State of Louisiana Department of Children and Family Services O/B/O Amari and Armad Tassin Minor Children of Delisa Tassin Versus Bernard Tassin ( 2023 )

STATE OF LOUISIANA DEPARTMENT OF NO. 22-CA-350
CHILDREN AND FAMILY SERVICES O/B/O
AMARI AND ARMAD TASSIN MINOR FIFTH CIRCUIT
CHILDREN OF DELISA TASSIN
COURT OF APPEAL
VERSUS
STATE OF LOUISIANA
BERNARD TASSIN
ON APPEAL FROM THE FORTIETH JUDICIAL DISTRICT COURT
PARISH OF ST. JOHN THE BAPTIST, STATE OF LOUISIANA
NO. 53,418, DIVISION "A"
HONORABLE VERCELL FIFFIE, JUDGE PRESIDING
February 27, 2023
HANS J. LILJEBERG
JUDGE
Panel composed of Judges Susan M. Chehardy,
Fredericka Homberg Wicker, and Hans J. Liljeberg
REVERSED AND REMANDED
HJL
SMC
FHW
COUNSEL FOR PLAINTIFF/APPELLANT,
STATE OF LOUISIANA, DEPARTMENT OF CHILDREN AND FAMILY
SERVICES (DCFS), ON BEHALF OF AMARI AND ARMAD TASSIN
Kim Ancona Laborde
LILJEBERG, J.
Plaintiff, the State of Louisiana, Department of Children and Family
Services (“DCFS”), appeals the trial court’s May 26, 2022 judgment, denying its
rule for child support and medical support filed against defendant, Bernard Tassin,
III. For the following reasons, we reverse the trial court’s judgment and remand
for further proceedings.
FACTS AND PROCEDURAL HISTORY
Delisa Tassin and defendant, Bernard Tassin, III, are the parents of two
minor children. Although they are married, the parties live separately and the
children reside with Mrs. Tassin. According to DCFS, Mrs. Tassin applied for
child support services with DCFS in December of 2021. On February 3, 2022,
DCFS initiated this lawsuit by filing a Rule to Show Cause on behalf of the minor
children seeking an order of child support and medical support against Mr. Tassin,
pursuant to La. R.S. 46:236, et seq.
On April 14, 2022, the parties appeared before the trial court for a hearing.
At the hearing, Mrs. Tassin testified that she and Mr. Tassin have two children,
ages 15 and 11. Mrs. Tassin stated that she has received some support payments
from Mr. Tassin, totaling approximately $1,200, since DCFS filed for child support
in February of 2022. She also indicated that Mr. Tassin has provided medical
insurance for the minor children. However, Mrs. Tassin asked the trial court to
establish a specific amount of child support that Mr. Tassin must pay. Mrs. Tassin
testified that she was recently hired by the Louisiana Department of Motor
Vehicles and works 40 hours per week at $12.11 per hour.
Mr. Tassin testified that he and Mrs. Tassin are still married but do not live
together. He stated that they have been living separately since August of 2021, and
the children live with Mrs. Tassin. He indicated that he is employed by UPS, earns
$39.69 per hour, and works 40 or more hours per week. Mr. Tassin stated that he
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provides medical insurance for the children through his employment, which does
not involve any cost to him personally. He agreed that there is a discrepancy
between the monthly income reflected on his UPS pay stub and the income
reflected on a Louisiana Workforce Commission (“LWC”) document. He stated
that the discrepancy was due to overtime hours which are not guaranteed.
DCFS informed the court that it calculated Mr. Tassin’s recommended child
support obligation using both his income as reflected on his pay stub and his
income as reflected on the LWC document. Based on Mr. Tassin’s pay stub, the
recommended amount of child support, pursuant to the child support guidelines set
forth in La. R.S. 9:315, et seq., is $1,356.18 per month, and the amount based on
the LWC document is $1,450.10 per month. Mr. Tassin testified that he is not in
agreement with paying either amount of child support, stating that it is “not
feasible” due to his other expenses, including a house note and insurance.
At the conclusion of the hearing, the trial court questioned whether the law
allows an order of child support when the parties are married and have not filed for
divorce. The court left the matter open and allowed DCFS ten days to submit a
memorandum on this issue. On April 27, 2022, DCFS submitted its memorandum,
and the matter was taken under advisement.
On May 26, 2022, the trial court rendered a judgment denying the rule for
child support and medical support. The trial court found that it did not have
authority to order Mr. Tassin to pay child support, because the parties were still
married and no divorce proceedings were pending. DCFS appeals this judgment.
LAW AND DISCUSSION
On appeal, DCFS argues that the trial court erred by denying the rule for
child support and medical support on the grounds that the parties were still married
and had not filed for divorce. It contends that there is no requirement under the
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law that a divorce must be pending in order for a custodial parent to receive child
support from a non-custodial parent. We agree.
La. C.C. art. 224 provides that parents are obligated to support, maintain,
and educate their children. Kendrick v. Estate of Barre, 21-993 (La. 3/25/22), 339
So.3d 615, 617; Dubroc v. Dubroc, 388 So.2d 377, 379 (La. 1980). A parent’s
legal duty to support his minor children cannot be permanently renounced or
suspended. St. Cyr v. St. Cyr, 16-896 (La. App. 1 Cir. 2/21/17), 215 So.3d 283,
285, writ denied, 17-511 (La. 3/31/17), 217 So.3d 357; Dubroc, 388 So.2d at 380.
The public policy underpinning a parent’s duty of support is to ensure, both for the
sake of the child and for the sake of the general public, which may otherwise
provide for the child’s support, that each child receives sufficient support for his
maintenance and upbringing. Johnson v. Johnson, 14-564 (La. App. 1 Cir.
