FITZSIMMONS, J.
Defendant-appellant, Kenneth Walden, sought a reduction in his child support obligation and to have the court proportionally allocate the child support between his two minor children. The trial court denied Mr. Walden's requests. He appealed. We reverse in part, and remand.
FACTS AND PROCEDURAL HISTORY
The parties to this action, Kenneth James Walden and Tracey Lynn Porche Walden, were married on October 24, 1992, in St. Mary Parish. Of their marriage, two children were born: Kennedi Claire Walden, born March 26, 1994, and Kameron Christopher Walden, born January 06, 1999.
On January 20, 2000, Mrs. Walden filed a petition for divorce pursuant to La.C.C. art 102. A hearing on various rules was held on February 9, 2000. The testimony at this initial hearing established that Mr. Walden had been employed for approximately two and a half years at Columbia Chemical Company as a utility sacker earning $20.26 per hour. He regularly worked a significant amount of overtime. Mr. Walden testified that he worked the overtime to achieve family goals. As of December 19th, his gross earnings for the year of 1999 were $75,226.34, with $23,592.07 of that amount attributed to overtime earnings. Mrs. Walden stated he made nearly the same amount in 1998, though probably a little less. Mrs. Walden testified that Mr. Walden never complained about working overtime prior to the divorce proceedings. However, at the first hearing, Mr. Walden testified that he would no longer voluntarily work overtime because his family was no longer a unit and he was physically and mentally drained.
Mr. and Mrs. Walden mutually agreed to send their daughter, Kennedi, to St. John's, a private school, where she was in kindergarten. Mr. Walden testified that he had no problem with his daughter attending this school; and, as far as he knew, she was doing well there. Mrs. Walden testified that the tuition at St. John was $213.00 per month and that daycare and after-school care costs for both children totaled $279.50 per month. Finally, although there was a provisional visitation plan granting Mr. Walden at least four days a month with his children, Mrs. Walden agreed to remain flexible, allowing Mr. Walden any additional days that his rotating work schedule would allow.
When the hearing was concluded, Mr. Walden was ordered to pay Mrs. Walden child support of $1,591.00 per month for the two minor children. Although Mr. Walden had requested that the court not use his overtime earnings in calculating his gross income, his request was denied. The court established Mr. Walden's monthly gross income as $6,211.00 and Mrs. Walden's monthly gross income as $1,275.00, for a total monthly gross income of $7,486.00. The basic child support obligation was determined on this amount. The court then added to the basic support obligation, $279.00 for child care costs and $213.00 for private school tuition. Mr. Walden was granted the tax deductions for the two children every year. Mrs. Walden waived any right to spousal support in return for the amount of child support she would be receiving.
Subsequent to the rule on February 9, 2000 and beginning in mid-June, 2000, Mr. Walden accepted a promotion to utility operator. As a result, his hourly pay increased to $20.97 per hour.
On August 14, 2000, Mr. Walden filed a rule for reduction of child support based on a change of circumstances. He asserted that he was averaging less income per month than when the initial determination of child support was made on February 9, 2000. Essentially, he claimed that, although his new job paid a slightly higher hourly rate, he was now making less income because he no longer had substantial overtime available to him.
The trial on this rule was heard on September 13, 2000. Mr. Walden introduced into evidence paycheck stubs from the date he started working in his new position. The evidence showed Mr. Walden's monthly gross income decreased from $6,211.00 to between $4,200.00 and $4300.00. The court found as a fact that Mr. Walden was voluntarily underemployed, and denied his request for a reduction in child support.
Mr. Walden had also asked the court to remove the private school tuition from the support obligation, to order Kennedi to attend a public school, and to allocate the child support award proportionally between the two children. The court denied these requests as well.
On September 25, 2000, the trial court signed a judgment denying Mr. Walden's requests. Mr. Walden has appealed.
