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Kyle v. Kier

Court of Appeals of Louisiana, Third Circuit

November 16, 2017

RICHARD BRANDON KYLE
v.
BRITTANY KAY KIER

         APPEAL FROM THE NINTH JUDICIAL DISTRICT COURT PARISH OF RAPIDES, NO. 253, 535-F HONORABLE GEORGE CLARENCE METOYER, JR., DISTRICT JUDGE

          Susan Ford Fiser Attorney at Law COUNSEL FOR DEFENDANT APPELLEE: Brittany Kier

          Koby D. Boyett Attorney at Law COUNSEL FOR PLAINTIFF APPELLANT: Richard Kyle

          Court composed of Ulysses Gene Thibodeaux, Chief Judge, Phyllis M. Keaty, and Candyce G. Perret, Judges.

          CANDYCE G. PERRET JUDGE.

         The 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.

         ISSUES FOR REVIEW

         We must decide:

1. whether the trial court erred in denying Appellant's request for modification of child support based on his unemployment; and
2. whether the trial court erred in modifying the stipulated child custody judgment.

         FACTS AND PROCEDURAL HISTORY

         Richard 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.

         Mr. 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.

         In 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 neck/back injury.

         Additionally, 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, [1] 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.

         At the 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.

         The 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.[2]

         Ms. 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.

         Mr. 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.

         MODIFICATION OF CHILD SUPPORT

         Mr. 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.

         Standard of Review

         A trial 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 So.3d 1225.

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 (manifestly erroneous)."

McCorvey, 922 So.2d at 696.

         Law ...


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