STATE OF LOUISIANA COURT OF APPEAL, THIRD CIRCUIT
06-1307
LAURA LEONARD LEBLANC
VERSUS
MITCHEL BRETT LEBLANC
**********
APPEAL FROM THE FIFTEENTH JUDICIAL DISTRICT COURT PARISH OF LAFAYETTE, NO. 982178 HONORABLE JULES DAVID EDWARDS, III, DISTRICT JUDGE
ULYSSES GENE THIBODEAUX CHIEF JUDGE
Court composed of Ulysses Gene Thibodeaux, Chief Judge, Oswald A. Decuir, and Michael G. Sullivan, Judges.
AFFIRMED AS AMENDED.
David Sterling Fitzgerald, Jr. Cox Fitzgerald, L.L.C. 113 West Convent Street Lafayette, LA 70501 Telephone: (337) 233-9743 COUNSEL FOR: Defendant/Appellee - Mitchel Brett LeBlanc
Samuel David Abraham P. O. Drawer 2309 Lafayette, LA 70502-2309 Telephone: (337) 234-4523 COUNSEL FOR: Plaintiff/Appellant - Laura Leonard LeBlanc Eric Scott Neumann P. O. Box 2220 Lafayette, LA 70502-2220 Telephone: (337) 237-1113 COUNSEL FOR: Plaintiff/Appellant - Laura Leonard LeBlanc
Julie Koren Vaughn Felder P. O. Box 80399 Lafayette, LA 70598 Telephone: (337) 856-3444 COUNSEL FOR: Defendant/Appellee - Mitchel Brett LeBlanc THIBODEAUX, Chief Judge.
This case involves a custody dispute between the plaintiff-appellant,
Laura Leonard LeBlanc (“Laura”), and the defendant-appellee, Mitchel Brett LeBlanc
(“Mitch”), over the parties’ minor child, Ryan, who will be fourteen years old in July
2007. The parties entered into a Consent Judgment on January 19, 2005, wherein
Laura was to have domiciliary custody of Ryan, and Mitch was to have visitation with
Ryan for approximately one half of the summer weeks and for at least 25% of the
school year. After a trial in March of 2006, Laura was found in contempt of court for
failing to enforce the visitation between Ryan and his father. Mitch was found in
contempt of court for violating an interim order that required him to attend anger
management and parenting classes. Both Laura and Mitch were awarded joint
custody with Laura being designated as the domiciliary parent. Mitch was awarded
attorney fees. Both parties have appealed the March 2006 judgment. For the
following reasons, we affirm and modify the judgment of the trial court.
I.
ISSUES
With regard to the appeal of Laura LeBlanc, we must decide:
(1) whether the trial court erred in finding Laura in contempt for violating the January 19, 2005 Consent Judgment, and whether the sanctions imposed were beyond the scope of the court’s power pursuant to La.R.S. 13:4611(d)(e);
(2) whether the trial court erred in excluding transcripts from the Motion for Summary Judgment and in not recognizing the January 19, 2005 Consent Judgment as a “considered decree”;
(3) whether the trial court erred in establishing joint custody in violation of La.R.S. 9:335(2)(a);
(4) whether the trial court erred in setting the date for the custody trial; and, (5) whether the trial court erred in ordering Laura to pay for two-thirds of the cost of counseling for the minor child.
With regard to the appeal of Mitch LeBlanc, we must decide:
(1) whether the trial court abused its discretion in designating Laura as domiciliary parent;
(2) whether the trial court erred in finding Mitch in contempt of court for failing to attend the assigned classes; and,
(3) whether the trial court erred in not awarding Mitch the full amount of the attorney fees for Laura’s contempt.
II.
FACTS AND PROCEDURAL HISTORY
Laura and Mitch were married in 1992. Their minor child, Ryan, was
born on July 1, 1993. The parties subsequently separated and divorced. In 1999, a
judgment granting joint custody with a seven-and-seven visitation schedule (seven
days with Laura, then seven days with Mitch, and so on) was implemented. In 2003,
two court-appointed psychologists evaluated the parties and the minor child and,
finding both parents capable and caring, submitted a joint recommendation that the
joint custody with seven-and-seven visitation continue. In 2004, Laura filed a rule
to modify custody and visitation, and hearings began wherein Laura presented
testimony by various witnesses including Ryan’s Catholic school counselor since the
first grade. Following this testimony, a temporary order was issued in September
2004 which awarded Mitch domiciliary custody of Ryan for the fall semester of 2004,
pending the resolution of the trial scheduled to resume in January 2005.
On January 19, 2005, without the presentation of evidence by Mitch,
Laura and Mitch entered into a Consent Judgment. Both agreed that Laura would be
2 the domiciliary parent and Mitch would have visitation with Ryan at Mitch’s home
for at least 25% of the school year, and each summer, for two weeks in June, two
weeks in July, and for ten days in August, of each year. In April of 2005, Mitch filed
a rule for contempt against Laura because he had not had visitation with his son since
January of 2005. Laura asserted that a counselor whom Laura had contacted, Barbara
Walley, found suicidal as well as homicidal tendencies in Ryan against his father.
