Kristyn Wisecarver v. Glen Wisecarver ( 2020 )

NOT DESIGNATED FOR PUBLICATION
STATE OF LOUISIANA
COURT OF APPEAL
V
FIRST CIRCUIT
NUMBER 2019 CA 1217
KRISTYN WISECARVER
VERSUS
GLEN WISECARVER
Judgment Rendered: SEP 18 2020
Appealed from the
Twenty -First Judicial District Court
In and for the Parish of Tangipahoa
State of Louisiana
Docket Number 2010- 0003975
Honorable Jeff Oglesbee, Judge Presiding
Emily Guidry Jones Counsel for Plaintiff/Appellee,
C. Glenn Westmoreland Kristyn Wisecarver
Sherman Q. Mack
Albany, LA
Kermit L. Roux, III Counsel for Defendant/Appellant,
Isaac H. Ryan Glen Wisecarver
New Orleans, LA
BEFORE: WHIPPLE, C.J., GUIDRY, AND WOLFE, JJ.
t
WHIPPLE, C.J.
This matter is before us on appeal by the defendant, Glen Wisecarver, from a
judgment of the trial court in favor of plaintiff, Kristyn Wisecarver, increasing his
child support obligation. For the reasons that follow, we affirm.
FACTS AND PROCEDURAL HISTORY
Kristyn Wisecarver and Glen Wisecarver were married on February 12,
2000, and are the parents of two children, M.J. W., born in 2003, and S. A.W., born
in 2001.' On October 5, 2010, Kristyn filed a petition for divorce. While the
divorce proceedings were pending, by agreement of the parties, the trial court
signed a stipulated judgment on November 29, 2010, granting Kristyn and Glen
joint custody of the children, with Kristyn designated as the domiciliary parent.
Under this judgment, Glen was responsible for paying child support in the amount
of $1, 950.00 per month. Thereafter, the trial court signed a judgment of divorce on
April 15, 2013.
On July 24, 2017, Kristyn filed a rule for contempt, to suspend and modify
custody, and to modify child support, contending that a material change in
circumstances had occurred, necessitating a suspension and subsequent
modification of Glen' s physical custody. Kristyn further alleged that a change in
the needs of the children and the income of the parties had occurred, necessitating
a modification of child support. Additionally, she alleged that Glen had failed to
follow the previous consent judgment and should be found in contempt of court for
his failure.
In response, Glen filed exceptions of no cause of action and vagueness,
arguing that Kristyn' s rule contained conclusions without supporting material
facts. Kristyn opposed the exceptions, but also filed an amended pleading further
expanding on her allegations before the matter was heard. After a hearing, the
Although S. A.W. is now a major, at the time of the hearing, S. A.W. was a minor.
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court denied the exception of no cause of action, but granted the exception of
vagueness, giving Kristyn fifteen days to amend her pleading.'
On April 12, 2018, Glen filed a rule for contempt against Kristyn, alleging
that she had not adhered to certain provisions in the 2010 stipulated judgment. On
April 13, 2018, Glen filed a rule to decease child support, alleging that he had
undergone neck and back surgery, with additional surgeries scheduled. He also
alleged that he had filed for disability and his income was " less than $ 5, 000[. 00]
per month," which was " significantly less than his previous salary," warranting a
decrease in his support obligation.
Kristyn' s and Glen' s rules were set for hearing and continued several times,
until a hearing was eventually held on January 16, 2019. At the hearing, both
parties agreed to dismiss their respective rules for contempt, and Kristyn dismissed
her rule to suspend and modify custody. Accordingly, the only remaining matters
to be heard were the parties' cross- motions to modify child support. Both parties
testified and presented evidence. At the end of the testimony, the trial court left the
record open for fifteen days, and invited both sides to file post -trial memorandums
before a decision would be rendered.'
Thereafter, on April 9, 2019, the trial court signed a judgment, granting
K.ristyn' s rule for modification of child support and denying Glen' s rule to
decrease child support. The trial court found that although Glen alleged that his
income was less than $ 5, 000. 00 per month, he testified that his total monthly
income was actually $ 13, 960. 00. Additionally, relying on the definition of gross
income found in LSA-R.S. 9: 315( C)( 3) and Glen' s twenty-five percent ownership
interest in Wechem, Inc., his family' s company, the trial court imputed to him
additional income of $3, 000.00 per month for income from the business. The trial
In accordance with this ruling, Kristyn amended her rule on March 23, 2018.
