NOT DESIGNATED FOR PUBLICATION
STATE OF LOUISIANA COURT OF APPEAL, THIRD CIRCUIT
09-1367
CONNIE L. PARKER
VERSUS
ELLIOT R. CHAMPAGNE
**********
APPEAL FROM THE FOURTEENTH JUDICIAL DISTRICT COURT PARISH OF CALCASIEU, NO. 99-8330 HONORABLE LILYNN ANNETTE CUTRER, DISTRICT JUDGE
ELIZABETH A. PICKETT JUDGE
Court composed of Marc T. Amy, Elizabeth A. Pickett, and Shannon J. Gremillion, Judges.
AFFIRMED.
Henry R. Liles 940 Ryan Street Lake Charles, LA 70601 (337) 433-8529 Counsel for Defendant-Appellant: Elliot R. Champagne
Todd H. Melton P. O. Box 847 Lake Charles, LA 70602-0847 (337) 439-2979 Counsel for Plaintiff-Appellee: Connie L. Parker PICKETT, Judge.
The appellant, Elliot Champagne, appeals a judgment of the trial court
awarding domiciliary custody of his daughter Carley to her mother Connie Parker and
finding him in contempt for his failure to pay child support.
STATEMENT OF THE CASE
Connie Parker and Elliot Champagne are the parents of a ten-year-old daughter.
The parties entered into a stipulated judgment on September 11, 2007, naming Elliot
as the domiciliary parent subject to visitation by Connie. On June 10, 2008, Connie
filed a Rule for Contempt of Court and to Change Custody. She alleged that Elliot
had violated the stipulated judgment and it was in the best interest of Carley that
Connie be named domiciliary parent. She also claimed that Elliot had failed to pay
court-ordered child support from December 1999 to August 2006 and she sought past
due payments in the amount of $26,398.90. Connie also asked that the court hold
Elliot in contempt of court.
A pretrial conference on the rule was scheduled for July 18, 2008. Elliot failed
to appear. A hearing on the rule was held before the trial court on August 19, 2008.
Despite evidence that Elliot was served with notice of the hearing by the sheriff,
Elliot failed to appear. The trial court heard evidence from Connie. The trial court
awarded domiciliary custody to Connie. It also found Elliot in contempt of court for
failure to pay child support, sentenced Elliot to fifteen days in jail, suspended the jail
sentence, and awarded past due child support in the amount of $26,398.90 plus
interest, attorney fees, and child support. The trial court signed a judgment on August
25, 2008.
1 Elliot filed a motion for a new trial, which was denied on September 1, 2009.
(The motion for a new trial, the judgment on motion, and the written reasons for the
judgment were not designated as part of the record, and therefore are not in the record
before us on appeal.) Elliot now appeals the judgment of the trial court.
ASSIGNMENTS OF ERROR
Elliot asserts five assignments of error:
1. The trial court erred in finding that Connie established a prima facie case for modification of custody.
2. The trial court failed to apply the La.Civ.Code art. 134 factors as required by La.Civ.Code art. 131 in granting the modification of custody.
3. The trial court erred in finding that Connie established a prima facie case for the amount of the child support arrearage.
4. The trial court erred in finding that Connie established beyond a reasonable doubt that Elliot wilfully disobeyed the order to pay support as required for a holding of contempt.
5. The trial court erred in failing to recite the facts constituting the basis for the contempt as required by law.
DISCUSSION
A trial court’s decision in child custody cases is given great weight and will not
be disturbed on appeal unless the trial court clearly abused its discretion. Gremillion
v. Gremillion, 07-942 (La.App. 3 Cir. 10/3/07), 966 So.2d 1228. In order to modify
a custody decree to which the parties have consented, the party seeking a
modification must show that there has been a material change in circumstances and
that the modification would be in the best interest of the child. Laurence v. Laurence,
07-11 (La.App. 3 Cir. 5/30/07), 957 So.2d 931, writ denied, 07-1322 (La. 7/5/07),
959 So.2d 891.
2 In his first assignment of error, Elliot alleges that Connie failed to prove that
a modification of the stipulated custody award was warranted. The trial court was
only presented with the testimony of Connie because Elliot failed to appear at the
hearing on the rule, despite having been personally served with notice of the hearing.
