Smith v. Smith

796 So. 2d 726, 2001 WL 1152895
Louisiana Court of Appeal·Decided September 26, 2001·No. 35,378-CA and 35,379-CA·Published·Cited by 9 cases

Opinion

796 So.2d 726 (2001)

Julia Suzanne Grigsby SMITH,
v.
Bobby Lee SMITH, Jr.,
Bobby Lee Smith, Jr., Appellee,
v.
Julia Suzanne Grigsby Smith, Appellant.

Nos. 35,378-CA and 35,379-CA.

Court of Appeal of Louisiana, Second Circuit.

September 26, 2001.

*727 Rick Fayard, Counsel for Appellant.

Geary S. Aycock, Counsel for Appellee.

Before BROWN, STEWART & PEATROSS, JJ.

PEATROSS, Judge.

This is an appeal from a judgment of the trial court finding Julia S. Grigsby Smith (now Schooler) in contempt for denying Bobby Lee Smith, Jr., visitation with the parties' three minor children. Ms. Smith Schooler appeals, asserting the following two assignments of error: (1) the trial court erred in finding her in constructive contempt of a judgment of the court, and (2) the trial court erred in ordering that the parties each pick up the children from the other's home at the end of scheduled visitations. For the reasons stated herein, the judgment of the trial court is reversed in part and affirmed in part.

FACTS

The Smiths were divorced in 1998 and have had substantial litigation over custody, visitation and support since that time. The proceedings pertinent to this appeal begin with a rule for contempt filed on January 24, 2000, by Mr. Smith and against Ms. Smith Schooler for failure to allow him visitation for two weekends in January 2000. At that time, Ms. Smith Schooler had relocated to Clinton, Mississippi, and Mr. Smith lived in Monroe. The rule was to be heard on March 13, 2000, at which time the parties entered into a stipulation regarding all issues (transportation of the children, holiday and summer visitation). The following stipulation occurred *728 in open court regarding the agreement of the parties:

Mother's counsel: Excuse me. The correction on that, Judge, is that the mother will have the second half of the Easter holiday to include Easter Sunday until 2000-2002.
Father's counsel: That's true, that's what I said.
Mother's counsel: No, you said the first half. So it actually would be the second half. Whatever extended Easter vacation there is, Mister—
The Court: the half of the holiday that would include Easter Sunday.
Mother's counsel: Right. That's correct.
Father's counsel: Would be the mother's until the year 2002.
Mother's counsel: That's right.
The Court: Whether it's first half or the second half.
Mother's counsel: That's fine.
Father's counsel: And in the year 2002, father would have that part of the Christmas holiday or the Easter holiday that would include Easter Day....

By order of the court, each party was to prepare a proposed written judgment reflecting the stipulation and submit the same to the trial court. Counsel for Ms. Smith Schooler prepared a judgment and forwarded the same to counsel for Mr. Smith. In the interim, Mr. Smith had changed attorneys and, thereafter, made objections to the judgment as written by Ms. Smith Schooler's counsel and refused to sign it. The following is an excerpt from the unsigned judgment prepared by Ms. Smith Schooler's counsel, which represents her understanding of the stipulation entered in open court:

4) The said JULIA GRIGSBY SMITH SCHOOLER shall continue to exercise custody during the Easter vacation from Good Friday through Easter Sunday through the year 2002, but the custody during the extended periods of Easter vacation either before Good Friday or after Easter Sunday shall be enjoyed by the said BOBBY LEE SMITH, JR. Beginning on Easter, 2003, the parties shall share Easter vacation periods with the Good Friday to Easter Sunday period enjoyed by the parties (sic) on a yearly alternating basis with BOBBY LEE SMITH, JR. enjoying that period in 2003.

As previously stated, Mr. Smith objected, arguing that the stipulation was intended to split the Easter break evenly between the parties, with Ms. Smith Schooler having Easter Sunday custody until 2002. His counsel prepared a judgment to that effect and submitted it to the trial court. When Easter 2000 arrived, however, the trial court had not yet signed a judgment reflecting the parties' stipulation; and, therefore, Ms. Smith Schooler followed her interpretation of the stipulation. Since there was no "extended" Easter vacation beyond Easter Sunday, she did not allow visitation with the father.

At this point, Ms. Smith Schooler notified Mr. Smith that she was relocating to Hattiesburg, Mississippi, because her husband was being transferred. Mr. Smith did not want her to relocate the children; and, on May 18, 2000, he filed a second Rule for Contempt and Modification against Ms. Smith Schooler alleging, inter alia, her failure to allow him Easter visitation and requesting that she not be allowed to move the children. The rule was set for hearing on October 13, 2000. Ms. Smith Schooler responded, stating that Mr. Smith's objections were totally without merit and argued that the minutes clearly reflect the parties' intentions regarding *729 the stipulation. Further, she alleged that Mr. Smith was not paying child support as ordered by the court via income assignment and she requested that he be ordered to do so.

In the interim, on August 3, 2000, Judge Smith entered Judgment on Rule adopting Mr. Smith's interpretation of the stipulation regarding Easter visitation (this is a judgment on the first rule for contempt filed by Mr. Smith in January 2000 and the subsequent stipulation entered on March 13, 2000). The Judgment on Rule states, in pertinent part:

Easter Break
Easter is to be divided equally. For the years 2000 and 2001, the mother is to have the second half of the Easter holiday, which includes Easter Sunday. [sentence struck out by trial judge] Beginning in 2002, the father shall have the second half of the Easter holiday to include Easter Sunday and the mother shall have the first half of the Easter holiday. [sentence struck out by trial judge] The parties shall rotate halves each year thereafter.

Thereafter, Mr. Smith filed an amendment to his second Rule for Contempt and Modification (filed on May 18, 2000) alleging failure of Ms. Smith Schooler to make timely exchanges of the children and noting that the court had ordered mediation in July 2000 to resolve issues of visitation and transportation; however, Ms. Smith Schooler had denied him visitation during the mediation proceedings. In addition, he pointed out to the court that it had entered Judgment on Rule from the March 13, 2000 stipulation, which, as previously stated, adopted Mr. Smith's interpretation of the stipulation regarding Easter visitation.

The parties did resolve some issues in mediation; however, the issues of transportation, contempt and relocation were heard on October 13, 2000. First, the transportation issue involved only extended weekend visitations, or those weekends which included a Monday. The trial court ordered that Mr. Smith was to pick up the children from Hattiesburg at the beginning of the visitation period and that Ms. Smith Schooler was to travel to Monroe to retrieve the children at the end of the visitation period. The result of this ruling was to require Ms. Smith Schooler to take vacation time from work in order to travel to Monroe when the visitation lasted through Monday.

Second, the trial court imposed punishme

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