3Glen filed a post -trial memorandum on February 4, 2019; however, Kristyn did not do
SO.
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court also found that, despite Glen' s assertions, although Kristyn was already
certified as an LPN, she was not voluntarily underemployed while working 30
hours per week at an insurance company in order to complete nursing school.
Accordingly, utilizing child support obligation Worksheet A as found in LSA-R.S.
9: 315. 20, the trial court increased Glen' s child support obligation to $ 2, 284. 00 per
month and ordered him to pay an additional $ 100. 00 per month " towards the
accrual amount until satisfied."
Glen then filed the instant appeal, assigning the following as error:
1. The trial court erred in finding that he received an additional $ 3, 000. 00
per month in income from Wechem in 2018; and
2. The trial court erred in considering Wechem, Inc.' s corporate retained
earnings for the years 2014- 2016, when the trial was based on income from 2018,
and evidence indicated that Wechem was operating at a loss in 2018.
DISCUSSION
An award of child support may be modified if the circumstances of the child
or of either parent materially change. LSA- C. C. art. 142. Specifically, "[ a] n
award for support shall not be modified unless the party seeking the modification
shows a material change in circumstances of one of the parties between the time of
the previous award and the time of the rule for modification of the award." LSA-
R.S. 9: 311( A)( 1). What constitutes a change in circumstances is determined on a
case- by- case basis and falls within the great discretion of the trial court. Folse v.
Folse, 2001- 0946 ( La. App. 1St Cir. 5/ 10/ 02), 818 So. 2d 923, 925. Thus, on appeal,
a trial court' s child support judgment will not be reversed except for abuse of
discretion; however; as in any other case, on appellate review of a trial court' s
factual findings, those findings of fact are subject to the manifest error/clearly
wrong standard of review. Harang_ v. Ponder, 2009- 2182 ( La. App. 1St Cir.
3/ 26/ 10), 36 So. 3d 954, 967, writ denied, 2010- 0926 ( La. 5/ 19/ 10), 36 So. 3d 219.
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According to LSA-R.S. 9: 315( C)( 3), " gross income," for the purposes of
determining child support, includes:
a) The income from any source, including but not limited to
salaries, wages, commissions, bonuses, dividends, severance pay,
pensions, interest, trust income, recurring monetary gifts, annuities,
capital gains, social security benefits, workers' compensation benefits,
basic and variable allowances for housing and subsistence from
military pay and benefits, unemployment insurance benefits, disaster
unemployment assistance received from the United States Department
of Labor, disability insurance benefits, and spousal support received
from a preexisting spousal support obligation;
b) Expense reimbursement or in-kind payments received by a
parent in the course of employment, self-employment, or operation of
a business, if the reimbursements or payments are significant and
reduce the parent' s personal living expenses. Such payments include
but are not limited to a company car, free housing, or reimbursed
meals; and
c)
Gross receipts minus ordinary and necessary expenses
required to produce income, for purposes of income from self-
employment, rent, proprietorship of a business,
royalties, or joint
ownership or a partnership or closely held corporation. " Ordinary and
necessary expenses" shall not include amounts allowable by the
Internal Revenue Service for the accelerated component of
depreciation expenses or investment tax credits or any other business
expenses determined by the court to be inappropriate for determining
gross income for purposes of calculating child support.
As the assignments of error are interrelated, we will consider them together.
At the hearing on the cross rules for child support modification, both parties
presented evidence as to their incomes. Kristyn testified that while she holds an
LPN certification, she was enrolled in nursing school to obtain a higher degree.
Kristyn also testified that because she was in school, she was working for an
insurance company for approximately 30 hours a week. Relying on a recent pay
stub, Kristyn showed that with overtime, her gross income for 2018 was
29, 176. 26, making her monthly gross income $ 2, 431. 00. This testimony as to her
actual income was undisputed. However, Glen introduced into evidence two
different internet printouts showing a higher median salary for LPNs to prove that
for purposes of calculating the child support obligation, Kristyn was voluntarily
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underemployed because she was attending nursing school and only working part-
time despite already holding an LPN certification.'
With respect to Glen' s income, Kristyn introduced his disability insurance
policy and his income tax summaries from 2015 and 2016, which also reflect
Glen' s income information from 2014. The only documentation Glen submitted to
establish his salary was Wechem' s 2018 profit/loss statement. With regard to his
income, Glen admitted that he was receiving $ 8, 460. 09 per month in disability
payments due to his recent surgeries and a salary of $2, 500. 00 per month from
Wechem. Glen also testified that he has an ownership interest in a separate
partnership that receives rental payments from Wechem and that he received
payments of $3, 000. 00 per month from that partnership.' Based on this testimony,
the trial court found that Glen' s monthly income was at least $ 13, 960.00 per
month, and was significantly higher than he alleged in his rule to decrease child
support.
