates that the Judge Andrea Janzen consolidated the two cases as
. LSA-C.C.P. art. 1561 provides that:
A. When two or more separate actions are pending in the same court, the section or division of the court in which the first filed action is pending may order consolidation of the actions for trial after a contradictory hearing, and upon a finding that common issues of fact and law predominate.
. Sеnate Bill No. 123 (Regular Session 2006) amends LSA-R.S.9:315(C)(3)(a) to read:
(3) "Gross income” means:
(a) The income from any source, including but not limited to salaries, wages, commissions, bonuses, dividends, severance pay, pensions, interest, ... workers' compensation benefits, basic and variable allowances for housing and subsistence from military pay and benefits, ... and spousal support received from a preexisting spousal support obligatiоn;
Senator Lentini and Representatives Ansardi and Bowler introduced this bill, which purports to broaden the definition of "gross income” to include BAH and BAS for the purpose of calculating child support. This bill was unanimously passed in the Senate on April 10, 2006. On June 5, 2006, the House of Representatives passed the bill with no objections, and on June 7, 2006, the bill was sent to the Governor for consideration.
. "BAQ” means "basic allowances for quarters,” and "VHA" means "variable housing allowances.”