source: Caselaw Access Project

author: _[2_FITZSIMMONS, J. hLANIER, J.,

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text:
    Tracey Lynn Porche WALDEN v. Kenneth James WALDEN.
    No. 2000 CA 2911.
    Court of Appeal of Louisiana, First Circuit.
    Aug. 14, 2002.

      Thomas L. Mahfouz, Morgan City, Counsel for Plaintiff/Appellee Tracey Walden.
    J.P. Morelia, Patterson, Counsel for Defendant/Appellant Kenneth Walden.

      Before: FOGG, PARRO, FITZSIMMONS, DOWNING, and LANIER
      , JJ.

      . The Hon. Walter I. Lanier, Jr., Judge (retired), First Circuit Court of Appeals, is serving as judge pro tempore by special appointment of the Louisiana Supreme Court.

   _[2_FITZSIMMONS, J.

Defendant-appellant, Kenneth Walden, sought a reduction in his child support obligation and to have the court proportionally allocate the child support between his two minor children. The trial court denied Mr. Walden’s requests. He appealed. We reverse in part, and remand.

FACTS AND PROCEDURAL HISTORY

The parties to this action, Kenneth James Walden and Tracey Lynn Porche Walden, were married on October 24,1992, in St. Mary Parish. Of their marriage, two children were born: Kennedi Claire Walden, born March 26, 1994, and Kamer-on Christopher Walden, born January 06, 1999.

On January 20, 2000, Mrs. Walden filed a petition for divorce pursuant to La. C.C. art. 102. A hearing on various rules was held on February 9, 2000. The testimony at this initial hearing established that Mr. Walden had been employed for approximately two and a half years at Columbia Chemical Company as a utility sacker earning $20.26 per hour. He regularly worked a significant amount of overtime. Mr. Walden testified that he worked the overtime to achieve family goals. As of December 19th, his gross earnings for the year of 1999 were $75,226.34, with $23,592.07 of that amount attributed to overtime earnings. Mrs. Walden stated he made nearly the same amount in 1998, though probably a little less. Mrs. Walden testified that Mr. Walden never complained about working overtime prior to the divorce proceedings. However, at the first hearing, Mr. Walden testified that he would no longer voluntarily work overtime because his family was no longer a unit and he was physically and mentally drained.

Mr. and Mrs. Walden mutually agreed to send their daughter, Kennedi, to St. John’s, a private school, where she was in kindergarten. Mr. Walden testified that he had no problem with his daughter attending this school; and, as far as he knew, she was doing well there. Mrs. Walden testified that the tuition at St. John was $213.00 per month and that daycare and after-school care costs for both children totaled $279.50 per month. Finally, although there was a provisional visitation plan granting Mr. Walden at least four days a month with his children, Mrs. Walden agreed to remain ^flexible, allowing Mr. Walden any additional days that his rotating work schedule would allow.

When the hearing was concluded, Mr. Walden was ordered to pay Mrs. Walden child support of $1,591.00 per month for the two minor children. Although Mr. Walden had requested that the court not use his overtime earnings in calculating his gross income, his request was denied. The court established Mr. Walden’s monthly gross income as $6,211.00 and Mrs. Walden’s monthly gross income as $1,275.00, for a total monthly gross income of $7,486.00. The basic child support obligation was determined on this amount. The court then added to the basic support obligation, $279.00 for child care costs and $213.00 for private school tuition. Mr. Walden was granted the tax deductions for the two children every year. Mrs. Walden waived any right to spousal support in return for the amount of child support she would be receiving.

Subsequent to the rule on February 9, 2000 and beginning in mid-June, 2000, Mr. Walden accepted a promotion to utility operator. As a result, his hourly pay increased to $20.97 per hour.

On August 14, 2000, Mr. Walden filed a rule for reduction of child support based on a change of circumstances. He asserted that he was averaging less income per month than when the initial determination of child support was made on February 9, 2000. Essentially, he claimed that, although his new job paid a slightly higher hourly rate, he was now making less income because he no longer had substantial overtime available to him.

The trial on this rule was heard on September 13, 2000. Mr. Walden introduced into evidence paycheck stubs from the date he started working in his new position. The evidence showed Mr. Walden’s monthly gross income decreased from $6,211.00 to between $4,200.00 and $4300.00. The court found as a fact that Mr. Walden was voluntarily underemployed, and denied his request for a reduction in child support.

Mr. Walden had also asked the court to remove the private school tuition from the support obligation, to order Kennedi to attend a public school, and to allocate the child support award proportionally between the two children. The court denied these requests as well.

|4On September 25, 2000, the trial court signed a judgment denying Mr. Walden’s requests. Mr. Walden has appealed.

STANDARD OF REVIEW

The standard of appellate review of factual findings in a civil action is a two-part test: (1) the appellate court must find from the record there is a reasonable factual basis for the finding of the fact finder, and (2) the appellate court must further determine the record establishes the finding is not clearly wrong (manifestly erroneous). Mart v. Hill, 505 So.2d 1120, 1127 (La.1987). Factual findings should not be reversed on appeal absent manifest error. Rosell v. ESCO, 549 So.2d 840, 844 (La.1989); State ex rel. A.M. v. Taylor, 2000-2048, p. 8 (La.App. 1 Cir. 2/15/02), 807 So.2d 1156, 1162. If the trial court’s “findings are reasonable in light of the record reviewed in its entirety, the court of appeal may not reverse .... ” Sistler v. Liberty Mutual Ins. Co., 558 So.2d 1106, 1112 (La.1990). Consequently, when there are two permissible views of the evidence, the fact finder’s choice between them cannot be manifestly erroneous. Id.; Stobart v. State, Department of Transportation and Development, 617 So.2d 880, 883 (La.1993). A child support award will not be reversed absent an abuse of discretion. State, Department of Social Services, Support Enforcement Services, ex rel. A.M. v. Taylor, 2000-2048 at p. 8, 807 So.2d at 1162.

REDUCTION OF CHILD SUPPORT

Mr. Walden contends that the trial court erred in failing to reduce his monthly child support obligation. He argues that the trial court erroneously included overtime pay in determining his gross income for child support purposes. He also claims that the trial court erred in finding him voluntarily underemployed for taking a promotion with a higher wage, but less opportunity for overtime. He further contends that the trial court should have deviated from the child support guidelines as the amount of the award is larger than necessary to care for two small children, and that the award should at least be offset by the amount of time the children spend in his care and custody. Lastly, he argues that the trial court erred by adding gross, rather than net, child care costs to the basic support obligation. Each of these elements will be reviewed separately.

| B’Voluntary Underemployment and Extraordinary Overtime

Mr. Walden argues that the trial court should have reduced his child support obligation based on a change in circumstances since the original order. Mr. Walden maintains that the trial court was manifestly erroneous in failing to exclude his prior overtime income and in finding him to be voluntarily underemployed by taking a promotion at his company.

At the time this suit arose, the law defining “gross income” for the purposes of calculating child support obligations was La. R.S. 9:315(4)(a), which stated as follows:

(4) “Gross Income” means:
(a) The income from any source, including but not limited to salaries, wages, commissions, bonuses, dividends.... ”

The rule for the inclusion of overtime is found in La. R.S. 9:315(4)(d)(iii), which provided:

(d) As used herein, “gross income” does not include:
(in) Extraordinary overtime or income attributed to seasonal work regardless of its percentage of gross .income when, in the court’s discretion, the inclusion thereof would be inequitable to a party.

However, if a parent is voluntarily underemployed, child support shall be calculated based on his or her earning potential. La. R.S. 9:315.2(B) & 315.9.

“An award of child support may be modified if the circumstances of the child or of either parent change and shall be terminated upon proof that it has become unnecessary.” La. C.C. art. 142. “An award for support shall not be reduced or increased unless the party seeking the reduction or increase shows a change in circumstances of one of the parties between the time of the previous award and the time of the motion for modification of the award.” La. R.S. 9:311(A). Generally, the requisite threshold change need not be substantial. Thus, the party seeking the modification has the burden of proving that a change in circumstances has occurred since the fixing of the prior award. State, Department of Social Services, Support Enforcement Services ex rel. A.M. v. Taylor, 2000-2048 at p. 6, 807 So.2d at 1161.

IfiMr. Walden testified that he was working a significant number of overtime hours per week for long-term, but limited family goals: to purchase a new home and cars for the family. After the family broke up, he lost the motivation to work so many extra hours for things that were no longer family goals. Based on the evidence in the record, his monthly pay went from approximately $6000.00 to about $4200.00 per month because of the reduction in the amount of overtime. The overtime was not required by his employer, and was not an essential part of that job description, or guaranteed. Neither is this a case of a father who refused to work or one who intentionally accepted a lower paying job or a job beneath his potential and training. In fact, Mr. Walden accepted a higher paying promotion. It is only the classification of significant overtime that is at issue here.