Laura filed for a restraining order around the end of May 2005 to prevent visitation
between Mitch and Ryan. However, Mitch worked with Walley and Ryan for several
months in attempts to work through the problems alleged by Ryan regarding his
relationship with his father. In late August 2005, the trial court appointed Dr.
Kenneth Bouillion to evaluate Ryan to determine whether he did in fact have suicidal
and homicidal tendencies. Dr. Bouillion did not agree with Ms. Walley, and Dr.
Bouillion was appointed to begin a reunification process between father and son.
After meeting with Mitch and Ryan on numerous occasions and working
through various problems, Dr. Bouillion recommended unsupervised visitation
between father and son in December 2005. Apparently there were additional gaps in
visitation between Christmas 2005 and the custody trial in March 2006. The trial
court issued a judgment awarding joint custody to both parents and issued a Joint
Custody Implementation Plan. Domiciliary custody was to remain with Laura, but
the seven-and-seven visitation was to resume with specific provisions for counseling
and specific provisions for holiday visitation. The judgment also found Laura in
contempt for violating the January 19, 2005 Consent Judgment with regard to the
minimum visitation between father and son, and it found Mitch in contempt for
failing to attend required parenting classes. It is from this judgment that the parties
appeal.
3 III.
LAW AND DISCUSSION
Standard of Review
An appellate court may not set aside a trial court’s findings of fact in
absence of manifest error or unless it is clearly wrong. Stobart v. State, Through
DOTD, 617 So.2d 880 (La.1993); Rosell v. ESCO, 549 So.2d 840 (La.1989). This
is especially applicable in a child custody dispute wherein appellate courts accord
substantial deference to the trial judge’s conclusions. “The trial judge is in a better
position to evaluate the best interest of a child from his observance of the parties and
the witnesses and his decision will not be disturbed on review absent a clear showing
of abuse.” Deason v. Deason, 99-1811, p. 12 (La.App. 3 Cir. 4/5/00), 759 So.2d 219,
220 (quoting State in the Interest of Sylvester, 525 So.2d 604, 608 (La.App. 3 Cir.
1988)) (citing Bagents v. Bagents, 419 So.2d 460 (La.1982)).
Every child custody case must be viewed within its own peculiar set of
facts, and a trial court’s award of custody is entitled to great weight and will not be
overturned on appeal unless an abuse of discretion is clearly shown. Connelly v.
Connelly, 94-0527 (La.App. 1 Cir. 10/7/94), 644 So.2d 789. Both the Louisiana
Legislature and the Louisiana Supreme Court have made it abundantly clear that the
primary consideration and prevailing inquiry is whether the custody arrangement is
in the best interest of the child. See Evans v. Lungrin, 97-541, 97-577 (La. 2/6/98),
708 So.2d 731.
Contempt of Laura LeBlanc
Laura contends that the trial court erred in finding her in contempt for
violating the January 19, 2005 Consent Judgment and erred in the sanctions imposed.
The sanctions included ordering her to pay all court costs from January 19, 2005, to
4 the date the judgment was signed, to pay a fine of $500.00, to pay $13,137.00 in
attorney fees to Mitch LeBlanc, and to spend seven days in jail or provide weekly
reports to Mitch documenting her efforts to improve the relationship between the
minor child, Ryan, and his father, Mitch. Mitch responds that the trial court did not
err in finding Laura in contempt because she violated the January 19, 2005 Consent
Judgment by failing to enforce the minimum visitation requirement therein, and
further responds that the court did not err in conditioning the seven day jail sentence
on whether Laura documented positive steps to improve the relationship between
Ryan and his father.
Pursuant to our Code of Civil procedure, constructive contempt is
“[w]ilful disobedience of any lawful judgment, order, mandate, writ, or process of the
court.” La.Code Civ.P. art. 224(2). “[A] finding that a person wilfully [sic]
disobeyed a court order in violation of La.Code of Civil Proc. art. 224(2) 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, 98-0990 (La. 5/29/98), 720 So.2d 343, cert. denied sub nom. Polaris Ins. Co.,
Ltd. v. Brunet, 525 U.S. 1104, 119 S.Ct. 869). In the present case, the order that
Laura is accused of willfully disobeying is the January 19, 2005 Consent Judgment
which named her as domiciliary parent of Ryan, subject to summer visitation with
Mitch for the first fifteen days of June, the first fifteen days of July, and the first ten
days of August, of each year. The Consent Judgment further provided that Ryan’s
visitation with Mitch during the school year would be as follows:
SCHOOL YEAR: Whenever Ryan desires to go to MITCHELL BRETT LEBLANC’s home to visit; however,
5 not less than 25% of the total school year. LAURA LEONARD RITCHEY shall give reasonable notice by telefax to MITCHEL BRETT LEBLANC’s telefax number (337) 896-3487 Ryan’s desire to visit with his Dad, and MITCHEL BRETT LEBLANC shall telefax back to LAURA LEONARD RITCHIE’s telefax number (337) 988-1121 within two (2) hours of receipt of the telefax if he can be available to have Ryan for visitation. Anytime that Ryan’s wishes are telefaxed and received by MITCHEL BRETT LEBLANC, this time shall count as part of the 25% total for the school year.
