Opinion
No. 98-CA-1636.
May 19, 1999
APPEAL FROM CIVIL DISTRICT COURT FOR THE PARISH OF ORLEANS NO. 93-6020, DIVISION "C", HONORABLE ROLAND L. BELSOME, JUDGE
Harry F. Connick, District Attorney, Elizabeth D. Chatelain, Assistant District Attorney, Eric Barefield, Assistant District Attorney, Attorneys for Plantiff/Appellant.
Janet M. Ahern, Attorney for Defendant/Appellee.
(Court composed of Judge Steven R. Plotkin, Judge Charles R. Jones, Judge Patricia Rivet Murray, Judge James F. Mckay, III, and Judge Pro Tempore Philip C. Ciaccio)
Plaintiff/appellant, State of Louisiana, appeals the judgment of the trial court granting a reduction in child support payments in favor of the defendant, Ruben Brown. The State also appeals the trial court's decision to make the reduction in payments retroactive to the date of the defendant's initial filing for a reduction in child support payments, December 1994. We amend the judgment and affirm as amended.
FACTS
Ruben Brown and Dalene Lewis Brown were married on November 30, 1975, and from their union three children were born, namely Ruben Brown, Corey Brown, and Ashley Brown. On April 13, 1993, the plaintiff, Darlene Lewis Brown, filed a Petition for Divorce, requesting child support, custody, managerial authority over the community assets, and a permanent injunction. On May 4, 1993, the trial court entered an interim order compelling Mr. Brown to pay child support in the amount of $1,109.
A pleading styled "Motion and Petition For Injunction" was subsequently filed on October 12, 1993. This injunction requested that Mr. Brown be prohibited from disposing any funds that may come into his possession from his employer, Pennzoil Company. The permanent injunction was granted by the consent of both parties on December 14, 1994.
On December 28, 1993, the trial court granted a judgment of divorce.
On November 16, 1993, Mr. Brown filed a Rule to Decrease Child support. However, there is nothing in the record to indicate that the trial court ruled on Mr. Brown's rule for a reduction. On April 6, 1994, the State of Louisiana enrolled in this suit for the purpose of enforcing the child support order, and to collect and distribute child support payments to Darlene Lewis Brown. The State then executed another income assignment order on April 7, 1994, relative to the child support arrearages currently pending.
Mrs. Brown was still represented by separate counsel (Dreola Guyton) at the time of the State's enrollment.
However, on April 22, 1994, Ms. Dreola Guyton, the attorney of record for Mrs. Brown filed a rule for contempt, attorney's fees, costs, and to make prior child support arrearages executory against Mr. Brown. In response, Mr. Brown filed a rule for a reduction in child support in November 1994. A hearing for both rules was continued until November 30, 1994. Following the hearing, the trial court found Mr. Brown in contempt, calculated the arrearages to be $14,703.42, imposed a five-year suspended sentence for failure to pay child support, and the trial court ordered Mr. Brown to pay $500 towards his arrearages. Additionally, the trial court denied Mr. Brown's motion to reduce child support. The judgment was rendered on December 5, 1994.
Prior to the rendering of the judgment on December 5, 1994, Mr. Brown filed a second motion for reduction in child support payments on December 2, 1994. The trial court scheduled a hearing on this motion for February 1, 1995. Mr. Brown also filed a request for notice on December 9, 1994, asking to be informed of any dates for hearing or trials, and to be informed of any orders, rules or judgments related to the instant matter. Ms. Janet Ahern, counsel for Mr. Brown, filed both pleadings.
On August 31, 1995, the State filed its first rule for contempt against Mr. Brown. The State requested that all arrearages currently pending be made executory, and that another income assignment order be ordered. The trial court scheduled the State's rule for January 19, 1996. However, the trial date was reset to December 22, 1995, on the State's motion.
On December 1, 1995, Mr. Brown's mother was served with a copy of the State's Motion to Reset Hearing. On the day of trial, both named parties were present; however, Mrs. Brown was the only party represented by counsel. Following the trial, the court entered its judgment finding Mr. Brown in arrears in the amount of $29,120.42 as of December 18, 1995. The trial court ordered a third income assignment order, made all arrearages executory, and further ordered Mr. Brown to pay $200 in attorney fees pursuant to LSA-R.S. 9:315. There was nothing in the judgment to reflect that Mr. Brown's December 2, 1994 rule to reduce was entertained in this hearing. According to the record, no contempt order was issued pursuant to the contempt rule.
On May 17, 1996, the State filed its second rule for contempt against Mr. Brown, and the trial court scheduled the matter to be heard on July 19, 1996. However, there was no indication in the record that a hearing was held on that date.
On December 10, 1996, the State filed a rule to revoke any and all licenses in Mr. Brown's possession, and the trial court scheduled the matter to be heard on April 25, 1997. Mr. Brown's son was served with a copy of a "rule" on January 15, 1997; however, the service sheet used by the Orleans Parish Civil Sheriff only indicates that the rule to revoke Mr. Brown's licenses was served.
Notwithstanding domiciliary service, Mr. Brown was not present for trial on the rule to revoke on April 25, 1997. Therefore, the trial court issued an attachment for Mr. Brown, calculated his arrearages to be 43,914, issued a fourth income assignment order, and ordered Mr. Brown to pay $250 in attorney fees.
