STATE OF LOUISIANA COURT OF APPEAL, THIRD CIRCUIT
12-752 consolidated with 12-753
KEITH THIBODEAUX
VERSUS
TASHA THIBODEAUX
**********
APPEAL FROM THE FIFTEENTH JUDICIAL DISTRICT COURT PARISH OF LAFAYETTE, NO. 20094824 HONORABLE ANNE LENNAN SIMON, DISTRICT JUDGE
ELIZABETH A. PICKETT JUDGE
Court composed of Marc T. Amy, Elizabeth A. Pickett, and Billy Howard Ezell, Judges.
REVERSED AND RENDERED.
Amy, J., concurs in the result and assigns reasons.
Roshell Jones Attorney at Law 405 W. Main Street Suite 107 Lafayette, LA 70501 (337) 504-3437 COUNSEL FOR DEFENDANT-APPELLANT: Tasha Thibodeaux
Keith Thibodeaux In Proper Person 311 Ashland Park Drive Lafayette, LA 70508 COUNSEL FOR PLAINTIFF-APPELLEE: Keith Thibodeaux PICKETT, Judge.
Tasha Thibodeaux Perkins appeals a judgment of the trial court ordering her
to pay her ex-husband $750.00 in attorney fees for wrongful issuance of a civil
writ.
STATEMENT OF THE CASE
Mr. Thibodeaux and Mrs. Perkins are the divorced parents of two children, a
daughter who is now eighteen years old and a son who is now thirteen years old.
There was a custody arrangement whereby the children alternated spending a week
with each parent. This arrangement became unworkable when Mrs. Perkins
remarried and her husband relocated to Houston. Before her move to Houston,
Mrs. Perkins had filed a Motion to Change Custody. When she moved to Houston,
she filed a notice of intent to relocate the children.
These motions were pending before the trial court when the facts relevant to
the judgment appealed from occurred. Mrs. Perkins was supposed to pick up their
son to begin his week with her on Friday, August 12, 2011. Because school was
about to start, Mrs. Perkins had made arrangements to stay with her mother in
Lafayette rather than go to her own home in Houston for the week. Mr.
Thibodeaux objected and refused to allow their son to go with Mrs. Perkins. On
Monday, August 15, Mrs. Perkins filed a motion for a civil warrant pursuant to
La.R.S. 9:343. Because Judge Simon was not available, another judge signed the
civil warrant, and Mrs. Perkins picked up her son from Mr. Thibodeaux‟s house
without incident that day. Mrs. Perkins returned their son to Mr. Thibodeaux on
Friday afternoon. Mr. Thibodeaux filed a motion seeking to quash the civil
warrant and for costs and attorney fees because the civil warrant was wrongly
issued. On August 22, 2011, Judge Simon vacated the civil warrant. The trial court held the hearing on custody and relocation on October 25,
2011. During the course of that hearing, the court heard evidence on the issue of
attorney fees for the wrongful issuance of the civil warrant. The trial court found
that a civil warrant can only be issued on behalf of a custodial parent and can only
be directed to a non-custodial parent, citing In re Downing, 05-1553 (La. 5/17/06),
930 So.2d 897. For oral reason assigned on November 16, 2011, the trial court
denied Mrs. Perkins‟ request to relocate the children and named Mr. Thibodeaux
domiciliary parent. The trial court signed a judgment on December 1, 2011,
awarding Mr. Thibodeaux $750.00 in attorney fees for the wrongful issuance of a
civil warrant. Mrs. Perkins sought a supervisory writ in this court, which we
denied because it was taken from a final judgment for which there was an adequate
remedy on appeal. Mrs. Perkins has filed the instant appeal, which concerns only
the issue of attorney fees for wrongful issuance of a civil warrant, not the trial
court‟s rulings on custody or relocation.
ASSIGNMENT OF ERROR
Mrs. Perkins asserts one assignment of error:
The trial court abused its discretion and committed manifest error when it ordered Tasha Thibodeaux Perkins to pay Keith Thibodeaux‟s attorney‟s fees in the amount of $750.00 in connection with the civil warrant signed by Judge Earles on or about August 15, 2011.
