Allison Michelle Young v. Jeremy Lee Young

• Court: Louisiana Court of Appeal
• Decided: June 30, 2021
• Docket: 54,038-CA
• Status: Published

Opinion

Judgment rendered June 30, 2021. Application for rehearing may be filed within the delay allowed by Art. 2166, La. C.C.P.

No. 54,038-CA

COURT OF APPEAL SECOND CIRCUIT STATE OF LOUISIANA

*****

ALLISON MICHELLE YOUNG Plaintiff-Appellant

versus

JEREMY LEE YOUNG Defendant-Appellee

Appealed from the Twenty-Sixth Judicial District Court for the Parish of Bossier, Louisiana Trial Court No. 139038

Honorable Edward Charles Jacobs, Judge

CARMOUCHE, BOKENFOHR, Counsel for Appellant BUCKLE & DAY, PLLC By: John Nathaniel Bokenfohr

JEREMY LEE YOUNG Pro se, Appellee

Before GARRETT, STONE, and STEPHENS, JJ. STEPHENS, J.

In this custody proceeding, the mother has appealed from the trial

court’s judgment holding her in contempt for failure to obey an interim

custody order, sentencing her to a non-purgeable 30 days in the parish jail,

and ordering her to pay court costs and the father’s attorney a $5,000 fee.

For the reasons set forth below, we reverse and remand the matter to the trial

court.

FACTS AND PROCEDURAL BACKGROUND

The parties, Allison and Jeremy, were married on September 22,

2007. Two children were born to them: K.Y. on April 26, 2007, and J.Y. on

August 22, 2009. Allison had one child, H.E., from a prior relationship.

Allison filed for divorce in May 2012, alleging that Jeremy was mentally,

physically, and verbally abusive to her and the children. Jeremy denied the

allegations, claiming that Allison had physically abused him and had

absconded out-of-state with the minor children on more than one occasion.

The trial court issued an agreed-upon interim order, awarding the parties

shared custody of K.Y. and J.Y. Sandi Davis, a licensed professional

counselor, was appointed to evaluate the parties and render an expert report

to the trial court. The parties, however, reconciled and divorce proceedings

were terminated.

On April 1, 2020, Allison filed a second petition for divorce, alleging

that: Jeremy had been physically, sexually, and psychologically abusive

during the course of their 13-year marriage, sometimes in the presence of the

minor children; his alcoholism had been “witnessed by” the children; the

children were afraid of Jeremy because of his temper; and, he had struck the

minor children. The trial court ordered that a temporary restraining order be put in place. On April 13, 2020, an interim order was entered by the trial

court awarding Jeremy supervised visitation with K.Y. and J.Y. every other

weekend beginning April 18, 2020.

Jeremy filed a pleading which included an exception of no cause of

action, answer to Allison’s petition for divorce, a petition for injunction

against harm and harassment under the Post-Separation Violence Relief Act,

La. R.S. 9:631, et seq., and other incidental matters, on April 29, 2020.

According to Jeremy, the parties physically separated when, on March 27,

2020, Allison left the matrimonial domicile and took the minor children to

Tennessee without his consent or prior notice to him and has refused to

return the children to Louisiana. A hearing was set for June 11, 2020.

After the hearing on June 11, 2020, pursuant to an agreement by the

parties, an “Interim Order Without Prejudice” was rendered by the trial

court, providing that the parties would alternate weekly physical custody of

the minor children until further orders of the court and appointing Sandi

Davis to perform a mental health/custody evaluation. Thereafter, on August

19, 2020, Jeremy filed a petition seeking immediate modification of

temporary custody, alleging that Allison still had the children in Tennessee,

was not letting them communicate with him, and had refused to deliver the

children to him for weekly visitation on at least three occasions, in violation

of the trial court’s June 11, 2020, interim order. Jeremy asked that the minor

children be returned to Bossier Parish, that he be awarded temporary, sole

custody, and that Allison be held in contempt of court for her failure to

comply with the June 11, 2020, interim order without prejudice. On August

19, 2020, the trial court modified its interim order without prejudice to grant

2 temporary, sole custody to Jeremy, and award Allison visitation with the

children every weekend.

