Adkins v. Adkins

687 So. 2d 1109, 1997 WL 40876
CourtLouisiana Court of Appeal
DecidedJanuary 31, 1997
Docket29,088-CA
StatusPublished
Cited by4 cases

This text of 687 So. 2d 1109 (Adkins v. Adkins) is published on Counsel Stack Legal Research, covering Louisiana Court of Appeal primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Adkins v. Adkins, 687 So. 2d 1109, 1997 WL 40876 (La. Ct. App. 1997).

Opinion

687 So.2d 1109 (1997)

Rhonda M. ADKINS, Plaintiff-Appellee,
v.
Kerry W. ADKINS, Defendant-Appellant.

No. 29,088-CA.

Court of Appeal of Louisiana, Second Circuit.

January 31, 1997.

*1111 Francis M. Gowen, Jr., Shreveport, for Appellant.

Rhonda W. Adkins, in pro. per.

Before WILLIAMS, STEWART and CARAWAY, JJ.

STEWART, Judge.

Defendant-appellant, Kerry W. Adkins, appeals the trial court's judgment finding him in constructive contempt, and awarding Rhonda M. Adkins, plaintiff-appellee, a money judgment in the amount of $3200.00. Appellant asserts five assignments of error. For these reasons, we affirm in part; reverse in part; and remand for the taking of additional evidence.

FACTS

On September 6, 1990, the trial court entered a judgment of separation of the marriage of appellant, Kerry W. Adkins ("Kerry") and Rhonda M. Adkins ("Rhonda"). In the judgment of separation, Rhonda was designated the domiciliary parent with specified visitation for Kerry. In search of employment, Rhonda moved to Colorado. By that, she and Kerry entered into a consent judgment where they amended the previous joint custody plan, to a joint custody with Kerry as the domiciliary parent. On December 14, 1994, in a judgment on the rule, the trial court awarded Rhonda specified visitation which consisted of:

Summer: During the year 1994, from June 25th until July 25th. Thereafter in even numbered years, from June 15th through July 15th, and in odd numbered years from July 10th through August 10th.
Christmas: In even numbered years from 12/20th through 12/29th.
Spring Break: On even numbered years from the time school is out until the day before school is to resume.
Miscellaneous: With reasonable notice, at any other time mutually agreeable to the parties when Rhonda M. Adkins is visiting in the area of the children's domicile or the children are visiting in the area of Rhonda M. Adkin's domicile.

Rhonda exercised her June 1994 summer visitation. Yet in a letter dated September 14, 1994, she wrote to Kerry, "I am revoking my rights for visits with the kids unless they want to come here." Rhonda failed to visit the children during Christmas 1995, nor did she inform Kerry that she would not exercise her Christmas visitation.

In July of 1995, Rhonda sought summer visitation with the children. During the year 1995, her visitation began on July 10 and ended August 10. Rhonda contacted Kerry on July 11, 1995, and notified him that she *1112 would exercise her visitation. As the tenth fell in the middle of the week, Rhonda decided to come to Louisiana on July 12th, visit with the children two days prior, and leave on July 14th.

When Rhonda came to Louisiana, she was unable to pick up the children. Two days later, she filed a Motion for Civil Warrant requesting that law enforcement officers accompany her to Kerry's home to get the children. The trial court ordered the issuance of a civil warrant, ordering Kerry to release the minor children for summer visitation with their mother. The children were not available pursuant to the civil warrant. Due to her employment, Rhonda was forced to return to Colorado. Again, she returned to Louisiana to assert her visitation. Kerry sought to recall the civil warrant, and the trial court subsequently denied his request.

Kerry countered the issuance of the civil warrant with a Rule Nisi for Contempt of Court, To Accrue Past Due Child Support, For Restricted Visitation, To Recall Civil Warrant and For an Award of Attorney's Fees. On July 18, 1995, pursuant to Rhonda's Motion for Criminal Warrant, Kerry was arrested.

A hearing was held on July 27, 1995, where the trial court rendered a Judgment on Rule awarding past due child support, attorney's fees, and a ruling finding Rhonda in contempt. The judgment provided: a) money judgment in favor of Kerry for $4,593 for past due child support; b) attorney fees for $600 awarded to Kerry; c) Rhonda was found in contempt and sentenced to thirty days, suspended upon paying $2000 within thirty days of the rendition of the judgment.

On February 29th and March 1, 1996, a hearing was held on Rhonda's Rule for Contempt, and For Modification of Specified Visitation. The trial court concluded that:

a) Kerry was in contempt for violation of the visitation order;
b) Kerry was adjudged to pay $700.00 for Rhonda's travel expenses
c) Kerry was condemned to pay $2500.00 attorney fees to Rhonda
d) The travel expenses and attorney's fees ($3200) were subject to payment within 10 days or Kerry would serve 90 days in jail; and
e) Kerry's offset or counter claim as contained in a money judgment dated July 27, 1995, against Rhonda of a sum sufficient to offset most, if not all, of Rhonda's money judgment was denied.

ASSIGNMENT OF ERROR NO. 1

Kerry contends that the trial court abused its discretion in finding him to be in contempt of court for violation of the visitation order. He contends that he cannot be found in constructive contempt where he did not willfully violate a lawful judgment or order.

The wilful disobedience of any lawful judgment or order of the court constitutes a constructive contempt of court. Contempt proceedings in civil cases are regulated by La.C.C.P. Art. 221-227 and La.R.S. 13:4611. La.C.C.P. art. 224 provides in pertinent part:

A constructive contempt of court is any contempt other than a direct one.
Any of the following acts constitute a constructive contempt of court:
* * * * * *
(2) Wilful disobedience of any lawful judgment, order, mandate, writ, or process of the court;

La.C.C.P. art. 227 provides:

A person may not be adjudged guilty of a contempt of court except for misconduct defined as such, or made punishable as such, expressly by law. The punishment which a court may impose upon a person adjudged of contempt of court is provided in La.R.S. 13:4611.

La.R.S. 13:4611 provides in pertinent part:

Except as otherwise provided by law:
(1) The supreme court, the courts of appeal, the district courts, family and city courts may punish a person adjudged guilty of contempt of court therein, as follows:

* * * * * *

(4) For any other contempt of court, including disobeying an order for the payment of child support or alimony or an order for the right of visitation, by a fine of *1113 not more than five hundred dollars, or imprisonment for not more than three months, or both.

A civil warrant was issued on July 14, 1995, ordering Kerry to release the children for summer visitation with their mother. Kerry incorrectly argues that the trial court unlawfully issued the warrant, as it is not within the provisions of La.R.S. 9:343. However, the trial court did have the authority to impose a contempt judgment under R.S. 13:4611(1)(d).

Kerry was found in contempt for violation of the order for the July 10—August 10 visitation under the authority of R.S. 13:4611(1)(d). The trial court found that the June 23, 1994, order provided Rhonda visitation rights between July 10th and August 10th. However, at the trial of this matter, a letter from Rhonda dated September 14, 1994, was introduced into evidence.

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Cite This Page — Counsel Stack

Bluebook (online)
687 So. 2d 1109, 1997 WL 40876, Counsel Stack Legal Research, https://law.counselstack.com/opinion/adkins-v-adkins-lactapp-1997.