At the hearing, Connie testified that since Elliot had taken custody of Carley, she had
completed anger management classes and parenting classes. She has held a job and
lives with her elderly parents. She testified that she had completed the requirements
to have the DWI charges against her dismissed.
She also testified that Elliot had violated the custody agreement. She testified
that Elliot interfered with Connie’s weekly visitation “when they have things to do.”
Elliot did not allow Connie to communicate with Carley because he would either not
answer his phone or not allow Carley to call her back. She claimed that Elliot failed
to keep her informed about Carley’s school work. Despite a rule in the custody
agreement giving Connie the opportunity to care for Carley if Elliot was unable to for
more than six hours, Connie testified that Elliot left Carley in the care of his ex-
girlfriends and neighbors for extended periods. She claimed that Elliot left Carley at
gym class an hour after the class was over and that he regularly missed her softball
games, allowing his ex-girlfriend to take Carley to the games. She stated that Elliot
did not attend to Carley’s medical needs and did not provide Connie with an
insurance card when she took Carley to the doctor. Further, he failed to schedule
appropriate follow-up medical care. She testified that Elliot failed to pay for Carley’s
after-school activities, that Carley’s grades dropped substantially, and that she had
missed school. Connie also told the court that Carley’s teacher had informed her that
3 Carley showed up to school with poor hygiene and grooming. She also testified that
Elliot has had three different girlfriends since he took custody of Carley.
Based on this uncontested evidence, we cannot say that the trial court abused
its great discretion in finding that Connie met her burden to establish that a
modification of the custody decree was warranted. Connie’s testimony established
that she had taken steps to correct the circumstances that caused her to agree to vest
domiciliary custody with Elliot. Her testimony also established that residing with
Elliot had a negative impact on Carley. We will not disturb the trial court’s ruling.
Likewise, we find that the trial court did not err in not citing the La.Civ.Code
art. 134 factors for determining child custody in its ruling. We find that the
uncontested evidence presented by Connie was sufficient to show that it was in
Carley’s best interest that the trial court name Connie the domiciliary parent. Thus,
Elliot’s second assignment of error lacks merit.
Elliot’s remaining assignments of error concern the portion of the judgment of
holding him in contempt of court for past due child support. In Fobbs v. Fobbs, 09-
219, pp. 3-4 (La.App. 3 Cir. 11/10/09), 25 So.3d 168, 170-71, we discussed the
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NOT DESIGNATED FOR PUBLICATION
STATE OF LOUISIANA COURT OF APPEAL, THIRD CIRCUIT
09-1367
CONNIE L. PARKER
VERSUS
ELLIOT R. CHAMPAGNE
**********
APPEAL FROM THE FOURTEENTH JUDICIAL DISTRICT COURT PARISH OF CALCASIEU, NO. 99-8330 HONORABLE LILYNN ANNETTE CUTRER, DISTRICT JUDGE
ELIZABETH A. PICKETT JUDGE
Court composed of Marc T. Amy, Elizabeth A. Pickett, and Shannon J. Gremillion, Judges.
AFFIRMED.
Henry R. Liles 940 Ryan Street Lake Charles, LA 70601 (337) 433-8529 Counsel for Defendant-Appellant: Elliot R. Champagne
Todd H. Melton P. O. Box 847 Lake Charles, LA 70602-0847 (337) 439-2979 Counsel for Plaintiff-Appellee: Connie L. Parker PICKETT, Judge.
The appellant, Elliot Champagne, appeals a judgment of the trial court
awarding domiciliary custody of his daughter Carley to her mother Connie Parker and
finding him in contempt for his failure to pay child support.
STATEMENT OF THE CASE
Connie Parker and Elliot Champagne are the parents of a ten-year-old daughter.
The parties entered into a stipulated judgment on September 11, 2007, naming Elliot
as the domiciliary parent subject to visitation by Connie. On June 10, 2008, Connie
filed a Rule for Contempt of Court and to Change Custody. She alleged that Elliot
had violated the stipulated judgment and it was in the best interest of Carley that
Connie be named domiciliary parent. She also claimed that Elliot had failed to pay
court-ordered child support from December 1999 to August 2006 and she sought past
due payments in the amount of $26,398.90. Connie also asked that the court hold
Elliot in contempt of court.