The record reveals that Mitch tried repeatedly to see his son after the
January 19, 2005 Consent Judgment was executed. He notified Laura on January 21,
2005, that his fax machine was being repaired and asked her to send faxes to his
father-in-law’s fax machine, to which she objected. Mitch sent Ryan a certified letter
on February 2, 2005; Laura testified that Ryan did not want to see his dad and ripped
up the letter. Mitch sent a fax on February 12, 2005, asking for visitation, and Laura
replied that Ryan would like to visit the weekend of February 18 through February
20. However, there were disagreements over the fact that Ryan, who was about
eleven-and-a-half years old at the time, was reading and approving the faxes, and
ultimately, the child became upset and cancelled the visit. Mitch sent faxes seeking
visitation on February 21, February 28, March 7, and March 14, 2005.
Following the February 21 request, the child responded that he would
let his father know when he would come and said that his father could call him at any
time. Mitch testified that he tried to call many times but never got through because
of busy signals, fax line signals, or a full answering machine. Mitch attempted to
schedule visitation for Ryan to accompany him and his new family on vacation in
February, but subsequently withdrew the invitation because Laura would not provide
the dates needed. Likewise, Mitch attempted to schedule visitation for the three-day
Easter weekend, but that was also unsuccessful. Mitch did not have visitation with
6 Ryan during the spring and summer of 2005 as required in the Consent Judgment.
Laura attempted to argue that Mitch had had Ryan for 33% of the school year, which
is more than the 25% requirement, because Ryan had lived with Mitch for the fall
semester of 2004. However, the Consent Judgment was not executed until January
19, 2005. Therefore, any custodial time that Mitch had in 2004 was irrelevant as to
the visitation requirements of the judgment issued in 2005.
At the contempt hearing in March of 2006, Laura admitted that she had
answered some but not all of Mitch’s faxes regarding visitation. She further indicated
that she tried to make Ryan visit his father but that it was out of her control. Laura
attributed this to the fact that she had contacted a counselor, Barbara McCarroll-
Walley, LPC, LMFT, who reported finding suicidal tendencies in Ryan, as well as
homicidal tendencies in Ryan toward his father, and that Walley was of the opinion
that forcing Ryan to visit his father would be harmful to Ryan. Laura, therefore,
argued that, even if she did fail to enforce the visitation, which she denied, she was
justified in her actions. However, Ryan’s first visit with Walley was not until March
30, 2005, and Mitch had already been denied visitation since January. It was not until
April or May that Walley had discussions with Ryan of suicide and homicide, and
Ryan had been with his mother and had not seen his father for months, since January,
when this subject came up. Moreover, Laura did not file for a restraining order to
stop visitation until May 25, 2005, and the court order which officially suspended
Mitch’s visitation, until Walley deemed it advisable, was not signed until July 14,
2005. Mitch worked with Walley for several months, but ultimately, was not allowed
to have unsupervised visitation with Ryan for over eight months in 2005.
During that time, on August 31, 2005, Judge Phyllis Keaty, who was the
presiding judge, appointed Dr. Kenneth Bouillion, a psychologist well known for his
7 work with children, and who had worked with Mitch and Laura several years before,
to meet with Ryan to determine whether he was suicidal and whether there was any
reason that Ryan should not have visitation with his father. At the contempt hearing
before Judge Edwards in March of 2006, Dr. Bouillion testified that Ryan was not
suicidal, that he was somewhat manipulative, and that much of his fear of his father
had to do with Ryan’s procrastination and how his father would react to Ryan’s
falling grades while in his mother’s care in 2005. More specifically, Dr. Bouillion
testified that Ryan had spent most of the fall of 2004 at his father’s residence, and
during that time his father had him on a strict school and homework schedule, which
included help from his step-mom using study guides, and which resulted in good
academic performance. We note that both Mitch and Laura remarried, and both had
new babies at home. Dr. Bouillion testified that while Laura and her new husband
helped Ryan with his school work, there was less accountability at Laura’s residence.
From September through early December 2005, Dr. Bouillion met often
with Mitch and Ryan and worked at reunifying the father and son upon the request
of the court. Dr. Bouillion cautioned Mitch about his blunt manner, and reenacted
incidents wherein Ryan had reported rough treatment from his dad, who had cuffed
Ryan’s head while he was studying, and once accidently caused Ryan to poke himself
with a pencil. Dr. Bouillion employed a process called “mass practice” wherein he
brought the two together repeatedly and counseled them, with the result that the
tension and stress levels decreased, and he ultimately recommended unsupervised
visits between father and son. Accordingly, there were visits around Christmas 2005,
but then another gap in visitation apparently occurred between December 24, 2005
and mid-February 2006, wherein Mitch did not get to have Ryan visit.
8 We note that the exhibits contain numerous letters from Laura to Mitch
showing Laura’s great care and interest in Ryan’s day-to-day school and health needs.