At the time of trial, Mr. Walden was gainfully employed and made a decent living working 40-44 hours a week, with the possibility of occasional overtime. That is the basis that should be used for calculation of child support. In this particular ease, despite any inconsistencies in testimony, the overtime was voluntarily undertaken for a limited goal, and outside of the ordinary full-time job requirements and income. Thus, it was “extraordinary” income. To find otherwise under the particular facts here would require all parents who worked overtime for a limited goal, to continue to work the highest level of overtime achieved or be classified as underemployed.

Under the positive law specifically applicable, “extraordinary” overtime should not be included if the inclusion would be “inequitable.” La. R.S. 9:315(4)(d)(iii). It is the duty of parents to support their children. La. C.C. art. 227. However, the courts must be balanced in their enforcement of this duty and not impose extraordinary requirements on parents. The concern of the law and society, and therefore the courts, should be with true unemployment or underemployment of both parents of school-aged children, not one parent’s decision to discontinue extraordinary pursuits or sacrifices after the family has broken up. We find that the imposition of judicially mandated long-term overtime in this particular case would be inequitable.

Under the facts of this case, the trial court clearly erred when it considered Mr. Walden’s potential, rather than actual income. For these reasons, we reverse the portion of the judgment denying his request for a reduction in his support obligation |7based on a change in circumstances. The trial court should have granted the request and used the actual income for the support calculation.

Normally, this court would re-calculate the support award using the income rate provided in the record. . However, in this case, we have also found an error in the fixing of child care costs. Unfortunately, the record lacks the evidence necessary for re-calculation on that issue. Without the necessary child care cost figures, the final re-calculation of child support also cannot be made by this court. Thus, we remand to the trial court for a re-calculation of the child support obligation consistent with this opinion. After re-calculation, any modification resulting shall be retroactive to the date of judicial demand. La. R.S. 9:315.21(0); see Hogan v. Hogan, 549 So.2d 267, 271-74 (La.1989); State, Department of Social Services, Support Enforcement Services, ex rel. A.M. v. Taylor, 2000-2048 at p. 2, n. 2 & 16, 807 So.2d at 1158, n. 2 & 1168.

Excessive Award

Mr. Walden argues that the trial court should have deviated from the child support guidelines. He asserts that the amount of the award mandated by the guidelines is larger than necessary to care for two small children.

There is a rebuttable presumption that the amount of child support obtained by use of the guidelines is the proper amount of child support. La. R.S. 9:315.1(A); Campbell v. Campbell, 95-1711, p. 5 (La.App. 1 Cir. 10/10/96), 682 So.2d 312, 317. Moreover, the parental obligation to pay child support must be implemented within the body of law contained in the Louisiana Child Support Guidelines. La. R.S. 9:315.1; State in Interest of Travers, 28,022, p. 4 (La.App. 2 Cir. 12/6/95), 665 So.2d 625, 627. As such, the guidelines are intended to fairly apportion between the parents the mutual financial obligation they owe their children, in an efficient, consistent, and adequate manner. State in Interest of Travers, 28,022 at p. 4, 665 So.2d at 627.

|sThe legislation also provides that the court may deviate from the guidelines “if their application would not be in the best interest of the child or would be inequitable to the parties.” La. R.S. 9:315.1(B). If the trial court deviates, it must “give specific oral or written reasons for the deviation, including a finding as to the amount of support that would have been required under a mechanical application of the guidelines and the particular facts and circumstances that warranted a deviation from the guidelines.” Id.

In the present case, Mr. Walden produced absolutely no evidence, save his opinion, that the amount of the award was more than necessary to care for two small children, and should therefore be reduced. In the absence of any evidence to rebut the La. R.S. 9:315.1(A) presumption, Mr. Walden failed to carry his burden of proof to show that the application of the guidelines would not be in the best interests of the children or would be inequitable to him. Therefore, we see no abuse of discretion by the trial court in its application of the guidelines.

Adjustment for Time with Nondomiciliary Parent

Mr. Walden argues another ground for deviation. He believes that the trial court should have considered the amount of time the children are in his care and custody, and reduced the support accordingly.

Louisiana Revised Statute 9:315.8(E), provides:

In cases of joint custody, the court shall consider the period of time spent by the child with the nondomiciliary party as a basis for adjustment to the amount of child support to be paid during that period of time. The court shall include in such consideration the continuing expenses of the domiciliary party.

Because the statute envisions the possibility of a deviation from the presumptively proper amount provided in the guidelines, Mr. Walden bears the burden of proving that the deviation is warranted.

The Louisiana Supreme Court, in Guillot v. Munn, 99-2132 (La.3/24/00), 756 So.2d 290, provided guidance on the application of La. R.S. 9:315.8(E). The Guillot court enunciated a three-prong test to determine whether a deviation from the support guidelines was justified based on the length of time the child spends with the 19nondomiciliary parent. The supreme court found it reasonable to conclude that a “typical” amount of visitation had necessarily been contemplated in the actual setting of the guidelines. Guillot, 99-2132 at p. 11, 756 So.2d at 298-99. Thus, for a deviation, the trial court must find that the visitation in question was non-typical or “extraordinary.” Guillot, 99-2132 at p. 13, 756 So.2d at 300. Second, the court must consider whether the extra time spent with the nondomiciliary parent results in a greater financial burden on that parent and in a concomitant lesser financial burden on the domiciliary parent. Finally, the court must determine that the application of the guidelines in a particular ease under consideration would not be in the best interest of the child or would be inequitable to the parties. This prong is nee-essary to satisfy the deviation requirement of La. R.S. 9:315.1(B). Id. There is no “bright line” as to what constitutes extraordinary visitation as opposed to “typical” visitation. This determination falls within the great discretion of the trial court. Guillot, 99-2132 at p. 14, 756 So.2d at 300-301.

In the present case, Mr. and Mrs. Walden consented to a joint custody agreement setting forth the terms of visitation that provided, in part:

For every six days the father works, he is off two consecutive days (hereinafter referred to as “two-off-day period”). The father shall have physical custody every other “two-off-day period” .... The father is to have physical custody for two additional days during each month upon twenty four (24) hour notice to the mother ... with the proviso that the mother does not have any prior plans with the children ....

The plan also granted Mr. Walden specified holiday visitation and summer visitation of two weeks, plus all of the father’s days off from work. Mrs. Walden agreed to remain flexible with the plan in order to facilitate Mr. Walden having the children on any additional days that his fluctuating work schedule allowed.

Such a plan can reasonably be termed a typical amount of visitation. Even if the trial court had found that Mr. Walden’s visitation was extraordinary, Mr. Walden did not present any evidence that the shared custody arrangement resulted in an increased financial burden for him and a concomitant decreased financial burden for Mrs. Walden. Mr. Walden merely stated that when the children were with him, he spent money to feed and clothe them. Finally, Mr. Walden did not establish that the application of the linsupport guidelines was not in his children’s best interest or resulted in any inequity to him. Therefore, the trial court properly applied the guidelines. The evidence did not support a deviation based on the amount of time the children spend with Mr. Walden.

Child Care Costs

Lastly, Mr. Walden argues that the trial court should have reduced the support obligation based on proof at the hearing of lower child care costs. He also argues that the trial court should have deducted the tax credit available to the mother.

Louisiana Revised Statute 9:315.3 provides that “[n]et child care costs shah be added to the basic child support obligation.” Net child care costs are defined as “the reasonable costs of child care incurred by a party due to employment or job search, minus the value of the federal income tax credit for child care.” La. R.S. 9:315(7).

The appellate record contains incomplete information regarding Mrs. Walden’s claim for child care costs. During the initial hearing, Mrs. Walden testified that the total amount she paid for child care was $279.50 per month. The trial court added the amount of $279.00 to the basic child support award. At the second hearing, Mrs. Walden testified that the cost of Kameron’s daycare was $215.00 per month. She further testified that Kennedi was now attending after-school care at St. John’s, but she did not quantify that cost. Additionally, we note that the transcript makes absolutely no mention of the federal tax credit, nor did the trial court consider the credit. La. R.S. 9:315.3 and 9:315(7).

Accordingly, the trial court shall hold a hearing to determine the child care costs and tax credit at the time of the hearing. The court shall then recalculate the award using net child care costs in conformity with the statute and the views expressed herein. See Lewis v. Lewis, 624 So.2d 1211-12 (La.1993); Buchert v. Buchert, 93-1819, p. 15 (La.App. 1 Cir. 8/26/94), 642 So.2d 300, 309.

11 DESIGNATION OF SCHOOL

In his second assignment of error, Mr. Walden contends that the trial court erred in denying his motion for an order requiring his daughter Kennedi to attend a public school instead of a private school.

While Mr. and Mrs. Walden were still married, they made a mutual decision to send their daughter Kennedi to St. John’s, a private Catholic school, where she subsequently attended kindergarten. Pursuant to the divorce proceedings, Mr. and Mrs. Walden entered into a joint custody agreement that required them to jointly discuss and consider the schools that the children would attend. At the hearing on February 9, 2000, Mr. Walden testified that he did not object to Kennedi’s attendance at St. John’s. However, on June 28, 2000, Mr. Walden had his attorney send a letter to Mrs. Walden informing her that he no longer wanted Kennedi to attend a private school. Conversely, Mrs. Walden wanted Kennedi to remain at St. John’s. The joint custody agreement, which required decisions regarding education to be discussed, also named Mrs. Walden as the domiciliary parent.