Additionally, Glen' s tax information from 2014 showed his adjusted gross
income to be $ 296,491. 00. His tax information from 2015 showed his adjusted
gross income to be $ 452, 219.00. Finally, Glen' s 2016 tax information showed his
adjusted gross income as $ 387, 264.00. Glen testified that those income tax
statements reflect not only his actual income, but also Wechem' s profits for the
years, even if he does not draw on the funds. He testified that as co- owners of the
company, he and his brothers generally " reinvest" the company' s profits back into
the company and the profits show up on the tax statements " whether [ 1] take it out
or not."
In the judgment, the trial court specifically rejected the argument that Kristyn was
voluntarily underemployed and concluded that her 2018 gross annual income was $ 29, 176. 00.
Glen did not seek review of this finding on appeal.
Glen testified that he had only received $ 3, 000.00 per month in rentals from Wechem for
the past three months; before that, he received $ 2, 400.00 per month. In determining Glen' s
monthly income, the trial court used the $ 3, 000.00 figure that Glen testified he was receiving at
the time of the trial.
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Finally, Wechem' s 2018 profit/ loss statement was introduced under seal,
2018,
which, according to testimony, showed that through November 30,
Wechem' s year-to- date loss was $ 56, 202. 83. Based on the statement and
information from Wechem' s C. F. O., Glen testified that Wechem was predicted to
lose a total of approximately $ 75, 000. 00 for 2018; as such, Glen did not expect to
receive any distributions from the company, or that there be any retained earnings.
Thus, on appeal, Glen contends that because " the trial concerned 2018 income"
and Wechem was operating at a loss in 2018, the trial court erred in imputing any
additional income to him.
Conversely, Kristyn contends that the trial court did not abuse its discretion
in considering Glen' s 2014, 2015, and 2016 tax returns, rather than Wechem' s
profit/ loss statement for 2018, as the returns showed only substantial growth and
profit for the business. After careful review, we agree.
Despite Glen' s contention that the trial court erred in considering his 2014-
2016 income in making its ruling, a child support obligation is subject to
modification only when there has been a change in circumstances between the
time of the prior support award and the time of the motion for a modification.
LSA-R. S. 9: 311( A). Further, "[ w] hen an obligor has an ownership interest in a
business, suitable documentation shall include but is not limited to the last three
personal and business state and federal income tax returns." LSA-R.S. 9: 315. 2( A).
Accordingly, we find no error by the trial court in its decision to consider Glen' s
2014- 2016 tax documents in determining whether there was a change of
circumstances and in determining his income from Wechem.
Additionally, we note that neither party submitted a copy of their most
recent tax return as required by LSA-R.S. 9:315.2(A),6 which at the time of the
6Under LSA- R.S. 9: 315. 2( A), "[ sluitable documentation of current earnings shall include
but not be limited to pay stubs or employer statements. The documentation shall include a copy
of the party' s most recent federal tax return."
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hearing would likely have been their 2017 returns. As such, we find Glen' s
reliance on the requirement in LSA-R.S. 9: 315. 2( A) that child support be
calculated based solely on current income documentation is misplaced under the
facts of this case. See Harris v. Harris, 2007- 0966, ( La. App. 4th Cir. 2/ 20/ 08), 976
So. 2d 347, 351; see also State on Behalf of Taylor v. Thomas, 93- 1039, ( La. App.
511 Cir. 6/ 28/ 94), 639 So. 2d 837, 839 ( concluding that when the testimony as to
income is not contested and neither party raised a question on appeal concerning
the sufficiency of the evidence of income, production of tax returns can be waived
if not specifically requested pursuant to LSA-R.S. 9: 315. 2( A)). Likewise, in
Roberts v. Roberts, 95- 1626 ( La. App. 4th Cir. 6/ 5/ 96), 677 So. 2d 1042, the Fourth
Circuit addressed a similar argument wherein the father contended that the trial
court should not have used his 1993 income tax returns to determine his gross
income because the rule to increase support was filed in the second half of 1994
and the trial was held in the beginning of 1995. The court disagreed with the
father' s argument that " the court should consider his financial condition at the time
of the trial based on his accountant' s projections [ because] [ s] uch testimony is not
substantive proof whereas the tax returns are." Roberts, 677 So. 2d 1042, 1047.
