Nicholas Shelby Crefasi appeals a judgment rendered by the Honorable Leo Boothe, District Judge, which, among other things, set his child support obligation at $450 per month, ordered him to provide hospitalization insurance on all of the minor children, ordered him to pay $500 in attorney fees and all past and present court costs in this matter, and held defendant in contempt of court. We reverse in part, affirm in part, and remand.
By judgment rendered on February 29, 1988, by Judge Boothe's predecessor in office, Nicholas Shelby Crefasi and Wanda Allred Crefasi were divorced; the parties were awarded joint custody of the three minor children of the marriage with Wanda Crefasi designated as the primary custodian.
By judgment rendered March 14, 1988, pursuant to the divorce, Judge Boothe's predecessor set child support at 25% of Nicholas's monthly income and required him to keep Wanda apprised of his financial status and give her a quarterly accounting of all income received by him from any source. The trial court did not intend for this to be a determinate amount. Rather, it appears that the trial court intended that if Nicholas received income, he was required to pay Wanda 25% of whatever he received, as his child support obligation. The record contains the following letter from the trial judge (Judge Boothe's predecessor) to plaintiff's counsel in this regard:
On February 23, 1988, Nicholas testified before the court that he was unemployed and had not received income in 1988. (The judgment
By judgment rendered January 9, 1989, the court ordered, among other things, that Nicholas and Wanda each pay one-half of any and all medical and dental expenses not covered by hospitalization insurance on all the minor children. Nicholas was not ordered to provide hospitalization insurance on the children; Wanda obtained this through her employer.
All proceedings outlined above were conducted before Judge Boothe's predecessor, and the judgments and orders referred to were issued by him.
On June 14, 1991, Wanda Crefasi (hereinafter plaintiff) filed the rule that is presently before us on appeal by Nicholas Crefasi (hereinafter defendant). In her rule, plaintiff alleged, among other things, that "[t]he percentage of defendant's income is not a basis for child support and is not working.... Plaintiff desires that defendant be ordered to pay a set amount each month for the support and maintenance of his children. Plaintiff desires that the defendant be ordered to pay child support as per L.R.S. 9:315."
The plaintiff's rule was heard and acted on by Judge Boothe as the judge of the trial court. He set child support at $450 per month and ordered defendant to provide hospitalization insurance on all of the minor children. Additionally, among other things, the court ordered defendant to pay $500 in attorney fees and all past and present court costs in this matter and held defendant in contempt of court. Defendant appeals. We note that the judgment refers to oral reasons, but they were apparently not recorded or transcribed as we have found none in the record.
Defendant basically contends that it was improper for the trial court to amend the previous judgment in that plaintiff failed to prove a substantial change in circumstances. Defendant submits that even if the modification is allowed by this court, the trial court improperly determined the amount of the award.
It is true that the party seeking to increase or decrease the amount of child support or alimony bears the burden of proving a change of circumstances since the rendition of the prior judgment fixing the amount of support. LSA-R.S. 9:311A; Preis v. Preis, 610 So.2d 163 (La.App. 3d Cir.1992), writ denied, 612 So.2d 103 (La.1993). In addition, the courts of appeal in Louisiana have continued to demand the showing of a substantial change in circumstances as a prerequisite for modifying child support judgments. Crowder v. Crowder, 595 So.2d 810 (La.App. 2d Cir.), writ denied, 598 So.2d 358 (La.1992); Peltier v. Peltier, 617 So.2d 201 (La.App. 3d Cir.1993).
We agree with defendant that, on the record before us, the plaintiff has failed to prove a substantial change in circumstances necessary to trigger application of the Child Support Guidelines (LSA-R.S. 9:315 et seq.). However, the initial child support award of 25% of defendant's monthly income is not of such a nature that we are bound in the present circumstances to the change in circumstances rule and for the following reasons.
First, the judgment is indefinite and uncertain. A judgment must be certain and not based on any contingency. McCall v. Henry, 539 So.2d 819 (La.App. 3d Cir.1989); Key v. Key, 519 So.2d 319 (La.App. 2d Cir.1988);
Additionally, the judgment is unjust. It is well settled that a parent's primary obligation is to support his children and that it is the obligor's burden of proof to show he is absolutely unemployable in order to escape the primary obligation of providing minimal financial assistance to his children. Vidrine v. Vidrine, 567 So.2d 811 (La.App. 3d Cir. 1990). The March, 1988 judgment allows defendant to escape this primary obligation as long as he is not employed or receiving income. Whether the children receive support and in what amount is dependent on defendant's good faith effort in seeking and maintaining employment and on his truthful and accurate accounting of all income received. Plaintiff is faced with difficult proof problems in attempting to enforce the judgment or to collect arrearages. Compliance with the judgment is difficult for the trial court to monitor and this court to review. Appellate courts will not hesitate to grant relief when a trial court exercises its discretion in such manner that an injustice is done or substantial rights are lost due to a technicality or ruling of the trial court. LSA-C.C.P. art. 2164; Guillory v. Guillory, 602 So.2d 769 (La.App. 3d Cir.1992).
