Smith v. Pillow-Smith

52 So. 3d 264, 2010 La.App. 4 Cir. 0167, 2010 La. App. LEXIS 1592, 2010 WL 4656138
CourtLouisiana Court of Appeal
DecidedNovember 17, 2010
DocketNo. 2010-CA-0167
StatusPublished
Cited by6 cases

This text of 52 So. 3d 264 (Smith v. Pillow-Smith) 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
Smith v. Pillow-Smith, 52 So. 3d 264, 2010 La.App. 4 Cir. 0167, 2010 La. App. LEXIS 1592, 2010 WL 4656138 (La. Ct. App. 2010).

Opinions

TERRI F. LOVE, Judge.

| ¶ Carmen Pillow-Smith appeals the judgment of the trial court denying her request to hold Cedric Smith in contempt for failure to pay child support and failure to return the minor children. Ms. Pillow-Smith further assigns error to the trial court for denying her request for attorney’s fees, and for curtailing the trial testimony of Mr. Smith at the trial court’s discretion. We find no error in the findings of the trial court except for the issue of attorney’s fees and costs. Therefore, we affirm in part and reverse and remand in part.

FACTS AND PROCEDURAL BACKGROUND

In 2003, pursuant to a Consent Judgment between Carmen Pillow-Smith and Cedric Smith, Mr. Smith was ordered to pay $1,982.00 in child support and other monthly expenses. The parties were awarded joint physical custody of the minor children with Ms. Pillow-Smith being designated as the primary domiciliary pai'-ent. A Judgment of Divorce was entered April 13, 2004.

Before the divorce was finalized in 2004, Ms. Pillow-Smith filed a contempt action alleging Mr. Smith’s failure to pay child support pursuant to the Consent Judgment, which resulted in a 2005 Judgment ordering Mr. Smith to pay a base |2child support obligation of $2,550 per month and an additional $500 per month toward the arrearages owed for past-due child support. In 2006, Ms. Pillow-Smith filed a contempt action due to Mr. Smith’s failure to return the minor children at the end of his summer visitation. The trial court found Mr. Smith in contempt and ordered him to post a bond in the amount of $3,950.00 pursuant to La. R.S. 9:342, to assure compliance with future visitation orders.

In 2009, Ms. Pillow-Smith filed a Rule for Contempt alleging Mr. Smith’s failure to pay court ordered child support, arrear-ages, tuition, and health insurance costs. Prior to the hearing on Ms. Pillow-Smith’s Rule for Contempt, the parties made several stipulations, including: that the child support obligation shall be $2,050.00 per month; that the balance of Mr. Smith’s arrearage for failure to pay child support totaled $27,603.65; that Mr. Smith shall pay Ms. Pillow-Smith the sum of $2,500, representing damages incurred by her for his failure to pay the minor children’s school tuition in 2004; and, that Ms. Pillow-Smith will carry health insurance for the minor children.

The parties further stipulated that the following issues were deemed moot: Mr. Smith’s motion to modify a July 2005 judgment; Mr. Smith’s motion to order Ms. Pillow-Smith to attend custody evaluations; Mr. Smith’s rule for contempt for Ms. Pillow-Smith’s failure to complete the custody evaluation; Mr. Smith’s motion as to why Cydney Smith (“Cydney”) was not enrolled in school; and Mr. Smith’s request for attorney’s fees and court costs regarding Cydney’s school enrollment.

On October 8, 2009, the matter proceeded to trial on the following issues: 1) contempt for Mr. Smith’s failure to pay child support; 2) contempt for Mr. Smith’s failure to return Cydney following her summer visitation in August 2009; 3) Ms. Pil[267]*267low-Smith’s request to forfeit the existing bond; and 4) Ms. Pillow-Smith’s ^request for Mr. Smith to post a new bond in the amount of $10,000.