There is no doubt that she is a loving, caring, and capable mom. With regard to the
father’s home life, Mitch has a nice place in the country, a large two-story house and
huge garage heated and cooled for various kinds of recreation, with four-wheelers to
ride, Ryan’s scooter and bicycle, a swimming pool, pool table, Ryan’s own bedroom
decorated to reflect Ryan’s interest in cars, Ryan’s friends in the neighborhood, and
two younger half-brothers with whom to play. Mitch testified that he never misses
church and that Ryan always goes to church when he is with him. Both parents have
repeatedly been found to be good and capable parents.
However, Dr. Bouillion testified that the conflict between the parents
was causing most of the problems, angering the father and causing Ryan to side with
his mother. When asked whether he felt that Laura had cooperated fully in the
reunification process, Dr. Bouillion indicated that there had been difficulty with
Laura in scheduling appointments for him to see Ryan and that her stress level was
immense with regard to the reunification. Dr. Bouillion further testified on the other
hand that he believed that the father is capable of encouraging a positive relationship
with the mother.
The March 2006 hearings lasted several days and included twenty-nine
hours of testimony. In addition to the live testimony of Dr. Bouillion, Judge Edwards
also heard first hand the testimony of Mitch, Mitch’s wife, his mother-in-law, his
father-in-law, Laura, Laura’s husband, Laura’s mother, some of Ryan’s teachers, and
he heard the testimony of Ryan himself. He was able to hear and observe the
witnesses in person. Additionally, he had a joint exhibit which contained the
testimony of Barbara Walley, and he had the letters and recommendations of the
9 psychologists, Dr. Luke Elliot and Dr. Lowe. After the closing argument, the trial
court stated as follows:
I have been able to listen to you during the course of this trial about some very troubled relationships. I’m very confident that one of the previous Judges that you have dealt with has more than likely told you that for as long as you live you will be the parents of this child. That is an accident of history and it turns out that this child came to both of you. I hope I am now convinced that both of you love this child and I’m convinced that both of you want what’s best for this child. . . . Somehow you all will have to change the dynamics of your relationship if you are to achieve what you both want for your son. What you are now doing is not working. . . . Somehow or another you will have to figure out a way to work with the other parent in order to achieve what you want. You will not be able to achieve what you want by yourself. The other parent will have to be considered. . . . But you need to know, whatever I say, you can always allow the other parent to be more involved in the child’s life than what I require. You can always let them be more involved.
It is clear from the record that the trial court considered very carefully
the testimony and evidence before him, and we find no abuse of discretion in his
finding that Laura violated the Consent Judgment by not enforcing the minimum
visitation requirement that Mitch was entitled to under that order.
Laura argues that the order of the court did not recite facts constituting
contempt, which is mandatory under Havener v. Havener, 29,785 (La.App. 2 Cir.
8/20/97), 700 So.2d 533, and therefore should be reversed. More specifically,
La.Code Civ.P. art. 225(B) provides: “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.” “The provisions of C.C.P. art. 225(B) are mandatory and must
be strictly construed. The failure of a trial court to recite facts constituting contempt
mandates a reversal of a judgment of contempt.” Havener, 700 So.2d at 538
10 (citations omitted). In the present case, in the judgment being appealed, the trial court
stated, “LAURA LEONARD RITCHIE has not required RYAN LEBLANC, to spend
25% of the school year with MITCHEL BRETT LEBLANC. That conduct is in
violation of the January 19, 2005 judgment. That conduct is contemptuous of the
orders of Division M2 of this court.” This language clearly constitutes a recitation
of the facts constituting contempt. We find no error.
Laura further contends that the trial court erred in ordering her to pay all
court costs incurred from January 19, 2005 to the date that the judgment is signed,
pay a fine of $500.00, pay the sum of $13,137.00 in attorney fees to Mitch, and to
spend seven days in jail or provide weekly documentation to Mitch regarding her
efforts to improve the relationship between Ryan and his father. The allowable
sanctions for contempt of court are set forth in pertinent part as follows:
La.R.S. 13:4611. Punishment for contempt of court
Except as otherwise provided for by law:
(1) The supreme court, the courts of appeal, the district courts, family courts, juvenile courts and the city courts may punish a person adjudged guilty of a contempt of court therein, as follows:
....
(d) For any other contempt of court, including disobeying an order for the payment of child support or spousal support or an order for the right of custody or visitation, by a fine of not more than five hundred dollars, or imprisonment for not more than three months, or both.
(e) In addition to or in lieu of the above penalties, when a parent has violated a visitation order, the court may order any or all of the following:
(i) Require one or both parents to allow additional visitation days to replace those denied the noncustodial parent.
11 (ii) Require one or both parents to attend a parent education course.
(iii) Require one or both parents to attend counseling or mediation.
(iv) Require the parent violating the order to pay all court costs and reasonable attorney fees of the other party.
(f ) A pattern of willful and intentional violation of this Section, without good cause, may constitute a material change in circumstances warranting a modification of an existing custody or visitation order.
Based upon the foregoing, all, except for one, of the trial court’s
sanctions in this case are specifically listed in La.R.S. 13:4611, including the payment
of a $500.00 fine and court costs and attorney fees, and the jail sentence. As to the
trial court’s offering of an alternative to the jail sentence in the form of Laura’s
submitting documentation to Mitch of her efforts to improve the relationship between
father and son, Laura argues that it directs her into a personal servitude to Mitch
without time limitations and is an abuse of the court’s power and an illegal sentence.
