Christian D. Chesson v. Sarah Rebecca Duhon Chesson

• Court: Louisiana Court of Appeal
• Decided: October 31, 2007
• Docket: CA-0007-0190
• Status: Unknown

Opinion

NOT DESIGNATED FOR PUBLICATION

STATE OF LOUISIANA COURT OF APPEAL, THIRD CIRCUIT

07-0190

CHRISTIAN D. CHESSON

VERSUS

SARAH REBECCA DUHON CHESSON

************

APPEAL FROM THE FOURTEENTH JUDICIAL DISTRICT COURT, PARISH OF CALCASIEU, NO. 2003-2782 HONORABLE GUY E. BRADBERRY, DISTRICT JUDGE

JIMMIE C. PETERS JUDGE

Court composed of John D. Saunders, Jimmie C. Peters, and Glenn B. Gremillion, Judges.

REVERSED IN PART, AFFIRMED IN PART, AND REMANDED.

Harley M. Brown Attorney at Law 854 Main Street Baton Rouge, LA 70802 (225) 336-0353 COUNSEL FOR PLAINTIFF/APPELLANT: Christian D. Chesson

Kathleen Kay Attorney at Law Post Office Box 2042 Lake Charles, LA 70602 (337) 439-7616 COUNSEL FOR DEFENDANT/APPELLEE: Sarah Rebecca Duhon Chesson PETERS, J.

As part of this lengthy and contentious litigation between Christian D. Chesson

and his former wife, Sarah Rebecca Duhon Chesson, the trial court rendered a

judgment awarding the litigants joint custody of their two minor children. In that

judgment, the trial court named Mrs. Chesson domiciliary parent, established a

visitation schedule for Mr. Chesson, and found both litigants in constructive contempt

of court on various grounds. Mr. Chesson has appealed that judgment, asserting four

assignments of error. In her answer to the appeal, Mrs. Chesson asserts two

assignments of error. For the following reasons, we affirm in part, reverse in part,

and remand the matter to the trial court for further proceedings consistent with this

opinion.

DISCUSSION OF THE RECORD

The parties were married on October 10, 1996, and ultimately divorced on

September 23, 2004. Two children were born of the marriage: Trevor, born June 3,

1997, and Madison, born July 6, 1999. During their marriage Mrs. Chesson did not

work outside the home and was the primary caretaker of the children. Mr. Chesson

maintained a law practice in Lake Charles and New Orleans. When the parties

physically separated in September of 2002, they shared physical custody of the

children. However, that shared relationship came to an end when, on May 23, 2003,

Mr. Chesson filed a petition seeking an ex parte order for temporary custody of the

children.1 However, at the hearing held on that same day, the parties entered into a

stipulation that they would share physical custody of the children on an equal basis.

Specifically, they agreed that each parent would have custody on alternate weeks.

1 Because of the extensive procedural history in the litigation, which is still pending in the trial court on the child support issue, we discuss herein only those matters immediately relevant to this appeal. On August 13, 2003, the trial court entered an order adopting its hearing

officer’s interim recommendation that Mr. Chesson pay Mrs. Chesson $2,297.00 in

monthly child support and $1,100.00 in monthly periodic spousal support.

Thereafter, on September 10, 2003, Mr. Chesson confirmed a preliminary default and

the trial court awarded him a judgment of divorce.

On September 30, 2003, Mrs. Chesson filed a rule to show cause why her

former husband should not be held in contempt of court for failing to timely pay

$7,840.00 in child support and periodic spousal support, as well as a rule to show

cause why he should not be held in contempt of court for failing to answer discovery

requests as required by a September 16, 2003 trial court order.2 Almost ten months

later, on July 2, 2004, Mrs Chesson filed a petition to annul the divorce judgment,

alleging that the September 10, 2003 decree was obtained through fraud or ill

practices. She combined this with another rule to show cause why Mr. Chesson

should not be held in contempt of court for failure to comply with the child support

and periodic spousal support order—this time asserting that the amount owed had

increased to $14,864.52.3

The trial court set aside the divorce judgment after a September 16, 2004

hearing. Seven days later, the trial court rendered judgment granting a judgment of

divorce.

The issues raised by the filings mentioned above remained dormant until a

hearing which began on February 7, 2006, and extended through February 13, 2006.

Following presentation of evidence by both parties, the trial court took the issues

2 The order was filed on September 8, 2003, but the discrepancy in the dates does not affect the issues in this appeal. 3 The parties each filed additional rules for contempt against the other, alleging violations of various court orders, but those rules are not at issue in this appeal.