DISCUSSION
This court discussed the review of judgments finding a party in contempt in
the context of litigation over custody in Garcia v. Garcia, 10-446, pp. 4-5 (La.App.
3 Cir. 11/3/10), 49 So.3d 601, 605 (alterations in original):
Louisiana Code of Civil Procedure Article 221 defines contempt of court as “any act or omission tending to obstruct or interfere with the orderly administration of justice, or to impair the dignity of the court 2 or respect for its authority. Contempts of court are of two kinds, direct and constructive[.]” Pursuant to La.Code Civ.P. art. 224(2), constructive contempt is “[w]ilful disobedience of any lawful judgment, order, mandate, writ, or process of the court.” Constructive contempt “must be based on a finding that the accused violated an order of the court „intentionally, knowingly, and purposefully, without justifiable excuse.‟” Lang v. Asten, Inc., 05-1119, p. 1 (La.1/13/06), 918 So.2d 453, 454 (quoting Brunet v. Magnolia Quarterboats, Inc., 97-187, p. 10 (La.App. 5 Cir. 3/11/98), 711 So.2d 308, 313, writ denied, 90-990 (La.5/29/98), 720 So.2d 343). “A trial court is vested with great discretion to determine whether a party should be held in contempt for wilfully 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).
Louisiana Revised Statutes 9:343 provides for the issuance for a civil
warrant ordering the return of a child:
A. Upon presentation of a certified copy of a custody and visitation rights order rendered by a court of this state, together with the sworn affidavit of the custodial parent, the judge, who shall have jurisdiction for the limited purpose of effectuating the remedy provided by this Section by virtue of either the presence of the child or litigation pending before the court, may issue a civil warrant directed to law enforcement authorities to return the child to the custodial parent pending further order of the court having jurisdiction over the matter.
B. The sworn affidavit of the custodial parent shall include all of the following:
(1) A statement that the custody and visitation rights order is true and correct.
(2) A summary of the status of any pending custody proceeding.
(3) The fact of the removal of or failure to return the child in violation of the custody and visitation rights order.
(4) A declaration that the custodial parent desires the child returned.
The record reflects that the requirements of the statute were met in the
application for the civil warrant filed by Mrs. Perkins. Mr. Thibodeaux argues that
Mrs. Perkins was not a custodial parent, and therefore she could not execute the
3 requisite affidavit. He asked that Mrs. Perkins be held in contempt and be ordered
to pay costs and attorney fees. The trial court found that the statute allows only the
custodial parent to seek a civil warrant pursuant to La.R.S. 9:343 and awarded
$750.00 in attorney fees.
The record reflects that at the time Mrs. Perkins sought the civil warrant, the
consent decree in effect listed Mrs. Perkins and Mr. Thibodeaux as having joint
custody, with the parties named co-domiciliary parents. Mr. Thibodeaux argues
that the civil warrant is not available in cases where the parties share custody,
citing In re Downing, 930 So.2d 897. In Downing, an attorney discipline matter
where the attorney had an arrest warrant issued for failure to comply with a civil
warrant, the supreme court dropped the following footnote (emphasis added):
La. R.S.
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STATE OF LOUISIANA COURT OF APPEAL, THIRD CIRCUIT
12-752 consolidated with 12-753
KEITH THIBODEAUX
VERSUS
TASHA THIBODEAUX
**********
APPEAL FROM THE FIFTEENTH JUDICIAL DISTRICT COURT PARISH OF LAFAYETTE, NO. 20094824 HONORABLE ANNE LENNAN SIMON, DISTRICT JUDGE
ELIZABETH A. PICKETT JUDGE
Court composed of Marc T. Amy, Elizabeth A. Pickett, and Billy Howard Ezell, Judges.
REVERSED AND RENDERED.
Amy, J., concurs in the result and assigns reasons.
Roshell Jones Attorney at Law 405 W. Main Street Suite 107 Lafayette, LA 70501 (337) 504-3437 COUNSEL FOR DEFENDANT-APPELLANT: Tasha Thibodeaux
Keith Thibodeaux In Proper Person 311 Ashland Park Drive Lafayette, LA 70508 COUNSEL FOR PLAINTIFF-APPELLEE: Keith Thibodeaux PICKETT, Judge.