A hearing was scheduled to be held on Jeremy’s petition for

modification of temporary custody and contempt on September 10, 2020. At

this hearing, Allison’s attorney sought to introduce evidence regarding his

client’s allegations of domestic violence and abuse to show Allison’s lack of

intent to violate the court’s interim order without prejudice, but the trial

court disallowed introduction of this evidence. According to the trial court,

such allegations went to the ultimate disposition of custody, but were not

relevant to the issue of contempt unless the violence or abuse occurred after

the issuance of the court’s June 11, 2020, interim order without prejudice.

Furthermore, despite making repeated requests to Allison’s attorney for an

explanation of his client’s actions, the trial court refused to permit any

testimony regarding Allison’s allegations of domestic violence and abuse.1

The same day as the hearing, the trial court rendered judgment in open

court, finding Allison to be in contempt of the June 11, 2020, interim order

without prejudice and sentencing her to 30 days in the parish jail with a cash

bond of $5,000. She was also ordered to reimburse Jeremy for court costs

and pay his attorney fees in the amount of $5,000. The trial court further

ordered Allison to deliver the minor children to Jeremy on that date,

September 10, 2020, with them to remain in his physical custody until the

completion of Allison’s sentence.2 A written judgment in conformity with

1 The court did allow counsel to proffer testimony regarding the alleged abuse. 2 A modified judgment awarding Allison supervised visitation every other weekend and ordering that the children are not to be removed from the State of Louisiana for any reason was rendered on October 16, 2020, and signed and filed on January 19, 2021. 3 the trial court’s ruling was signed and filed on October 16, 2020. Allison

has appealed from the trial court’s contempt judgment.3

DISCUSSION

According to Allison, the trial court abused its discretion in refusing

to allow her to introduce any testimony or other evidence on the issue of

domestic abuse prior to finding her in contempt and then again, before

sentencing her, especially since a non-purgeable 30-day jail sentence was

imposed. It is her argument to this Court that this evidence was highly

relevant as to whether she had a “justifiable excuse” for her violation of the

court’s interim order. Because the trial court abused its discretion in failing

to allow her to introduce evidence or testimony of domestic violence during

the contempt proceedings and prior to imposing sentence, Allison urges this

Court to reverse the lower court’s judgment and remand for further

proceedings.

The willful disobedience of any lawful judgment, order, mandate,

writ, or process of the court constitutes constructive contempt of court. La.

C.C.P. art. 224(2); Fradella v. Rowell, 49,350 (La. App. 2 Cir. 8/13/14), 147

So. 3d 817. A person charged with committing a constructive contempt of

court may be found guilty thereof and punished only after a trial by the

judge of a rule to show cause why she should not be adjudged guilty of

contempt and punished accordingly. La. C.C.P. art. 225(A); Pulley v.

Pulley, 587 So. 2d 116 (La. App. 2 Cir. 1991); Fleming v. Armant, 2012-43

(La. App. 5 Cir. 5/13/12), 97 So. 3d 1071. To find a person guilty of

3 A motion to withdraw filed by Jeremy’s counsel with this Court was granted on April 20, 2021. Jeremy neither retained another attorney to file a brief or answer to the appeal on his behalf nor made such a filing himself. 4 constructive contempt, the trial court must find that she violated the order of

the court intentionally, knowingly and purposefully, without justifiable

excuse. Lang v. Asten, Inc., 2005-1119 (La. 1/13/06), 918 So. 2d 453;

Mabry v. Andrus, 45,135 (La. App. 2 Cir. 4/14/10), 34 So. 3d 1075, writ

denied, 2010-1368 (La. 9/24/10), 45 So. 3d 1079.

The trial court is vested with great discretion in determining whether a

party should be held in contempt for disobeying the court’s order, and its

decision will only be reversed when the appellate court finds an abuse of

discretion. Keene v. Holdsworth, 53,649 (La. App. 2 Cir. 1/31/21), ___ So.

3d ___, 2021 WL 116191; Rockett v. Rockett, 51,453 (La. App. 2 Cir.