In support of her position, Laura cites George v. Nero, 02-1140 (La.App.
3 Cir. 3/5/03), 839 So.2d 1085. There, the mother was found in contempt for failing
to allow summer visitation and was ordered to serve ten days in jail, to pay $500.00
to the father to offset his expenses, and she was assessed all court costs. A panel of
this court found that the trial court abused its discretion in ordering the mother to pay
$500.00 to the father. We stated as follows:
[A] contempt proceeding is designed for the vindication of the dignity of the court rather than for the benefit of a litigant. Nungesser v. Nungesser, 558 So.2d 695, 701 (La.App. 1st Cir.)[writ denied, 560 So.2d 30 (La.1990), abrogated on other grounds, Wascom v. Wascom, 96-0125 (La. 4/8/97), 691 So.2d 678]. Thus, the court cannot order a fine or penalty to be paid to a litigant because such payment does not vindicate the court. City of Kenner v. Jan P. Jumonville, Placide Jumonville, p. 8, 701 So.2d
12 223[writ denied, 97-2890 (La. 1/30/98), 709 So.2d 718]. The fine must be made payable to the court itself. Id.
George v. Nero, 839 So.2d at 1088. Finding that the assessment of a fine to be paid
to the father rather than to the court was in error and in violation of the purposes of
contempt proceedings, we reversed the trial court in George v. Nero. Likewise, we
found that the indefinite discontinuance of child support payments was unauthorized
and illegal in that case.
In the present case, Mitch agrees that the requirement for Laura to
document her efforts to improve the relationship between father and son should have
a time limitation and suggests that the documentation be provided to the trial court
and to Mitch for the next three months. We agree with the time limitation suggested.
However, in keeping with George v. Nero, we modify the judgment to provide that
the condition for the suspension of the seven-day jail sentence as to Laura be that she
provide weekly reports to the trial court only, and not to Mitch personally, for the
next three months, documenting her efforts to improve the relationship between Ryan
and his father. Her failure to provide documentation to the court will result in her
serving the jail sentence set forth in the March 2006 Judgment. The finding of
contempt against Laura and all other sanctions imposed are affirmed.
Laura further contends that the trial court erred in excluding transcripts
of testimony in her motion for partial summary judgment and at the trial on the merits
and in not recognizing the January 19, 2005 Consent Judgment as a “considered
decree.” In order to understand this somewhat convoluted assignment of error, we
must backtrack to previous filings. In 2004, Laura filed a rule for a change of
custody. At two hearings on the rule, on August 5th and 10th of 2004, Laura put on
testimony by Ryan, by Ryan’s school counselor, Sister Kathy, by Father Bill
Gearheard, by Mitch’s former girlfriend, Crystal Cormier, and by Laura’s current
13 husband, Jay Ritchie. The matter was to be concluded at a final hearing on January
19, 2005. However, the parties entered instead into a “Consent Judgment” on that
date, wherein Ryan would reside with Laura, and Mitch would have visitation with
Ryan in his home for approximately 50% of the summer and 25% of the school year.
Due to the Consent Judgment, Mitch never put on testimony on his own behalf; nor
did the parties themselves testify; nor was there testimony by any of the psychologists
who had previously found both parties fit and capable parents.
When Laura did not facilitate the consented-to visitation in the spring
semester of 2005, Mitch filed a rule for change of custody on April 27, 2005. On
December 22, 2005, Laura filed a motion for partial summary judgment seeking to
have the January 19, 2005 Consent Judgment recognized as a “considered decree” in
order to raise the burden of proof in Mitch’s April 27 request for a change of custody.
More specifically, when a trial court has made a considered decree of permanent
custody, the party seeking a change of custody bears the heavy burden of proving that
a continuation of the present custody is so deleterious to the child as to justify a
modification of the custody decree, or of proving by clear and convincing evidence
that the harm likely to be caused by a change of environment is substantially
outweighed by its advantages to the child. Bergeron v. Bergeron, 492 So.2d 1193
(La.1986). However, in cases where the original custody decree is a stipulated
judgment, such as when the parties consent to a custodial arrangement, and no
evidence of parental fitness is taken, the burden in changing the present custody
arrangement requires only that: (1) a change in circumstances affecting the welfare
of the child had occurred since the original decree, and (2) the proposed modification
is in the best interest of the child. Aucoin v. Aucoin, 02-0756 (La.App. 3 Cir.
12/30/02), 834 So.2d 1245.
14 At the hearing before Judge Edwards on the motion for partial summary
judgment, Laura introduced into evidence an affidavit summarizing the August 2004
testimony on her behalf, and she presented the minute entries from the testimony, in
her efforts to have the Consent Judgment recognized as a “considered decree.”
However, the actual transcripts of the 2004 testimony were not available. The
transcript of the January 19, 2005 hearing resulting in the Consent Judgment was
available, and the trial court did accept that into evidence. Judge Keaty had recited
in the Consent Judgment that it was based upon the pleadings and the written
stipulations of the parties. Therefore, she did not rely on any testimony regarding
fitness of the parties. In fact, as Mitch points out, he did not put on any testimony of
his own. Accordingly, Judge Edwards determined that there was not enough
evidence before him to render the January 19, 2005 Consent Judgment a “considered
decree,” and he denied Laura’s motion for summary judgment on that issue.