All major decisions made by the domiciliary parent, which would include choice of schools, are subject to judicial review upon motion of the non-domiciliary parent. La. R.S. 9:335(B)(3). In the judicial review, it is presumed that all major decisions made by the domiciliary parent are in the best interest of the child. Id.

In this case, Mr. Walden failed to overcome the presumption in favor of Mrs. Walden’s choice that attendance at St. John’s was in Kennedi’s best interest. Mr. Walden produced absolutely no evidence about the available public school or any of its benefits. Nor did he offer any evidence indicating that Kennedi’s attendance at St. John’s was not in her best interest. Indeed, he even conceded that St. John’s was a good environment for his daughter and that he believed she was doing well there. The legal presumption that Mrs. Walden’s choice is in the best interest of Kennedi must prevail in the absence of evidence to the contrary. We therefore affirm the trial court’s denial of Mr. Walden’s rule to require Kennedi to leave her private school to attend a public school.

J¿¿PRIVATE SCHOOL EXPENSE

In his third assignment of error, Mr. Walden argues that the trial court erred in including private school tuition in the basic child support obligation.

Expenses associated with private schooling are not automatically added to the basic child support obligation. La. R.S. 9:315.6(1); Campbell v. Campbell, 95-1711 at p. 10-11, 682 So.2d at 320. Louisiana Revised Statute 9:315.6(1) allows the addition of private school expenses to an award of child support by either agreement of the parties' or by order of the court upon a finding that the private schooling is necessary to meet the particular educational needs of the child. Kelly v. Kelly, 99-2478, p. 12 (La.App. 1 Cir. 12/22/00), 775 So.2d 1237, 1245, writ denied, 2001-0234 (La.3/23/01), 787 So.2d 1001. Before private school tuition expenses should be mandated for inclusion in a child support award, some evidence must be presented to show a particular educational need of the child is met by attendance at a private school. Id.; Valure v. Valure, 96-1684, p. 3 (La.App. 1 Cir. 6/20/97), 696 So.2d 685, 687. A particular educational need includes consideration of the child’s history of attending private school and whether a continuation of the child’s education in.that setting is in the child’s best interest. Valure, 96-1684 at p. 4, 696 So.2d at 688. However, a trial court’s decision to add private school tuition expenses to the basic child support obligation will not be disturbed, unless it is an abuse of discretion. Valure, 96-1684 at p. 3, 696 So.2d at 687.

In the case before us, Mr. Walden admits that, while still married to Mrs. Walden, he agreed that Kennedi should attend St. John’s private school when she began kindergarten. His agreement continued until June, 2000, when he had his attorney send a letter to Mrs. Walden stating that he no longer agreed that Kennedi should attend a private school.

Mrs. Walden gave ample testimony to support the trial court’s addition of private school expenses to the child support award. She testified that St. John’s administered a test to all kindergarten students at the end of the year. After testing, Mrs. Walden was notified that Kennedi scored poorly in both math and reading. The school informed Mrs. Walden that Kennedi’s low scores made her eligible for its program providing 11sspecial one-on-one tutoring by a teacher during the school day. Kennedi has since been receiving this tutoring on a weekly basis. Mrs. Walden further testified that she works until 5:00 p.m., but school ends at approximately 3:00 p.m. Kennedi would receive after-school care at St. John’s that would be supervised by two teachers who assist the children with their homework or do other enrichment activities with them.

■ From our review of the record, we see no manifest error. In this case, there was sufficient evidence to support the trial court’s finding that the addition of private school expenses was necessary to meet the particular educational needs of the child.

ALLOCATION OF CHILD SUPPORT

In his final assignment of error, Mr. Walden contends that the trial court erred in denying his motion to have the child support allocated proportionately to each child. He wants one-half of the award specifically allocated to Kennedi and the other half specifically allocated to Kameron.

“Prior to the enactment of the child support guidelines, child support judgments in Louisiana were either a ‘per child’ award or an ‘in globo’ award.” Nations, Louisiana’s Child Support Guideline: A Preliminary Analysis, 50 La. L.Rev. 1057, 1081 (1990). Now, under the guidelines, “child support awards in Louisiana are ‘in globo’ awards.” Id.; see La. R.S. 0:315.14. “Two basic theories underlying the design of the schedule of basic child support obligations are that certain household expenses considered in the cost of a child’s support cannot simply be divided by the number of children in the home and thus equitably stated and that a smaller percentage of total income is spent on each child as a result of the economies of scale as the number of children in a family increases.” Nations, Louisiana’s Child Support Guideline: A Preliminary Analysis, 50 La.L.Rev. 1057, 1081-1082 (1990).

Appellant cites two of this court’s cases, Colvin v. Colvin, 94-2143 (La.App. 1 Cir. 10/06/95), 671 So.2d 444, writ denied, 95-2653 (La.1/5/96), 667 So.2d 522, and Leonard v. Leonard, 615 So.2d 909 (La.App. 1 Cir.1993), for the proposition that the trial court may divide the basic child support obligation by the number of children and allocate it accordingly. However, the cases that Mr. Walden cites involve the issue of split custody. In Colvin and Leonard, the custody of the three children was split, with|uthe father receiving custody of one child and the mother receiving custody of the other two children. In both cases, it was necessary that the court split the child support obligation by the total number of children and determine what support was due to each parent. Here, however, both of the children at issue have lived, and will continue to live, with Mrs. Walden, the domiciliary parent. There is no split custody arrangement. Thus, in this particular case, we cannot say that the trial court erred in denying the request to allocate the support per child.

DECREE

For the foregoing reasons, we reverse the portion of the judgment that denied the request to reduce child support. The case is remanded for an evidentiary hearing on the issue of child care costs, and for the recalculation of child support. The new award is made retroactive to the date of judicial demand. However, Mr. Walden is ordered to continue making child support payments in the amount of $1,591.00 per month until the trial court renders a new judgment. See Buchert, 93-1819 at p. 18, 642 So.2d at 310. In all other respects, the judgment of the trial court is affirmed. The case is remanded to the trial court for further proceedings consistent with this opinion. The costs of the appeal are assessed equally to plaintiff-appellee and defendant-appellant.

REVERSED IN PART; AFFIRMED IN PART; REMANDED WITH INSTRUCTIONS.

hLANIER, J.,

concurring in part and dissenting in part.

I respectfully dissent from the majority’s holdings on (1) reduction of the child support obligation of Mr. Walden, (2) what constitutes voluntary underemployment and (3) what constitutes extraordinary overtime income. I concur in all other holdings that are not inconsistent with these dissenting opinions.

CORRECTNESS OF THE CHILD SUPPORT AWARD

The Statutory Law

Determining the gross income of the parents of a child is essential to the calculation of their basic child support obligation. La. R.S. 9:315.2. Income is defined in La. R.S. 9:315(6), in pertinent part, as follows:

(6) “Income” means:
(a) Actual gross income of a party, if the party is employed to full capacity; or
(b) Potential income of a 'party, if the party is voluntarily unemployed or underemployed. A party shall not be deemed voluntarily unemployed or underemployed if he or she is absolutely unemployable or incapable of being employed, or if the unemployment or underemployment results through no fault or neglect of the party. (Emphasis added.)

Gross income is defined in La. R.S. 9:315(4) as follows:

(4) “Gross Income” means:
(a) The income from any source, including but not limited to salaries, wages, commissions, bonuses, dividends, severance pay, pensions, interest, trust income, annuities, capital gains, social security benefits, worker’s compensation benefits, unemployment insurance benefits, disability insurance benefits, and spousal support received from a preexisting spousal support obligation;
* * *
(d) As used herein, “gross income” does not include:
(iii) Extraordinary overtime or income attributed to seasonal work regardless of its percentage of gross income when, in the cowi’s discretion, the inclusion thereof would be inequitable to a' party. (Emphasis added.)

La. R.S. 9:315.2B provides as follows:

|?If a party is voluntarily unemployed or underemployed, his or her gross income shall be determined as set forth in R.S. 9:315.9.

La. R.S. 9:315.9 provides, in pertinent part, as follows:

If a party is voluntarily unemployed or underemployed, child support shall be calculated based on a determination of his or her income earning potential, unless the party is physically or mentally incapacitated, or is caring for a child of the parties under the age of five years. (Emphasis added.)

The establishing or modifying of the basic child support obligation is provided for in the schedule found in La. R.S. 9:315.14A. La. R.S. 9:315.1A. La. R.S. 9:315.1A also provides, in pertinent part, as follows:

There shall be a rebuttable presumption that the amount of child support obtained by use of the guidelines set forth in this Part is the proper amount of child support.

La. R.S. 9:311A provides as follows:

An award for support shall not be reduced or increased unless the party seeking the reduction or increase shows a change in circumstances of one of the parties between the time of the previous award and the time of the motion for modification of the award.

La. C.C. art. 142 provides as follows:

An award of child support may be modified if the circumstances of the child or of either parent change and shall be terminated upon proof that it has become unnecessary.