12/23/14), 168 So.3d 641, 645; Vogler v. Ayres, 54,734 (La. App. 2 Cir. 8/17/22),
345 So.3d 1184, 1189; St. Cyr, 215 So.3d at 285.
La. R.S. 46:236.1.2(D)(1) provides, in pertinent part:
The department, except when it is not in the best interest of
the child, may without the necessity of written assignment,
subrogation, tutorship proceedings, or divorce proceedings
take direct civil action, including actions to establish filiation
against an alleged biological parent notwithstanding the
existence of a legal presumption that another person is the
parent of the child solely for the purpose of fulfilling its
responsibility under this Section, in any court of competent
jurisdiction, to obtain an order, judgment, or agreement
of support against the responsible person in any case in
which the department is providing services under this
Subpart.
****
A separate and distinct cause of action in favor of the
department is hereby created, and suits brought under
this provision need not be ancillary to or dependent
upon any other legal proceeding.
[Emphasis added.]
22-CA-350 3
According to DCFS, Mrs. Tassin, who is the custodial parent, is receiving
child support services from DCFS. La. R.S. 46:236.1.2(D)(1) provides DCFS with
a separate and distinct cause of action to obtain an order of child support against a
non-custodial parent in any case in which DCFS is providing services. It further
provides that this cause of action does not require the institution of divorce
proceedings.
In a similar case, Department of Children and Family Support v. Jones,
53,131 (La. App. 2 Cir. 11/20/19), 285 So.3d 1163, DCFS filed a rule to reinstate
child support against the father of three children, where the mother applied for and
was receiving child support services from DCFS. At the time, the mother and
father were legally married but living separately. The trial court denied DCFS’s
rule to reinstate child support on the grounds that the parties were legally married
and had not filed for divorce. Id. at 1165. On appeal, the Second Circuit reversed
the trial court’s judgment, noting that La. R.S. 46:236.1.2(D)(1) gives DCFS a
separate cause of action to obtain or modify child support orders from a non-
custodial parent when DCFS is providing services, and that this cause of action
does not require the institution of divorce proceedings. Id. at 1167.
In its May 26, 2022 judgment denying DCFS’s rule for child support, the
trial court cited La. C.C. art. 141, which provides that in a divorce proceeding or
thereafter, the court may order either or both parents to provide support for a child
based on the needs of the child and the ability of the parents to provide support.
While we agree that La. C.C. art. 141 authorizes courts to make child support
awards in connection with divorce proceedings, it does not provide that child
support may only be awarded when a divorce action has been initiated. Article
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141, 1993 Revision Comment (i), specifically states that La. C.C. art. 141 “is not
intended to restrict the availability of child support orders to divorce actions.”1
Considering the duty of parents to support their children, the facts of this
case, and the language of La. R.S. 46:236.1.2(D)(1) specifically indicating that
DCFS may take action to obtain an order of support without the necessity of
divorce proceedings, we find that the trial court erred by denying DCFS’s rule for
child support and medical support. Accordingly, we reverse the trial court’s
judgment and remand for the trial court to determine the amount of child support
Mr. Tassin is obligated to pay and to issue an order of child support against Mr.
Tassin.
DECREE
For the reasons stated above, we reverse the trial court’s judgment denying
DCFS’s rule for child support and medical support and remand for the trial court to
issue an order of child support against Mr. Tassin.
REVERSED AND REMANDED
1
“While the Official Revision Comments are not the law, they may be helpful in determining legislative
intent.” Tracie F. v. Francisco D., 15-1812 (La. 3/15/16), 188 So.3d 231, 238.
22-CA-350 5
SUSAN M. CHEHARDY CURTIS B. PURSELL
CHIEF JUDGE CLERK OF COURT
SUSAN S. BUCHHOLZ
FREDERICKA H. WICKER
CHIEF DEPUTY CLERK
JUDE G. GRAVOIS
MARC E. JOHNSON
ROBERT A. CHAISSON LINDA M. WISEMAN
STEPHEN J. WINDHORST
FIRST DEPUTY CLERK
HANS J. LILJEBERG
JOHN J. MOLAISON, JR. FIFTH CIRCUIT
MELISSA C. LEDET
JUDGES 101 DERBIGNY STREET (70053)
DIRECTOR OF CENTRAL STAFF
POST OFFICE BOX 489
GRETNA, LOUISIANA 70054 (504) 376-1400
(504) 376-1498 FAX
www.fifthcircuit.org
NOTICE OF JUDGMENT AND CERTIFICATE OF DELIVERY
I CERTIFY THAT A COPY OF THE OPINION IN THE BELOW-NUMBERED MATTER HAS BEEN DELIVERED
IN ACCORDANCE WITH UNIFORM RULES - COURT OF APPEAL, RULE 2-16.4 AND 2-16.5 THIS DAY
FEBRUARY 27, 2023 TO THE TRIAL JUDGE, CLERK OF COURT, COUNSEL OF RECORD AND ALL PARTIES
NOT REPRESENTED BY COUNSEL, AS LISTED BELOW:
22-CA-350
E-NOTIFIED
40TH DISTRICT COURT (CLERK)
HONORABLE VERCELL FIFFIE (DISTRICT JUDGE)
VERCELL FIFFIE (APPELLANT) HONORABLE BRIDGET A. DINVAUT KIM ANCONA LABORDE (APPELLANT)
(APPELLANT)
MAILED
BERNARD TASSIN, III (APPELLEE)
148 RIVERLANDS DRIVE
LAPLACE, LA 70068