STATE OF LOUISIANA COURT OF APPEAL, THIRD CIRCUIT
05-0532
STATE OF LOUISIANA
VERSUS
MAUREEN VALLOT
************
APPEAL FROM THE SIXTEENTH JUDICIAL DISTRICT COURT, PARISH OF IBERIA, NO. 03-J-935, HONORABLE KEITH COMEAUX, DISTRICT JUDGE
JIMMIE C. PETERS JUDGE
Court composed of Jimmie C. Peters, Michael G. Sullivan and Glenn B. Gremillion, Judges.
REVERSED AND REMANDED.
A. C. Elias District Attorney’s Office Non-Support Division 300 Iberia Street New Iberia, LA 70560 (337) 369-4434 COUNSEL FOR APPELLEE: State of Louisiana
Maureen Vallot 7739-A Main Highway St. Martinville, LA 70582 (337) 364-7945 In Proper Person PETERS, J.
Maureen Vallot appeals a trial court judgment ordering her to pay to the
Louisiana Department of Social Services, Support Enforcement Division, the sum of
$200.00 per month as child support for two of her minor children together with an
additional five percent per month administration fee. For the following reasons, we
reverse the trial court judgment and remand the matter for further proceedings.
APPLICABLE LAW
Understanding the current status of this litigation is next to impossible without
first considering the applicable statutes and the procedure mandated by those statutes.
In considering the applicable statutes, we note that this litigation began on November
14, 2003, when the State of Louisiana (state) filed a bill of information charging Mrs.
Vallot with criminal neglect of family, a violation of La.R.S. 14:74.
Louisiana Revised Statutes 14:74(A)(1)(b), which is the applicable section of
the statute, provides that “[c]riminal neglect of family is the desertion or intentional
nonsupport . . . [b]y either parent of his minor child who is in necessitous
circumstances, there being a duty established by this Section for either parent to
support his child.” The penalty for violation of this statute is provided for in La.R.S.
14:74(D)(1), which provides that “[w]hoever commits the offense of criminal neglect
of family shall be fined not more than five hundred dollars or be imprisoned for not
more than six months, or both, and may be placed on probation pursuant to R.S.
15:305.” Additionally, the trial court “may issue a support order, after considering
the circumstances and financial ability of the defendant, directing the defendant to
pay a certain sum at such periods as the court may direct.” La.R.S. 14:74(D)(2).
Obviously, the trial court’s power to impose the punishment provided for in La.R.S.
14:74(D) is conditioned upon a defendant being first convicted of the offense. The reference to La.R.S. 15:305 in La.R.S. 14:74(D)(1) is a reference to a
special probation statute, the application of which is limited to neglect of family
cases. It provides in pertinent part:
Whenever a person has pleaded guilty or been found guilty of the misdemeanor of criminal neglect of family or has been found in contempt of court for failing to pay support as ordered under the provisions of Children’s Code Article 1353, the judge may suspend the execution or imposition of sentence and release the offender on unsupervised probation or probation under the supervision of the Department of Social Services. The judge may suspend the sentence and place the defendant on probation although he has begun to serve the sentence imposed and may impose any specific conditions reasonably related to the offender’s rehabilitation, including but not limited to the conditions of probation as set forth in Code of Criminal Procedure Article 895.
La.R.S. 15:305(A)(1).
As suggested by the reference to La.Ch.Code art. 1353 in the above statute, the
offense of criminal neglect of family is also addressed in the Louisiana Children’s
Code in Articles 1351 through 1355. Specifically, La.Ch.Code art. 1352 provides:
A. With the consent of the defendant, at any time prior to a trial on a charge of criminal neglect of family brought pursuant to R.S. 14:74 the court, in lieu of imposing the punishment herein before provided, may issue a support order, after considering the circumstances and financial ability of the defendant, directing the defendant to pay a certain sum, at such periods as the court directs, and to maintain health care insurance.