On appeal, Glen makes a broad allegation that the trial court erred in
imputing $ 3, 000.00 per month in income from Wechem to him given Wechem' s
2018 profit/loss statement showing an operating loss for 2018. However, the trial
court' s judgment demonstrates that the court carefully considered the evidence and
found that, although Wechem' s profit/loss statement showed on paper that the
company was operating at a loss in 2018, Glen had an admitted history of not
drawing earnings from the company " in order to let it grow." As such, the trial
court had a right to choose whether or not Glen' s testimony that he would not
receive any additional draws from Wechem was credible. See Stobart v. State
through Dept. of Transp. & Dev., 617, So. 2d 880, 882 ( La. 1993) ("[ I] f 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 the
trier of fact, it would have weighed the evidence differently.")
Contrary to Glen' s assertions, the trial court would err in not considering
Wechem' s retained earnings in its calculation of Glen' s gross income, as LSA-R.S.
9: 315( C) recognizes that these amounts are still considered income for purposes of
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the child support calculation. See Holleman v. Barrilleaux, 2014- 499 ( La. App.
Cir. 11/ 19/ 14), 161 So. 3d 789, 792 ( concluding that the trial court committed legal
error in failing to include undistributed profits of the father' s company in its
calculation of gross income). In assessing Glen' s income, the court examined his
2014- 2016 personal tax returns, and reviewed Wechem' s 2018 profit/ loss
statement, as well as his disability insurance policy, and found that the court was
presented with " two vastly different income amounts." The trial court
acknowledged that the insurance company calculated his disability insurance based
on total monthly earnings of $ 14, 000. 00, but recognized that under LSA- R.S.
9: 315( C)( 5), " the definition of income is `` actual income of a party"' and that his
tax returns reflect that he was earning substantially more income than the
14, 000. 00 amount. Considering the evidence in the record, we find no manifest
error in the trial court' s factual findings as to the amount of Glen' s income or in its
decision to impute $ 3, 000. 00 in additional income for monies from Wechem. As
the trier of fact, the trial court was entitled to accept or reject, in whole or in part,
any witness' s testimony, particularly where, as here, Glen' s income was shown to
be significantly higher than the amount he claimed. See Settoon v. Morales, 2019
0122 ( La. App. I" Cir. 9/ 27/ 19), 288 So. 3d 126, 137.
Accordingly, we find no merit in Glen' s assignments of error.
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CONCLUSION
For the above and foregoing reasons, the trial court' s April 9, 2019 judgment
in favor of plaintiff/appellee, Kristyn Wisecarver, and against defendant/ appellant,
Glen Wisecarver, is hereby affirmed. Costs of this appeal are assessed to
defendant/appellant, Glen Wisecarver.
AFFIRMED.
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STATE OF LOUISIANA
COURT OF APPEAL
FIRST CIRCUIT
NUMBER 2019 CA 1217
KRISTYN WISECARVER
VERSUS
GLEN WISECARVER
GUIDRY, J., dissents with reasons.
lkK GUIDRY, J., dissenting.
I respectfully disagree with the majority opinion. I find that the trial court
erred by imputing to Mr. Wisecarver an additional $ 3, 000. 00 in monthly income
for his business ownership interest. While I agree with the majority that the trial
court would err in not considering retained earnings from Mr. Wisecarver' s
business in its calculation of his income, I nevertheless find that nothing in the
record supports the trial court' s determination on the amount of additional income
imputed to Mr. Wisecarver. Consequently, based on the record herein, this court is
unable to determine what information was used or what conclusions of fact were
reached by the trial court in arriving at its figure. See Bell v. Jackson, 18- 1075, p.
7 ( La. App. 1st Cir. 5/ 31/ 19), 278 So. 3d. 382, 387.
While we review judgments, and not reasons for judgment, there must
nonetheless be evidentiary support for a ruling. In cases where the record contains
inadequate information and documentation upon which to make a child support
determination under the guidelines, a remand to the trial court is necessary. St.
Phillip v. Montalbano, 16- 0254,pp. 5- 6 ( La. App. 1st Cir. 10/ 31/ 16), 206 So. 3d
909, 913, writ denied, 16- 2110 ( La. 1/ 13/ 17), 215 So. 3d 255. I would therefore
vacate the trial court' s determination of $3, 000.00 in additional business income
imputed to Mr. Wisecarver and remand this matter to the trial court.