The trial court also entertained the State's rule for contempt which was filed on May 14, 1996, and the trial court calculated Mr. Brown arrearages following a hearing on the State's Rule to Revoke the Defendant's Licenses.
Finally, the State filed its third rule for contempt against Mr. Brown on January 13, 1998. Though a hearing on this rule was set for February 6, 1998, Mr. Brown moved to have the matter reset to February 20, 1998. He also moved to have the trial court hear the December 2, 1994 rule to reduce child support on the same date.
Following a hearing on both rules, the trial court granted Mr. Brown's rule for reduction, recalculated the monthly child support payments, ordered Mr. Brown to pay $84 towards his arrearages, and made the reduction retroactive back to the date the second rule to reduce was filed (December 2, 1994). The judgment was signed on March 10, 1998. In its reasons for judgment, the trial court granted Mr. Brown's rule to reduce because it found that there was a substantial change in Mr. Brown's income at the time the December, 1994 rule was filed. Further, the trial court found that Mr. Brown's eldest child had reached the age of majority, and that Corey Brown's disability payments should be calculated as income to the child. From this ruling, the State of Louisiana appeals. The State assigns as error the trial court's finding that adequate notice had not been received, the trial court's decision to grant the motion to reduce child support, and its failure to set child support according to the child support guidelines pursuant to LSA-R.S. 9:315.
ADEQUATE NOTICE
In its assignment of error, the State contends that Mr. Brown received adequate notice of the contempt hearing scheduled after the filing of Mr. Brown's second motion to reduce, which was filed in December 1994. We disagree.
It is well-settled jurisprudence that adequate notice is one of the most elementary requirements of procedural due process. See Parish of Orleans, Civil District Court Rule 10; Howard v. A M Const. Co., 93-1013 (La.App. 1 Cir. 4/29/94), 637 So.2d 575; citing Hicks v. Schouest, 381 So.2d 977 (La.App. 4 Cir. 1974). Therefore, it is the trial court's responsibility to not proceed against a litigant when either the litigant or his attorney has not received adequate notice of the pending trial in writing. Jones v. U.S. Fidelity, 596 So.2d 834 (La.App. 4 Cir. 1992). (Emphasis added).
Moreover, once a rule for contempt has been filed against a party for failure to pay child support, the party against whom the rule has been filed is entitled to contest the rule in a contradictory hearing. See LSA-C.C.P. art 225; see also State v. King, 97-1249 (La.App. 3 Cir. 3/6/98) 707 So.2d 1374. The purpose of the hearing is to allow the trial court the opportunity to discern whether the party's failure to pay child support was done intentionally, knowingly, purposefully, and without justification. See Reeves v. Thompson, 95-0321 (La. App. 4 Cir. 12/11/96), 685 So.2d 575.
In the case sub judice, the trial court stated in its reasons for judgment that it rendered its decision based on the fact that the State "failed to provide notice to counsel for Mr. Brown for any hearing subsequent to the filing of the Request for Notice." Mr. Brown reiterates the fact that he did not receive adequate notice in his appellate brief. In support of his argument, Mr. Brown contends that he was found in contempt when he was either not present for the contempt hearing or present without counsel. Furthermore, he contends that the clerk of court should have given written notice to his attorney rather than to him.
We have previously recognized that service on the litigant's attorney is sufficient notice to the litigant; however, we cannot say that service is now insufficient or inadequate if service is made on the litigant rather than his attorney of record. See LSA-C.C.P. art. 1235; cf. Grantham v. Dawson, 27,798 (La.App. 2 Cir. 1/24/96), 666 So.2d 1241, writ denied 96-0487 (La. 3/29/96), 670 So.2d 1228.
The record reflects that Mr. Brown was served by domiciliary service. Although there was no indication in the record that Mr. Brown waived service or formally discharged his attorney, we find that service made on Mr. Brown, the litigant, for the hearing scheduled after the filing of his December 1994 rule to reduce was proper.
In May 1993, Mr. Brown filed a Petition for Nullity, arguing that service was improperly made on him at his former address. Though the Orleans Parish Civil Sheriff continued service him at that address, he failed to contest service any further after May 1993.
Further, we note that in order for the trial court to find a party in constructive contempt, it must ascertain from the evidence presented at the contradictory hearing whether the party against whom the rule was filed intentionally and knowingly violated the trial court's order or judgments. See LSA-C.C.P. arts. 221,224; Pittman Const. Co., Inc. v. Pittman, 96-1079 (La.App. 4 Cir. 3/12/97), 691 So.2d 268, writ denied 97-0960 (La. 5/16/97), 693 So.2d 803. (Emphasis added). Though the trial court is vested with great discretion when ruling on the contempt motion, it must consider the evidence in its totality when making its ruling. Alagdon v. Guertin, 97-0235 (La.App. 4 Cir. 10/1/97), 701 So.2d 480, writ denied 97-2400 (La. 12/12/97), 704 So.2d 1201. Evidently, the trial court concluded, after reviewing the record , that the contempt judgments rendered after Mr. Brown filed his December 1994 rule to reduce were in error because of inadequate service and a lack of evidence. Thus, we find that the trial court committed error in concluding that the State failed to provide notice to Mr. Brown for any hearing subsequent to the filing of his motion to reduce in 1994.
The record reflects that two other trial judges, as well as the presiding judge, signed the previous contempt rulings.