B. This support shall be ordered payable to the applicable payee.
C. The amount of support as set by the court may be increased or decreased as the circumstances may require.
D. The court may also require the defendant to enter into a recognizance, with or without surety, in order to insure the payment of support and the maintenance of health care insurance. The condition of the recognizance shall be that the defendant shall make his or her personal appearance in court whenever required to do so, and shall further comply with the terms of the order or of any subsequent modification thereof.
2 The “applicable payee” referred to in La.Ch.Code art. 1352(B) is defined as “the
spouse, the tutor or custodian of the child, the court-approved fiduciary of the spouse
or child, or the [Louisiana Department of Social Services] in a FITAP case or in a
non-FITAP case in which the department is rendering services as designated by the
court to be the payee.” La.Ch.Code art. 1351(6). The abbreviation “FITAP” refers
to the Family Independence Temporary Assistance Program. La.Ch.Code art.
1351(5). Additionally, La.Ch.Code art. 1353, which is referred to in La.R.S.
15:305(A)(1), purports to provide for punishment for a defendant who has violated
an order issued pursuant to La.Ch.Code art. 1352.
Despite the specific language of La.Ch.Code art. 1352, a criminal neglect
proceeding is not always a prerequisite to a stipulation with regard to support under
the Children’s Code. Specifically, La.Ch.Code art. 1355 provides:
In cases in which the responsible parent or other person owing a duty of support and the district attorney stipulate to an order of support, the court shall have the power to issue an order of support under the provisions of Article 1352 without the necessity of instituting criminal proceedings pursuant to R.S. 14:74.
With this understanding of the applicable procedure, we turn to a discussion
of the history of this litigation.
PROCEDURAL AND FACTUAL HISTORY
The state charged Mrs. Vallot with criminal neglect of family by a bill of
information filed November 14, 2003. The bill of information is short on detail and
simply states that Mrs. Vallot “[d]id intentionally fail and neglect to support [her] 2
(TWO) minor children, they being persons of necessitous circumstances in violation
of the provisions of R.S. 14:74 of the State of La.”
3 Despite charging Mrs. Vallot with the offense, the state has not pursued this as
a criminal charge. Instead, on January 16, 2004, a preprinted form was filed in the
record, reflecting that the hearing officer of the Sixteenth Judicial District Court had
held a hearing on that day addressing Mrs. Vallot’s obligation to provide her minor
children with medical support. The hearing officer checked boxes on the preprinted
form recommending that the trial court issue an immediate income assignment order
and an immediate medical support order directed to Mrs. Vallot. In a blank on the
form used to describe the nature of the proceedings, the hearing officer placed the
notation “M/S only.” We interpret this notation to indicate that the hearing was for
the purpose of considering the medical support issue. Although the form states that
only Mrs. Vallot and the assistant district attorney were present, it also contains the
signature of Leroy Vallot, Jr., who is described as the complainant. The preprinted
form also contains a notation that Mrs. Vallot did not timely appeal the hearing
officer’s recommendation, and the trial court executed an order on January 23, 2004,
effecting acceptance of the hearing officer’s recommendations. The order is a part
of the hearing officer’s preprinted form and appears at the bottom of that form.
The trial court minutes reflect that on that day the hearing officer held a hearing
in juvenile court, but the minutes are silent concerning the appearance of either Mrs.
Vallot or the assistant district attorney. Moreover, nothing in the record explains how
this matter came to be placed on the docket. Additionally, the record contains no
transcript of the hearing.
The notation on the preprinted form that Mrs. Vallot had not timely appealed
the hearing officer’s recommendations was incorrect, because, on the day of the
4 hearing, Mrs. Vallot filed her appeal with the trial court. The trial court first set the
hearing for February 25, 2004, but later rescheduled it for March 24, 2004.
