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Dugue v. Dugue

Court of Appeals of Louisiana, Fifth Circuit

June 27, 2018

CLEMENT ARTHUR DUGUE', III
v.
AVIGNON MARIE DUGUE'

          ON APPEAL FROM THE TWENTY-FOURTH JUDICIAL DISTRICT COURT PARISH OF JEFFERSON, STATE OF LOUISIANA NO. 763-241, DIVISION "G" HONORABLE E. ADRIAN ADAMS, JUDGE PRESIDING

          COUNSEL FOR PLAINTIFF/APPELLANT, CLEMENT ARTHUR DUGUE', III Roch P. Poelman

          Panel composed of Judges Stephen J. Windhorst, Hans J. Liljeberg, and Marion F. Edwards, Judge Pro Tempore

          STEPHEN J. WINDHORST JUDGE

         This appeal arises from a February 7, 2017 judgment from the Twenty-Fourth Judicial District for the Parish of Jefferson on custody, spousal support and child support issues between the parties. We vacate the trial court's judgment and remand for further proceedings.

         Facts and Procedural History

         On July 27, 2016, Clement A. Dugué, III ("Appellant") filed a petition for divorce, for temporary and permanent custody, for a temporary restraining order and for child support against Avignon M. Dugué ("Appellee"). On August 18, 2016, Appellee filed an answer and reconventional demand against appellant, seeking sole custody or alternatively joint custody, spousal support, child support and reimbursement of certain expenses. On October 14, 2016, the parties appeared before a hearing officer, after which the hearing officer made recommendations on several issues, including custody, spousal support, child support and reimbursement of certain expenses. Based on the hearing officer's recommendations, an interim judgment was entered awarding the parties joint custody of the children with the appellee designated as the domiciliary parent and the appellant granted unsupervised physical custody once to twice a week. Appellant was also ordered to pay child support, spousal support, and certain expenses. On October 18, 2016, Appellant filed an objection to the hearing officer's recommendations and the interim order regarding custody, child support, and spousal support, reserved his right to assert other objections, and requested a de novo hearing before the trial court.

         On February 6, 2017, the parties appeared before the trial court for a hearing regarding appellant's objection. On February 7, 2017, the trial court signed a judgment, overruling most of appellant's objection, except as to visitation, which the trial court adjusted to give appellant an additional day of visitation every other week. As to the remaining issues, the trial court ordered that all other provisions of the October 14, 2016 interim judgment shall remain in effect. Appellant filed a timely motion for new trial on February 16, 2017, which the trial court denied on June 26, 2017. Pursuant to appellant's request, the trial court issued written reasons for judgment on March 6, 2017, stating that the court found that appellant did not prove a "material change in circumstances" to adjust the amounts of child support or spousal support. This appeal follows.

         Discussion and Analysis

         In his assignments of error, appellant asserts that the trial court erred in requiring that appellant show a material change in circumstance instead of conducting a de novo hearing on the issues of child support and spousal support, and in not dismissing appellee's child support and interim spousal support claims. Appellant also asserts the trial court erred in considering income appellant earned from overtime during the period August through October 2016 and certain part-time employment in determining appellant's gross income for purposes of calculating child support and spousal support.

         Assignment of Error 1

         In this assignment, appellant contends that "[t]he District Court erred by requiring the Appellant prove a material change of circumstances, even though there was no previous award." Appellant asserts that the "material change in circumstances" standard does not apply until an award has been granted by the trial court, which had not yet occurred. We find that Assignment of Error 1 has merit.

         The trial court's Written Reasons for Judgment show that the trial court did apply the "material change in circumstances" standard. The trial court cited La. C.C. arts. 142 and 114, and La. R.S. 9:311(A)(1), all of which apply to circumstances in which a party seeks to modify a court's award of child support or spousal support. La. C.C. arts. 142 and 114 provide that an award may be modified if there is a material change in circumstances. La. R.S. 9:311(A)(1) provides that an award "shall not be modified unless the party seeking the modification shows a material change in circumstances…." In its analysis, the trial court stated that "the Court finds there presents no material change in circumstances" and "there is no evidence of a material change in circumstances." La. R.S. 46:236.5(C) (6) and (7) provides:

(6) A copy of any written recommendations, orders, or uncontested judgments rendered by the hearing officer shall be provided to the parties and their counsel at the time of the hearing officer's ruling, if present. Any party who disagrees with a judgment or ruling of a hearing officer on a matter set forth in Paragraph (3)[1] may file a written objection to the findings of fact or law of the hearing officer within the time and manner established by court rule. The objection shall be heard by the judge of the district court to whom the case is assigned. Upon filing of the objection, the court shall schedule a contradictory hearing where the judge shall accept, reject, or modify in whole or in part the findings of the ...

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