Interpretation of Statutes and Civil Code Articles (Law)

Special rules for interpreting the Revised Statutes are found in La. R.S. 1:1 et seq. La. R.S. 1:3 provides as follows:

Words and phrases shall be read with their context and shall be construed according to the common and approved usage of the language. Technical words and phrases, and such others as may have acquired a peculiar and appropriate meaning in the law, shall |3be construed and understood according to such peculiar and appropriate meaning.
The word “shall” is mandatory and the word “may” is permissive.

La. R.S. 1:4 provides as follows:

When the wording of a Section is clear and free of ambiguity, the letter of it shall not be disregarded under the pretext of pursuing its spirit.

Louisiana Civil Code articles providing for the interpretation of laws are found at La. C.C. art. 9 et seq. See, in particular, La. C.C. arts. 9 and 11. La. C.C. art. 13 provides as follows:

Laws on the same subject matter must be interpreted in reference to each other.

The following jurisprudential rules for interpreting laws are found in Bunch v. Town of St. Francisville, 446 So.2d 1357, 1360 (La.App. 1 Cir.1984) are applicable: When a law or ordinance is clear and free from all ambiguity, it must be given effect as written ....

When interpreting a law (ordinance), the court should give it the meaning the lawmaker intended. It is presumed that every word, sentence -or provision in the law was intended to serve some useful purpose, that some effect is to be given to each such provision, and that no unnecessary words or provisions were used. Conversely, it will not be presumed that the lawmaker inserted idle, meaningless or superfluous language in the law or that it intended for any part or provision of the law to be meaningless, redundant or useless. The lawmaker is presumed to have enacted each law with deliberation and with full knowledge of all existing laws on the same subject. The meaning and intent of a law is to be determined by a consideration of the law in its entirety and all other laws on the same subject matter, and a construction should be placed on the provision in question which is consistent with the express terms of the law and with the obvious intent of the lawmaker in enacting it. Where it is possible to do so, it is the duty of the courts in the interpretation of laws to adopt a construction of the provision in question which harmonizes and reconciles it with other provisions. A construction of a law which creates an inconsistency should be avoided when a reasonable interpretation can be adopted which will not do violence to the plain words of the law and will carry out the intention of the law maker....
When the expressions of a law are “dubious”, the most effectual way of discovering the true meaning of the law is to consider the reason and spirit of it, or the cause which induced the lawmaker to enact it .... When a law is susceptible to two or more interpretations, that which affords a reasonable and practical effect to the entire act is to be preferred over one which renders Lpart thereof ridiculous or nugatory .... If there is an irreconcilable conflict between the provisions of a law, only one provision can prevail.

Ordinary or Extraordinary Overtime Income

The majority correctly observes that “Mr. Walden maintains that the trial court was manifestly erroneous in failing to exclude his prior overtime income ....”

At the initial hearing on February 9, 2000, Mrs. Walden testified that Mr. Walden worked in excess of 70 hours every week during his entire period of employment. At the same hearing, Mr. Walden was asked directly by his attorney how many hours of work a week he averaged in 1999. Mr. Walden testified he worked between 75 to 80 hours every week. The trial court judge was not satisfied with Mr. Walden’s testimony about the number of hours he worked and questioned him directly. The testimony is as follows:

BY THE COURT:
Q: That’s not enough hours. It doesn’t make the hours.
A: The hours for-
Q: Does that make 75 to 80 hours a week?
Q: So you’re working 40 hours per week?
A: Over. Right. I work 40 — 40, plus forty more.
Q: So you work 80 hours a week?
A: Yes, sir.
Q: All right. It doesn’t seem like the hours you gave us would add up to 80 hours a week. Does it?

Although Mr. Walden testified he worked between 75 and 80 hours every week, the check stub he submitted into evidence showing his year-to-date hours worked up to December 19, 1999, did not corroborate this testimony. It showed that in 1999 Mr. Walden worked an average of 15-16 hours of overtime a week for a total average of 55-56 hours of work per week. This is a difference of approximately 20-25 hours per week from his testimony. Mr. Walden’s check stub shows that for the pay period ending on Dec. 19, 1999, he only worked an average of 14 hours per week overtime. The evidence is uncontra-dicted that Mr. Walden worked overtime every week for the entire period of his employment at 1 RColumbia, which was approximately tivo to two and a half years. This was the ordinary, and not the extraordinary, way he worked.

At the initial hearing, Mr. Walden stated he did not want to continue to work any overtime. He asserted his overtime income should not be used in calculating his child support obligation. The trial court judge denied his request.

After the first judgment, Mr. Walden continued to work the same overtime for the following several months. However, in the middle of June 2000, Mr. Walden left his job as utility sacker and took a position as a utility operator in another department. Mr. Walden then filed a rule in August of 2000 requesting a reduction in his child support obligation.

At the hearing to modify the child support award conducted on September 13, 2000, Mr. Walden essentially testified that, although his new base pay was between 31 and 71 cents more an hour, he was actually making substantially less income because his new position offered less opportunity for overtime. He further testified that overtime at Columbia was not guaranteed.

When questioned about the overtime he was working in his new position, Mr. Walden testified as follows:

Q: All right. You’re working about how many hours a week now?
A: Roughly, 40. Roughly 40 hours. Every now and then, you know, 44. If someone’s on vacation, I may have to fill in a vacation spot, you know, at times.

Again, however, there is a discrepancy between his testimony and the documentary evidence. Mr. Walden’s check stubs show the income from his new position and show he was actually working an average of 5.45 hours of overtime every week for a total of approximately 46 work hours per week.

The documentary evidence shows Mr. Walden went from working approximately 15-16 hours of overtime each week to working approximately 6 hours of overtime each week. This 10 Rhours of overtime per week difference reduced Mr. Walden’s monthly income approximately $1,800 to $2,000.

Ordinarily, the issue of whether Mr. Walden’s overtime income is ordinary or extraordinary would be a question of fact subject to the manifest error rule of appellate review. However, as hereinafter set forth, the manifest error rule does not apply to this assignment of error. It is essential to determine what is ordinary overtime income and what is extraordinary overtime income when determining the child support obligation. The former may not be excluded from gross income as a matter of law when determining the child support obligation, whereas, the latter may be excluded as a matter of law in the discretion of the trial court.

Pursuant to La. R.S. 1:3, words and phrases in the Revised Statutes “shall be construed according to the common and approved usage of the language.” See also La. C.C. art. 11.

Webster’s II New College Dictionary 784 (2001) defines overtime as “n. (1) Time beyond an established limit, such as: a. Working hours in addition to those of the regular schedule. (2) Payment for additional work done outside of regular working hours. Adv. Beyond the established time limit, esp. that of the normal working day.” According to BLACK’S LAW DICTIONARY 1105 (6th ed.1990), overtime is defined as “[ajfter regular working hours; beyond the regular fixed hours.”

Webster’s Third New International Dictionary 807 (1993) defines extraordinary as “more than ordinary: not of the ordinary order or pattern: going beyond what is usual, regular, common, or customary: not following the general pattern or norm.” BLACK’S LAW DICTIONARY 586 (6th ed.1990) defines extraordinary as “[o]ut of the ordinary; exceeding the usual, average, or normal measure or degree; beyond or out of the common order, method, or rule; not usual, regular, or of a customary kind; remarkable; uncommon; rare; employed for an exceptional purpose or on a special occasion.”

\7Income for the purpose of determining the child support obligation herein is statutorily defined in La. R.S. 9:315(6) as actual gross income if the party is employed to fall capacity or potential income if the party is voluntarily underemployed. Gross income for the purpose of determining the child support obligation herein is statutorily defined in La. R.S. 9:315(4) as income from any source including salaries and wages.

According to the generally prevailing meanings of the words overtime and extraordinary, if the work conducted by Mr. Walden outside of his regular working hours (overtime) was out of the ordinary (beyond what was usual, regular, common, or customary for him), did not follow the general pattern or norm or was performed for an exceptional purpose or on a special occasion, then it was extraordinary. However, if the overtime was usual, regular, customary or normal, then it was ordinary.

The uncontradicted testimony was that Mr. Walden worked overtime and received overtime income every week for approximately two and half years, the entire term of his employment at Columbia prior to these proceedings. Such a fact renders Mr. Walden’s overtime usual, regular, common, normal or customary; and, thus, not extraordinary according to the generally prevailing meaning of the word.

The trial court judge found as a fact that Mr. Walden’s overtime income was ordinary overtime income. There is no contradictory evidence in the record to show that his overtime income was extraordinary. When there is no evidence to support a finding of fact, a question of law is presented. Cf. La. C.C.P. art 966; State v. Tennant, 352 So.2d 629, 631 (La.1977); State in Interest of Cox, 461 So.2d 658, 661-662 (La.App. 1 Cir.1984), writ denied, 464 So.2d 1375 (La.1985). Thus, the trial court’s ruling on this issue is not only correct as a matter of fact, it is correct as a matter of law. Conversely, the majority’s contrary ruling is wrong as a matter of fact and law.