STANDARD OF REVIEW
The standard of appellate review of factual findings in a civil action is a two-part test: (1) the appellate court must find from the record there is a reasonable factual basis for the finding of the fact finder, and (2) the appellate court must further determine the record establishes the finding is not clearly wrong (manifestly erroneous). Mart v. Hill, 505 So.2d 1120, 1127 (La. 1987). Factual findings should not be reversed on appeal absent manifest error. Rosell v. ESCO, 549 So.2d 840, 844 (La. 1989); State ex rel. A.M. v. Taylor, 2000-2048, p. 8 (La.App. 1 Cir. 2/15/02), 807 So.2d 1156, 1162. If the trial court's "findings are reasonable in light of the record reviewed in its entirety, the court of appeal may not reverse . . . ." Sistler v. Liberty Mutual Ins. Co., 558 So.2d 1106, 1112 (La. 1990). Consequently, when there are two permissible views of the evidence, the fact finder's choice between them cannot be manifestly erroneous. Id.; Stobart v. State, Department of Transportation and Development, 617 So.2d 880, 883 (La. 1993). A child support award will not be reversed absent an abuse of discretion. State, Department of Social Services, Support Enforcement Services, ex rel. A.M. v. Taylor, 2000-2048 at p. 8, 807 So.2d at 1162.
REDUCTION OF CHILD SUPPORT
Mr. Walden contends that the trial court erred in failing to reduce his monthly child support obligation. He argues that the trial court erroneously included overtime pay in determining his gross income for child support purposes. He also claims that the trial court erred in finding him voluntarily underemployed for taking a promotion with a higher wage, but less opportunity for overtime. He further contends that the trial court should have deviated from the child support guidelines as the amount of the award is larger than necessary to care for two small children, and that the award should at least be offset by the amount of time the children spend in his care and custody. Lastly, he argues that the trial court erred by adding gross, rather than net, child care costs to the basic support obligation. Each of these elements will be reviewed separately.
Voluntary Underemployment and Extraordinary Overtime
Mr. Walden argues that the trial court should have reduced his child support obligation based on a change in circumstances since the original order. Mr. Walden maintains that the trial court was manifestly erroneous in failing to exclude his prior overtime income and in finding him to be voluntarily underemployed by taking a promotion at his company.
At the time this suit arose, the law defining "gross income" for the purposes of calculating child support obligations was La.R.S. 9:315(4)(a), which stated as follows:
La.R.S. 9:315 et seq . was amended by Acts 2001, No. 1082, § 1. This opinion refers to the law in effect at the time of the hearing of this matter.
(4) "Gross Income" means:
(a) The income from any source, including but not limited to salaries, wages, commissions, bonuses, dividends."
The rule for the inclusion of overtime is found in La.R.S. 9:315(4)(d)(iii), which provided:
(d) As used herein, "gross income" does not include:
(iii) Extraordinary overtime or 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.
However, if a parent is voluntarily underemployed, child support shall be calculated based on his or her earning potential. La.R.S. 9:315.2(B) 315.9.
"An award of child support may be modified if the circumstances of the child or of either parent change and shall be terminated upon proof that it has become unnecessary." La.C.C. art. 142. "An award for support shall not be reduced or increased unless the party seeking the reduction or increase shows a change in circumstances of one of the parties between the time of the previous award and the time of the motion for modification of the award." La.R.S. 9:311(A). Generally, the requisite threshold change need not be substantial. Thus, the party seeking the modification has the burden of proving that a change in circumstances has occurred since the fixing of the prior award. State, Department of Social Services, Support Enforcement Services ex rel . A.M. v. Taylor, 2000-2048 at p. 6, 807 So.2d at 1161.
Mr. Walden testified that he was working a significant number of overtime hours per week for long-term, but limited family goals: to purchase a new home and cars for the family. After the family broke up, he lost the motivation to work so many extra hours for things that were no longer family goals. Based on the evidence in the record, his monthly pay went from approximately $6000.00 to about $4200.00 per month because of the reduction in the amount of overtime. The overtime was not required by his employer, and was not an essential part of that job description, or guaranteed. Neither is this a case of a father who refused to work or one who intentionally accepted a lower paying job or a job beneath his potential and training. In fact, Mr. Walden accepted a higher paying promotion. It is only the classification of significant overtime that is at issue here.