The record contains a transcription of the March 24, 2004 hearing. After
conducting the hearing, the trial court orally ordered that “should [Mrs. Vallot] get
employment, and should it be available, and should the cost be reasonable, then she
has to provide medical insurance. Otherwise, she doesn’t have to.”1 At the hearing
itself, the state presented no evidence and the trial court simply questioned Mr. and
Mrs. Vallot without placing either under oath. Mrs. Vallot stated that she was
unemployed and attempted to raise other issues concerning the proceedings, but the
trial court would not allow her to do so. She claimed to have custody of one of the
three children born of the marriage between Leroy Vallot and herself and stated that
she had been continuously seeking employment. She suggested that the matters that
the trial court would not allow her to discuss were the reasons that she could not
obtain employment. Leroy Vallot stated that he was disabled and acknowledged that
he had custody of the two children at issue.
The next pleading in the record now before us is a motion by the state filed
October 7, 2004, requesting that the trial court order Mrs. Vallot to pay child support
pursuant to “the provisions of LSA R.S. 9:315 et al.”2 The motion references the trial
court order of January 16, 2004, but makes no reference to the pending criminal
charge. The trial court set the motion for hearing on November 19, 2004.
1 The minutes found in the record state that the trial court did affirm the hearing officer’s recommendation and ordered “that if defendant gets a job the Court will review the matter to determine the amount medical coverage would cost if available.” No such language appears in the transcript. 2 This is a reference to the general guidelines for the determination of child support in any given case. Louisiana Revised Statutes 9:315.19 provides a specific schedule for the underlying determination.
5 The November 19 hearing occurred before the hearing officer, not the trial
court. As was the case with the January 16, 2004 hearing, the record contains no
transcript of the hearing and contains only the hearing officer’s standard preprinted
form. This time, the hearing officer entered the purpose of the hearing as being to
“Set C/S order.” We conclude that C/S stands for child support. As was the case in
the January 16 hearing, the form reflects that only Mrs. Vallot and the assistant
district attorney appeared. However, unlike the January 16 form, this form
specifically states that Mrs. Vallot waived her right to counsel and that she entered
into a voluntary agreement or stipulation to pay $200.00 per month effective
December 1, 2004, together with a five percent administration fee. The form bears
the signature of the hearing officer and Mrs. Vallot.
The court minutes of November 19, 2004, confirm that a hearing took place
in juvenile court, but, as was the case in January of 2004, the minutes differ from the
content of the hearing officer’s form. Specifically, the court minutes provide that
Mrs. Vallot appeared “for arraignment on charges of non support, waived counsel
and entered into a voluntary agreement.” (Emphasis added.) The reference to
counsel in the preprinted form and the trial court minutes is the first time Mrs.
Vallot’s right to counsel is mentioned in the record. Additionally, the reference to the
arraignment in the trial court minutes is the first reference in the record to the pending
criminal charge of criminal neglect of family. Interestingly, the hearing officer’s
preprinted form provides a box to be checked when a party appears for arraignment,
and, in this case, the hearing officer failed to check that box.
Despite the notation on the preprinted form concerning the voluntary nature of
Mrs. Vallot’s agreement to the stipulation, questions arise with regard to that issue
6 from the very next filing in the record. Attached to the hearing officer’s preprinted
form is a form agreement the party at issue is to sign to show consent to the five
percent administration fee. Although Mrs. Vallot signed this agreement, she placed
the written notation below her signature that she “will appeal.” Additionally, on that
same day, Mrs. Vallot filed a form motion to appeal the hearing officer’s
recommendation.
The trial court responded to the appeal motion by executing an order on
November 22, 2004, scheduling a hearing for December 14, 2004. On that same day,
Mrs. Vallot filed a pleading asserting supporting evidence for her appeal of the
hearing officer’s recommendation. In that pleading, she listed a number of prior
events that she wished to present in support of her position.