MOTION TO REDUCE MADE RETROACTIVE TO 1994
The State argues that it was error for the trial court to grant Mr. Brown's motion to reduce, and the State also complains that it was manifest error to make the reduction retroactive to 1994. Mr. Brown argues that the reduction was proper considering that pertinent information regarding his income and the income of his son, Corey Brown, was not taken into account before the trial court found him in contempt. We disagree.
The trial court's decision to reduce child support payments and make the reduction retroactive to the date of filing is mandated by statute. See LSA-R.S. 9:310 (A). However, the reduction is automatically retroactive unless the trial court finds good cause for not doing so. See LSA-R.S. 9:310(C); see also Langley v. Langley, 96-0414 (La.App. 4 Cir. 9/18/96), 681 So.2d 25, writ denied 96-2489 (La. 12/6/96), 684 So.2d 935. Thus, a finding of good cause is only required before making the reduction prospective. Therefore, it follows that the trial court need not articulate its reasons for making the reduction in child support retroactive before the judgment becomes valid. Id. Because the trial judge is given great latitude in either granting or modifying awards of alimony or child support, we will not be set aside or amended his judgment unless a clear abuse of that discretion is shown. LaForge v. LaForge, 26,317 (La. App. 2 Cir. 1/25/95), 649 So.2d 151.
The record indicates that Mr. Brown filed his motion to reduce in December 1994, and that no action was taken on this rule until 1998. At that time, Mr. Brown testified and provided the trial court with information concerning a substantial change in his income.
In essence, Mr. Brown testified that in December 1994, he was working as a mechanic in a mechanic shop earning $125 per week. However, he only worked in this position for four months because he was working as an uncertified mechanic. In April 1995, Mr. Brown began working at a junkyard removing gas tanks from junk cars for $40 per day. In August 1995, Mr. Brown worked at Lafitte Welding Company earning $6 per hour, and it was from this employment that Mr. Brown's wages were garnished by the State for child support. He worked at Lafitte Welding Company until November 1996, at which time he began working at Max Welding earning the same rate of pay as he did with Lafitte Welding. Mr. Brown was also garnished while working at Max Welding.
In March 1997, Mr. Brown worked as a production operator with Fab Con, his current employer as of the date of trial. He earned $12.50 per hour, but only worked every other week at 84 hours per week. Mr. Brown testified that the State consistently garnished his wages from August 1995 to the date of trial, and to his knowledge all proceeds were given to Mrs. Brown. Mr. Brown also testified that his second eldest child, Corey Brown, receives approximately $444 in Social Security Income for a small-structure disability his son has had since birth.
Mrs. Brown testified that she did not receive regular payments from Mr. Brown until the State began garnishing his wages. Further, Mrs. Brown testified that when she did receive child support payments, they ranged from $325 to $900, but did not conform to the child support order which required monthly payments in the amount $1,109. Mrs. Brown also testified that her salary with the Sewerage and Water Board has remained relatively the same since Mr. Brown filed his motion to reduce child support payments in December 1994. She verified that Corey Brown does receive SSI payments in the amount $440, but clarified that his SSI payments are dependent on what her son receives in child support from Mr. Brown.
Ms. Tamika Smith, the custodian of child support records for the Child Support Division at the Orleans Parish District Attorney's Office, testified Mr. Brown had a monthly child support obligation in the amount of $1,109, and that his arrearages totaled $52,988.67. Though Ms. Smith's records did show that consistent payments were credited to Mr. Brown's account, she also testified that all payments were in conjunction with a garnishment. Additionally, Ms. Smith testified Mr. Brown has paid a total of $4,679.33 on his account since November 1994.
There is nothing in the record to indicate that the trial court used any external information to establish the parties' income or Mr. Brown's arrearages before finding Mr. Brown in contempt. Apparently, the records of income relied upon by the trial court were the records provided by the State. Also, we note that the record is silent as to whether the trial court entertained arguments regarding how to calculate Corey Brown's social security income into the child support obligation. Further, the trial court did not take into account what payments Mr. Brown had already made when the State filed its rule for contempt in 1995. Thus, the trial court's decision to credit Mr. Brown for the payments that were received was proper.
Additionally, the State argues that the trial court erred in altering the previous contempt rulings because its contempt rulings were final, appealable judgments, which the defendant chose not to appeal. We agree.
A contempt judgment is interlocutory in nature and is subject to an appellate court's supervisory jurisdiction; however, if the party appealing such judgment can show irreparable harm from this judgment then the reviewing court's appellate jurisdiction can be enforced. See LSA-C.C.P. arts. 1841 and 2083; cf. Wellmeyer v. Western Reserve Life Assur. 94-937 (La. App. 5 Cir. 8/30/95), 663 So.2d 745. See LSA-Const. Art. 5, § 10(A). However, we review judgments regarding child custody and support differently. [T]he jurisprudence in this [S]tate is well settled that [judgments granting custody and alimony for their support] are never final, being subject to modification by the judge in summary proceedings instituted by either party. Tutorship of Shea, 619 So.2d 1236 (La.App. 3 Cir. 1993), writ denied 626 So.2d 1165 (La. 1993); citing Davis v. Davis, 238 La. 293, 115 So.2d 355 (1959). (Emphasis added).