In support of her argument that the Consent Judgment was a considered
decree, Laura LeBlanc cites Adams v. Adams, 39,424 (La.App 2 Cir. 4/06/05), 899
So.2d 726; Long v. Long, 28,763 (La.App. 2 Cir. 12/11/96), 684 So.2d 1099, writ
denied, 97-096 (La. 3/7/97), 690 So.2d 20; and Cherry v. Cherry, 04-0002 (La.App.
4 Cir. 2/2/05), 894 So.2d 1208. However, in Adams and Long, the parties stipulated
to the standard of proof in Bergeron; and in Cherry, the trial court awarded custody
based upon clear and convincing evidence after considering all pertinent facts and
circumstances. In the present case, the Consent Judgment was based only upon the
pleadings filed and the written stipulations of the parties. Accordingly, the trial court
herein did not err in concluding that the January 19, 2005 Consent Judgment was not
a considered decree. As to Laura’s argument that it was error to not admit the 2004
transcripts, we disagree.
15 At the trial on the merits on March 3, 2006, Laura attempted to introduce
the actual transcripts from the August 2004 testimony that she had summarized in an
affidavit for the March 1, 2006 hearing on her December 2005 motion for partial
summary judgment, which she had filed again in January 2006. Counsel for Mitch
objected, stating that the matter of the considered decree had already been decided.
The trial court sustained the objection but allowed Laura to proffer the transcripts of
the August 2004 testimony. With regard to the excluded transcripts, counsel for
Mitch asked whether the transcript evidence pertained to the motions for summary
judgment or to “all of the trial.” The court responded, “I understood him to be
offering evidence that he wanted me to consider when deciding the motion for
summary judgment.” Counsel for Laura responded, “The motion for partial summary
judgment, that’s correct.”
A trial court is afforded great discretion in the admission of evidence
during a trial. Its decision to admit or deny evidence will not be reversed on appeal
in the absence of an abuse of that discretion. McIntosh v. McElveen, 04-1041
(La.App. 3 Cir. 2/2/05), 893 So.2d 986, writ denied, 05-0528 (La. 4/29/05), 901
So.2d 1069. In the present case, the transcripts were offered in support of a motion
for partial summary judgment on the issue of whether a consent judgment was a
considered decree. Where the transcripts included testimony on behalf of Laura only,
and where no evidence was entered on behalf of Mitch regarding fitness of the
parties, nothing in the transcripts could change the fact that the Consent Judgment
was not a considered decree. A considered decree is rendered by a court only after
considering all evidence regarding the fitness of both parties. The Consent Judgment
itself recited that it was based upon only the pleadings and the stipulations of the
parties.
16 Moreover, just a few days before, at the March 1, 2006 hearing on the
motion, while introducing Laura’s affidavit summarizing the August 2004 testimony,
counsel for Laura stated to the trial judge, “I did not believe that we would have time
to give the entire record of all testimony that was taken. I did not believe that to be
necessary. . . . I don’t think there is a requirement for you to read through three
volumes of trial testimony to make that determination.” Accordingly, the trial court
did not abuse its vast discretion in excluding the transcript evidence a couple of days
later on March 3 when counsel for Laura had the actual transcripts of the August
2004 testimony and sought to have them entered for the same purpose.
Laura further contends that the trial court erred in establishing a joint
custody and implementation plan that imposes a seven-and-seven custody
arrangement (each parent has seven days of alternating weekly custody), provides for
Mitch to have custody for the entire school year of 2006-2007, and which denies the
mother Christmas visitation. As a threshold matter, the custody plan implemented by
Judge Edwards after the March 2006 trial does not deny the mother Christmas
visitation. The plan calls for the father to have custody in odd-numbered years from
the beginning of Christmas holidays, when school lets out, until 2:00 p.m. on
December 25th. The plan further provides that the father will have custody in even-
numbered years from 2:00 p.m. on December 25th until Christmas holidays end, when
the child returns to school in the new year.
While the mother is not specifically mentioned, it is clear to this court
that the mother has custody during Christmas when the father does not. In other
words, the mother has custody for the second half of Christmas holidays in the odd-
numbered years, and she has custody for the first half of Christmas holidays in the
even-numbered years, with December 25th at 2:00 p.m. marking the half-way point
17 of the Christmas holiday period. As to the custody arrangement, the trial court
listened to twenty-nine hours of testimony, including the testimony of the court-
appointed Dr. Kenneth Bouillion, who worked with Ryan and Mitch together and
testified that both parties were good parents and that Mitch in particular provided
more structure for Ryan with regard to academic performance. The court also read
the testimony of counselor Barbara Walley, which was entered as a joint exhibit.
Additionally, the court read the 2002 letters of the court appointed psychologists, Dr.
Warren Lowe and Dr. Luke Elliot, who had evaluated Ryan and each parent
individually and had jointly recommended adhering to a previous custody plan of
seven-and-seven.