2 under advisement. In its twenty-six page written reasons for judgment rendered June

21, 2006, the trial court awarded the parties joint custody of the minor children,

naming Ms. Chesson as domiciliary parent; formulated a joint custody plan; and

found Mr. Chesson in contempt of court with respect to the September 30, 2003 and

July 2, 2004 rules, and for violating the trial court’s order of sequestration of

witnesses during the February 2006 trial. The trial court executed a judgment to that

effect on October 12, 2006. The joint custody plan filed with the judgment provided,

among other points, that during the school year Mr. Chesson had visitation on

alternating weekends from the end of school on Thursday until Monday morning, and

that during the summer holidays Mr. Chesson had visitation on an alternating week

basis.

In his appeal, Mr. Chesson asserts that the trial court erred (1) in designating

his former wife as domiciliary parent; (2) in changing the equal sharing custodial

arrangement; (3) in adopting a visitation plan not in compliance with the local rules

of court; and (4) in finding him in contempt of court. In her answer to the appeal,

Mrs. Chesson asserts that the trial court erred (1) in awarding joint custody to her

former husband and (2) in the amount of visitation granted Mr. Chesson.

OPINION

Mr. Chesson’s First Two Assignments of Error

Mr. Chesson asserts in these assignments of error that neither the law nor the

evidence supports the designation of Mrs. Chesson as the domiciliary parent or the

reduction of his custodial rights from equal sharing to mere visitation rights.

Each child custody case must be viewed in light of its own particular set of

facts and circumstances with the paramount goal of reaching a decision that is in the

3 best interest of the child. Barberousse v. Barberousse, 556 So.2d 930 (La.App. 3 Cir.

1990). The best interest evaluation is fact-intensive and requires the weighing and

balancing of factors favoring or opposing custody in the competing parties on the

basis of the evidence presented in each case. Romanowski v. Romanowski, 03-124

(La.App. 1 Cir. 2/23/04), 873 So.2d 656. The trial court is vested with broad

discretion in deciding child custody cases and its decision will not be disturbed absent

a clear abuse of discretion. Bagents v. Bagents, 419 So.2d 460 (La.1982); Stephens

v. Stephens, 02-402 (La.App. 1 Cir. 6/21/02), 822 So.2d 770. Additionally,

La.Civ.Code art. 134 lists twelve nonexclusive factors that are relevant in determining

the best interest of the child.

In a decree of joint custody, the court shall designate a domiciliary parent

except when there is an implementation order to the contrary or for other good cause

shown. La.R.S. 9:335(B)(1). To the extent it is feasible and in the best interest of the

children, physical custody of the children should be shared equally. La.R.S.

9:335(A)(2)(b). Nonetheless, the trial court’s finding that joint custody is in the best

interest of the child does not necessarily require an equal sharing of physical custody.

See Stephens, 822 So.2d 770. The implementation order should, however, allocate

the time periods during which each parent shall have physical custody of the children

so that the children are assured of “frequent and continuing contact” with both

parents. La.R.S. 9:335(A)(2)(a).

In challenging the trial court’s determinations of domiciliary parent and

visitation schedule, Mr. Chesson questions the trial court’s weighing and balancing

of the factors listed in La.Civ.Code art. 134. We disagree. In its reasons for

judgment, the trial court made detailed findings of fact on each of the twelve factors

4 set forth in Article 134 by summarizing the testimony of each of the witnesses. We

agree with and adopt the trial court’s written reasons for judgment that relate to its

decision on custody, although we do not reproduce those reasons here out of

consideration for their length. It is sufficient to say that the record establishes that the

trial court’s decision to name Mrs. Chesson as the domiciliary parent is supported by

the evidence and we find no clear abuse of discretion in that decision.

The record before us also supports the trial court’s decision to adjust the

custody schedule. Dr. Aleisha Pelligrin, a clinical psychologist, testified that a split

custody arrangement in a high-conflict case is not a good idea, because it requires a

higher level of co-parenting. According to Dr. Pellegrin, as well as other testimony

in the record, the Chessons certainly have difficulty with the concept of co-parenting.

In fact, the trial court described the relationship between the parties as “toxic.”

In this case, as in most child custody cases, the trial court’s determination was

based heavily on factual findings. It is well settled that an appellate court cannot set

aside a trial court’s findings of fact in the absence of manifest error or unless those

findings are clearly wrong. Rosell v. ESCO, 549 So.2d 840 (La.1989). If the findings

are reasonable in light of the record reviewed in its entirety, an appellate court may

not reverse those findings even though convinced that had it been sitting as the trier

of fact, it would have weighed the evidence differently. Id. In order to reverse a fact

finder’s determination of fact, an appellate court must review the record in its entirety

and (1) find that a reasonable factual basis does not exist for the finding, and (2)

further determine that the record establishes that the fact finder is clearly wrong or

manifestly erroneous. Stobart v. State, DOTD, 617 So.2d 880, (La.1993).