In making the motion to reduce retroactive to 1994, the trial court, in effect, overruled the previous contempt rulings entered against Mr. Brown. Thus, if Mr. Brown desired to contest the trial court's judgment regarding contempt for nonpayment of child support, then the proper procedural vehicle would have been to file a motion to reduce the child support award. See LSA-R.S. 9:311; State Through Dept. of Social Services, Office of Family Support in Interest of Seals v. Seal, 97-1508 (La.App. 4 Cir. 10/29/97), 701 So.2d 746. Though Mr. Brown's actions were in compliance with the statute; he did not appeal those judgments. Hence, those judgments became final. Therefore, in light of LSA-R.S. 9:310(C), we amend the trial court's judgment to make the granting of the motion to reduce prospective only.
Additionally, we find no error by the trial court in classifying the social security disability income as income to Corey Brown — thus crediting Mr. Brown's arrearages accordingly. The trial court, in calculating the basic child support obligation, may consider a minor's income. See LSA-R.S. 9:315.7. (Emphasis added). Likewise, the manner in which the trial court decides to compute the minor's income is also discretionary. See Phillips v. Phillips, 95-2043 (La.App. 1 Cir. 5/10/96), 673 So.2d 333; cf. Corley v. Corley 600 So.2d 908 (La.App. 4 Cir. 1992).
DEVIATION FROM CHILD SUPPORT GUIDELINES
The State further argues that it was error for the trial court to deviate from the guidelines when it decided to recalculate child support. We disagree.
In order to deviate from the child support guidelines, the record must contain oral or written reasons for the deviation, which must be supported by the evidence presented to the trial court. See LSA-R.S. 9:315.1 (B); see also McDaniel v. McDaniel, 95-1314 (La.App. 3 Cir. 3/6/96), 670 So.2d 767. This Court recognizes that deviations are appropriate when the trial court fairly articulates for the record those reasons for disregarding the guidelines. See Goldberg v. Goldberg, 96-2145 (La.App. 4 Cir. 7/23/97), 698 So.2d 63; see also Broussard v. Broussard, 617 So.2d 1187 (La.App. 4 Cir. 1993).
In its reasons for judgment, the trial court chose to deviate from the guidelines because Mr. Brown's testimony established that there was a substantial change in his income, and that Corey Brown was receiving income in the form of social security disability payments. Further, the trial court determined that one of the three children was no longer eligible for child support. Additionally, the trial court found that Mr. Brown had the earning capacity of $12.00 per hour, which is the amount the trial court used as income for Mr. Brown's child support obligation. Hence, we find no error in the trial court's decision to deviate from the child support guidelines.
REMAND ON THE ISSUE OF HEALTH INSURANCE
In the alternative, the State argues that this Court should remand this matter to the trial court to have an evidentiary hearing because the trial court in its judgment did not address the issue of health insurance coverage.
Generally, remands are not favored when the record is complete and all of the relevant facts to the issue complained of are before the reviewing court. Snia v. United Medical Center of New Orleans, 93-2367 (La.App. 4 Cir. 5/26/94), 637 So.2d 1290, writ denied 94-1653 (La. 10/7/94), 644 So.2d 637. However, a remand is proper when additional evidence is needed for the reviewing court to rule or a party claims that the judgment is defective because a pertinent issue was not addressed. Willett v. Premier Bank, 97-187 (La.App. 3 Cir. 6/4/97), 696 So.2d 196.
In the interest of justice, we remand this matter to the trial court for an evidentiary hearing on the issue of health insurance coverage since the trial court did not initially address this issue.
DECREE
For the foregoing reasons, we amend the judgment of the trial court to make the reduction in child support prospective only, and affirm as amended.
Further, we remand this matter to the trial court for an evidentiary hearing on the issue of health insurance coverage. All costs are assessed against the State of Louisiana.
AMENDED AND AFFIRMED AS AMENDED; AND REMANDED
PLOTKIN, J., Dissents in Part and Concurs in Part with Written Reasons.
MURRAY, J., Concurs in Part and Dissents in Part, with Reasons.
For the reasons assigned by J. Murray in her partial dissent, I dissent from the majority decision to the extent it affirms the trial court's reduction of Mr. Brown's child support obligation to $316 per month. As J. Murray notes, the record evidence is insufficient to support that reduction. Moreover, the trial court failed to provide reasons for its deviation from the child support guidelines established by LSA-R.S. 9:315. I further agree with J. Murray's conclusion that Mr. Brown is not entitled to a credit for the amount of SSI benefits received by his son, Corey. Finally, I agree with J. Murray's concerns regarding the accumulation of arrearage judgments against Mr. Brown. I would remand to the trial court for another hearing to determine the correct amount of reduction to which Mr. Brown is entitled, and for recalculation of the arrearage judgments against him.
I concur in the majority's decision to the extent it finds that any reduction in Mr. Brown's child support obligation may be applied prospective only from the date of the judgment. I write separately on that issue only to clarify my reasons for believing that the trial court improperly made the previous reduction retroactive to the date Mr. Brown filed his second motion to reduce on December 2, 1994.
I would frame the primary issue in this case as follows: Can a successor (or different) trial judge act as an appellate judge and reverse or modify a contempt judgment and judgments setting arrrearages on child support previously rendered by predecessor judges on the same court? The answer to that question, I believe, is "no."
