Carollo v. Carollo

118 So. 3d 53, 2013 La.App. 1 Cir. 0010, 2013 WL 2370520, 2013 La. App. LEXIS 1088
CourtLouisiana Court of Appeal
DecidedMay 31, 2013
DocketNo. 2013 CU 0010
StatusPublished
Cited by5 cases

This text of 118 So. 3d 53 (Carollo v. Carollo) 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
Carollo v. Carollo, 118 So. 3d 53, 2013 La.App. 1 Cir. 0010, 2013 WL 2370520, 2013 La. App. LEXIS 1088 (La. Ct. App. 2013).

Opinion

PETTIGREW, J.

|2This appeal challenges numerous aspects of a trial court’s judgment, including the finding that plaintiff was in contempt of court for failing to pay private school tuition for the minor child, the ruling concerning plaintiffs motion to annul and/or amend a previous consent judgment, and the dismissal of plaintiffs petition for change in custody. For the reasons that follow, we affirm.

FACTS AND PROCEDURAL HISTORY

The record reflects that plaintiff, Leonard J. Carollo, III, and defendant, Trish E. Carollo, were divorced by a Texas judgment dated December 22, 2005, which judgment was made executory in Louisiana by order dated August 22, 2007. One child, Leonard J. Carollo, IV, was born of the marriage. All ancillary matters, including child support, custody, and visitation were addressed in the original Texas divorce judgment. Thereafter, in September 2007, Leonard filed a motion to modify the terms of the 2005 divorce agreement, in particular, visitation and his child support obligation. Numerous continuances were filed by Leonard, and ultimately a rule date before the hearing officer was scheduled for June 29, 2009, with a hearing before the trial court scheduled for July 21, 2009. Prior to the hearing officer conference, Trish filed a rule requesting an increase in child support, which was also set for hearing before the trial court on July 21, 2009.

Following the hearing officer conference on June 29, 2009, the parties entered into a “Joint Stipulation And Consent Judgment” whereby the parties retained joint custody of the child, with Trish named as the domiciliary parent. Moreover, Leonard’s child support obligation was reduced, and a procedure was put in place for the parents to pay their share of the child’s expenses. This judgment was signed by the trial court on July 10, 2009.

In November 2010, Trish filed a rule for contempt against Leonard arguing that he was in violation of the July 10, 2009 judgment because he had an “overnight guest of a romantic nature while exercising overnight visitation with the minor child.” Leonard responded to the rule for contempt with various exceptions, including | svagueness/ambiguity, no cause of action, and res judicata. Leonard also filed his own rule for contempt against Trish, arguing that she had not been sharing information with him about the child as she was ordered to do in the July 10, 2009 judgment. Leonard also moved for a change in custody, increased visitation, decrease in child support, and an amendment to the consent judgment. Thereafter, Trish filed a supplemental rule for contempt and a rule to increase child support. These matters were considered at a hearing officer conference on April 27, 2011, at which time the hearing officer recommended that cus[56]*56tody remain the same with the exception that Leonard was to have an additional week of visitation during the summer. With regard to child support, the hearing officer denied both Leonard’s request for a decrease and Trish’s request for an increase for failure to show a change in circumstances. The hearing officer found both Leonard and Trish in contempt of court and ordered them both to pay attorney fees in connection with the finding of contempt. The recommendations of the hearing officer were made temporary orders of the trial court by order dated May 17, 2011, pending a hearing before the trial court on July 14, 2011.

After a continuance by Leonard’s counsel, the matter was heard on October 18, 2011. Judgment was rendered in open court on October 18, 2011, as follows: The parties were awarded joint custody with Trish remaining as the domiciliary parent. The trial court took judicial notice of Leonard’s admission that he knowingly violated the prior consent judgment dated July 10, 2009, by having an overnight guest of a romantic nature while the child was present. The trial court deferred adjudication on the contempt issue, but ordered Leonard to pay Trish’s court costs associated with filing the rule for contempt. The trial court again reiterated the overnight guest prohibition from the July 10, 2009 consent judgment, but included an exclusion for Leonard’s girlfriend, Eriana Antoun. The trial court ordered that the child continue to be enrolled in private school and that all expenses attributable to his education be split between the parties equally, commencing with the 2011/2012 school year. A parenting coordinator, Dr. Stephen W. Thompson, was appointed by the trial court to make recommendations regarding the child. Trish’s rule for contempt and rule to increase child support were dismissed, with prejudice. |4Leonard was awarded one extra week of visitation in the summer, and his rules for contempt, to modify custody, and to decrease child support were dismissed, with prejudice. It was further ordered that all other provisions of the July 10, 2009 consent judgment not expressly modified would remain in full force and effect. Written judgment to this effect was not signed by the trial court until April 23, 2012.

On March 30, 2012, Leonard filed another petition for change in custody and/or increased visitation. In said petition, Leonard also sought removal of Trish as domiciliary parent and requested that the child be enrolled in a school that could accommodate his special needs as a gifted student. Attached to Leonard’s petition was a letter from the parenting coordinator Dr. Thompson to counsel for both parties, in which Dr. Thompson outlined his suggestion with regard to the child’s education. On May 24, 2012, Trish again filed a rule for contempt against Leonard, this time arguing that Leonard had willfully violated the April 23, 2012 consent judgment by refusing to pay his share of the child’s school tuition for the 2011/2012 school year. On May 30, 2012, Leonard filed a motion to annul and/or amend and/or vacate the April 23, 2012 consent judgment and a motion for sanctions. These matters proceeded to a hearing officer conference on June 6, 2012, at which time the hearing officer made the following recommendations:

The father’s motion for modification of legal custody is denied.
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The father’s physical custody is modified as follows:
On the father’s custodial week-ends, the child shall be returned Monday morning to school[.]
[57]*57All other physical custody as provided in Consent Judgments of 7/10/2009 and 4/23/2012 remain in effect.
[[Image here]]
Leonard ... is hereby found to be in contempt of the prior order of this Court for failure to pay private school tuition timely.
He is hereby sentenced to serve 3 days in the parish jail, and fined $300.00 payable to the Judicial Expense Fund.
The fíne and sentence are suspended, on the following condition(s):
|sThe father paying his 50% share of the private school tuition by 7/31/2012. The father not being found in contempt of court in any further proceedings.

Leonard filed an objection to the hearing officer’s recommendations, and, therefore, the recommendations were never made the final judgment of the trial court. Rather, they became a temporary order of the trial court (with the exception of the recommendations on contempt, which remained recommendations only) pending the hearing before the trial court.

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Cite This Page — Counsel Stack

Bluebook (online)
118 So. 3d 53, 2013 La.App. 1 Cir. 0010, 2013 WL 2370520, 2013 La. App. LEXIS 1088, Counsel Stack Legal Research, https://law.counselstack.com/opinion/carollo-v-carollo-lactapp-2013.