STATE EX REL. JM v. Brooks

972 So. 2d 1197, 2007 WL 4246091
CourtLouisiana Court of Appeal
DecidedDecember 5, 2007
Docket42,846-JAC
StatusPublished
Cited by5 cases

This text of 972 So. 2d 1197 (STATE EX REL. JM v. Brooks) 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
STATE EX REL. JM v. Brooks, 972 So. 2d 1197, 2007 WL 4246091 (La. Ct. App. 2007).

Opinion

972 So.2d 1197 (2007)

STATE of Louisiana In the Interest of J.M., Plaintiff-Appellee
v.
Robin BROOKS and Ted Malant, Defendant-Appellant.

No. 42,846-JAC.

Court of Appeal of Louisiana, Second Circuit.

December 5, 2007.

*1198 Michael D. Cox, Lake Charles, for Appellant, Theodore J. Malant.

Legal Services of North, Louisiana, Inc. by David K. Handelman, Margherita McWilliams, Shreveport, for Appellee, Robin Brooks.

Wilbert Pryor, for J.M.

Before BROWN, STEWART and GASKINS, JJ.

GASKINS, J.

The appellant, Ted Malant, appeals from a decision by the juvenile court denying his motion to have Robin Brooks found in contempt. The contempt issue arose out of the court's order regarding custody issues concerning the couple's child, J.M. For the following reasons, we affirm.

FACTS

Ted Malant and Robin Brooks are the parents of J.M., born May 23, 2000. The parties were never married. They have been before the court on several other occasions.

Mr. Malant was convicted of sexual assault of a child in Texas in 1991 and was placed on probation for seven years. The parties originally had joint custody of J.M. and Ms. Brooks was named domiciliary parent. This was followed by complaints of abuse by J.M., claiming that his mother bit him, inflicted a closed head injury and, along with her brother, touched him inappropriately. Mr. Malant filed for a change of custody. In 2005, a judgment was entered designating Mr. Malant as domiciliary parent during the school year and granting the same to Ms. Brooks during the summer. The judgment set forth a visitation schedule for the noncustodial parent and ordered that Ms. Brooks' brother have no contact with the child.

In 2006, Mr. Malant filed a motion for contempt alleging that Ms. Brooks had again beaten the child and had allowed her brother to be around J.M. Joint custody was maintained and no decision was made as to contempt. That judgment was appealed by. Mr. Malant. In 2006, while that ruling was on appeal, Mr. Malant filed a complaint with the Louisiana Department of Social Services (DSS) alleging physical *1199 and sexual abuse by Ms. Brooks. DSS filed an affidavit asserting physical abuse by Ms. Brooks and emotional abuse by Mr. Malant. J.M. was taken into state custody and was adjudicated a child in need of care. The child was in foster care for several months.

This court ruled on Mr. Malant's appeal, holding that the juvenile court did not err in considering his conviction in Texas, in refusing to allow him to call J.M. as a witness in the proceedings, in determining that Mr. Malant emotionally abused the child and in finding that the child was in need of care. State ex rel. J.M. v. Malant, 41,670 (La.App.2d Cir.12/13/06), 945 So.2d 189.

In August 2006, while the appeal in the prior case was pending, the juvenile court held a case review and modified the judgment, removing J.M. from state custody and placing him in the custody of Mr. Malant, with visitation to Ms. Brooks. The judgment included a protective order specifying that the parents were not to abuse or neglect the child. Ms. Brooks was ordered not to use corporal punishment on the child, not to sleep with him or to bathe him, and not to allow her brother to have any contact with the child. The custody judgment also ordered that the parents are entitled to speak with the child by telephone at reasonable times and intervals when the child is with the other parent. The court specified that Mr. Malant was responsible for ensuring that the minor child attend counseling with Dr. Susan Vigen for as long as Dr. Vigen deems necessary.

The DSS and Ms. Brooks appealed that decision. See State ex rel. J.M. v. Brooks, 41,952 (La.App.2d Cir.12/20/06), 946 So.2d 302. This court found that the juvenile court did not err in granting custody to Mr. Malant and in lifting a protective order prohibiting the father from making recorded interviews with the child for purposes of showing that Ms. Brooks was abusing the child.

In January 2007, Mr. Malant filed the present rule to show cause why Ms. Brooks should not be found to be in contempt of the protective order. Mr. Malant claimed that Ms. Brooks was sleeping with the child, not permitting phone calls, threatening to beat the child if he did not misbehave and perform poorly in school, and threatening to return him to foster care.

In February 2007, Ms. Brooks filed her own rule for contempt, alleging that Mr. Malant has failed to abide by the court's custody award which required Mr. Malant to ensure that the child attend counseling sessions with Dr. Vigen.

When the rules for contempt were originally brought before the court for hearing, Mr. Malant tried to introduce evidence of other incidents not alleged in his rule for contempt. The matter was continued by the trial court. Mr. Malant filed an amended rule to show cause why Ms. Brooks should not be held in contempt. He alleged that on February 3, 2007, Ms. Brooks hit the child in the groin. According to Mr. Malant, the child had a cold and he took him to a doctor on February 5, 2007. During that appointment, the child stated that Ms. Brooks hit him in the groin. Later, while drying J.M.'s hair, Mr. Malant noted a small bruise on the child's head. J.M. claimed that Ms. Brooks hit him in the head while he was . . . sleeping. Mr. Malant alleged that this occurred on February 16, 2007. He took the child to the doctor on February 21, 2007.

At the conclusion of the hearing, the juvenile court denied the rule to show *1200 cause and the amended rule to show cause for contempt filed by Mr. Malant against Ms. Brooks. On April 17, 2007, the judgment was filed denying Mr. Malant's claims. Mr. Malant appealed.

CONTEMPT

Mr. Malant argues that the juvenile court erred in not finding that the child was intentionally abused by his mother when she slept in the same bed with him, and hit him in the head and the groin. He also argues that the juvenile court erred in failing to consider the best interest of the child when it denied the motion for contempt against Ms. Brooks. These arguments are without merit.

Legal Principles

The wilful disobedience of any lawful judgment or order of the court constitutes a constructive contempt of court. La. C.C.P. art. 224(2). To find a person guilty of constructive contempt, it is necessary to find that he or she violated the order of the court intentionally, knowingly, and purposely, without justification. In re S.L.G., 40,858 (La.App.2d Cir.1/25/06), 920 So.2d 363; Midyett v. Midyett, 32,208 (La. App.2d Cir.9/22/99), 744 So.2d 669.

The trial court is vested with great discretion in determining whether a party should be held in contempt for disobeying the court's order and its decision will only be reversed when the appellate court can discern an abuse of that discretion. In re S.L.G., supra; Midyett v. Midyett, supra; Martin v. Martin, 37,958 (La.App.2d Cir.12/10/03), 862 So.2d 1081, writ not considered, XXXX-XXXX (La.3/12/04), 869 So.2d 807. A proceeding for contempt in 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. The object of the proceeding is to vindicate the dignity of the court. Smith v. Smith, 35,378 (La.App.2d Cir.9/26/01), 796 So.2d 726; In re S.L.G., supra. Proceedings for contempt are strictly construed and extending their scope is not favored. Arrington v. Arrington, 41,012 (La.App.2d Cir.4/26/06), 930 So.2d 1068; Smith v. Smith, supra

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Cite This Page — Counsel Stack

Bluebook (online)
972 So. 2d 1197, 2007 WL 4246091, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-ex-rel-jm-v-brooks-lactapp-2007.