A pretrial conference on the rule was scheduled for July 18, 2008. Elliot failed
to appear. A hearing on the rule was held before the trial court on August 19, 2008.
Despite evidence that Elliot was served with notice of the hearing by the sheriff,
Elliot failed to appear. The trial court heard evidence from Connie. The trial court
awarded domiciliary custody to Connie. It also found Elliot in contempt of court for
failure to pay child support, sentenced Elliot to fifteen days in jail, suspended the jail
sentence, and awarded past due child support in the amount of $26,398.90 plus
interest, attorney fees, and child support. The trial court signed a judgment on August
25, 2008.
1 Elliot filed a motion for a new trial, which was denied on September 1, 2009.
(The motion for a new trial, the judgment on motion, and the written reasons for the
judgment were not designated as part of the record, and therefore are not in the record
before us on appeal.) Elliot now appeals the judgment of the trial court.
ASSIGNMENTS OF ERROR
Elliot asserts five assignments of error:
1. The trial court erred in finding that Connie established a prima facie case for modification of custody.
2. The trial court failed to apply the La.Civ.Code art. 134 factors as required by La.Civ.Code art. 131 in granting the modification of custody.
3. The trial court erred in finding that Connie established a prima facie case for the amount of the child support arrearage.
4. The trial court erred in finding that Connie established beyond a reasonable doubt that Elliot wilfully disobeyed the order to pay support as required for a holding of contempt.
5. The trial court erred in failing to recite the facts constituting the basis for the contempt as required by law.
DISCUSSION
A trial court’s decision in child custody cases is given great weight and will not
be disturbed on appeal unless the trial court clearly abused its discretion. Gremillion
v. Gremillion, 07-942 (La.App. 3 Cir. 10/3/07), 966 So.2d 1228. In order to modify
a custody decree to which the parties have consented, the party seeking a
modification must show that there has been a material change in circumstances and
that the modification would be in the best interest of the child. Laurence v. Laurence,
07-11 (La.App. 3 Cir. 5/30/07), 957 So.2d 931, writ denied, 07-1322 (La. 7/5/07),
959 So.2d 891.
2 In his first assignment of error, Elliot alleges that Connie failed to prove that
a modification of the stipulated custody award was warranted. The trial court was
only presented with the testimony of Connie because Elliot failed to appear at the
hearing on the rule, despite having been personally served with notice of the hearing.
At the hearing, Connie testified that since Elliot had taken custody of Carley, she had
completed anger management classes and parenting classes. She has held a job and
lives with her elderly parents. She testified that she had completed the requirements
to have the DWI charges against her dismissed.
She also testified that Elliot had violated the custody agreement. She testified
that Elliot interfered with Connie’s weekly visitation “when they have things to do.”
Elliot did not allow Connie to communicate with Carley because he would either not
answer his phone or not allow Carley to call her back. She claimed that Elliot failed
to keep her informed about Carley’s school work. Despite a rule in the custody
agreement giving Connie the opportunity to care for Carley if Elliot was unable to for
more than six hours, Connie testified that Elliot left Carley in the care of his ex-
girlfriends and neighbors for extended periods. She claimed that Elliot left Carley at
gym class an hour after the class was over and that he regularly missed her softball
games, allowing his ex-girlfriend to take Carley to the games. She stated that Elliot
did not attend to Carley’s medical needs and did not provide Connie with an
insurance card when she took Carley to the doctor. Further, he failed to schedule
appropriate follow-up medical care. She testified that Elliot failed to pay for Carley’s
after-school activities, that Carley’s grades dropped substantially, and that she had
missed school. Connie also told the court that Carley’s teacher had informed her that
3 Carley showed up to school with poor hygiene and grooming. She also testified that
Elliot has had three different girlfriends since he took custody of Carley.