The majority’s holding on what constitutes extraordinary overtime income conflicts with decisions from the Second and Third Circuits.

|sIn the Third Circuit, what constitutes extraordinary overtime income was set forth in Montou v. Montou, 96-1463 (La.App. 3 Cir. 4/2/97), 692 So.2d 705. In Montou, the trial court did not include the overtime pay of an INS agent for the purposes of determining child support because of the uncertainty of the amount and the fact that there was no guarantee he would get overtime in the future. The Third Circuit reversed stating, although there was no guarantee of overtime, it was hardly a rarity and it was considered part of the job. Furthermore, the INS had instituted a plan whereby overtime was distributed evenly among the employees. The agent’s income from the previous three years showed his overtime income was significant and continuous. The court held this clearly was not a scenario where the overtime could be considered “extraordinary”; and even though the agent’s overtime income was decreasing, it was manifest error to exclude it from the calculation of his gross income.

Under analogous facts, the Second Circuit, in Douthit v. Douthit, 31-713 (La.App. 2 Cir. 3/31/99), 732 So.2d 616, found evidence showing the defendant had consistently worked substantial amounts of overtime for the preceding several years required a finding that such overtime was not extraordinary. The court noted the defendant was still eligible for overtime in his new position. Although the new position historically did not provide overtime, it did not make it completely unavailable.

In the instant case, the trial court found as a fact that Mr. Walden’s overtime income was not extraordinary. The trial judge stated in his oral reasons for judgment that Mr. Walden had actually “adopted a certain standard of living, and his children by law are entitled to maintain that standard of living .... He doesn’t have to continue working that many hours, and he can cut some of his expenses. But he can’t cut his children’s expenses because they no longer five with him.”

Pursuant to La. R.S. 9:315(4)(a) and (d), extraordinary overtime income is not included in gross income for determining the child support obligation if the 19court in its discretion concludes that the inclusion of it would be inequitable to a party. Conversely, if the court in its discretion concludes that it is not inequitable to do so, it may include extraordinary overtime income in a gross income calculation. However, since Mr. Walden’s overtime income was ordinary, and not extraordinary, it was properly included in determining gross income as defined in La. R.S. 9:315(4)(a). Further, because Mr. Walden’s overtime income was not extraordinary, it was unnecessary for the trial court judge to exercise the discretion provided for in La. R.S. 9:315(4)(d)(iii). The majority committed legal error by using this provision of the law to support their holding.

Voluntary Underemployment— Good or Bad Faith

Mr. Walden asserts the trial court committed “manifest error by holding that MR. WALDEN was voluntarily under-employed [sic] by taking a job with the same company paying a higher hourly wage

The trial court initially fixed Mr. Walden’s child support obligation pursuant to the schedule in La. R.S. 9:315.14A. Because of this, there is a rebuttable presumption that the initial amount fixed is the proper amount. La. R.S. 9:315.1A. Because Mr. Walden now seeks to modify this award due to a change of circumstances, the majority correctly observed that “[t]he party seeking the modification has the burden of proving a change in circumstances has occurred since the fixing of the prior award.” The majority also correctly cites Stobart v. State, Department of Transportation and Development, 617 So.2d 880, 883 (La.1993) for the proposition that “[w]hen there are two permissible views of the evidence, the factfinder’s choice between them cannot be manifestly erroneous.”

La. R.S. 9:315(6)(b), 9:315.2B and 9:315.9 provide for the determination of the child support obligation when the obligor parent is voluntarily underemployed. Black’s Law Dictionary 1575 (6th ed.1990) defines voluntary as “Unconstrained by interference; unimpelled by another’s influence; spontaneous; acting of oneself.... Done by design or intention. Proceeding from the free and unrestrained will of the person. Produced in or by an act of choice. |in Resulting from free choice, without compulsion or solicitation.” Voluntary is defined in Webster’s II New College Dictionary 1238 (2001) as “l.a. Arising from one’s own free will. b. Acting on one’s own initiative. 2. Acting or serving in a designated capacity willingly and with no constraint or guarantee of reward. 3. Normally controlled by or subject to individual volition. 4. Capable of exercising will: VOLITIONAL. 5. Proceeding from impulse: SPONTANEOUS. 6. Law. A. Acting or done with no external persuasion of compulsion.” Underemployed is defined in Webster’s II New College Dictionary 1201 (2001) as “Partially or inadequately employed, esp. employed at a low-paying job for which one is overqualified.”

Pursuant to La. R.S. 9:315(6)(b), “(a) party shall not be deemed voluntarily ... underemployed if he or she is absolutely unemployable or incapable of being employed, or if the ... underemployment results through no fault or neglect of the party.” Pursuant to La. R.S. 9:315.9, a party is not considered underemployed if “the party is physically or mentally incapacitated, or is caring for a child of the parties under the age of five years.”

Pursuant to La. R.S. 9:315(6)(b), 9:315.2B and 9:315.9, if it is determined as a fact that a obligor parent is voluntarily underemployed, his or her gross income shall be calculated based on a determination of his or her earning potential (rather than actual gross income).

When Mr. Walden changed his job at Columbia from utility sacker to utility operator, the change was voluntary on Mr. Walden’s part. Mr. Walden intentionally made the change and it proceeded from his own initiative and free will. There is no evidence to the contrary in the record. Accordingly, the trial court’s factual finding to that effect was correct as a matter of fact and law.

Thus, the only remaining question is whether Mr. Walden’s voluntary change in jobs resulted in an underemployment. The dictionary definition of underemployment is cited above. What does and does not constitute underemployment is statutorily defined in La. R.S. 9:315(6)(b) and 9:315.9. Thus, a person is not underemployed if he or she (1) is physically or mentally | n incapacitated, (2) is caring for a child under the age of five years, (3) is absolutely unemployable, (4) is incapable of being employed, and (5) if the underemployment results through no fault or neglect of the party. There is no evidence in the record showing that Mr. Walden fits in categories (1) through (4). Therefore, as a matter of fact and law, these categories are not relevant to the decision herein.

Thus, the only relevant category is whether Mr. Walden’s change of jobs results from “no fault or neglect” on his part. The jurisprudence treats this category as a question of whether or not the obligor parent acted in good or bad faith. This is an issue of fact subject to the manifest error rule on appellate review. The building blocks of a trial court factual decision are (1) the weight of the evidence, (2) the credibility of the witnesses and (3) the inferences that may be made from the evidence presented. State in Interest of Cox, 461 So.2d at 660-661. It is hornbook law that the factfinder has a right to accept or reject, in whole or in part, the testimony of any witness.

In almost every case where the unemployment or underemployment was due to circumstances beyond the obligor parent’s control, the court found good faith to exist. Hutto v. Kneipp, 627 So.2d 802, 805 (La.App. 2 Cir.1993). In Saussy v. Saussy, 93-1303 (La.App. 3 Cir. 6/15/94), 638 So.2d 711, the court found no voluntary underemployment resulted when the obligor parent was fired and the new employment allowed the obligor to spend more time with his children; the lower pay was believed to be temporary.

Courts have also generally found no underemployment and allowed a reduction (modification) when the employment change was voluntary, but was a short-term sacrifice that could lead to long term benefits. Hutto, 627 So.2d at 805. In Curtis v. Curtis, 34,317 (La.App. 2 Cir. 11/1/00), 773 So.2d 185, a father began new employment in a position that paid roughly the same hourly rate. In determining the father was in good faith, the court noted the new job would allow more time to spend with his family and the new position offered the possibility of achieving his goal of career advancement into an administrative Imposition where he could utilize his specialized education. The court further noted only a slight change in salary resulted from the underemployment because the father’s income only decreased from $3,486 per month to $3,120 per month.

In stark contrast, Mr. Walden’s monthly income went from $6,211 to $4,216 per month. Such a difference in pay is not slight. Mr. Walden offered no evidence to show that the new position would increase the time he could spend with his children or would provide an opportunity for career advancement. Mr. Walden was not fired; he voluntarily changed jobs. The trial court, in its oral reasons, found Mr. Walden had “not established the benefit of taking this job versus the old job he had ... he has not given any substantiation for the fact of taking another position where he makes less money.”

Mrs. Walden testified that Mr. Walden never complained about working overtime prior to the institution of divorce proceedings. The majority observes that “[a]t the first hearing, Mr. Walden testified that he would no longer voluntarily work overtime because his family was no longer a unit and he was physically and mentally drained.” If the trial judge believed Mrs. Walden’s testimony and discredited part of Mr. Walden’s testimony, he reasonably could infer that Mr. Walden refused to continue to work more overtime for the benefit of the family because of the institution of the divorce proceedings. This tends to show bad faith on his part. Conversely, if the trial judge believed all of Mr. Walden’s testimony, he could have concluded that Mr. Walden reasonably decided to work less overtime for health reasons (even though Mr. Walden presented no medical evidence to corroborate this). This shows good faith on Mr. Walden’s part.

Mr. Walden testified at the initial hearing that he was voluntarily choosing not to work as much overtime. Especially telling are the following portions of Mr. Walden’s testimony.