The record contains a transcript of the December 14, 2004 hearing, which was
conducted similarly to the March 24, 2004 hearing. The state presented no evidence,
and the trial court merely interrogated Mrs. Vallot, again without placing her under
oath. Based upon this interrogation, the trial court determined that Mrs. Vallot was
underemployed and affirmed the hearing officer’s recommendation. As was the case
with the first hearing, the trial court would not allow Mrs. Vallot to explain herself
and kept the matter to the basics of her finding employment. The trial court signed
a judgment making the hearing officer’s recommendations a judgment of the court on
that same day. The executed judgment included a requirement that Mrs. Vallot pay
the $200.00 per month and the administration fee through an income assignment to
the Louisiana Department of Social Services, Support Enforcement Division
(department).
7 On December 22, 2004, Mrs. Vallot filed a motion for appeal to the United
States Fifth Circuit Court of Appeals, wherein she referenced the December 14, 2004
judgment as the judgment being appealed. On January 11, 2005, the trial court signed
an order granting Mrs. Vallot an appeal and setting a return date of April 18, 2005.
In granting the appeal, the trial court referenced the December 22 motion, but made
no mention of the fact that the appeal was to the federal, and not the state, court of
appeal. The trial court then signed a second order granting Mrs. Vallot an appeal on
January 31, 2005. In this order, the trial court specifically stated that the grant was
to this court and again assigned a return date of April 18, 2005. Additionally, the trial
court appointed the Louisiana Appellate Project (Project) to assist Mrs. Vallot in her
appeal. It cited as authority for this appointment La.R.S. 15:1550.3
On February 17, 2005, the Project filed a motion to have the January 31, 2005
order appointing it to represent Mrs. Vallot vacated on the basis that the appellate
issue was a misdemeanor and/or a child support issue and that the Project has no
statutory authority to assist in such proceedings. The next day, the trial court signed
an order vacating the prior order and appointing the Sixteenth Judicial District Court
Indigent Defender Board to assist Mrs. Vallot on appeal.
Up to this point in the litigation, Mrs. Vallot had represented herself, and this
order did not change matters, as no attorney has appeared on her behalf in this appeal.
Mrs. Vallot sought to have this court appoint her appellate counsel, but, by an
unpublished opinion, another panel of this court denied her motion. See State v.
Vallot, 95-532 (La.App. 3 Cir. 11/9/05). In doing so, this court noted that it has no
authority to appoint counsel in civil matters and that the Sixteenth Judicial District
3 We find no such statute in Title 15.
8 Indigent Defender Board’s failure to comply with the order of February 18, 2005,
must first be addressed in the trial court.
ISSUES ON APPEAL
Mrs. Vallot’s pro se brief filed with this court does not remotely resemble that
which is required by Uniform Rules—Courts of Appeal, Rule 2-12.2. It contains no
specifications of error or description of the issues to be reviewed. In fact, the brief
itself is only two pages in length. However, Mrs. Vallot has attached a number of
evidentiary exhibits to her brief and requests that we consider these in rendering our
decision. The attached exhibits are not a part of the appellate record.
We have no evidence of the state’s position as it has filed no brief or other
response to the appeal.
OPINION
We first note the well-established rule that this court cannot receive new
evidence and cannot consider evidence not in the record on appeal. C & B Sales &
Serv., Inc. v. Slaughter, 04-551 (La.App. 3 Cir. 10/20/04), 885 So.2d 683. Therefore,
we cannot consider the attachments to Mrs. Vallot’s brief. However, in considering
the record before us, we do find that she is entitled to relief.
The state’s filing of the bill of information charging Mrs. Vallot with criminal
neglect of family precluded the use of La.Ch.Code art. 1355 to effect a stipulation,
as that article applies only before institution of criminal proceedings. Additionally,
because Mrs. Vallot has never been convicted of the criminal charge, the trial court
had no authority to issue a support order pursuant to La.R.S. 14:74(D)(2). Thus, the
only statutory authority for the trial court to issue a support order in this matter rests
within the provisions of La.Ch.Code art. 1352.