Mr. Brown filed his second motion to reduce his child support obligation on December 2, 1994. Thereafter, two different Civil District Court judges on three different occasions — December 5, 1994, December 22, 1995, and April 25, 1997 — issued judgments making past due child support executory and calculating the arrearages owed by Mr. Brown. The December 5, 1994 judgment also held Mr. Brown in contempt of court and imposed a five-year suspended sentence for failure to pay child support. As the majority finds, Mr. Brown was either properly served with notice of the hearings or actually appeared at the hearings that preceded each of the three judgments. At no time during this period did Mr. Brown pursue his December 2, 1994, motion to reduce. As the majority notes, those judgments became final when Mr. Brown failed to timely seek supervisory writs.
I do not share J. Murray's concerns about the notice provided to Mr. Brown prior to the December 1995 and April 1997 hearings.
Then, more than three years after the motion was filed, Mr. Brown approached a different trial judge, seeking a hearing on his motion to reduce. That successor judge found, based on the evidence before him, that Mr. Brown was entitled to a reduction. Like the majority, I believe that the trial judge erred when he chose to follow the general rule that changes in child support obligations should be made retroactive to the filing of the motion to modify. See LSA-R.S. 9:310(A). I believe that the trial court abused its discretion in making the award retroactive in this case.
In Langley v. Langley, 96-0414 (La.App. 4 Cir. 9.18.96), 681 So.2d 25, writ denied, 96-2489 (La. 12/6/96), 684 So.2d 935, this court held that a trial judge must find good cause in order to make a child support award prospective only, in derogation of the general rule established by LSA-R. S. 9:310(A), (C) that child support awards be retroactive to the date of filing. We reversed a trial court judgment making a reduction in child support prospective only both because the trial judge failed to find good cause for making it prospective only and because the record did not reveal such good cause. Id.
The instant case is easily distinguished from Langley. The good cause for making the reduction in child support prospective only in the instant case is readily apparent on the face of the record. In this case, the party seeking the modification failed to pursue the motion for more than three years, despite the fact that he attended at least two hearings on the child support issue. Mr. Brown's failure to pursue the child support reduction motion within a reasonable period of time, despite the fact that three different judgments making arrearages of child support executory were issued, operates as a waiver of the right to a retroactive reduction. The good cause for making the child support reduction prospective only in this case is readily apparent from the record.
The successor judge also erred in that he essentially reversed a judgment by a predecessor judge holding Mr. Brown in contempt of court. Generally, "the court of record [is] the exclusive judge of a contempt committed against its authority and dignity." Moity v. Mahfouz, 137 So.2d 513 (La.App. 3 Cir.), writ denied, 242 La. 625, 137 So.2d 514, 514 (1961). As a result, even appellate courts are reluctant to find that a trial court improperly held a party in contempt. Such judgments are reversed only on a strong showing of abuse of discretion. Boes v. Boes, 98-0342, 98-0618 (La.App. 5 Cir. 11/25/98), 722 So.2d 1080, 1081.
If appellate courts, which are statutorily vested with supervisory jurisdiction over trial courts, are reluctant to interfere in a trial court contempt judgment based on the trial judge's feeling that the dignity of his court has been breached, another judge on the same level in the same court should not be allowed to modify a judge's contempt ruling. This is especially true when, as here, the successor trial judge failed to address the pivotal issue considered by appellate courts when modifying a contempt judgment — that is, whether the predecessor judge's contempt holding is reversible because he abused his discretion.
The multiplicity of views expressed in this case, seen in the trial court's judgment as well as the majority and concurring opinions, reflects the various attempts to do substantial justice despite a very confusing record. Because I, also, take a different view of the evidence and issues presented, I cannot entirely agree with either the result or the reasoning of my brethren.
The first judgment for arrearages in this matter resulted from a hearing on November 30, 1994. Although the State's intervention had been filed and approved April 7, 1994, it was not given notice of the hearing or any of the motions set for consideration. Both Mr. and Ms. Brown appeared at this hearing, represented by private counsel. Evidence was presented on Mr. Brown's November 1993 "Rule to Decrease Child Support" and Ms. Brown's "Motion for Contempt, Attorney Fees, Costs and to Accumulate and Make Arrearages Executory" that had been filed April 22, 1994. A written judgment was rendered December 5, 1994, denying Mr. Brown's motion for a reduction and specifically finding that he "was discharged from his employment for his own misconduct" and was thus voluntarily underemployed. Ms. Brown's motion for a contempt order as granted, and the arrearages were determined to be $14,703.42.
This rule was initially set for February 9, 1994, but on that date an entry was made showing it was continued without date by consent of the parties. Subsequently, in May 1994, Janet M. Ahern was substituted as Mr. Brown's counsel of record.
It was shown that Mr. Brown's last payment was for September 1993, and a consent judgment in June 1994 gave Ms. Brown $822.18 from a bank account as a credit against child support owed. This judgment for arrearages thus represents all payments due for October 1993 through November 1994 [(14 x $1109) — $822.18].
On December 2, 1994, after the November 30th hearing but prior to entry of the resultant judgment, Mr. Brown's attorney, Janet M. Ahern, filed a second "Motion for Reduction of Child Support Payments." The motion was served on Ms. Brown's private counsel ten days after filing, but there was no request for service on the State. On December 9th, Ms. Ahern filed a "Request for Notice" under Article 1572 of the Code of Civil Procedure, formally requesting written notice of any and all trials, hearings, judgments and orders. Mr. Brown's motion for a reduction was set for hearing on February 1, 1995, but the record does not reflect that any such hearing took place.