Q: Okay. Now as I understand you testimony today, you do work a lot, and that reflected in your W-2’s. Are you telling us today that, now that you and your wife are separated, you just don’t feel like you want to work that much because your family’s not a unit anymore?
hsA: Right.
* *
Q: Okay. That’s a decision you’re making as opposed to the company saying, “We’ve got no more overtime for you guys.” You’ve made that decision.
A: Right.

Mr. Walden testified that his motivation for working the overtime was for the family goals of purchasing a home and automobiles. The majority observes that “[a]fter the family broke up, he [Mr. Walden] lost motivation to work so many extra hours for things that were no longer family goals.” However, in my opinion, the trial court judge could have reasonably concluded that providing good housing and reliable transportation for the two children of the marriage was in the best interests of the children and were valid long term family goals. Although the children no longer live with Mr. Walden, they still have the same needs and this was recognized by the trial court judge.

Mr. Walden was questioned by the trial court judge about the amount of overtime available in his former job as follows:

BY THE COURT:
Q: Let me ask you, sir. The position you had before, if you still had that position now, would you still be making the same amount of overtime you were making before?
A: It depends on if the work’s there.
Q: Well, that’s what I’m asking you. Is the work there?
A: I’m not in that department. I work in a different department.
Q: I understand. So you don’t know?
A: Yes, sir. I really don’t know the— you know, how — how that department is doing, you know, right now.

At the modification trial, Mr. Walden testified about his new position as follows:

Q: All right. Well, let me ask it this way. This job change that you’ve had, you’ve testified it’s a promotion but you’re not going to make as much money.
A: Well, I don’t know that. I may.
Q: You may make as much as you were making last year?
A: I mean, the overtime is not guaranteed. If they — you know — it’s—I mean, I can take it a day-by-day thing. You know, I can’t say “yes” or “no”.

This testimony tends to show that Mr. Walden was in bad faith.

Mr. Walden did not say he wanted to work 10 less hours of overtime so he could spend more time with his children or assume more of the custodial duties |14entailed in raising them; instead, he positioned himself so he did not do as much work. While the majority is sympathetic to Mr. Walden’s desire to work less hours per week, it should consider giving an equal amount of sympathy to Mrs. Walden who must work 40 hours per week, in addition to single-handedly caring for a two-year old and a six-year old. As a result of the majority’s holding, Mrs. Walden’s and the children’s standard of living will obviously suffer. The trial court judge focused on the best interests of the children and their standard of living in his decision. The trial court stated that although Mr. Walden was not compelled to work additional (ten) hours of weekly overtime, he would not be allowed to lessen his children’s standard of living. Instead, he would have to cut some of his own personal expenses.

The facts in the instant case are analogous to those in Douthit v. Douthit, 31-713 (La.App. 2 Cir. 3/31/99), 732 So.2d 616. In Douthit, a father took a promotion as a foreman at his company that increased his hourly wage, but yielded an overall decrease of approximately $28,000 per year from loss of overtime. The father was not required to take the new position; and, although it might “open doors,” there was no guarantee the promotion would produce future benefits. Similarly, Mr. Walden’s promotion would allegedly cause a nearly $24,000 decrease in his yearly salary; yet, he did not testify as to any benefits that would justify this large reduction in pay. The result in this case should be the same as Douthit.

The trial court observed the appearance and demeanor of the witnesses. Mrs. Walden presented evidence tending to show that Mr. Walden was in bad faith; Mr. Walden presented evidence to show that he was in good faith. There were two permissible views of the evidence from which the trial judge could choose. The trial judge chose the view of the evidence that showed Mr. Walden acted in bad faith when he changed jobs after the divorce suit was filed and his initial child support obligation had been fixed. Pursuant to Stobart, this factual finding cannot be manifestly erroneous. The majority’s ruling to the contrary is wrong.

|!¿Because Mr. Walden was in bad faith, he was voluntarily underemployed, and the trial court was required, by law, to calculate his child support obligation at the modification hearing based on his earning potential rather than his present actual gross income. The trial court determined that Mr. Walden’s earning potential was the actual gross income he earned prior to the job change.

The trial court judgment refusing to modify Mr. Walden’s child support obligation based on a change of circumstances is correct.

CONCLUSION

For the foregoing reasons, I respectfully dissent.

      . La. R.S. 9:315 et seq. was amended by Acts 2001, No. 1082, § 1. This opinion refers to the law in effect at the time of the hearing of this matter.

      . No good cause was shown why any modification granted should not be retroactive. If the mother is unable to make a lump sum repayment, and requests a determination by the trial court, the trial court may order that repayments be made by incremental deductions from the re-calculated child support over a period of time, or choose another method that would be fair to all parties.

      . Although the trial court did not expressly address this argument in its oral reasons for judgment, it implicitly rejected this contention when it denied Mr. Walden’s request for a reduction in his child support obligation.

      . The court put $279.50 on the worksheet; however, it used the rounded figure of $279.00 in actually adding the total child support obligation.

      . Acts 2001, No. 1082 amended Article 142 to provide as follows:
      An award of child support may be modified if the circumstances of the child or of either parent materially change and shall be terminated upon proof that it has become unnecessary.
      Comment — 2001 for this amendment slates:
      The amendment adds materially to describe the change in circumstances necessary to obtain a modification or termination of child support. The language overrules Stogner v. Stogner, 739 So.2d 762 (La.1999). See also R.S. 9:311.

      . Mr. Walden did not appeal this judgment.

      . Mr. Walden testified in September 2000, that his hourly wage as a utility sacker was $20.66 an hour. However, his check stub from December 1999, showed, at that time, he was making $20.26 an hour as a utility sacker. It is unclear whether Mr. Walden received an intervening raise or whether his testimony was incorrect.


author: | .PETTIGREW, J.

text:
    Sharon Cortez DRURY (Vicknair) v. Steve DRURY.
    No. 2001 CA 0877.
    Court of Appeal of Louisiana, First Circuit.
    Aug. 21, 2002.

      Mary E. Heck Barrios, Denham Springs, for Plaintiff-Appellant Sharon Cortez Drury Vicknair.

      Brenda Braud, John Braud, Independence, for Defendant-Appellant Steven R. Drury.
    Before: FOIL and PETTIGREW, JJ, and KLINE
      , J., Pro Tem.

      . Judge William F. Kline, Jr., retired, is serving as judge pro tempore by special appointment of the Louisiana Supreme Court.

   | .PETTIGREW, J.

This is an action for divorce, child custody, and support. Both parties have appealed and object to the district court’s award of child support. Sharon Cortez Drury has also appealed the district court’s decision to assess her with court costs and attorney fees. For the reasons set forth below, we vacate in part, affirm in part, reverse in part, and remand.

FACTS

Petitioner Sharon Cortez Drury (“Ms.Drury”) and defendant Steve Drury (“Mr.Drury”) were married on September 4, 1982, in Tangipahoa Parish, Louisiana, where they established a matrimonial domicile. According to the facts set forth in the Petition For Divorce filed by Ms. Dru-ry on August 14, 1996, “[t]wo children were born of this marriage, namely, Steven Drury, age nine and Shane Drury, age eight.”

The divorce petition further alleged that the parties separated on August 6, 1996, and that Ms. Drury desired a divorce pursuant to La. Civ.Code art. 102. As part of her petition, Ms. Drury sought to be designated as the domiciliary parent of the minor children pursuant to a plan of joint custody and an award of child support. Ms. Drury also sought issuance of temporary orders and injunctive relief prohibiting Mr. Drury from harassing her or alienating or encumbering the community property.

Mr. Drury filed an answer to the divorce petition in the form of a general denial, and through a reconventional demand, sought an immediate divorce based upon “numerous acts of adultery” alleged to have been committed by Ms. Drury. Mr. Drury further sought to be designated as the domiciliary parent of the minor children pursuant to a plan of joint custody.

The record reflects that in a hearing held on October 10, 1996, the parties entered into various stipulations that were incorporated into a Joint Custody Agreement and plan of implementation. This plan designated the parent in actual physical custody of the minor children as the domiciliary parent pending further orders of the court. The plan also set forth a visitation schedule for major holidays and granted each parent two weeks of summer visitation with the children. A formal judgment was also prepared that | ^granted four days of alternating visitation to each party. Both the agreement and the judgment were signed by the parties and their respective attorneys. The trial judge signed both documents on the same date.

On December 16, 1996, Mr. Drury, appearing in proper person, filed a Rule For Contempt along with a Motion and Order for temporary physical custody of the minor children. These matters were inexplicably transferred from Division “D” to Division “E” of the district court, and a hearing on Mr. Drury’s motion was scheduled. Said matters were later resolved, and the scheduled hearing was removed from the court’s docket.

On March 19, 1997, Mr. Drury filed an Amended Reconventional Demand For Divorce seeking termination of the marriage alleging that the parties had lived separate and apart for a period in excess of six months. The parties were then divorced on June 16,1997.