5 Based on the circumstances presented in the record, we cannot find that the

trial court abused its discretion or was manifestly erroneous in its decision to

designate Mrs. Chesson as the domiciliary parent or in its decision to discontinue the

interim arrangement where each parent had physical custody of the children on

alternate weeks. We find no merit in these two assignments of error.

Mr. Chesson’s Third Assignment of Error

While Mr. Chesson assigned as error the trial court “adopting a visitation plan

that was not in compliance with the local rules of court,” he failed to brief this

assignment of error other than to restate it in the conclusion of his brief, saying only:

“[a]dditionally, the court should order the imposition of the visitation plan exactly as

provided for in the local rules of court.” Accordingly, pursuant to Uniform

Rules—Courts of Appeal, Rule 2-12.4, we consider this assignment of error

abandoned because it has not been briefed.

Mr. Chesson’s Fourth Assignment of Error

Louisiana Code of Civil Procedure Article 224(2) provides that constructive

contempt is “[w]ilful disobedience of any lawful judgment, order, mandate, writ, or

process of the court.” To find a person guilty of constructive contempt, the trial court

must find the person violated the court’s order intentionally, purposely, and without

justifiable excuse. Leger v. Leger, 00-505 (La.App. 1 Cir. 5/11/01), 808 So.2d 632.

The trial court’s finding of fact will not be overturned in the absence of manifest

error. Gerace v. Gerace, 05-1300 (La.App. 3 Cir. 4/5/06), 927 So.2d 622. If a person

is found guilty of contempt, “the court shall render an order reciting the facts

constituting the contempt, adjudging the person charged with contempt guilty thereof,

and specifying the punishment imposed.” La.Code Civ.P. art. 225(B). The trial court

6 has great discretion in determining whether a party should be held in contempt for

disobeying a court order, and an appellate court should reverse the trial court’s

decision only when it finds an abuse of that discretion. Leger, 808 So.2d 632.

The first contempt judgment contested by Mr. Chesson relates to the content

of the September 30, 2003 rule wherein Mrs. Chesson asserted that he was $7,840.00

in arrears on his child support and interim periodic spousal support obligations, and

that he had failed to timely answer discovery requests propounded to him. The

second contempt judgment relates to the content of the July 2, 2004 rule wherein Mrs.

Chesson asserted that Mr. Chesson’s child support and interim periodic spousal

support arrears had increased to $14,864.52, and that he had denied Mrs. Chesson

telephone access with their minor children as required by the July 29, 2003

stipulation.

With regard to both of these findings of contempt, Mr. Chesson appears to first

argue that the trial court had stated that it would not address issues of contempt

relating to support or financial issues at the February 2006 hearing. In support of that

argument, he quotes the following statement of the trial court:

I know these are the money issues, the financial issues, are going to be deferred to my hearing officer. So, Harold’s just going to address those. But on contempt, unless you see another way of doing it, I would guess now would be the time we - -

But Mr. Chesson does not relate the full discussion that took place on whether the

contempt rules would be addressed at the hearing. Mr. Chesson’s counsel began the

discussion on whether the contempt rules which had been filed would be addressed

at the hearing, saying:

My question is: Are we going to try the contempt issues this week, too? Do I need to go through those at this time? I think it may go to, you

7 know, whether somebody’s violating a court order, which is something the Court needs to be – –

(Emphasis added).

The trial court responded, as follows:

I don’t know when else we can broach those. I don’t intend to bifurcate. So, I know these are the money issues, the financial issues, are going to be deferred to my hearing officer. So, Harold’s just going to address those. But on contempt, unless you see another way of doing it, I would guess now would be the time we – –

Reviewing the full dialogue concerning whether the allegations of contempt relating

to support issues would be addressed at the hearing, we conclude that the trial court

stated these issues would be addressed at that week’s hearing. Thus, Mr. Chesson’s

argument in this regard has no merit.

Next, Mr. Chesson asserts that the evidence presented at the February 2006

hearing was insufficient to support the trial court’s factual conclusion that he was in

arrears on his child support and interim spousal support. In making this argument,

Mr. Chesson ignores the evidence introduced at a September 16, 2004 hearing

wherein the trial court considered Mrs. Chesson’s petition for arrearages. At that

hearing, Mrs. Chesson provided evidence establishing the full history of Mr.