Ms. Ahern's certificate of service states that she mailed a copy of this Request to "all attorneys of record" on the date it was filed, but it appears that the State, represented by the Orleans Parish District Attorney's Office, was not included among the recipients.
Because Orleans Parish Civil District Court does not prepare minute entries, there is no indication why the motion was not heard as scheduled.
On August 31, 1995, the State filed its first "Rule for Contempt and to Make Past Due Child Support Executory," alleging that Mr. Brown had failed to make twenty-two monthly payments since May 1993 and thus owed $24,398.00 in support through July 1995. The rule was set for hearing on January 19, 1996, with a request for service on Mr. Brown and Ms. Brown, individually, as well as the Assistant District Attorney (ADA) who had filed the pleading. However, the only service return in the record indicates Ms. Brown was served personally with the rule on September 6th.
On November 27, 1995, the State filed a "Motion to Reset for Hearing," specifying that "the State's Rule for Contempt and to Make Past Due Child Support Executory . . . has been reset to December 22, 1995." The motion to reset was approved by the Court, and was served at Mr. Brown's domicile on December 1, 1995.
According to the judgment rendered in open court December 22, 1995, only the ADA, Ruben Brown and Darlene Brown appeared at the hearing that date. Mr. Brown was cast for $29,120.42 in arrearages through December 18, 1995, plus interest, payable to the State through an immediate income assignment. It was further decreed that Mr. Brown was to pay attorney fees, but he would not be required to provide health insurance for the children. An annotation in the record indicates that the State's Rule for Contempt was continued "to be re-set."
The basis for this total cannot be determined: October 1993 through November 1995 equals 26 months x $1109.00 = $28,834.00, but the additional $286.42 is not an even fraction of one month's payment.
On May 17, 1996, the State's second "Rule for Contempt and to Make Past Due Support Executory" was filed, claiming Mr. Brown owed 4.74 payments totaling $5,258.58 as of May 13, 1996. This rule was set to be heard July 19, 1996, and the pleading indicates Mr. Brown was to be served at his domicile. However, the record contains no proof of service on anyone. While it appears that the matter was not heard as scheduled, there is nothing to explain any delay in the hearing.
On December 10, 1996, the State filed a. "Rule to Revoke Licenses" under R.S. § 9:315.32. The pleading, filed at pages 90-91 in the record, asserts that since December 22, 1995, Mr. Brown "missed 35 payments . . . totalling $39,276.00 as of [sic] without good cause." This rule was set for April 25, 1997, and service was requested on both the ADA and Mr. Brown, individually. The Civil Sheriff's return on service of the rule to revoke licenses appears at page 92 of the record, clearly stating that domiciliary service was made January 15, 1997 on Ruben Brown of the following:
Document Type: Rule to Revoke License for Past Due Child Support Filed by Attorney: Trina T. Wilson Date of Filing: 12/09/96 Attachments/Exhibits: __________________________
Thus, the service return establishes only that the Rule to Revoke Licenses was served on Mr. Brown. There is nothing that suggests that the State's May 1996 Rule for Contempt was included or attached to this Rule when service on Mr. Brown was effected.
Nevertheless, a judgment was rendered against Mr. Brown on April 25, 1997, reciting that "the State's Rule for Contempt and to Make Past Due Support Executory" had been heard that date. The judgment stated that Ms. Brown was present, as well as the ADA, but indicated that Ruben Brown was "absent after receiving domiciliary service on 1-15-97." It decreed that Mr. Brown's arrears totalled $43,914.80 as of April 22, 1997, and that this amount was made executory. Although this judgment in favor of the State provided for interest, attorney fees, health insurance and an income assignment, there was no adjudication of contempt. Notice of judgment, as required by Article 1913 B of the Code of Civil Procedure, was not issued.
On January 13, 1998, the State filed its third "Rule for Contempt and to Make Past Due Support Executory," alleging that since December 18, 1995 Mr. Brown "has missed 47.60 payments . . . in the amount of $52786.80 as of January 8, 1997 [sic]." The State sought an executory judgment for that amount plus legal interest, attorney fees and costs, as well as an adjudication of contempt, income assignment and an order that Mr. Brown provide health insurance for the minor children. A hearing was set for February 6, 1998 and, as requested, service was made on both the ADA and Mr. Brown, individually.
On February 6, 1998, Mr. Brown's attorney, Ms. Ahern, filed a Motion to Reset the State's Rule, indicating that further service was waived; Mr. Brown signed below his attorney's signature and address. This motion was granted and signed that same day, continuing the Rules for Contempt and for Arrearages to February 20th. Ms. Ahern's motion requesting that Mr. Brown's December 1994 Rule to Decrease Child Support also be heard on February 20th was granted.
The ADA received timely service of this motion.