At the time of trial, Mr. Walden was gainfully employed and made a decent living working 40-44 hours a week, with the possibility of occasional overtime. That is the basis that should be used for calculation of child support. In this particular case, despite any inconsistencies in testimony, the overtime was voluntarily undertaken for a limited goal, and outside of the ordinary full-time job requirements and income. Thus, it was "extraordinary" income. To find otherwise under the particular facts here would require all parents who worked overtime for a limited goal, to continue to work the highest level of overtime achieved or be classified as underemployed.
Under the positive law specifically applicable, "extraordinary" overtime should not be included if the inclusion would be "inequitable." La.R.S. 9:315(4)(d)(iii). It is the duty of parents to support their children. La.C.C. art. 227. However, the courts must be balanced in their enforcement of this duty and not impose extraordinary requirements on parents. The concern of the law and society, and therefore the courts, should be with true unemployment or underemployment of both parents of school-aged children, not one parent's decision to discontinue extraordinary pursuits or sacrifices after the family has broken up. We find that the imposition of judicially mandated long-term overtime in this particular case would be inequitable.
Under the facts of this case, the trial court clearly erred when it considered Mr. Walden's potential, rather than actual income. For these reasons, we reverse the portion of the judgment denying his request for a reduction in his support obligation based on a change in circumstances. The trial court should have granted the request and used the actual income for the support calculation.
Normally, this court would re-calculate the support award using the income rate provided in the record. However, in this case, we have also found an error in the fixing of child care costs. Unfortunately, the record lacks the evidence necessary for re-calculation on that issue. Without the necessary child care cost figures, the final re-calculation of child support also cannot be made by this court. Thus, we remand to the trial court for a re-calculation of the child support obligation consistent with this opinion. After re-calculation, any modification resulting shall be retroactive to the date of judicial demand. La.R.S. 9:315.21(C); see Hogan v. Hogan, 549 So.2d 267, 271-74 (La. 1989); State, Department of Social Services, Support Enforcement Services, ex rel . A.M. v. Taylor, 2000-2048 at p. 2, n. 2 16, 807 So.2d at 1158, n. 2 1168.
No good cause was shown why any modification granted should not be retroactive. If the mother is unable to make a lump sum repayment, and requests a determination by the trial court, the trial court may order that repayments be made by incremental deductions from the re-calculated child support over a period of time, or choose another method that would be fair to all parties.
Excessive Award
Mr. Walden argues that the trial court should have deviated from the child support guidelines. He asserts that the amount of the award mandated by the guidelines is larger than necessary to care for two small children.
There is a rebuttable presumption that the amount of child support obtained by use of the guidelines is the proper amount of child support. La.R.S. 9:315.1(A); Campbell v. Campbell, 95-1711, p. 5 (La.App. 1 Cir. 10/10/96), 682 So.2d 312, 317. Moreover, the parental obligation to pay child support must be implemented within the body of law contained in the Louisiana Child Support Guidelines. La.R.S. 9:315.1; State in Interest of Travers, 28,022, p. 4 (La.App. 2 Cir. 12/6/95), 665 So.2d 625, 627. As such, the guidelines are intended to fairly apportion between the parents the mutual financial obligation they owe their children, in an efficient, consistent, and adequate manner. State in Interest of Travers, 28,022 at p. 4, 665 So.2d at 627.
The legislation also provides that the court may deviate from the guidelines "if their application would not be in the best interest of the child or would be inequitable to the parties." La.R.S. 9:315.1(B). If the trial court deviates, it must "give specific oral or written reasons for the deviation, including a finding as to the amount of support that would have been required under a mechanical application of the guidelines and the particular facts and circumstances that warranted a deviation from the guidelines." Id.
In the present case, Mr. Walden produced absolutely no evidence, save his opinion, that the amount of the award was more than necessary to care for two small children, and should therefore be reduced. In the absence of any evidence to rebut the La.R.S. 9:315.1(A) presumption, Mr. Walden failed to carry his burden of proof to show that the application of the guidelines would not be in the best interests of the children or would be inequitable to him. Therefore, we see no abuse of discretion by the trial court in its application of the guidelines.
