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 for the Parish of St. 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 support judgment. For

the following reasons, we affirm. 

FACTS AND PROCEDURAL HISTORY

Sharon Wing and David Wing are the parents of one child, born January 30, 

2006. Ms. Wing has physical custody of the child. On June 5, 2012, the State of

Louisiana, Department of Social Services (the " State"), filed a rule to establish child

support. At a 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 a judgment 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 objection to the hearing officer recommendation came for hearing

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 for that year. Ms. Wing

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testified that for a large portion of 2020 her shop was closed. She further testified

as to her monthly expenses, which totaled approximately $7, 204.00. 

Mr. Wing testified that he was a disabled veteran 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 for divorce on September 25, 2019. 

Mr. Wing and Ms. Glover -Wing were still married at the time of the 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 of the 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 retroactively to

November 1, 2018. On November 24, 2021, the trial court signed a final child

support judgment in accordance with its November 4, 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 November 24, 2021 judgment, assigning as error

the trial court' s refusal to calculate the sale of separate property as gross income. 

LAW AND DISCUSSION

An appellate court will not disturb an award of child 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

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La. 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 of manifest 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 for the determination of child 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 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. 

d) As used herein, " gross income" does not include: 

i) Child support received, or benefits received from public assistance

programs, including Family Independence Temporary Assistance Plan, 

supplemental security income, food stamps, and general assistance. 

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ii) Per diem allowances which are not subject to federal income

taxation under the provisions of the Internal Revenue Code. 

iii) Extraordinary overtime including but not limited to 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. 

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 or from any other nonprofit organization 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 may also consider as income the benefits a party 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 of a 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 in VA benefits 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 upon the testimony that 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 for the sale ofthe Inverness Lane house in its calculation

of child 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 if there' s a

mortgage on it. Nobody provided me that so I don' t know that he

received the entirety of the [$ 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 of fact. See Templeton, 774 So. 2d at 1259. The trial

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court made a factual determination that there was insufficient evidence that Mr. 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 find the trial court abused its discretion by excluding the proceeds, if any, 

from the sale of the Inverness Lane house in calculating Mr. Wing' s gross income

for 2020. Accordingly, we find no merit in Ms. Wing' s sole assignment of error. 

CONCLUSION

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

affirmed. The costs of this appeal are assessed to Sharon Wing. 

AFFIRMED. 

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