Ms. Drury subsequently filed a Petition For Custody And Contempt on September 10, 1997, alleging that her ex-husband had denied her request for two weeks of summer visitation with the children. Ms. Dru-ry further alleged that the existing custody plan, providing for four days of alternating visitation, had not proved to be workable and was not in the best interest of the minor children. Accordingly, Ms. Drury reasserted her request to be designated the domiciliary parent of the minor children pursuant to a “standard joint custody plan.” Ms. Drury further sought an award of reasonable child support as set forth in the child support guidelines. Mr. Drury responded with a denial of his ex-wife’s allegations and asserted his own request for designation as the domiciliary parent pursuant to a plan of joint custody. Mr. Drury also sought an award of reasonable child support as set forth in the guidelines.

A hearing on these issues was subsequently conducted on October 14, 1997. A transcript of the hearing, contained in the record, disclosed no evidence or argument regarding child support by either party. The sole issue presented at the October 14, 1997 shearing concerned which parent should be awarded domiciliary custody of the minor children. In a judgment signed October 17, 1997, the district court denied Ms. Drury’s rule for contempt and granted custody of the minor children jointly to the parties. The district court further designated Mr. Drury as the children’s domiciliary parent with alternating weekends of visitation to Ms. Drury. Neither party appealed from this judgment.

Eight months later, on June 16, 1998, Ms. Drury filed a “Rule For New Trial Specify Visitation And Joint Custody Plan.” Mr. Drury responded with a motion to continue the hearing on Ms. Drury’s rule and his own rule requesting that Ms. Drury show cause why child support should not be fixed. A hearing was later held on August 24, 1998. At the hearing, the district court took the custody issue under advisement and suggested the parties exchange income information and, “come up with a guideline amount” for child support. The district court subsequently issued Reasons For Judgment on October 28,1998, denying Ms. Drury’s rule for a new trial on the grounds that its previous judgment of October 17, 1997, was “just and equitable and in accordance with law.” No judgment was submitted in connection with the August 24, 1998 hearing.

On March 3, 1999, pleadings were filed by both parties. Mr. Drury filed'a motion to set his earlier Rule For Child Support for hearing; however, the order attached to Mr. Drury’s was inscribed “Moot” and filed unsigned. Ms. Drury filed a Rule to Show Cause seeking a change in custody based upon material changes in circumstances. Inexplicably, the district court prepared an order noting that since all previous rules in the matter had been disposed of, Ms. Drury’s rule should be real-lotted in accordance with local court rules. This matter was then transferred from Division “E” back to Division “D” by random reallotment on March 11,1999.

On March 31, 1999, after the matter had been reallotted, the judge of Division “E” (from whose docket this case had recently been transferred) issued, sua sponte, Amended Reasons For Judgment reaffirming the correctness of her previous October 17, 1997 judgment, but directing that child support be set in accordance with the applicable |Rchild support guidelines. Again, no judgment had ever been prepared in connection with the hearing of August 24,1998.

Over the ensuing twelve months, Mr. Drury filed motions and sought a supervisory writ from this court and ultimately, writs of certiorari, prohibition and mandamus from the Louisiana Supreme Court in an unsuccessful effort to have this matter transferred back to Division “E” from Division “D.”

During the pendency of Mr. Drury’s writ applications, Ms. Drury filed an Application For Relief Under The Domestic Violence Relief Act, For Protective Order, Change of Custody and Other Ancillary Relief in Division “D” of the district court. Following a hearing on May 31, 2000, the parties entered into a Stipulated Judgment that addressed issues related to custody and visitation. The terms of the judgment ultimately signed on February 12, 2001, provided in pertinent part,

IT IS FURTHER ORDERED, ADJUDGED AND DECREED that neither parent shall have any obligation to pay child support to the other, commencing February, 2000. Nothing contained herein shall be construed as a waiver of the rights of either party to enforce any support obligation which may be determined to have existed prior to February, 2000;

Between the date of the hearing and the signing of the Stipulated Judgment in Division “D,” the judge of Division “E” signed a judgment on November 30, 2000, covering the earlier hearing held on August 24, 1998. Said judgment ordered Ms. Drury to pay to Mr. Drury “monthly child support in accordance with the applicable child support guidelines, retroactive to June 25, 1998.” The judgment further cast Ms. Drury with all costs of said proceedings and all attorney fees incurred by Mr. Drury.

From the judgment of November 30, 2000, Mr. Drury has taken a devolutive appeal. Ms. Drury has taken a separate suspensive appeal.

| «ISSUES SET FORTH ON APPEAL

On appeal, Mr. Drury asserts that the district court erred:

1. [W]hen it attempted to award child support in the absence of an evidentiary hearing or factual stipulations by the parties.
2. [W]hen it issued a judgment that authorized child support but did not specify an amount as such a judgment is unenforceable.
3. [I]n not awarding child support retroactive to the date of filing in the absence of evidence establishing good cause for not making the retroactive award.

In connection with her appeal of the instant matter, Ms. Drury presents the following issues for consideration by this court:

1. ■ The judgment signed by the [district] court on October 17, 1997, denied [Mr. Drury’s] claim for support, and is a final judgment.
2. The judgment signed by the [district] court on November 30, 2000, fixing child support “in accordance with the child support Guidelines” violated the due process requirements of law.
8. The [district] court erred as a matter of law in awarding [Mr. Drury] attorney fees for prosecution of a child support rule and in defense of a rule for new trial.
4. The [district] court erred in assessing all cost of this proceeding against [Ms. Drury], and this Honorable Court should reapportion those costs in the [district] court between the parties, as well as assess costs on appeal against [Mr. Drury].
5. On remand, the [district] court should consider all support of any kind provided by [Ms. Drury] to or on behalf of the minor children as a credit against any amount of child support which may be fixed, and should consider that good cause exists for fixing the retroactivity date of such a judgment later than the date for judicial demand.

DISCUSSION

The Louisiana Constitution of 1974 provides that the appellate jurisdiction of the courts of appeal extends to both law and facts. La. Const, art. V, § 10(B). A court of appeal may not overturn a judgment of a trial court absent an error of law or a factual finding that is manifestly erroneous or clearly wrong. See Sto-bart v. State, Department of Transportation and Development, 617 So.2d 880, 882, n. 2 (La.1993). If the trial court’s findings are reasonable in light of the record reviewed in its entirety, the court of appeal may not reverse, even if convinced that had it been sitting as |7the trier of fact, it would have weighed the evidence differently. Sistler v. Liberty Mutual Insurance Company, 558 So.2d 1106, 1112 (La.1990).

Child Support Award

In the instant case, both parties take issue with the district court’s judgment of November 30, 2000, that ordered Ms. Drury to pay to Mr. Drury “monthly child support in accordance with the applicable child support guidelines, retroactive to June 25, 1998.” This court, in Percle v. Noll, 93-1272, pp. 8-9 (LaApp. 1 Cir. 3/11/94), 634 So.2d 498, 502-503, stated:

Fathers and mothers by the very act of marrying, contract together the obligation of supporting, maintaining and educating their children. La. C.C. Art. 227. Generally the custodial parent has the right to seek child support from the non-eustodial parent for financial assistance in the maintenance of the children. Barkemeyer v. Barkemeyer, 598 So.2d 550 (La.App. 4th Cir.l992)[], The guidelines for determination of child support shall apply to “any proceeding to establish or modify child support filed after October 1, 1989”. La.R.S. 9:315.1 et seq. Fuge v. Uiterwyk, 613 So.2d 717 (La.App. 4th Cir.1993) [writ den. 619 So.2d 574 (La.1993)]. Use of the guidelines gives rise to the presumption that an award of child support is proper. La.R.S. 9:315.1.

The judgment at issue was signed by the district court on November 30, 2000, following a hearing more than two years earlier. The transcript of the August 24, 1998 hearing reflects that counsel for Mr. Drury volunteered to exchange income information and prepare an order for the court setting forth child support in accordance with the guidelines. This was evidently never done. The judgment rendered two years later merely directs Ms. Drury to pay an unspecified sum as monthly child support to Mr. Drury in accordance with the applicable child support guidelines. The record is entirely devoid of any of the supporting documentation required by La. R.S. 9:315.2.

A judgment must be certain and not based on any contingency. Crefasi v. Crefasi, 628 So.2d 1274, 1276 (La.App. 3 Cir.1993). Documentation is essential to the setting of child support, even in the context of an interim or temporary order. Ventura v. Rubio, 2000-0682, p. 8 (La.App. 4 Cir. 3/16/01), 785 So.2d 880, 888. Louisiana Revised Statute 9:315.2A is clear in its mandate of essential documentation. That statute provides, in pertinent part, as follows:

|sEach party shall provide to the court a verified income statement showing gross income and adjusted gross income, together with documentation of current and past earnings. Spouses of the parties shall also provide any relevant information with regard to the source of payments of household expenses upon request of the court or the opposing party, provided such request is filed in a reasonable time prior to the hearing. Failure to timely file the request shall not be grounds for a continuance. Suitable documentation of current earnings shall include but not be limited to pay stubs, employer statements, or receipts and expenses if self-employed. The documentation shall include a copy of the party’s most recent federal tax return. A copy of the statement and documentation shall be provided to the other party. [Underscoring added]

Inherent in the process of calculating child support is the principle of equity that requires the court to examine the financial status of both parties. Therefore, the child support statutes must be applied in pari materia. State of Louisiana in the Interest of Wade Joseph, Sr., 97-0780, p. 5 (La.App. 4 Cir. 12/23/97), 705 So.2d 776, 779. In the instant case, both parties failed to submit verified statements as to their respective incomes, documentation of current and past earnings, copies of their most recent tax returns, as well as other evidence mandated by La. R.S. 9:315.2. Without the introduction of the appropriate documentation, the district court could not properly apply the guidelines of La. R.S. 9:315, et seq. and establish child support in accordance with law. For the same reasons, neither can this court.

