NOT DESIGNATED FOR PUBLICATION STATE OF LOUISIANA COURT OF APPEAL FIRST CIRCUIT 2022 CA 0205 STATE OF LOUISIANA

VERSUS SHARON WING and DAVID WING Judgment Rendered: 

## NOV0,1 M2

On Appeal from the 22nd Judicial District Court 

### In and forthe Parish ofSt. Tammany

State of Louisiana Trial Court No. NS 12- 0302 

### Honorable Patrice W.Oppenheim, Judge Presiding

Warren Montgomery District Attorney Tammy Boone Keaton Leanne Kimble Mary Tate-Strahan Assistant District Attorneys Covington, Louisiana Larry M.Aisola, Jr. Chalmette, Louisiana Attorneys for Plaintiff/ Appellee, State of Louisiana

Attorney for Defendant/Appellant, Sharon Wing (CP) Betsy A. Fischer Attorneys for Defendant/Appellee, Natalie N. Enterkin David Wing (NCP) Samantha Spitale Metairie, Louisiana

BEFORE: WELCH, PENZATO, AND LANIER,JJ.PENZATO, J.



### Sharon Wing appeals a November 24, 2021 final child supportjudgment. For the following reasons, we affirm.

FACTS AND PROCEDURAL HISTORY 

## Sharon Wing and David Wing are the parents ofone child, born January 30, 2006. 

### Ms. Wing has physical custody of the child. On June 5, 2012, the State of Louisiana, Department ofSocial Services (the " State"), filed a rule to establish child 

### support. Ata hearing officer conference on September 10, 2012,the hearing officer calculated child support based on Ms. Wing's work history as a hairdresser and Mr. Wing' s receipt of VA and workers' compensation benefits. On December 7, 2012, 

### the trial court signed ajudgment adopting the hearing officer's recommendations and ordering Mr.Wing to pay $505. 00 per month in child support. 

### On August 30, 2018,the State filed a rule for review ofthe child support order,

as the order was more than three years old. 

### While the rule for review was pending, 

### Mr.Wing filed a rule to decrease child support based on his disability and an alleged increase in Ms.Wing' s income. On December 14, 2020, the parties appeared before the hearing officer. 

### After hearing testimony from the State and the parties, the 

### hearing officer calculated Ms. Wing's monthly gross income to be $ 3, 038. 00, and Mr. Wing' s monthly gross income to be $ 2, 287. 00. The hearing officer recommended that Mr.Wing' s child support order be reduced to $365. 08 per month. On January 19, 2021, Ms. 

### Wing filed an objection to the hearing officer's recommendation for a reduction in child support. 

## Ms.Wing's objectiontothe hearing officerrecommendation came forhearing before the trial court on November 4, 2021. Ms. Wing testified that she worked as a hairdresser and owned her own business. 

### In connection with her testimony, her tax returns for 2018, 2019, and 2020 were introduced into evidence. Ms. Wing' s 2020 tax return showed that she earned less than $

### 6,000.00 forthat year. Ms. Wing

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### testified that for a large portion of2020 her shop was closed. She further testified



### as to her monthly expenses, which totaled approximately $7, 204. 00. 

## Mr.Wing testifiedthat he was adisabledveteran and received approximately 2, 287.00 per month in VA benefits. Mr. Wing testified that he married Kristal Glover in 2012 and lived with her until 2019. During the marriage, Ms. Glover - 

### Wing worked in the health care industry. According to a petition for divorce 

### introduced into evidence, Ms.Glover - Wing filed fordivorce on September25, 2019. Mr.Wing and Ms. Glover - Wing were still married at the time ofthe November 4, 2021 hearing. Mr. Wing testified that Ms. 

### Glover - Wing had a life-threatening medical issue and donated to him a house she owned at 305 Inverness Lane, Broussard, Louisiana (" Inverness Lane house"). 

### On December 10, 2020, Mr.Wing executed a cash sale ofthe Inverness Lane house for $615, 000. 00. 

### At the conclusion of the hearing, the trial court made a number of factual 

## findings regarding the parties' incomes and calculated child support retroactivelyto November 1, 2018. On November 24, 2021, the trial court signed a final child 

## supportjudgment in accordance with its November4, 2021 ruling,which modified Mr.Wing' s existing monthly child support order as follows: Effective September 1, 2018, support was reduced from $505. 00 to $473. 00; 

### Effective January 1, 2019, support was reduced from $473. 00 to $459. 00; Effective January 1, 2020, support was reduced from $459. 00 to $332.00; 

### Effective January 1, 2021, support was reduced from $332. 00 to $313. 00. 

## Ms.Wing appeals from the November24, 2021 judgment,assigning as error the trial court' s refusal to calculate the sale ofseparate property as gross income. LAW AND DISCUSSION 

### An appellate court will not disturb an award ofchild support unless the trial court abused its discretion or committed manifest error. St. Philip a Montalbano, 

### 2016-0254 (La.App. 1 Cir. 10/31/ 16), 206 So. 3d 909, 912, writ denied, 2016-2110

3La. 1/ 13/ 17), 215 So. 3d 255. Furthermore, the trial court' s conclusions of fact



### regarding financial matters underlying an award of child support will not be 

### disturbed in the absence ofmanifest error. Romanowski a Romanowski, 2003-0124 La.App. 1 Cir.2/23/04), 873 So. 2d 656, 662. It is within the trial court' s discretion to decide what amount is appropriate for inclusion in gross income. Templeton u 

### Templeton, 2000-0536 (La.App. 1 Cir. 12/22/00), 774 So. 2d 1257, 1259. 

### The guidelines forthe determination ofchild support obligations are set forth in La. R.S. 9:315, et seq., and rely on the combined adjusted monthly gross income 