Adjustment for Time with Nondomiciliary Parent
Mr. Walden argues another ground for deviation. He believes that the trial court should have considered the amount of time the children are in his care and custody, and reduced the support accordingly.
Although the trial court did not expressly address this argument in its oral reasons for judgment, it implicitly rejected this contention when it denied Mr. Walden's request for a reduction in his child support obligation.
Louisiana Revised Statute 9:315.8(E), provides:
In cases of joint custody, the court shall consider the period of time spent by the child with the nondomiciliary party as a basis for adjustment to the amount of child support to be paid during that period of time. The court shall include in such consideration the continuing expenses of the domiciliary party.
Because the statute envisions the possibility of a deviation from the presumptively proper amount provided in the guidelines, Mr. Walden bears the burden of proving that the deviation is warranted.
The Louisiana Supreme Court, in Guillot v. Munn, 99-2132 (La. 3/24/00), 756 So.2d 290, provided guidance on the application of La.R.S. 9:315.8(E). The Guillot court enunciated a three-prong test to determine whether a deviation from the support guidelines was justified based on the length of time the child spends with the nondomiciliary parent. The supreme court found it reasonable to conclude that a "typical" amount of visitation had necessarily been contemplated in the actual setting of the guidelines. Guillot, 99-2132 at p. 11, 756 So.2d at 298-99. Thus, for a deviation, the trial court must find that the visitation in question was non-typical or "extraordinary." Guillot, 99-2132 at p. 13, 756 So.2d at 300. Second, the court must consider whether the extra time spent with the nondomiciliary parent results in a greater financial burden on that parent and in a concomitant lesser financial burden on the domiciliary parent. Finally, the court must determine that the application of the guidelines in a particular case under consideration would not be in the best interest of the child or would be inequitable to the parties. This prong is necessary to satisfy the deviation requirement of La.R.S. 9:315.1(B). Id. There is no "bright line" as to what constitutes extraordinary visitation as opposed to "typical" visitation. This determination falls within the great discretion of the trial court. Guillot, 99-2132 at p. 14, 756 So.2d at 300-301.
In the present case, Mr. and Mrs. Walden consented to a joint custody agreement setting forth the terms of visitation that provided, in part:
For every six days the father works, he is off two consecutive days (hereinafter referred to as "two-off-day period"). The father shall have physical custody every other "two-off-day period" . . . . The father is to have physical custody for two additional days during each month upon twenty four (24) hour notice to the mother . . . with the proviso that the mother does not have any prior plans with the children . . . .
The plan also granted Mr. Walden specified holiday visitation and summer visitation of two weeks, plus all of the father's days off from work. Mrs. Walden agreed to remain flexible with the plan in order to facilitate Mr. Walden having the children on any additional days that his fluctuating work schedule allowed.
Such a plan can reasonably be termed a typical amount of visitation. Even if the trial court had found that Mr. Walden's visitation was extraordinary, Mr. Walden did not present any evidence that the shared custody arrangement resulted in an increased financial burden for him and a concomitant decreased financial burden for Mrs. Walden. Mr. Walden merely stated that when the children were with him, he spent money to feed and clothe them. Finally, Mr. Walden did not establish that the application of the support guidelines was not in his children's best interest or resulted in any inequity to him. Therefore, the trial court properly applied the guidelines. The evidence did not support a deviation based on the amount of time the children spend with Mr. Walden.
Child Care Costs
Lastly, Mr. Walden argues that the trial court should have reduced the support obligation based on proof at the hearing of lower child care costs. He also argues that the trial court should have deducted the tax credit available to the mother.
Louisiana Revised Statute 9:315.3 provides that "[n]et child care costs shall be added to the basic child support obligation." Net child care costs are defined as "the reasonable costs of child care incurred by a party due to employment or job search, minus the value of the federal income tax credit for child care." La.R.S. 9:315(7).