The trial court ruled as follows: 1) Mr. Smith’s failure to pay child support did not constitute contempt; 2) Mr. Smith’s failure to return Cydney following her summer visitation in August 2009, did not constitute contempt; 3) Ms. Pillow-Smith’s request to forfeit the existing bond was denied; and 4) Ms. Pillow-Smith’s request for Mr. Smith to post a new bond in the amount of $10,000 was denied. All of these rulings were appealed by Ms. Pillow-Smith.

CONTEMPT FOR FAILURE TO PAY CHILD SUPPORT

Ms. Pillow-Smith alleged in her Rule for Contempt that Mr. Smith failed to consistently pay child support and sought to hold Mr. Smith in contempt for this alleged failure.1 The trial court noted that it was undisputed that Mr. Smith had failed to consistently pay child support, but found that Mr. Smith was not in constructive contempt for his failure to pay the full amount of child support ordered. Ms. Pillow-Smith alleges that the trial court erred in failing to find Mr. Smith in contempt.

Constructive contempt of court includes “wilful disobedience of any lawful judgment, order, mandate, writ, or process of the court.” La. C.C.P. art. 224. A trial court is vested with “great discretion to determine whether a party should be held in contempt for willfully disobeying” a child support order. Fink v. Bryant, 01-987, p. 7 (La.11/28/01), 801 So.2d 346, 350. The trial court’s “decision will only be reversed when the appellate court can discern an abuse of that discretion.” Stephens v. Stephens, 30,498, p. 5 (La.App. 2 Cir. 5/13/98), 714 So.2d 115, 118.

In the trial court’s reasons for judgment, it noted that the testimony of Mr. | ¿Smith demonstrated that he made direct contributions towards the expenses of the minor children despite his failure to consistently meet his child support obligation. The trial judge reasoned:

He maintained health insurance for the children, car insurance for both Ms. Pillow-Smith, and their oldest son, Cedric, Jr., and he paid for all expenses regarding the children’s airfare, school tuition, lunch, and uniforms. His testimony further revealed that the parties were also going through bankruptcy proceedings during this time. As a result, the Court finds that Mr. Smith paid various expenses for his family well beyond the basic child support obligation. The Court is taking into consideration that so much was paid for other expenses, and finds that while Mr. Smith did not pay the amount specifically ordered, his failure to pay was not willful.

Accordingly, the trial court found that Mr. Smith did not commit willful contempt of court.

“A proceeding for contempt for refusing to obey the court’s orders is not designed for the benefit of the litigant, though infliction of a punishment may inure to the benefit of the mover in the rule.” Howard v. Oden, 44,191, p. 12 (La.App. 2 Cir. 2/25/09), 5 So.3d 989, 997. Rather, “[t]he object of a contempt proceeding” is the vindication of the “dignity of the court.” Id. Moreover, in order to [268]*268find a party' guilty of constructive contempt, the trial court must find “that he or she violated the order of the court intentionally, knowingly, and purposely, without justification.” In re S.L.G., 40,858, p. 3 (La.App. 2 Cir. 1/25/06), 920 So.2d 363, 366.

We do not find that the record establishes that Mr. Smith violated the child support order intentionally, knowingly, and purposely, without justification. Although Mr. Smith was conscious of his duty to obey the court’s order, the record does not reveal that he was willful in failing to make child support payments in purposeful violation of the court’s order. Mr. Smith testified that there were times 15when he paid less than the court ordered child support, but at other times he paid more than the court ordered child support in addition to making direct contributions to the support and maintenance of the minor children by purchasing items such as clothes, haircuts, school books, and school lunches.

Our review of the record indicates that the trial court properly exercised its discretion as to the contempt issue for Mr. Smith’s failure to pay child support. Accordingly, we will not disturb the ruling of the trial court on this issue.

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Bluebook (online)
52 So. 3d 264, 2010 La.App. 4 Cir. 0167, 2010 La. App. LEXIS 1592, 2010 WL 4656138, Counsel Stack Legal Research, https://law.counselstack.com/opinion/smith-v-pillow-smith-lactapp-2010.