As Laura points out in her brief, La.R.S. 9:335(2)(a) provides: “The
implementation order shall allocate the time periods during which each parent shall
have physical custody of the child so that the child is assured of frequent and
continuing contact with both parents.” Subsection (b) provides: “To the extent it is
feasible and in the best interest of the child, physical custody of the children should
be shared equally.” We see nothing in the seven-and-seven custody plan that runs
counter to these provisions. In fact, the custody plan appears to provide exactly what
the legislature intended. With regard to the plan’s provision giving Mitch custody for
the entire school year of 2006-2007, La.R.S. 13:4611(1)(e)(i) states that when one
parent violates a custody and visitation order, the court can require that parent to
allow additional visitation days to replace those denied the noncustodial parent.
Moreover, La.R.S. 13:4611(1)(f) provides that a pattern of willful and intentional
violation of the contempt statute, without good cause, may constitute a material
change in circumstances warranting a modification of an existing custody or
visitation order. Laura’s argument on this issue is meritless.
18 Laura further contends that the notice and time allowed for trial
preparation was inadequate. She argues that the order setting the custody trial date
and an expedited hearing on interim custody, for the same date, was not signed until
February 26, 2005 [sic], which only allowed three or four days for trial preparation.
The record reveals that the order fixing the date of March 3, 2006 for trial on the
merits was signed on February 25, 2006. The order set March 3, 2006 as the date for
several pending rules including Mitch’s request for permission to Amend and
Supplement the Rule for Change of Custody, an expedited hearing on Interim
Custody, the trial on the merits for Change of Custody, the continuation of the Rule
for Contempt and the Request for Sanctions against Laura, filed on June 10, 2005.
As Mitch points out, the contempt hearing against Laura had begun on November 7,
2005 before Judge Phyllis Keaty. However, Judge Keaty recused herself on January
4, 2006, and the matter was assigned to Judge Edwards.
Therefore, the custody and contempt matters had been ongoing since
Mitch filed a request to change custody on April 27, 2005, and hearings had actually
begun in November of 2005. All of the parties were on notice of the substance of the
issues to be considered. As Mitch points out, there was little preparation required
since the issues and the facts were the same. Moreover, we note that Laura does not
argue, and the record does not indicate, that Laura requested or filed for a continuance
of the trial date. At the hearing on her Motion for Partial Summary Judgment on
Wednesday, March 1, 2006, the parties discussed having learned the previous Friday
that they would be going to trial on the upcoming Friday, March 3rd, and counsel for
Laura did not at that time object to the upcoming trial. In fact, at one point during the
hearing on March 1, 2006, counsel for Laura stated, “I’m not suggesting that we
continue the trial, Judge.”
19 If counsel did not object to the trial date, and he participated in the
proceedings, his client cannot now raise an objection. See Cortina v. Gulf States
Utilities-Cajun Elec. Power Co-op., Inc., 594 So.2d 1326 (La.App. 1 Cir. 1991), writs
denied, 600 So.2d 666, 600 So.2d 667 (La.1992) (plaintiff participated in the
proceedings on the day of trial without objection; any objection plaintiff had to the
proceedings was waived). See also Himel v. Landry, 180 So. 428 (La.App. 1 Cir.
1938) (Defendant was denied a new trial or rehearing where she failed to show that
she was deprived of making any defense on the merits of the case by reason of the
trial going forward on a day fixed with her attorney’s consent). After failing to object
at the hearing on March 1, 2006, at the trial on the merits on March 3, 2006, counsel
for Laura pointed out to the court that they had had less than ten days to prepare for
trial. The court responded that the dates were set in response to a request for an
expedited hearing, and the normal delays were not being honored. Counsel did not
comment further, did not request a continuance, and clearly had not filed a motion for
a continuance.
Laura contends finally that the trial court erred in ordering her to pay for
two-thirds of the cost of counseling for the minor child. More specifically, the trial
court’s Joint Custody Implementation Plan orders both parents to complete specific
parenting courses and to cooperate with Dr. Luke Elliot’s efforts to coach the parents
and to counsel Ryan on more functional methods to address their situations. The
Joint Custody Implementation Plan orders Laura to pay two-thirds and Mitch to pay
one-third of Dr. Elliot’s counseling and coaching costs; the Plan also orders Laura
and Mitch to split 50/50 the cost of Dr. Darlene Nemeth’s neuropsychological
assessment of Ryan. Laura argues that the assessment of these costs to her results in
a modification of the child support obligation, which issue was not before the court.
20 We disagree. The assessment of these costs is not a modification of the ongoing child
support obligation but is a separate, distinct and allowable assessment under La.R.S.
13:4611(1)(e)(iii) which provides that, as punishment for contempt, a trial court may
require one or both parents to attend counseling.
If the court had ordered only Laura to attend counseling, she would have
been responsible for the entire cost of the counseling. By ordering both to undergo
counseling, and by ordering Laura to pay for two-thirds of the counseling costs, it is
apparent that the trial court found Laura more liable for the necessity of counseling
than Mitch. The court’s allocation of two-thirds of the cost to Laura is not prohibited
by La.R.S. 13:4611, nor does it constitute a modification of child support which
covers the ongoing medical costs of the child. This assignment of error is also
without merit.