9 The hearing officer in the Sixteenth Judicial District Court derives his authority
to consider criminal non-support matters from Rules of Court—Sixteenth Judicial
District Court, Rule 36.5, which references the authority provided in La.R.S.
46:236.5. That statute allows hearing officers to “[h]ear and make recommendations
on enforcement of child and spousal support, including but not limited to proceedings
under Children’s Code Articles 1352 through 1355.” La.R.S. 46:236.5(C)(3)(c).
However, in exercising that authority, the hearing officer “shall act as a finder of fact
and shall make written recommendations to the court.” La.R.S. 46:236.5(C)(3)
(emphasis added). Additionally,
The written recommendation of the hearing officer shall contain all of the following:
(a) A statement of the pleadings.
(b) A statement as to the findings of fact by the hearing officer.
(c) A statement as to the findings of law based on the pleadings and facts, including his opinion thereon.
(d) A proposed judgment.
La.R.S. 46:236.5(C)(5) (emphasis added).
A party disagreeing with the hearing officer’s ruling may file an objection with the
trial court, and, if timely filed, the trial court “shall schedule a contradictory hearing
where the judge shall accept, reject, or modify in whole or in part the findings of the
hearing officer.” La.R.S. 46:236.5(C)(6) (emphasis added). Further, “[i]f the judge
in his discretion determines that additional information is needed, he may receive
evidence at the hearing or remand the proceeding to the hearing officer.” Id.
(emphasis added).
10 In this matter, the hearing officer did not comply with the requirements of
La.R.S. 46:236.5(C)(5) in that the record contains no statement of the pleadings, no
findings of fact, no findings of law, and no proposed judgment. The trial court held
a contradictory hearing, but had no information before it upon which to make a
decision, as is evident by the questions asked of Mrs. Vallot by the trial court.
Furthermore, the trial court ordered that Mrs. Vallot make her payments to the
department despite the fact that no evidence exists that it was rendering services or
that this was a FITAP case.
The most damaging defect in the record is the fact that it contains no evidence
that Mrs. Vallot knowingly waived her right to counsel. This alone requires that we
reverse the trial court judgment and remand this matter for further proceedings.
The legislature enacted La.Ch.Code art. 1352 by 1993 La. Acts No. 442, § 2,
and it became effective on June 9, 1993. Its provisions with regard to a consent
agreement had previously been incorporated into a former version of La.R.S. 14:75,
and the supreme court had previously considered the same language in La.R.S. 14:75
and concluded:
After defendant is charged with criminal neglect of family, the provisions of R.S. 14:75, 75.1 and 75.2 come into play. Some of these are necessarily criminal in nature. The defendant is entitled to counsel and if he cannot afford one, counsel must be appointed to represent him. The trial judge shall explain the defendant’s rights to him (cf. the customary “Boykin” examination) before any proceeding under 14:75 is initiated.
State v. Broussard, 490 So.2d 273, 273-74 (La.1986).
In State v. St. Pierre, 515 So.2d 769, 773 (La.1987), the supreme court further stated:
Broussard requires that a defendant be advised of Boykin protections at the time any stipulation of support is entered under R.S. 14:75. The provisions of that statute are “necessarily criminal in nature,” as they
11 establish a means for the resolution of a pending criminal charge which . . . is analogous to a plea bargaining agreement.
Given the status of the record before us and considering all of the matters
discussed herein, we find that the trial court erred in rendering the judgment at issue
ordering Mrs. Vallot to pay the department $200.00 together with administration
costs per month as child support.
DISPOSITION
For the foregoing reasons, we reverse the trial court judgment ordering
Maureen Vallot to pay $200.00 and a five percent administration fee per month to the
Louisiana Department of Social Services, Support Enforcement Division. We remand
this matter to the trial court for further proceedings.