Based on this uncontested evidence, we cannot say that the trial court abused
its great discretion in finding that Connie met her burden to establish that a
modification of the custody decree was warranted. Connie’s testimony established
that she had taken steps to correct the circumstances that caused her to agree to vest
domiciliary custody with Elliot. Her testimony also established that residing with
Elliot had a negative impact on Carley. We will not disturb the trial court’s ruling.
Likewise, we find that the trial court did not err in not citing the La.Civ.Code
art. 134 factors for determining child custody in its ruling. We find that the
uncontested evidence presented by Connie was sufficient to show that it was in
Carley’s best interest that the trial court name Connie the domiciliary parent. Thus,
Elliot’s second assignment of error lacks merit.
Elliot’s remaining assignments of error concern the portion of the judgment of
holding him in contempt of court for past due child support. In Fobbs v. Fobbs, 09-
219, pp. 3-4 (La.App. 3 Cir. 11/10/09), 25 So.3d 168, 170-71, we discussed the
applicable burden of proof and standard of appellate review:
An action to recover past due child support in a contempt of court proceeding “requires the trial judge to determine that a party’s disobedience of the court’s support order constitutes the parent’s willful or deliberate refusal to perform an act which was within the power of the parent to perform.” Fink v. Bryant, 01-0987, p. 7 (La.11/28/01), 801 So.2d 346, 350. Alleging arrearages and unreimbursed medical expenses in her rule for contempt, [the petitioner] had the burden of proving her claims by a preponderance of the evidence. “‘Proof by a preponderance of the evidence means that the evidence, taken as a whole, shows that the fact or cause sought to be proven is more probable than not.’ Crowell v. City of Alexandria, 558 So.2d 216, 217 (La.1990).” Rathborne v. Rathborne, 06-1518, 07-0870, p. 9 (La.App. 4 Cir. 12/3/08), 999 So.2d 816, 822. In determining whether [the petitioner] met her burden of proof, we are compelled to review the trial
4 court's credibility determinations and factual findings under the standard of manifest error.
In his third assignment of error, Elliot claims that Connie did not prove the
amount of child support he owed. In fact, the record shows that from December 15,
1999 through August 14, 2001, Elliot’s support obligation was $250 per month. His
support obligation was $422 per month from August 15, 2001 through June 2006,
when Elliot filed a petition seeking domiciliary custody. Connie testified that the
only payments Elliot ever made were two checks for $1,928.01. Thus, the total he
owed was $26,398.90. This evidence is sufficient to support her claim, and the trial
court did not commit manifest error. We are not persuaded that Local Rule 28,
Section G of the Fourteenth Judicial District Court has any bearing on this case. This
assignment of error lacks merit.
“A trial court is vested with great discretion to determine whether a party
should be held in contempt for willfully disobeying a trial court judgment.” Barnes
v. Barnes, 07-27, p. 9 ( La.App. 3 Cir. 5/2/07), 957 So.2d 251, 257 (citing Fink v.
Bryant, 01-987 (La. 11/28/01), 801 So.2d 346). Connie testified that when she had
attempted to garnish Elliot’s wages, he would quit his jobs. We find the trial court
had ample cause to hold Elliot in contempt, and did not abuse its discretion.
Finally, Elliot argues that the trial court did not comply with La.Code Civ.P art.
225(B), which states:
If the person charged with contempt is found guilty 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.
In the judgment signed by the trial court, after ordering Elliot to pay $26,398.90 in
past due child support, the trial court stated:
5 IT IS FURTHER ORDERED, ADJUDGED AND DECREED that ELLIOT RAY CHAMPAGNE be and hereby is found in Contempt of Court for failing to abide by the Court’s Orders and, as a consequence of such, he is hereby ordered to serve fifteen (15) days in the Calcasieu Parish Correctional Center, which sentence is suspended and conditioned upon future compliance with the Court’s Orders.
We find this to be a sufficient recitation of the facts constituting the contempt as
required by the Article 225(B). This assignment of error lacks merit.
CONCLUSION
The judgment of the trial court is affirmed. Elliot Champagne is cast with
costs.
This opinion is NOT DESIGNATED FOR PUBLICATION. Rule 2-16.3, Uniform Rules, Courts of Appeal.