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A.S. v. D.S.

Court of Appeals of Louisiana, Fourth Circuit

April 8, 2015

A.S.
v.
D.S

Page 248

APPEAL FROM CIVIL DISTRICT COURT, ORLEANS PARISH. NO. 2010-12482, DIVISION " B" . Honorable Regina H. Woods, Judge.

Joel Levy, Marrero, LA, COUNSEL FOR PLAINTIFF/APPELLEE, A.S.

Mark D. Plaisance, Thibodaux, LA AND Harley M. Brown, Baton Rouge, LA, COUNSEL FOR DEFENDANT/APPELLANT, D.S.

(Court composed of Judge Dennis R. Bagneris, Sr., Judge Paul A. Bonin, Judge Joy Cossich Lobrano).

OPINION

PAUL A. BONIN, J.

Page 249

[2014-1098 La.App. 4 Cir. 1] Mrs. Iron, the mother and domiciliary parent of Alex Iron, filed in 2010 a petition to set child support against Mr. Iron, her former husband and the father of Alex.[1] At the close of the rule, the trial judge in 2014 cast Mr. Iron in judgment for child support. In setting the support amount due for two of the intervening calendar years, the trial judge concluded that the father, a Baton Rouge-area attorney with fifteen years of practice, had been voluntarily underemployed during that time and then calculated his gross income for those two years by use of the Louisiana Occupational Employment Wage Survey. The trial judge also concluded as a component of the child support obligation owed by the father that because the best interests of the child dictated that Alex attend private

Page 250

high school in New Orleans, Mr. Iron was additionally responsible for his pro rata share of the expenses of his child's education.

On appeal, Mr. Iron complains that the trial judge was clearly wrong in finding him voluntarily underemployed and, on a related issue, that the trial judge [2014-1098 La.App. 4 Cir. 2] abused her discretion in excluding the testimony of his proposed expert witness, Louis Lipinski, a rehabilitation counselor, regarding the trial judge's use of the Louisiana Occupational Employment Wage Survey. The father also complains about the trial judge's finding that the best interests of the child required that Alex attend the particular private school in New Orleans and, more importantly for his purposes, that he be required to pay his proportionate share of the child's educational expenses.

We have reviewed the finding that the father was voluntarily underemployed for two years under the manifest error standard of review and, based upon the evidence admitted at trial, conclude that the trial judge's finding was not clearly wrong and was reasonable. We have also reviewed her ruling excluding the testimony of Mr. Lipinski but under an abuse-of-discretion standard and conclude that she did not abuse her discretion in excluding his proffered testimony. Finally, we have reviewed under an abuse-of-discretion standard her finding regarding the best interests of the child being served in a private school and conclude that there was no abuse in that discretionary finding.

Accordingly, we affirm the trial court's June 23, 2014 judgment and explain our decision in more detail below.

I

A

The parties were married on July 22, 1995, and Alex, the only child of this marriage, was born later that year. The wife subsequently filed a petition for [2014-1098 La.App. 4 Cir. 3] divorce on April 24, 1998. Acting on her petition, a judge of the Family Court for the Parish of East Baton Rouge signed a judgment of divorce on June 25, 1998, which dissolved the marriage, awarded joint custody of Alex to both parties, and designated Mrs. Iron as the domiciliary parent. Mrs. Iron did not initially petition the court for an award of child support because at that time Mr. Iron was voluntarily paying her monthly child support.[2]

Subsequent to the judgment of divorce, both Mrs. Iron and Mr. Iron remarried.[3] Mr. Iron remained in the Baton Rouge area while Mrs. Iron moved to the New Orleans area. Alex lived primarily with Mrs. Iron and her new husband in New Orleans although the child visited Mr. Iron frequently.

On December 15, 2010, Mrs. Iron filed her petition to make executory the June 25, 1998 judgment of divorce and initial request to set child support. The trial court made executory the divorce decree and set a hearing on Mrs. Iron's rule to set child support. The rule did not come to trial on the initial setting because of discovery disputes. Further, Mr. Iron responded

Page 251

to Mrs. Iron's petition with an exception of improper venue. The trial court granted the exception and ordered that the matter be transferred to East Baton Rouge Parish. Mrs. Iron appealed to this Court, and we, applying La. C.C.P. art. 74.2, reversed the trial court's ruling. [2014-1098 La.App. 4 Cir. 4] See A.S. v. D.S., 11-1030 (La.App. 4 Cir. 8/16/11), unpub. Mr. Iron then unsuccessfully sought writs with the Supreme Court.[4]

After we remanded this matter to the trial court, the parties engaged in further discovery and motion practice. Mrs. Iron's rule to set child support re-set several times, coming finally to trial on May 8, 2014. By this point, Alex was eighteen, on the verge of graduating from high school, and was planning to attend a community college.

B

Three issues dominated the trial on the child-support rule: 1) whether Mr. Iron was voluntarily underemployed; 2) if so, what amount of annual income should the trial court impute to Mr. Iron; and, 3) whether Mr. Iron should be compelled to pay for his pro rata share of Alex's private high school education. At trial, both parties testified in support of their relative positions. Mr. Iron introduced exhibits reflecting his wealth, income, and other support and household obligations. Mr. Iron also attempted unsuccessfully to introduce the expert testimony of Louis Lipinski, a certified rehabilitation counselor, in order to convince the trial court that, in the event she found that he was voluntarily underemployed, she should not use the Louisiana Occupational Employment Wage Survey as a means to set Mr. Iron's income for 2011 and 2012. Mrs. Iron presented the testimony of Dr. Sands in support of her request to have Mr. Iron compelled to pay his pro rata share of Alex's high school costs. In opposition, Mr. [2014-1098 La.App. 4 Cir. 5] Iron presented the testimony of Cheri Marocco, a special education coordinator and teacher, associated with Alex's primary and middle schools.

At the close of the hearing, the trial court ruled from the bench, set Mr. Iron's support obligations, and gave extensive reasons in support. She subsequently signed a written judgment on June 27, 2014. Specifically, the trial court cast Mr. Iron in judgment for a monthly basic child support obligation. The trial court ruled that Mr. Iron's support obligation was $531.39 per month for 2010[5], $649.65 per month for 2011, $613.55 per month for 2012, and $924.39 per month for 2013 forward. In setting the amount of his monthly obligations, the trial court also concluded that Mr. Iron was voluntarily underemployed for the years 2011 and 2012. In accordance with this finding, the trial court relied upon the Louisiana Occupational Employment Wage Survey, as provided by La. R.S. 9: 315.11, and ascribed a yearly gross income to Mr. Iron of $58,843 for 2011 and 2012.[6] The trial court also concluded that attending private school was in the best interests of Alex and ordered Mr. Iron, in accordance with La. R.S. 9:315.6, to pay his pro rata share of the expenses in addition to the monthly basic child support obligation.[7]

Page 252

[2014-1098 La.App. 4 Cir. 6] Mr. Iron filed a timely motion to appeal on July 22, 2014. We now turn to consider the three issues which Mr. Iron raises on appeal.

II

In this Part, we examine Mr. Iron's assertion that the trial judge erred when she concluded that he was voluntarily underemployed in 2011 and 2012. Our manifest error review of the ruling indicates that in setting Mr. Iron's basic support obligation the trial judge adhered to the ...


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