Mitch answered the appeal in this case and assigns three errors. First,
he asserts that the trial court abused its discretion in designating Laura as domiciliary
parent, primarily because she failed to “facilitate and encourage a close and
continuing relationship between the child and the other party” under La.Civ.Code art.
134(10). However, there are eleven other factors under Article 134, including love,
affection, emotional ties, permanence of family unit, moral fitness, health, reasonable
preference of the child, and the responsibility for the care and rearing of the child
previously exercised by each party. There was strong evidence that Laura was a
loving and caring mother and no evidence that Laura failed in any of the above-
mentioned factors, and there was testimony that Ryan liked living with his mother.
Therefore, we find no error in the trial court’s maintaining Laura as the domiciliary
parent.
21 Mitch also contends that the trial court erred in finding him in contempt
of court for failing to attend assigned parenting classes. The record reveals that the
Hearing Officer issued a Conference Report on May 25, 2005, recommending that
both parents contact the Family Tree and enroll in the R.A.P.P. Program, and that
Mitch enroll in the Best Dads program. Laura complied, and Mitch did not. Mitch
filed a timely objection, and Judge Keaty signed a Temporary Order on June 1, 2005,
ordering that the recommendations of the Hearing Officer be made a temporary order
of the court pending the hearing on the rule to show cause. The Notice of the Signing
of the Judgment went out on June 6, 2005. Laura filed a Rule for Contempt on
December 22, 2005, which included allegations that Mitch was in contempt of court
for failing to attend the assigned classes. On January 6, 2006, an Order was issued
by the trial court setting the Rule to Show Cause on the contempt issue for March 7,
2006. The matter was heard during the custody trial, and Judge Edwards found Mitch
in contempt and ordered him to pay a $500.00 fine, and also ordered him to serve
seven days in jail or provide verification within fifteen days that he had enrolled in
the recommended parenting classes.
Mitch argues that the assignment to take the classes was merely a
hearing officer’s recommendation, to which he timely objected, that the
recommendation became an interim order only, and that he cannot be found in
contempt where no court order was ever issued. He cites Piccione v. Piccione, 01-
1086 (La.App. 3 Cir. 5/22/02), 824 So.2d 427, as authority for his position. In
Piccione, a panel of this court set aside a contempt judgment rendered against Dr.
Piccione for failing to pay spousal and child support in accordance with the
recommendations of a hearing officer. There, the hearing officer had issued
recommendations that were neither reduced to a written order nor filed into the record
22 of the proceeding. Both parties filed exceptions to the hearing officer’s
recommendations. Thereafter, Ms. Piccione filed a Rule for Contempt alleging that
Dr. Piccione had failed to pay child and spousal support as recommended by the
hearing officer. The trial court found Dr. Piccione in contempt and then we reversed.
In reaching our decision in Piccione, we considered La.R.S. 46:236.5
which authorizes the use of hearing officers in domestic matters, including support
matters. We also reviewed the local district court rule relating to hearing officers and
found that the local rule gave the hearing officer more authority than contemplated
by the statute by allowing contempt proceedings against a party against whom no
court order has ever been issued. However, the LeBlanc case herein is
distinguishable from Piccione. The record in this case establishes, unlike that in
Piccione, that the recommendations of the hearing officer were reduced to writing and
were made a temporary order of the court, signed by Judge Keaty on June 1, 2005,
and the Notice of Signing of Judgment went out on June 6, 2005.
The present case is more analogous to Ackel v. Ackel, WL 101823
(La.App. 5 Cir. 1/16/07), ___ So.2d ___, where an “interim judgment” was signed by
the domestic commissioner, and when Mr. Ackel moved for a continuance of the trial
court hearing on his objection to the hearing officer's recommendations, the district
court judge signed an “interim judgment” ordering Mr. Ackel to pay his spouse final
periodic spousal support in the amount of $1,500.00 per month. The court in Ackel
distinguished the Piccione case, and found that the contempt proceedings in that case
did not proceed against a party in the absence of a court order but, to the contrary,
were to enforce the court order issued by the district court judge. While the Fifth
Circuit Court of Appeal acknowledged that the interim judgment may have been
entered in consideration of the hearing officer’s recommendations, the court stated
23 that it was no less a court order for contempt purposes. Similarly, in the present case,
Mitch violated a court order, based upon the hearing officer’s recommendation but
signed by District Court Judge Phyllis Keaty, and Judge Edwards did not commit
legal error in finding him in contempt for the violation.
Lastly, Mitch contends that the trial court erred in not awarding Mitch
the full amount of his attorney fees for Laura’s contempt. The trial court may render
judgment for costs and attorney fees against any party as the court may consider fair.
La.Code Civ.P. art. 4550. This assignment of error is without merit.
IV.
CONCLUSION
Based upon the foregoing, the judgment of the trial court is affirmed in
all respects except that we modify the judgment to provide that the condition for the
suspension of the seven-day jail sentence as to Laura LeBlanc be that she provide
weekly reports to the trial court only, and not to Mitch LeBlanc personally, for the
next three months, documenting her efforts to improve the relationship between Ryan
and his father.