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Thomas v. Thomas

Court of Appeals of Louisiana, Third Circuit

December 28, 2018

JESSICA LANGLEY THOMAS
v.
CARROLL F. THOMAS, II

          APPEAL FROM THE FIFTEENTH JUDICIAL DISTRICT COURT PARISH OF VERMILION, NO. 99997 HONORABLE CHARLES G. FITZGERALD, DISTRICT JUDGE

          Rachel Moss Attorney for Appellant/Defendant Carroll F. Thomas, II

          Jessica Langley Thomas, In Proper Person Appellee/Plaintiff

          Court composed of Chief Judge Ulyssess Gene Thibodeaux, and Sylvia R. Cooks and Marc T. Amy, Judges.

          SYLVIA R. COOKS JUDGE

         FACTS AND PROCEDURAL HISTORY

         Jessica Langley Thomas (Jessica) and Carroll F. Thomas, II (Carroll) entered into a covenant marriage in 1998.[1] They are the parents of three minor children. Jessica filed for Divorce alleging grounds under La.Civ.Code art. 102.[2] The couple was awarded joint legal custody of the three children and Jessica was made the domiciliary parent with Carroll enjoying visitation. Following a hearing officer conference in 2015 the hearing officer made recommendations, neither party objected, and the recommendations became the judgment of the court duly signed by the trial court. In 2017 Jessica filed a rule for modification of child support asserting a change of circumstances occurred since the previous support order, namely, that the cost of private schooling for the children was not included in the prior child support order. The parties agree that the issue of private school tuition was not previously addressed because they represented to the hearing officer the cost had already been paid prior to the hearing. The parties subsequently learned there was actually a balance due on the tuition costs.

         Jessica alleged in her current motion that Carroll agreed to pay his portion of the children's tuition costs but failed to honor his agreement. She also alleged arrearages were owed to the school and sought recovery of Carroll's share of arrearages. A hearing officer conference was held. After receiving evidence and testimony from both parties the hearing officer made a written "Recommendation" based on his enumerated findings of fact. That "Recommendation" is dated July 11, 2017. The hearing officer determined that "neither party has the ability to show a change in circumstances of the other party from the incomes attributed at the time of the prior order. As such the modifications sought herein should be made using those prior assessed incomes." The hearing officer also expressly found the following set forth in the "HEARING OFFICER FINDINGS OF FACT:"

(x) At the time of the prior order the minor children were attending private school, however, the costs of that private schooling were not included in the prior order as it was determined that the tuition for that current year had been paid.
In fact, the tuition for that year had not been fully paid and the petitioner now seeks to have the private school tuition costs included in the calculation of child support. . . .
When the parties were living together the minor children attended LeBlanc Elementary until such time as they transitioned at which time they began attending Harvest Time. The father asserts that an award of co-domiciliary status would allow the children to attend school in the North Vermilion School District-an A rated school district. No petition for modification of custody has been filed.
(x) The gross monthly income of Plaintiff, JESSICA LANGLEY THOMAS, is determined to be $1256.00 30%
(x) The gross monthly income of Defendant, CARROLL F. THOMAS II, is determined to be $3000.00 70%
(x) Child support worksheet attached.
(x) Finding that the non-domiciliary party's child support obligation equals or exceeds fifty percent of the total child support obligation, that no arrearages are owed and that the right to claim the dependency deduction(s) would substantially benefit the non-domiciliary party without significantly harming the domiciliary party, the tax dependency deductions are awarded to the non-domiciliary party as set forth in the attached Recommendations.
FINDINGS OF LAW BASED ON THE PLEADINGS AND FACTS
Should the court determine that the private school tuition costs should be included in the child support obligation for the two minor children now attending Harvest Time Christian Academy, then: The non-custodial parent, Carroll Thomas, II, be ordered to pay child support of $1319.18 per month, payable ½ by the 1st day of each month and ½ by the 15th day of each month, commencing on the 1st day of July, 2017.
Should the court determine that the private school tuition costs should not be included in the child support obligation for the two minor children now attending Harvest Time Christian Academy, then the child support obligation should remain as previously ordered ($893.33)
(x) That court costs be cast as follows: Deferred to the hearing on this matter.

         Neither party filed any objection to the hearing officer recommendation within the delay period provided. The trial judge signed the Judgment on July 21, 2017, making the hearing officer's recommendation the "lawful order of the Court." The judgment also provided that court costs would be "deferred to hearing." Notice of judgment was mailed to both parties on July 24, 2017. The remaining issue to "determine whether private school tuition should be included in the parties' child support calculation" was set for a rule to show cause hearing on August 1, 2017.

         Court minutes reflect that on August 1, 2017, the parties appeared, unrepresented by counsel. Following a pre-trial conference, the trial court on its own motion continued and re-fixed the matter for trial on August 29, 2017. The court minutes also show that the rule scheduled for hearing was a:

RULE FOR CHILD SUPPORT MODIFICATION/FOR INCREASE; TO PAY FOR COSTS OF PRIVATE SCHOOL AND/OR PAY PROPORTIONATE SHARE OF COSTS; TO PAY ARREARAGE OWED TO SCHOOL FOR PASTDUE TUITION COSTS TO BE ALLOCATED BETWEEN THE PARTIES IN ACCORDANCE WITH THEIR PROPORTIONATESHARE OF INCOME; AND FOR ALL COSTS

         The minutes also include the representation that "both parties mutually agreed" that the matter be re-fixed and that:

[T]he plaintiff is to exchange all documents with the defendant regarding tuition payments, tuition payment schedules, and professional opinions/letters issued by Stephanie Leleux, Michelle Rupert, and Jackie Braxton, who will be subpoenaed & called as witnesses by the plaintiff; and that both parties will waive formal notice of fixing in this matter. Court costs [are] deferred.

         Court minutes dated October 10, 2017 indicate a hearing was held on the rule concerning payment of costs for tuition. Both parties were again unrepresented by counsel. Plaintiff called three witnesses; Michelle Rupert, Lucia Viator and Holly Dotson. The trial judge questioned the witnesses extensively. Jessica did not question the witnesses, expressing her satisfaction with the judge's interrogation of the witnesses. The matter was again continued to October 17, 2017 for day two of the hearing. The court minutes reflect that on this date the parties appeared with Jessica representing herself and attorney Rachel Moss (Moss) representing Carroll. The court heard Jessica's testimony and engaged in discussions on the record with both Jessica and Carroll. The trial court rescinded "any and all stipulations [by both parties]" and continued the matter for day three of the hearing to be set for November 28, 2017.

         The court minutes dated November 28, 2017 state that the hearing continued with Jessica recalling herself to the stand for additional direct testimony. Again, Jessica represented herself and Carroll was represented by attorney Moss. Defense counsel objected to any further direct testimony by Jessica. The court "denied" the objection. During her testimony, Jessica introduced exhibits which she labeled as PL-Jessica-1 and 2. These exhibits included: "Jessica's 2016 W-2 Wage and Tax Statement from Blue Agave & Brothers, LLC" and "her 2016 1099 Miscellaneous Income Statement from Ascension Driving Academy d/b/a Lagniappe Lunches." Jessica then called Carroll on cross examination and following this testimony she rested her case. Defense counsel informed the court she had no further evidence or testimony to present and defense rested. The trial court recessed for about ...


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