6/21/17), 223 So. 3d 1227; Fradella, supra.

In a proceeding for divorce or thereafter, the court shall award custody

of a child in accordance with the best interest of the child. La. C.C. art. 131.

A child has a right to time with both parents. La. C.C. art. 136.1. When a

court-ordered schedule of visitation, custody, or time to be spent with a child

has been entered, a parent shall exercise his rights to the child in accordance

with the schedule unless good cause is shown. Id. Neither parent shall

interfere with the visitation, custody or time rights of the other unless good

cause is shown. Id.

In the instant case, the parties agreed to an interim order without

prejudice entered by the trial court on June 11, 2020. The record indicates

that Allison filed no pleadings in the trial court to modify the custody

schedule set forth in the interim order without prejudice, but instead

disobeyed this order by refusing to let Jeremy exercise his custody rights

specified thereunder on more than one occasion. However, what the record

does not contain is the requisite testimony and evidence to show that 5 Allison’s violation was (or was not) done intentionally, knowingly, and

purposefully, without just cause.4

In Hanna v. Hanna, 53,210 (La. App. 2 Cir. 11/20/19), 285 So. 3d

116, 122, an appeal from the trial court’s judgment on a rule to increase

interim spousal support and for contempt for nonpayment, this Court found

the record to be “lacking evidence that [the defendant] willfully disobeyed

the order” because counsel for each party submitted written arguments to the

court, and there was no testimony or additional evidence submitted on the

issue of contempt at the hearing. As noted by this Court:

The written arguments by counsel are not evidence, and the trial court did not state, either orally or written, in its reasons that Mr. Hanna was in contempt for willfully disobeying the order. We do not find that the record contains evidence that Mr. Hanna willfully disobeyed the court’s order. A finding of willful disobedience absent proof is clearly erroneous.

Id. On the other hand, in Fradella, 147 So. 3d at 820, this Court found no

abuse of discretion on the part of the trial court, which, after a three-day

trial, was able to consider matters of credibility and weigh the evidence to

support a finding of contempt. See also, Mabry, supra; State through Dept.

of Children and Family Services v. Knapp, 2016-0979 (La. App. 4 Cir.

4/12/17), 216 So. 3d 130; Barnett v. Barnett, 2015-766 (La. App. 5 Cir.

5/26/16), 193 So. 3d 460, writ denied, 2016-1205 (La. 10/10/16), 207 So. 3d

4 The record does contain some testimony by the parties, albeit limited, since the trial court refused to allow Allison to testify on the issue of the domestic abuse allegations, noting that actions therein had all allegedly occurred prior to the date of the interim order without prejudice. Although Allison’s attorney argued that this evidence was relevant to the issue of whether Allison’s violation of the court’s order was willful, the trial court stated, “[I]f you want to present evidence, and we can take testimony, but you know, from a circumstantial point of view removing the children some eight, nine hundred miles away and failing to comply with the terms of the judgment is pretty— seems to be pretty willful and on purpose intentional to me.” 6 406; Mason v. Hadnot, 2008-2015 (La. App. 1 Cir. 2/13/09), 6 So. 3d 256;

Givens v. Givens, 2010-1152 (La. App. 1 Cir. 12/22/10), 2010 WL 4380739.

In the instant case, as in Hanna, supra, the record contains no

evidence (other than in the form of a proffer) regarding Allison’s “reason”

for violating the June 11, 2020, interim order without prejudice, since the

trial court refused to take evidence or hear testimony related to her

allegations of domestic violence. Because evidence of domestic violence

and abuse could have potential relevance as to whether Allison had a

“justifiable excuse” for her disobedience of the interim order, the trial court

abused its discretion in refusing to admit the evidence before finding Allison

in contempt and imposing punishment thereupon.5

CONCLUSION

For the reasons set forth above, the judgment of the trial court is

reversed, and the matter is remanded for further proceedings consistent with

this opinion.

REVERSED AND REMANDED.

5 The contempt judgment also awarded Allison’s ex-husband an attorney fee of $5,000. We note that no evidence whatsoever was introduced in support of such an award. 7