Tasha Thibodeaux Perkins appeals a judgment of the trial court ordering her
to pay her ex-husband $750.00 in attorney fees for wrongful issuance of a civil
writ.
STATEMENT OF THE CASE
Mr. Thibodeaux and Mrs. Perkins are the divorced parents of two children, a
daughter who is now eighteen years old and a son who is now thirteen years old.
There was a custody arrangement whereby the children alternated spending a week
with each parent. This arrangement became unworkable when Mrs. Perkins
remarried and her husband relocated to Houston. Before her move to Houston,
Mrs. Perkins had filed a Motion to Change Custody. When she moved to Houston,
she filed a notice of intent to relocate the children.
These motions were pending before the trial court when the facts relevant to
the judgment appealed from occurred. Mrs. Perkins was supposed to pick up their
son to begin his week with her on Friday, August 12, 2011. Because school was
about to start, Mrs. Perkins had made arrangements to stay with her mother in
Lafayette rather than go to her own home in Houston for the week. Mr.
Thibodeaux objected and refused to allow their son to go with Mrs. Perkins. On
Monday, August 15, Mrs. Perkins filed a motion for a civil warrant pursuant to
La.R.S. 9:343. Because Judge Simon was not available, another judge signed the
civil warrant, and Mrs. Perkins picked up her son from Mr. Thibodeaux‟s house
without incident that day. Mrs. Perkins returned their son to Mr. Thibodeaux on
Friday afternoon. Mr. Thibodeaux filed a motion seeking to quash the civil
warrant and for costs and attorney fees because the civil warrant was wrongly
issued. On August 22, 2011, Judge Simon vacated the civil warrant. The trial court held the hearing on custody and relocation on October 25,
2011. During the course of that hearing, the court heard evidence on the issue of
attorney fees for the wrongful issuance of the civil warrant. The trial court found
that a civil warrant can only be issued on behalf of a custodial parent and can only
be directed to a non-custodial parent, citing In re Downing, 05-1553 (La. 5/17/06),
930 So.2d 897. For oral reason assigned on November 16, 2011, the trial court
denied Mrs. Perkins‟ request to relocate the children and named Mr. Thibodeaux
domiciliary parent. The trial court signed a judgment on December 1, 2011,
awarding Mr. Thibodeaux $750.00 in attorney fees for the wrongful issuance of a
civil warrant. Mrs. Perkins sought a supervisory writ in this court, which we
denied because it was taken from a final judgment for which there was an adequate
remedy on appeal. Mrs. Perkins has filed the instant appeal, which concerns only
the issue of attorney fees for wrongful issuance of a civil warrant, not the trial
court‟s rulings on custody or relocation.
ASSIGNMENT OF ERROR
Mrs. Perkins asserts one assignment of error:
The trial court abused its discretion and committed manifest error when it ordered Tasha Thibodeaux Perkins to pay Keith Thibodeaux‟s attorney‟s fees in the amount of $750.00 in connection with the civil warrant signed by Judge Earles on or about August 15, 2011.
DISCUSSION
This court discussed the review of judgments finding a party in contempt in
the context of litigation over custody in Garcia v. Garcia, 10-446, pp. 4-5 (La.App.
3 Cir. 11/3/10), 49 So.3d 601, 605 (alterations in original):
Louisiana Code of Civil Procedure Article 221 defines contempt of court as “any act or omission tending to obstruct or interfere with the orderly administration of justice, or to impair the dignity of the court 2 or respect for its authority. Contempts of court are of two kinds, direct and constructive[.]” Pursuant to La.Code Civ.P. art. 224(2), constructive contempt is “[w]ilful disobedience of any lawful judgment, order, mandate, writ, or process of the court.” Constructive contempt “must be based on a finding that the accused violated an order of the court „intentionally, knowingly, and purposefully, without justifiable excuse.‟” Lang v. Asten, Inc., 05-1119, p. 1 (La.1/13/06), 918 So.2d 453, 454 (quoting Brunet v. Magnolia Quarterboats, Inc., 97-187, p. 10 (La.App. 5 Cir. 3/11/98), 711 So.2d 308, 313, writ denied, 90-990 (La.5/29/98), 720 So.2d 343). “A trial court is vested with great discretion to determine whether a party should be held in contempt for wilfully 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).
