FROM THE NINTH JUDICIAL DISTRICT COURT PARISH OF RAPIDES, NO.
253, 535-F HONORABLE GEORGE CLARENCE METOYER, JR., DISTRICT
Ford Fiser Attorney at Law COUNSEL FOR DEFENDANT APPELLEE:
D. Boyett Attorney at Law COUNSEL FOR PLAINTIFF APPELLANT:
composed of Ulysses Gene Thibodeaux, Chief Judge, Phyllis M.
Keaty, and Candyce G. Perret, Judges.
CANDYCE G. PERRET JUDGE.
Appellant, Richard Brandon Kyle, appeals the trial
court's judgment denying his request to modify and lower
his child support payments, while granting Appellee, Brittany
Kier's, request to modify the stipulated child custody
judgment. Finding no manifest error on the part of the trial
court, we now affirm.
1. whether the trial court erred in denying Appellant's
request for modification of child support based on his
2. whether the trial court erred in modifying the stipulated
child custody judgment.
AND PROCEDURAL HISTORY
Brandon Kyle and Brittany Kier entered a stipulated judgment
for custody of their one minor child on August 31, 2015. This
judgment also established child support at $700.00 a month,
paid by Mr. Kyle to Ms. Kier.
Kyle filed a Motion to Modify Child Support in September
2016. Mr. Kyle asserted he became unemployed and cannot be
employed due to a physical injury that has led to the
degeneration of his lumbar and cervical spine. Mr. Kyle
asserts he is entitled to have the child support payments
modified and seeks a reduction of his child support payments
to the statutory minimum, $100.00.
support of his claim that he cannot be employed, Mr. Kyle
testified that he sustained an injury to his neck and back.
Mr. Kyle could not recall when the injury occurred. However,
Mr. Kyle related the continuing pain to a stabbing that
occurred in 2004, prior to any custody litigation, but
asserts the pain became unbearable after completing yard
work. Based on his medical records, that injury appears to
have occurred sometime in June, 2016. At the hearing on
Appellant's Motion to Modify Child Support, Mr. Kyle
introduced certified medical records from Dr. Troy Vaughn.
According to the records, Dr. Vaughn began treating Mr. Kyle
in July, 2016. Included in those records is a letter dated
September 2, 2016, in which Dr. Vaughn opines Mr. Kyle is
"unable to work on a sustained basis" and
"unable to resume gainful employment" due to a
in support of his claim of lack of income, Mr. Kyle testified
that his parents currently pay all of his living expenses and
child support. Mr. Kyle's pay stubs and tax returns for
2013 and 2014 were also introduced into evidence by Appellee
and show that prior to his injury's progression, Mr. Kyle
worked in 2013 and 2014, and had an adjusted gross income of
$76, 115 in 2014. Mr. Kyle left his job for an unknown
reason, and began remodeling a home with the idea of flipping
it. However, before he could finish the remodel, Mr. Kyle
alleges his injuries became worse, preventing him from
working altogether. Mr. Kyle's father, Richard Dale Kyle,
testified he pays all of his son's expenses. Richard Kyle
further testified that he hopes his son will pay back the
money, considers the money to be a loan, but would also do
whatever it takes for his son. Mr. Kyle testified that he
also considers the money from his parents to be a loan.
hearing, Ms. Kier presented testimony that Mr. Kyle has a dog
breeding hobby. He attends dog shows in places such as
Georgia, Dallas, and New Orleans. He would travel by car,
with another person driving. Mr. Kyle also testified that in
the last five years he has applied for social security
disability benefits once, but was denied. He asserts he
recently applied before the hearing, but was not receiving
any disability benefits at the time of the hearing.
trial court denied Mr. Kyle's Motion to Modify Child
Support, finding insufficient evidence upon which to base a
modification. The trial court also amended the custody
agreement at Ms. Kier's request to prohibit overnight
guests of the opposite sex, not related by blood or marriage,
while the parent is exercising custody.
Kier's request for modification of the child custody
agreement was made orally during the hearing. No written
motion was made. Ms. Kier referenced the parties and the
judge having discussed overnight guests "in the
back." Thereafter the trial court asked if Ms. Kier
wanted to make that request during the hearing, and she did.
Although opposing counsel objected, both parties continued to
question the witnesses regarding custody issues.
Kyle now appeals the December 12, 2016 Judgment. He asserts
(1) the trial court erred in denying his motion for
modification of child support under La.R.S. 9:315, and (2)
the trial court impermissibly expanded the pleadings and
ruled on modifying the stipulated custody judgment without
any showing of detriment to the child.
OF CHILD SUPPORT
Kyle contends that the trial court erred in denying his
motion for modification of child support because he asserts
he is unemployed, has no income, and cannot work. For the
following reasons, we disagree and find that the trial court
properly concluded that Mr. Kyle did not meet his burden of
proof to show a modification is necessary.
court's factual findings may not be set aside absent
manifest error or unless they are clearly wrong. Rosell
v. ESCO, 549 So.2d 840 (La.1989); McCorvey v.
McCorvey, 05-889 (La.App. 3 Cir. 2/1/06), 922 So.2d 694,
writ denied, 06-435 (La. 4/28/06), 927 So.2d 295;
Cole v. Cole, 13-1442 (La.App. 3 Cir. 6/4/14), 139
To reverse a trial court's factual findings, a two tiered
test is applied:
1. "the appellate court must find from the record that a
reasonable factual basis does not exist for the finding of
the trial court, and"
2. "the appellate court must further determine that the
record establishes that the finding is clearly wrong
McCorvey, 922 So.2d at 696.