For these reasons, we find that the March 1988 judgment setting child support at 25% of defendant's monthly income may be ignored insofar as application of the change in circumstances rule is concerned. Accordingly, the judgment on the rule before us setting support at $450 per month may be properly viewed as the initial award establishing support. Since these proceedings to "establish" support were filed after October 1, 1989, application of the Child Support Guidelines (LSA-R.S. 9:315 et seq.) was proper. LSA-R.S. 9:315.1A.
We now consider whether the guidelines were properly followed. At the time the trial court determined the child support obligation, LSA-R.S. 9:315.1A and B provided:
LSA-R.S. 9:315.2 states:
We have not found verified income statements showing gross income and adjusted gross income nor documentation of current and past earnings including a copy of each party's most recent federal tax return in the record. Due to the lack of documentation, the trial judge could not apply the guidelines as required. For that same reason we are unable to do so. Bercegeay v. Bercegeay, 617 So.2d 133 (La.App. 5th Cir.1993). Therefore, we vacate the award and remand for a determination of the child support, including health insurance premiums, in accordance with the guidelines.
Attorney Fees and Costs
Defendant contends that the trial court erred in ordering him to pay $500 in attorney fees to plaintiff's counsel. He argues that since there was no judgment for past-due child support payments, it was incorrect for the trial judge to order him to pay plaintiff's attorney. He also asserts that it was improper for the trial judge to condemn him to pay all costs of court, past and present.
LSA-R.S. 9:375A provides 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."
Plaintiff failed to prove and the trial court did not award arrearages for payments owed on defendant's child support obligation of 25% of his monthly income. However, the judgment does grant and make executory payments for past-due medical bills totalling $118.74 and past-due dental bills totalling $98.50. LSA-C.C. art. 227 provides that "[f]athers and mothers, by the very act of marrying, contract together the obligation of supporting, maintaining, and educating their children." The support obligation of LSA-C.C. art. 227 includes the obligation to pay medical expenses. Durand v. Durand, 460 So.2d 97 (La.App. 3d Cir.1984); Cooper v. Cooper, 594 So.2d 939 (La.App. 3d Cir.1992). It appears to us that LSA-R.S. 9:375A encompasses past-due payments in the form of medical and dental payments. Thus, since the court rendered judgment making executory past-due medical and dental payments, the court should have awarded attorney fees and costs unless good cause was shown.
In the case before us, good cause was shown for defendant's failure to make these payments. By judgment rendered January 9, 1989, plaintiff and defendant were ordered to each pay one-half of any and all medical, drug, doctor, dental, hospital or any and all other medical and dental expenses not covered by hospitalization insurance on all the minor children. The judgment also provided
Although plaintiff indicated that she told defendant about the medical bills, plaintiff failed to show that she submitted copies of the bills to defendant in accordance with the January 9, 1991 judgment. Plaintiff did testify that she sent defendant a copy of some medical bills in April (of 1991) but that she did not get "the green card" (return receipt) nor the letter (apparently accompanying the copy of the bills) back in the mail. (Defendant's share of the medical bills at that time was $60.33.) Defendant testified that plaintiff mentioned to him that there were some medical bills and that he told her to send him copies of what was not paid by insurance. Defendant stated that plaintiff told him she had sent "it." Defendant testified that he did not receive the April letter. Since plaintiff did not prove that she submitted copies of the bills in accordance with the judgment, it appears that defendant had good cause for not paying his one-half share of the bills. Therefore, the trial court erred in awarding attorney fees and court costs under LSA-R.S. 9:375A.
However, we agree that defendant should be taxed with 100% of the court costs in this proceeding since plaintiff prevailed on most of her claims, and we affirm the award of costs on that basis.
Defendant contends that the trial court erred in holding him in contempt of court for his failure to pay past-due child support, for his failure to provide a quarterly accounting to the plaintiff, for his failure to pay one-half of all medical and dental expenses, and for his failure to pay court costs.
Our appellate courts have repeatedly held that a judgment of contempt is not an appealable judgment; instead, the proper remedy is to seek supervisory writs. Miller v. Miller, 610 So.2d 183, 184 (La.App. 3d Cir.1992) citing Cooper v. Cooper, 594 So.2d 939, 942 (La.App. 3d Cir.1992) and cases cited therein. Therefore, we will not address this issue since it is not properly before us.
For the foregoing reasons, we reverse the award of attorney fees. We remand the case for recalculation of child support in accordance with the guidelines. We affirm the judgment in all other respects. We assess costs of this appeal to defendant—Nicholas Crefasi.
REVERSED IN PART; AFFIRMED IN PART; REMANDED.