Louisiana Revised Statutes 9:343 provides for the issuance for a civil
warrant ordering the return of a child:
A. Upon presentation of a certified copy of a custody and visitation rights order rendered by a court of this state, together with the sworn affidavit of the custodial parent, the judge, who shall have jurisdiction for the limited purpose of effectuating the remedy provided by this Section by virtue of either the presence of the child or litigation pending before the court, may issue a civil warrant directed to law enforcement authorities to return the child to the custodial parent pending further order of the court having jurisdiction over the matter.
B. The sworn affidavit of the custodial parent shall include all of the following:
(1) A statement that the custody and visitation rights order is true and correct.
(2) A summary of the status of any pending custody proceeding.
(3) The fact of the removal of or failure to return the child in violation of the custody and visitation rights order.
(4) A declaration that the custodial parent desires the child returned.
The record reflects that the requirements of the statute were met in the
application for the civil warrant filed by Mrs. Perkins. Mr. Thibodeaux argues that
Mrs. Perkins was not a custodial parent, and therefore she could not execute the
3 requisite affidavit. He asked that Mrs. Perkins be held in contempt and be ordered
to pay costs and attorney fees. The trial court found that the statute allows only the
custodial parent to seek a civil warrant pursuant to La.R.S. 9:343 and awarded
$750.00 in attorney fees.
The record reflects that at the time Mrs. Perkins sought the civil warrant, the
consent decree in effect listed Mrs. Perkins and Mr. Thibodeaux as having joint
custody, with the parties named co-domiciliary parents. Mr. Thibodeaux argues
that the civil warrant is not available in cases where the parties share custody,
citing In re Downing, 930 So.2d 897. In Downing, an attorney discipline matter
where the attorney had an arrest warrant issued for failure to comply with a civil
warrant, the supreme court dropped the following footnote (emphasis added):
La. R.S. 9:343, entitled “Return of child kept in violation of custody and visitation order,” provides in pertinent part:
A. Upon presentation of a certified copy of a custody and visitation rights order rendered by a court of this state, together with the sworn affidavit of the custodial parent, the judge . . . may issue a civil warrant directed to law enforcement authorities to return the child to the custodial parent pending further order of the court having jurisdiction over the matter.
The statute clearly does not apply to a visitation dispute between parents who have joint custody of their children, as did Timothy and Debra. Rather, the statute allows a custodial parent to obtain the return of his or her children from a non-custodial parent.
Id. at 901.
Certainly supreme court precedent is binding on this court. We note,
however, that we do not find the statute as clear as the above language suggests.
Furthermore, a footnote in an attorney discipline case is not ordinarily where one
would expect to find authoritative pronouncements on the res nova interpretation
of statutes. Furthermore, Mrs. Perkins was merely seeking the court‟s authority to
have Mr. Thibodeaux abide by the terms of the consent decree, and by the time the 4 civil warrant was vacated it had expired by its own terms. We find that the trial
court abused its discretion in finding Mrs. Perkins in contempt of court for seeking
a Civil Warrant.
CONCLUSION
The judgment of the trial court is reversed insofar as it held Mrs. Perkins in
contempt of court and ordered her to pay $750.00 in attorney fees to Mr.
Thibodeaux. Costs of this appeal are assessed to Mr. Thibodeaux.
5 NUMBER 12-752
COURT OF APPEAL, THIRD CIRCUIT
STATE OF LOUISIANA
AMY, J., concurring in the result.
I agree with the majority that a reversal is required in this case. However, I
concur in the result as my reasoning differs from that expressed in the majority
opinion.
Simply, I find no statutory authority for the trial court to have imposed the
sanction of payment of attorney fees for the wrongful issuance of a civil writ under
La.R.S. 9:343. I also find it significant that by the time Mr. Thibodeaux filed the
motion to quash the civil writ, only one day remained on the effective period of the
writ. Further, I note that the writ’s effective period had expired by the time the
trial court rescinded the writ, rendering that order moot.
Accordingly, I find that the trial court’s judgment in this regard must be
reversed.