### ofthe parents. Bell a Jackson, 2018- 1075 (La.App. 1 Cir.5/31/ 19), 278 So. 3d 382, 385. " Gross income" 

### is defined by La. R.S. 9: 315(C)(3) as follows:

3) " 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, 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 un - employment 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, ifthe 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, royalties, proprietorship of a business, 

### or joint ownership or a partnership or closely held corporation. " 

### Ordinary and necessary expenses" 

### shall not include amounts allowable bythe Internal Revenue 

### Service for the accelerated component of depreciation expenses or 

## investment tax credits or any other business expenses determined by the courtto be inappropriate fordetermining gross income forpurposes of calculating child support. d) As used herein, " gross income" does not include: 

### i) Child support received, or benefits received from public assistance programs, including Family Independence TemporaryAssistance Plan, supplemental security income, food stamps, and general assistance.

0ii) 

### Per diem allowances which are not subject to federal income

taxation under the provisions ofthe Internal Revenue Code. iii) 

### Extraordinary overtime including but not limited to income attributed to seasonal work regardless of its percentage ofgross income when, in the court' s discretion, the inclusion thereof would be 

### inequitable to a party. 

### iv)Any monetary gift to the domiciliary party when the objective of the gift is to supplement irregular child support payments from the nondomiciliary party.
v) Any disaster assistance benefits received from the Federal Emergency Management Agency through its Individuals and 

### Households Program orfrom any other nonprofitorganization qualified as a tax-exempt organization under Section 501( c) of the Internal Revenue Code of 1954, as amended. Louisiana Revised Statutes 9: 315(C)( 5)( c) further provides that: 

### The court mayalso consideras income the benefits aparty derives from expense - sharing or other sources; however, in determining the benefits of expense -

sharing, the court shall not consider the income of another spouse, regardless of the legal regime under which the remarriage 

### exists, except to the extent that such income is used directly to reduce the cost ofa party' s actual expenses. 

### Following the hearing on this matter, the trial court noted credibility issues with both parties. For the years 2018 and 2019, the trial court determined Ms. Wing' s monthly income was $ 3, 316. 00 and $

### 3, 750.00 respectively, based upon her tax returns. For the years 2020 and 2021, the trial court calculated Ms. Wing' s monthly income to be $ 5, 704.00 based on her expenses. The trial court determined 

### that Mr.Wing' s monthly income for the years 2018 and 2019 was $3, 355. 00, based upon the $

### 2,287.00 he received inVAbenefits and imputing $1, 068. 00 for the benefit 

### he derived from expense sharing as a result of living with Ms. Glover - Wing. For 

## 2020, the trial court reduced the amount of income it imputed to Mr. Wing for expense sharing, based uponthetestimonythat Ms. Glover - Wing was having health problems and a report of Ms. Glover - Wing' s earnings that was introduced into

evidence. 

### The trial court calculated Mr.Wing's income for 2020 to be $ 2, 614.00. 

### For the year 2021, the trial court concluded that there was not sufficient evidence

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### that Mr.Wing and Ms. Glover - Wing were still living together; therefore, the trial 

## court did not impute any expense sharing for him, and determined his monthly income was $2,287.00, the amount he received in VA benefits. The trial court did not include the $615, 000.00 forthe sale ofthe Inverness Lane house in its calculation ofchild support, stating as follows: 

### I don't have any indication that he actually received that amount of money. He may have signed a cash sale, but I don't know ifthere' s a mortgage on it. Nobody provided me that so I don' t know that he received the entirety ofthe [$ 615, 000. 00]. 

### On appeal, Ms. Wing argues that " income" is not limited to salaries, but instead, "` gross income' includes ` 

### income from any source,' such as salaries, dividends and interest," citing Bernstein a Bernstein, 2019- 1106 ( La. App. 4 Cir. 2/ 10/21), 313 So. 3d 413, 421, writs denied, 2021- 00390 and 2021- 00380 ( La. 5/ 4/21), 315 So. 3d 220, and 315 So. 3d 222. Ms. Wing further cites La. R.S. 9: 315( C)( 3)( d), which provides that " gross income" does not include "[ c] hild support received, or benefits received from public assistance programs, ... food stamps, .... [ p] er diem allowances ...." 

### Thus, Ms. Wing argues that the amount of 

### funds Mr.Wing received from the sale ofthe Inverness Lane house should have been considered gross income based on the definition of what gross income does not include. 

### Mr.Wing argues on appeal that while gross income for child support purposes 

### is not limited to salaries, the examples provided in La. R.S. 9:315 each encompass regular or semi -regular payments made to the party at issue. Mr.Wing further notes that the " near -

comprehensive list provided in La. R.S. 9:315 does not mention sale proceeds." 

### Mr.Wing contends that because the proceeds at issue were distributed once, the proceeds are capital, not income. 

### The determination of the amount that is appropriate for inclusion in gross monthly income is a finding offact. See Templeton, 774 So. 2d at 1259. The trial

R

### courtmade afactual determinationthattherewas insufficientevidencethatMr.Wing

actually received the proceeds from the sale of the Inverness Lane house. Based upon our review ofthe record, we find no basis to disturb this factual determination, 

### nor do we findthe trial courtabused its discretion by excluding the proceeds, ifany, 

### from the sale ofthe Inverness Lane house in calculating Mr.Wing's gross income for 2020. 

### Accordingly,we find no merit in Ms. Wing' s sole assignment oferror. CONCLUSION 

### For the above and foregoing reasons, the November 24, 2021 judgment is

affirmed. 

### The costs ofthis appeal are assessed to Sharon Wing. AFFIRMED.

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