Chesson’s payment delinquency. On November 24, 2004, the trial court entered

judgment against Mr. Chesson for $17,651.19 in past due unpaid child support and

interim periodic espousal support, thereby accepting Mrs. Chesson’s evidence as

correct. The record in this regard is sufficient to support the trial court’s factual

findings on this issue. Thus, this argument has no merit.

The final contempt of court judgment related to the trial court’s determination

that Mr. Chesson had violated “the court’s order of sequestration of the witnesses

8 issued at the inception of the trial.” The alleged violation relates to the witness

appearance of Pamela Williamson, a teacher at St. Margaret’s Academy, the school

both children attend. Ms. Williamson was scheduled to testify on Mrs. Chesson’s

behalf on February 9, 2004. She testified that before taking the stand that day, she

had a conversation with Mrs. Chesson wherein she was told that Mr. Chesson had

testified that she [Ms. Williamson] “[did not] have a backbone.” She testified that

after this conversation she confronted Mr. Chesson about his statement.

After hearing this testimony, and before adjourning for the day, the trial court

found Mrs. Chesson in contempt for violating the order sequestering the witnesses,

and stated that “[t]o the extent to which this contempt of this Court over Ms. Chesson

is to be exercised is going to be reserved to the conclusion of this case.” Nowhere in

the record did the trial court find Mr. Chesson in contempt of court for his

conversation with Ms. Williamson, nor did the trial court recite the facts constituting

the contempt in the judgement or in open court. See La.Code Civ.P. art. 225(B) and

Garrett v. Andrews, 99-1929 (La.App. 1 Cir. 9/22/00), 767 So.2d 941. However, in

its judgment, the trial court found Mr. Chesson in contempt of court for violating the

order for sequestration of witnesses, not Mrs. Chesson. Thus, we find that the trial

court erred in finding Mr. Chesson in contempt of court for violating the court’s order

regarding sequestration of witnesses.

As punishment for his three counts of contempt of court, Mr. Chesson was

sentenced to imprisonment for ninety days, with an opportunity to purge himself of

the contempt. Because we vacate the order finding Mr. Chesson in contempt of court

for violating the court’s order of sequestration of the witnesses, we remand for the

trial court to impose punishment for each of the two remaining counts of contempt,

9 individually. Louisiana Revised Statute 13:4611(1), which establishes the

punishment that may be imposed for contempt of court, states that the courts “may

punish a person adjudged guilty of a contempt of court therein, as follows.”

(Emphasis added.) The implication is that each count of contempt of court is to be

punished individually; one penalty in globo cannot be imposed for multiple counts.

Mrs. Chesson’s First Assignment of Error

Mrs. Chesson asserts in this assignment of error that the trial court erred in not

awarding her the sole care, custody, and control of the children. We find no merit in

this assignment of error.

Mrs. Chesson argues that the testimony reveals that sufficient animosity and

rancor exist between Mr. Chesson and her such that they cannot work together to the

extent required in a joint custody arrangement, and therefore this court should award

sole custody, citing to Watermeier v. Watermeier, 504 So.2d 856 (La.1987); Ard v.

Ard, 628 So.2d 1221 (La.App. 3 Cir. 1993); Goodwin v. Goodwin, 618 So.2d 579

(La.App. 2 Cir.), writ denied, 623 So.2d 1340 (La.1993); and Long v. Long, 458

So.2d 662 (La.App. 3 Cir. 1984). But in its reasons for judgment the trial court made

the specific factual finding that “[w]hile it appears to be a concession that responsible

communication and compromise may not be attainable in this case, as evidenced by

Chris’ recorded telephonic communications, this Court remains cautiously optimistic

that these parties are capable of cooperating as co-tutors who must work together and

agree on the critical issues involving the raising of these children.” Applying the law

and the reasons set forth in the analysis of Mr. Chesson’s first assignment of error,

we reject this assignment as well.

10 Mrs. Chesson’s Second Assignment of Error

Mrs. Chesson argues that the schedule established by the trial court which

allows visitation on school nights is an abuse of discretion because the children

experience difficulty with their school work. Applying the law and for reasons set

forth in the analysis of Mr. Chesson’s second assignment of error, we reject this

assignment as well.

CONCLUSION

We reverse that portion of the judgment finding Christian Chesson in contempt

of court for violating the court’s order of sequestration of witnesses and remand for

the trial court to impose punishment for each of the remaining counts of contempt.

In all other respects, we affirm the judgment. We tax each party with one-half of the

costs of appeal.