Moyer v. Moyer

123 So. 3d 880, 13 La.App. 3 Cir. 212, 2013 WL 5539318, 2013 La. App. LEXIS 2051
CourtLouisiana Court of Appeal
DecidedOctober 9, 2013
DocketNo. 13-212
StatusPublished

This text of 123 So. 3d 880 (Moyer v. Moyer) is published on Counsel Stack Legal Research, covering Louisiana Court of Appeal primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Moyer v. Moyer, 123 So. 3d 880, 13 La.App. 3 Cir. 212, 2013 WL 5539318, 2013 La. App. LEXIS 2051 (La. Ct. App. 2013).

Opinion

GREMILLION, Judge.

liThe defendant, Nikki Moyer1, appeals the trial court’s judgment in favor of the plaintiff, Joel Meyer, pertaining to child support, contempt, and attorney fees. For the following reasons, we reverse in part and affirm in part.

FACTUAL AND PROCEDURAL BACKGROUND

Nikki and Joel divorced in August 2008. Joel was ordered to pay $960.00 per month in child support retroactive to May 9, 2007, the date the petition for divorce was filed. Pursuant to a stipulated judgment, the parties agreed to joint custody of their two minor children, with Nikki being the domiciliary parent and Joel having visitation rights. In June 2008, Joel filed a petition to have custody changed, which was denied.

In September 2011, Nikki filed a rule for judgment of past due child support, contempt, and attorney fees. On January 17, 2012, Joel filed a motion for immediate return of the minor children and immediate ex parte custody, which was denied. This motion also sought to suspend his child support obligation. Nikki was ordered to immediately return the children to Calcasieu Parish.

A hearing was held on January 23, 2012, after which the trial court rendered a judgment prohibiting Nikki from removing the children from Calcasieu Parish for any reason.

Following a September 2012 trial, the trial court issued written reasons in November 2012, finding Nikki in contempt, sentencing her to thirty days in jail, and awarding $5,000.00 in attorney fees to Joel. The trial court further suspended Joel’s child support obligation from May 1, 2011, through January 31, 2012, and 12dismissed Nikki’s contempt rule against Joel at her cost. Nikki now appeals and assigns as error:

1. The trial court erred in suspending the child support obligation of Joel for the entire period of May 1, 2011 to January 31, 2012.
2. The trial court erred in failing to find Joel in contempt of court for his failure to meet his child support obligation.
3. The trial court erred in the punishment placed on Nikki for the contempt findings, as same are excessive.

DISCUSSION

We have reviewed the testimony presented at trial, and the trial court succinctly summarized the facts as follows:

Joel alleged that Nikki is in contempt of court for removing the residence of the children from Calcasieu Parish, allowing person[s] of the opposite sex to whom she was not married to stay overnight in presence of children, and failing to allow Joel right of first refusal for the custody of the children when left town. The evidence established that Nikki intentionally violated the Court’s orders on multiple occasions.
Nikki acknowledged at trial that men spent the night with her while the children were in her care, which is in direct violation of the parties’ Joint Custody Plan and the Court’s judgment. She acknowledged that her husband, Charles Deville, spent the night with her before they were married. In addition, Nikki acknowledged that a boyfriend, Robert [883]*883Stelly, also spent the night with her when the children were with her.
The evidence also established that Nikki traveled to Colorado with her husband, Bentley Stewart, on May 13, 2011. She left the children in the care of her mother. Nikki did not offer Joel the right to keep the children while she was in Colorado, which is in direct violation of the parties’ Joint Custody Plan and the Court’s judgment. In fact, Nikki did not even tell Joel that she was leaving. He learned through his son who showed him a picture of his mother’s new apartment. There was also evidence presented that Nikki intended to relocate the children’s residence to Colorado. Joel believed she would and filed an ex parte request for custody to prohibit her from removing the children’s residence to Colorado. Nikki’s answer to discovery indicated that her husband was seeking employment in Colorado and if they had relocated, she would have moved the children with her. Even if she did not relocate the children’s |sresidence to Colorado, she clearly left them in the care of her parents from May 13, 2011 until July 7, 2011, without offering Joel the opportunity to care for them.
Nikki testified that she traveled to Illinois in early December, 2011, with her husband, Bentley Stewart, and children. She maintains that she did not intend the move to Illinois with the children, but just to vacation. However, the evidence clearly shows differently. Nikki testified that they did not have any money due to her husband being out of work and Joel not paying his child support. So, her husband’s father offered them an opportunity to come to Illinois and have Christmas. Nikki removed the children from school on December 2, 2011. Initially, she home schooled the children, but later enrolled them in school in Illinois further evidencing her intent to reside in Illinois with the children. Nikki admitted that she did not notify Joel that she was relocating to Illinois with the children. She testified that this was because Joel had not talked to her or the children for the six months prior to their leaving. However, the testimony indicated that she was not truthful on this point.
In summary, Nikki has violated the Court’s orders on multiple occasions. After hearing the evidence presented, it is clear that Nikki has no respect for the parties’ agreements and/or the Court’s orders. Nikki further evidenced her lack of respect for the Court and others when she failed to testify truthfully on numerous issues such as Joel’s payment of child support, Joel’s contact with her and the children, her relocations. The Court did not find Nikki credible in her testimony given the many occasions that the evidence clearly did not support her testimony.
Louisiana Revised Statute 9:315.23 states:
If one joint custodial parent or his agent is intentionally secreting a child with the intent to preclude the other joint custodial parent from knowing the whereabouts of the child sufficiently to allow him to exercise his rights or duties as joint custodial parent, the latter may obtain from the court an order suspending or modifying his obligation under an order or judgment of child support. However, such circumstances shall not constitute a defense to an action for failure to pay court-ordered child support or an action to enforce past due child support.
Louisiana Revised Statute 9:315.21(0 states in pertinent part:
[884]*884Except for good cause shown, a judgment modifying or revoking a final child support judgment shall be retroactive to the date of judicial demand, but in no case prior to the date of judicial demand.

|4Nikki argues that the suspension of child support payments pursuant to La. R.S. 9:315.28 can only be retroactive to January 17, 2012, the date of judicial demand, rather than May 1, 2011. We agree. The trial court suspended Joel’s child support obligation from May 18, 2011 through July 7, 2011 (the months that the children lived with Nikki’s parents), from August 1, 2011 through December 1, 2011 (the months that she refused to allow him visitation), and December 2, 2011 through January 17, 2012 (the period in which she relocated the children to Illinois).2 The last sentence of La.R.S.

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Bluebook (online)
123 So. 3d 880, 13 La.App. 3 Cir. 212, 2013 WL 5539318, 2013 La. App. LEXIS 2051, Counsel Stack Legal Research, https://law.counselstack.com/opinion/moyer-v-moyer-lactapp-2013.