The appellate record contains incomplete information regarding Mrs. Walden's claim for child care costs. During the initial hearing, Mrs. Walden testified that the total amount she paid for child care was $279.50 per month. The trial court added the amount of $279.00 to the basic child support award. At the second hearing, Mrs. Walden testified that the cost of Kameron's daycare was $215.00 per month. She further testified that Kennedi was now attending after-school care at St. John's, but she did not quantify that cost. Additionally, we note that the transcript makes absolutely no mention of the federal tax credit, nor did the trial court consider the credit. La.R.S. 9:315.3 and 9:315(7).
The court put $279.50 on the worksheet; however, it used the rounded figure of $279.00 in actually adding the total child support obligation.
Accordingly, the trial court shall hold a hearing to determine the child care costs and tax credit at the time of the hearing. The court shall then recalculate the award using net child care costs in conformity with the statute and the views expressed herein. See Lewis v. Lewis, 624 So.2d 1211-12 (La. 1993); Buchert v. Buchert, 93-1819, p. 15 (La.App. 1 Cir. 8/26/94), 642 So.2d 300, 309.
DESIGNATION OF SCHOOL
In his second assignment of error, Mr. Walden contends that the trial court erred in denying his motion for an order requiring his daughter Kennedi to attend a public school instead of a private school.
While Mr. and Mrs. Walden were still married, they made a mutual decision to send their daughter Kennedi to St. John's, a private Catholic school, where she subsequently attended kindergarten. Pursuant to the divorce proceedings, Mr. and Mrs. Walden entered into a joint custody agreement that required them to jointly discuss and consider the schools that the children would attend. At the hearing on February 9, 2000, Mr. Walden testified that he did not object to Kennedi's attendance at St. John's. However, on June 28, 2000, Mr. Walden had his attorney send a letter to Mrs. Walden informing her that he no longer wanted Kennedi to attend a private school. Conversely, Mrs. Walden wanted Kennedi to remain at St. John's. The joint custody agreement, which required decisions regarding education to be discussed, also named Mrs. Walden as the domiciliary parent.
All major decisions made by the domiciliary parent, which would include choice of schools, are subject to judicial review upon motion of the non-domiciliary parent. La.R.S. 9:335(B)(3). In the judicial review, it is presumed that all major decisions made by the domiciliary parent are in the best interest of the child. Id.
In this case, Mr. Walden failed to overcome the presumption in favor of Mrs. Walden's choice that attendance at St. John's was in Kennedi's best interest. Mr. Walden produced absolutely no evidence about the available public school or any of its benefits. Nor did he offer any evidence indicating that Kennedi's attendance at St. John's was not in her best interest. Indeed, he even conceded that St. John's was a good environment for his daughter and that he believed she was doing well there. The legal presumption that Mrs. Walden's choice is in the best interest of Kennedi must prevail in the absence of evidence to the contrary. We therefore affirm the trial court's denial of Mr. Walden's rule to require Kennedi to leave her private school to attend a public school.
PRIVATE SCHOOL EXPENSE
In his third assignment of error, Mr. Walden argues that the trial court erred in including private school tuition in the basic child support obligation.
Expenses associated with private schooling are not automatically added to the basic child support obligation. La.R.S. 9:315.6(1); Campbell v. Campbell, 95-1711 at p. 10-11, 682 So.2d at 320. Louisiana Revised Statute 9:315.6(1) allows the addition of private school expenses to an award of child support by either agreement of the parties or by order of the court upon a finding that the private schooling is necessary to meet the particular educational needs of the child. Kelly v. Kelly, 99-2478, p. 12 (La.App. 1 Cir. 12/22/00), 775 So.2d 1237, 1245, writ denied, 2001-0234 (La. 3/23/01), 787 So.2d 1001. Before private school tuition expenses should be mandated for inclusion in a child support award, some evidence must be presented to show a particular educational need of the child is met by attendance at a private school. Id; Valure v. Valure, 96-1684, p. 3 (La.App. 1 Cir. 6/20/97), 696 So.2d 685, 687. A particular educational need includes consideration of the child's history of attending private school and whether a continuation of the child's education in that setting is in the child's best interest. Valure, 96-1684 at p. 4, 696 So.2d at 688. However, a trial court's decision to add private school tuition expenses to the basic child support obligation will not be disturbed, unless it is an abuse of discretion. Valure, 96-1684 at p. 3, 696 So.2d at 687.