Accordingly, we remand this matter to the district court for the submission of the required documentary evidence and the proper calculation of the parties’ respective child support obligations.

Retroactive Effect of Judgment Awarding Child Support

Also at issue in this case is the retroactive effect of the November 30, 2000 judgment that attempted to award child support. The parties apparently do not dispute that pursuant to the terms of the Stipulated Judgment previously rendered on May 31, 2000, “neither parent shall have any obligation to pay child support to the other, commencing February, 2000.” Thus, at issue is the obligation to pay child support prior to February 2000.

In his brief to this court, Mr. Drury cites and relies upon La. R.S. 9:315.21A, which provides in pertinent part:

I3A. Except for good cause shown, a judgment awarding, modifying, or revoking an interim child support allowance shall be retroactive to the date of judicial demand ....

The district court’s award of child support was made retroactive to June 25, 1998; however, Mr. Drury complains that he has been judicially requesting child support since he filed his original rule for child support on September 18,1997.

A review of the transcript of the October 14, 1997 hearing held on Mr. Drury’s rule reveals that no evidence was presented by Mr. Drury in support of his request for child support. As a result, the judgment rendered on October 14, 1997, and signed on October 17, 1997, was silent as to Mr. Drury’s request for child support.

Ms. Drury argues that it has long been established that a final judgment that fails to award relief requested by a party effectively denies that relief. In support of this argument, Ms. Drury cites Rills v. Southern Bell Telephone Co., 305 So.2d 596, 597 (La.App. 1 Cir.1974), for its proposition that “[o]ur law is well settled that where a decree is silent on an issue, such silence is to be construed as a rejection of the demands of a litigant.” Ms. Drury asserts that the judgment signed on October 17, 1997, became final on November 27, 1997, when the delays for filing motions for a new trial and appeal had expired.

The record reflects that Mr. Drury filed a rule to show cause seeking to fix child support on June 25, 1998. Ms. Drury points out that while a hearing was later held on August 24, 1998, the hearing transcript reflects the district court suggested that the parties exchange income information and “come up with a guideline amount.” Subsequently issued Reasons For Judgment and Amended Reasons For Judgment were silent as to the issue of child support. The judgment rendered by the court more than two years later awarded child support retroactive to June 25,1998.

Upon review, we agree and affirm the district court’s determination that Mr. Drury is not entitled to child support prior to June 25,1998.

Award of Attorney Fees

Mr. Drury also requested an award of attorney fees and court costs in connection with his rule to show cause seeking child support filed on June 25, 1998. The judgment 110signed by the district court on November 30, 2000, cast Ms. Drury with all costs of said proceedings and all attorney fees incurred by Mr. Drury.

Louisiana Revised Statute 9:375A provides, in pertinent part, that “[w]hen the court renders judgment in an action to make executory past-due payments under a ... child support award ... it shall, except for good cause shown, award attorney’s fees and costs to the prevailing party.”

Pursuant to our reading of the statute, La. R.S. 9:375A applies when a party arbitrarily or capriciously refuses to pay an existing support obligation. In the instant case, the district court did not make an award of child support until two years after the hearing. The district court then failed to order a specific amount of child support to be paid. Thus, the district court erred in awarding attorney fees absent proof of an existing support obligation and a party’s subsequent arbitrary refusal to comply. Accordingly, the district court’s award of attorney fees and costs is reversed.

CONCLUSION

For the foregoing reasons, the judgment of the district court establishing an unspecified amount as child support for the period from June 25, 1998 through January 2000 is vacated, and the matter is remanded to the district court for recalculation of child support in accordance with the guidelines. We affirm the district court’s determination that Mr. Drury is not entitled to child support prior to June 25, 1998. Additionally, we reverse the district court’s award of attorney fees and court costs to Mr. Drury. Costs of this appeal are assessed equally against plaintiff, Sharon Cortez Drury Vicknair, and defendant, Steven R. Drury.

VACATED IN PART; AFFIRMED IN PART; REVERSED IN PART; REMANDED.

      . It appears that Mr. Drury’s former attorney prepared both documents. At a subsequent hearing held in Division "E” on October 14, 1997, the district court ruled that the provisions of the judgment controlled and that the two weeks of summer visitation specified in the Joint Custody Agreement were null and void.

      . See Vicknair v. Drury, 99-CW-2526 (La.App. 1 Cir. 4/20/2000).

      . See Vicknair v. Drury, 2000-CC-1248 (La.5/3/2000), 760 So.2d 1185.


author: | .GUIDRY, J.

text:
    CITY OF BAKER SCHOOL BOARD v. LA. DEPARTMENT OF ELECTIONS & La. Secretary of State
    No. 2002 CA 1905.
    Court of Appeal of Louisiana, First Circuit.
    Sept. 11, 2002.
    Mark D. Plaisance, Baker, for Plaintiff/Appellant, City of Baker School Board.
    Angie R. LaPlace, Roy A. Mongrue, Jr., Baton Rouge, for Defendant/Appellee, State of Louisiana.
    Julie Thompson, Michael S. Walsh, Baton Rouge, for Defendant/Appellee, Suzanne Haik Terrell, Commissioner of Elections, State of Louisiana.
    Merietta S. Norton, Baton Rouge, for Fox McKeithen, Secretary of State, State of Louisiana.
    Before: FITZSIMMONS, GUIDRY, PETTIGREW, DOWNING and GAIDRY, JJ.
   | .GUIDRY, J.

In accordance with Louisiana Revised Statute 17:71.5, the City of Baker School Board (Board) reapportioned itself based upon the federal decennial census. The Board submitted the plan to the United States Department of Justice for approval pursuant to Revised Statute 17:71.4; the Justice Department interposed no objection to the change. The Board also submitted the plan to the Louisiana Department of Elections and to the Louisiana Secretary of State. The Department of Elections objected to the plan because it failed to comply with Revised Statute 17:71.3(E) in that it divides precincts into more than two school board districts and contains more than two divided precincts.

The Board filed this suit against the Department of Elections and the Secretary of State seeking a declaratory judgment that the plan complies with state law. In the alternative, the Board sought a declaration that if the plan does not comply with Revised Statute 17:71.3(E), the statute is unconstitutional since the Board believes it is impossible to create a plan that does not violate that law. The Board further alleged in its amended and supplemental petition that the statute violated its rights to due process and equal protection and disenfranchised voters by denying it the right to conduct an election when it had complied with federal law. The Department of Elections, in its answer, prayed that the plan be declared invalid and that the October 5, 2002, election be enjoined.

The trial court found that the plan violated Revised Statute 17:71.3 and was thus invalid, and further found that Revised Statute 17:71.3 was constitutional. The trial court also enjoined the October 5, 2002 school board election, including the election of the four incumbents who had no opposition. The Board appeals.

The trial court expedited the hearing in this suit because an election was involved, although the parties agree it is not an election suit within the definition of Louisiana Revised Statute 18:1409A(1). See Miller v. Oubre, 96-2022 (La.10/15/96), 682 So.2d 231. This court has also elected to expedite this matter in light of the impending election.

|sThis suit was brought as a declaratory judgment action, an ordinary proceeding. Louisiana Code of Civil Procedure article 1880 provides that when declaratory relief is sought, “all persons shall be made parties who have or claim any interest which would be affected by the declaration.”

The Board has five single-member districts. The incumbents on the Board in four of those districts qualified without opposition. The election to fill the fifth seat is contested. Those persons — the four incumbents who qualified without opposition and the contestants for the remaining district — are parties who “would be affected by the declaration.” As such, they should have been joined in this lawsuit.

Louisiana Code of Civil Procedure article 641 provides in pertinent part that a person shall be joined as a party in the action when he claims an interest relating to the subject matter of the action and is so situated that the adjudication of the action in his absence may leave any of the persons already parties subject to a substantial risk of incurring multiple or inconsistent obligations. The rights of persons not parties to a declaratory judgment action are not prejudiced by a declaration in that suit. La. C.C. P. art. 1880. Thus, the parties not joined in the instant suit could file their own declaratory judgment actions, which could result in inconsistent judgments.

An appellate court may notice the failure to join parties needed for just adjudication on its own motion. La. C.C. P. art. 645. When this failure is noticed by an appellate court, it may remand the case to the trial court for such amendment and further evidence. La. C.C. P. art. 646.

In light of the failure of the Board to join the parties needed for just adjudication, we hereby notice the lack of these parties on our own motion and remand this case to the trial court for amendment and further evidence. Costs of this appeal are assessed to the City of Baker School Board.

REMANDED WITH INSTRUCTIONS.