At the hearing February 20, 1998, Mr. Brown admitted that since September 1993, his only support payments were those made through wage garnishments paid to the State. He testified that between December 1994 and mid-1995, he had worked for two employers, earning $125.00/week and $200.00/week, respectively, with nothing withheld for support. From September to November 1996, he worked for Lafitte Industries for $6.00/hour subject to garnishment; he then was employed at the same rate of pay by Max Welding (MLC Services, Inc.), which also withheld support payments from his checks. Since March 6, 1997, Mr. Brown has worked continuously for Fab Con at $12.50/hour for "seven on, seven off," resulting in his being paid for 84 hours every two weeks. Fab Con also has been garnishing his wages for the State. On cross examination, Mr. Brown acknowledged attending court in December 1995 and agreed he probably did not ask for a continuance or tell the judge he had an attorney. However, when asked about his motion for a reduction, Mr. Brown stated, "I don't understand all them questions."
Ms. Brown testified that she has worked for the New Orleans Sewerage and Water Board since 1992. She estimated her December 1994 gross earnings to be $1,009.00/month, but stated that she has been earning $1,141.00/month for about one year prior to the hearing. The couple's oldest child, Ruben III, dropped out of school before he attained eighteen in October 1994, and their middle son, Corey, began receiving monthly Supplemental Security Income (SSI) checks at some point after that. Ms. Brown testified that the SSI is based upon her salary and the child support actually received. Therefore, the amount of Corey's benefit checks varies and is subject to retroactive adjustments, but generally is approximately $444.00/month.
The custodian of the Orleans Parish District Attorney's child support records presented, among other things, a computer printout showing the payments received through garnishment from September 10, 1996 through the most recent payment on January 26, 1998. This witness calculated that these payments totaled $4,679.33, while the file contained Ms. Brown's original April 1994 report that nothing had been received since September 1993. Therefore, the State's records showed Mr. Brown's arrearages to be $52,988.67. On cross examination, the records custodian agreed that this figure "would be duplicitous to a judgment that was taken by private counsel" if, in fact, a judgment was previously entered in December 1994.
[(52 x $1109) — $4679.33]
The matter was taken under advisement, and the trial court invited memoranda from the parties. On March 10, 1998, the judgment that is the subject of this appeal was rendered, accompanied by written reasons. In this judgment, it is expressly decreed that:
. . . Ruben Brown, Jr. shall pay child support in the amount of $316.00 per month . . . . with the decrease made retroactive to December 2, 1994.
. . . the child support arrears shall be recalculated retroactive to December 2, 1994, and that Ruben Brown, Jr. shall pay arrears in the amount of $84.00 per month.
. . . Darlene Lewis Brown shall carry insurance coverage for the minor children. Further, Ruben Brown, Jr. shall be responsible for 68% of all extraordinary medicals for the minor children.
This March 1998 judgment, like the judgments of December 1995 and April 1997, did not include a contempt adjudication.
In its appeal to this court, the State has assigned three errors, set forth in its brief as follows:
1. The trial court erred when it made the decrease in child support retroactive to 1994.
2. The trial court erred when it deviated from the child support guidelines when it calculated support and failed to mechanically apply them before the deviation:
3. The trial court erred as a matter of law when it failed to adjudicate more than $52,000 in past due child support.
RETROACTIVE REDUCTION OF SUPPORT
The State argues, and the majority agrees, that because Mr. Brown had adequate notice of the hearings that resulted in the December 1995 and April 1997 judgments for arrearages, his December 1994 motion for reduction cannot be given retroactive effect. In my view, however, the record does not support the conclusion that Mr. Brown received adequate notice of both hearings.
When the State filed its first Rule in August 1995, the court should have required service on Mr. Brown's attorney, because her Request for Notice had not been superceded by a withdrawal of representation. La. Code Civ.Proc. art. 1572. Nevertheless, the record reflects that Mr. Brown was given timely notice of the rescheduled hearing on this Rule through service of the State's Motion to Reset. Although this service did not provide complete details of the issues and arguments to be presented at the December 22nd hearing, it clearly stated that Mr. Brown's liability for past-due child support as well as a Rule for Contempt would be considered. The defendant apparently understood that these matters were serious enough to warrant his attendance at court; his failure to realize that he should also consult his attorney in advance of the hearing cannot be attributed to the State or the judicial system. On these facts, I agree with the majority that the judgment of December 22, 1995 was rendered after adequate notice to Mr. Brown.
Because there was no proof that either Mr. Brown or his attorney had been served with this Rule, it would have been prudent to attach a copy of the original Rule to the State's Motion to Reset for service purposes.
However, I do not agree that the record establishes that Mr. Brown (or his attorney) was given adequate notice of the State's second Rule for Contempt and to Make Past Due Support Executory, which was filed in May 1996.
The record establishes only that Mr. Brown was notified in January 1997 that he was to "show cause on 25 April 199[7] at 9:00 a.m. why, after due proceedings, any and all licenses he holds should not be revoked" because of his failure to pay child support. Mr. Brown was not put on notice that a money judgment of any amount might be rendered in connection with that Rule.
In fact, service of the second Rule would have put Mr. Brown on notice that the State considered him to be about $5,300.00 in arrears, which is nowhere close to the $43,914.80, plus interest and attorneys fees, actually awarded in the judgment on the State's second Rule.