In the case before us, Mr. Walden admits that, while still married to Mrs. Walden, he agreed that Kennedi should attend St. John's private school when she began kindergarten. His agreement continued until June, 2000, when he had his attorney send a letter to Mrs. Walden stating that he no longer agreed that Kennedi should attend a private school.
Mrs. Walden gave ample testimony to support the trial court's addition of private school expenses to the child support award. She testified that St. John's administered a test to all kindergarten students at the end of the year. After testing, Mrs. Walden was notified that Kennedi scored poorly in both math and reading. The school informed Mrs. Walden that Kennedi's low scores made her eligible for its program providing special one-on-one tutoring by a teacher during the school day. Kennedi has since been receiving this tutoring on a weekly basis. Mrs. Walden further testified that she works until 5:00 p.m., but school ends at approximately 3:00 p.m. Kennedi would receive after-school care at St. John's that would be supervised by two teachers who assist the children with their homework or do other enrichment activities with them.
From our review of the record, we see no manifest error. In this case, there was sufficient evidence to support the trial court's finding that the addition of private school expenses was necessary to meet the particular educational needs of the child.
ALLOCATION OF CHILD SUPPORT
In his final assignment of error, Mr. Walden contends that the trial court erred in denying his motion to have the child support allocated proportionately to each child. He wants one-half of the award specifically allocated to Kennedi and the other half specifically allocated to Kameron.
"Prior to the enactment of the child support guidelines, child support judgments in Louisiana were either a `per child' award or an `in globo' award." Nations, Louisiana's Child Support Guideline: A Preliminary Analysis, 50 La.L.Rev. 1057, 1081 (1990). Now, under the guidelines, "child support awards in Louisiana are `in globo' awards." Id.; see La.R.S. 0:315.14. "Two basic theories underlying the design of the schedule of basic child support obligations are that certain household expenses considered in the cost of a child's support cannot simply be divided by the number of children in the home and thus equitably stated and that a smaller percentage of total income is spent on each child as a result of the economies of scale as the number of children in a family increases." Nations, Louisiana's Child Support Guideline: A Preliminary Analysis, 50 La.L.Rev. 1057, 1081-1082 (1990).
Appellant cites two of this court's cases, Colvin v. Colvin, 94-2143 (La.App. 1 Cir. 10/06/95), 671 So.2d 444, writ denied, 95-2653 (La. 1/5/96), 667 So.2d 522, and Leonard v. Leonard, 615 So.2d 909 (La.App. 1 Cir. 1993), for the proposition that the trial court may divide the basic child support obligation by the number of children and allocate it accordingly. However, the cases that Mr. Walden cites involve the issue of split custody. In Colvin and Leonard, the custody of the three children was split, with the father receiving custody of one child and the mother receiving custody of the other two children. In both cases, it was necessary that the court split the child support obligation by the total number of children and determine what support was due to each parent. Here, however, both of the children at issue have lived, and will continue to live, with Mrs. Walden, the domiciliary parent. There is no split custody arrangement. Thus, in this particular case, we cannot say that the trial court erred in denying the request to allocate the support per child.
DECREE
For the foregoing reasons, we reverse the portion of the judgment that denied the request to reduce child support. The case is remanded for an evidentiary hearing on the issue of child care costs, and for the recalculation of child support. The new award is made retroactive to the date of judicial demand. However, Mr. Walden is ordered to continue making child support payments in the amount of $1,591.00 per month until the trial court renders a new judgment. See Buchert, 93-1819 at p. 18, 642 So.2d at 310. In all other respects, the judgment of the trial court is affirmed. The case is remanded to the trial court for further proceedings consistent with this opinion. The costs of the appeal are assessed equally to plaintiff-appellee and defendant-appellant.
REVERSED IN PART; AFFIRMED IN PART; REMANDED WITH INSTRUCTIONS.
Lanier, J. concurs in part, dissents in part and assigns reasons.