Because neither Mr. Brown nor his attorney was served with the State's second Rule, as required by Civil Procedure article 2594 as well as by fundamental due process, I find that the judgment rendered April 25, 1997 is an absolute nullity, and is not an obstacle to a retroactive reduction in the defendant's child support obligation. See Barrios v. Barrios, 95 1390, pp. 5-7 (La.App. 1st Cir. 2/23/96), 694 So.2d 290, 293-94, writ denied, 96-0743 (La. 5/3/96), 672 So.2d 691, and cases cited therein. Despite this conclusion, I agree with the majority that Mr. Brown is not entitled to a retroactive reduction in child support.
The record establishes that Mr. Brown failed to prove the requisite change in circumstances under R.S. § 9:311 A. The judgment of December 5, 1994 denied his motion to reduce child support based on the trial court's determination that Mr. Brown had been voluntarily underemployed since September 1993, when he was discharged because of his own misconduct from a job at which he earned $16.21/hour. Mr. Brown has continued to be voluntarily underemployed since that time, earning $6.00/hour or less, intermittently, throughout 1995 and 1996, and $12.50/hour since March 1997. The only significant decrease in Mr. Brown's income occurred prior to both of his Motions to Reduce; in between the date his second motion was filed and then heard, his income had significantly increased.
Nor do I agree that Mr. Brown is automatically entitled to a reduction of the in globo support award because his oldest child has reached age eighteen. See R.S. § 9:315.22 B. Finally, as discussed more fully below, I do not agree that the SSI received by another of the couple's minor children should offset Mr. Brown's monthly support obligation. I, therefore, concur in the majority's reversal of the retroactivity given to Mr. Brown's motion for reduction.
CALCULATION OF PROSPECTIVE MONTHLY SUPPORT AWARD
I find merit in the State's contention that the trial court erred in fixing Mr. Brown's monthly support obligation at only $316.00 per month.
The State complains that this results in an unjustified and unexplained deviation from the statutory guidelines, necessitating a recalculation pursuant to R.S. § 9:315 et seq. The majority rejects this position, and further finds that Mr. Brown is entitled to a reduction equal to the amount of Corey's disability payments.
Based upon the parties' allegations at the February 1998 hearing, the combined monthly income of these two parents is at least $3,400.00, which would result in a scheduled support obligation of $794.00 for the two minor children. However, no evidence or testimony appears in the record regarding Ms. Brown's child care expenses, if any, or concerning the availability and cost of health insurance coverage to either parent. There is no worksheet in the record that would clarify the district court's calculation. In my view, therefore, the record evidence does not support the trial court's reduction of Mr. Brown's monthly support obligation from $1,109.00 to a mere $316.00, plus $84.00 towards arrearages. Accordingly, I would remand on this issue for the submission of further evidence and inclusion of a worksheet, as well as for specific oral or written reasons for any deviation, as required by § 9:315.1 B.
Ms. Brown's salary is $1,141.00 per month; Mr. Brown earns $12.50/hour x 84 hours = $1,050.00 every two weeks x 26 = $27,300.00/year ÷ 12 months = $2,275.00/month.
However, on remand I would prohibit any deduction, credit or offset for Corey's SSI payments in recalculating Mr. Brown's prospective support obligation.
SSI benefits, unlike the Social Security dependent's benefits at issue in the Phillips and Corley cases cited by the majority, is based upon a recipient's income. Corey's SSI payment is reduced when Mr. Brown pays child support. This, as well as the states' increased involvement in child support enforcement, is a recognition that the support burden should be borne by parents, such as Mr. Brown, who can afford to provide some portion of their children's basic living expenses. Allowing Mr. Brown to "offset" his support obligation undermines that policy. Accordingly, I respectfully dissent from the majority's discussion and resolution of this issue.
FAILURE TO ACCUMULATE
In its final assignment of error the State contends that a judgment for more than $52,000.00 should have been entered as of March 1998 because its records showed that was the amount Mr. Brown owed since his last voluntary payment in September 1993. On the record presented, I find this argument to be meritless. Indeed, in my opinion, the interests of justice require modification of judgments previously rendered.
As it presently stands, the three judgments entered against Mr. Brown total $87,738.64. The State's argument for entry of another judgment for $52,988.67, the accumulated arrearages calculated at the most recent hearing, presumes that one judgment for arrearages automatically supercedes or nullifies all prior judgments. I find no basis in the law nor has the State offered any authority for this proposition. Therefore, even without a retroactive reduction in the support due from Mr. Brown, the State clearly is not entitled to a judgment in the amount sought. See Burnette v. Burnette, 98-0498, p. 12 (La.App. 4th Cir. 10/21/98), 720 So.2d 757, 763.
In my view, because Mr. Brown's total judgment debt clearly exceeds the actual total owed, justice requires not only that the April 1997 judgment be annulled and vacated in its entirety for lack of notice, but that the December 1995 judgment be amended by the trial court. Under Civil Procedure article 1951 (2), an error in calculation may be corrected at any time. The record now before this court clearly establishes that the judgment rendered December 22, 1995 contains a calculation error that should be corrected.
For these reasons, I join in the majority's reversal of the grant of a retroactive reduction in support, but dissent from its affirmation of the $316.00 per month child support ordered by the trial court. Instead, I find that a remand is necessary to fix the monthly amount based upon the parties' current income, without allowing any deduction for Corey's SSI payments. In addition, I would annul and vacate the judgment of April 25, 1997, and order an amendment to the judgment of December 22, 1995 to deduct $14,703.42, the amount of the prior 1994 judgment, from the total arrearages made executory.