Terence St. Germain v. Lesley Simmons St. Germain

• Court: Louisiana Court of Appeal
• Decided: September 11, 2019
• Docket: 2019-CA-0067
• Status: Published

Opinion

TERENCE ST. GERMAIN * NO. 2019-CA-0067

VERSUS * COURT OF APPEAL LESLEY SIMMONS ST. * GERMAIN FOURTH CIRCUIT * STATE OF LOUISIANA *******

CONSOLIDATED WITH: CONSOLIDATED WITH:

TERENCE ST. GERMAIN NO. 2019-CA-0068

VERSUS

LESLEY SIMMONS A/K/A LESLEY ST. GERMAIN

LESLEY ST. GERMAIN NO. 2019-CA-0069

TERENCE ST. GERMAIN

APPEAL FROM CIVIL DISTRICT COURT, ORLEANS PARISH NO. 2005-12590, DIVISION “A” Honorable Ellen M Hazeur, Judge ****** Judge Terri F. Love ****** (Court composed of Judge Terri F. Love, Judge Paula A. Brown, Judge Dale N. Atkins)

Michael A. Rosenblatt ATTORNEY AT LAW 211 Derbigny Street Gretna, LA 70053

COUNSEL FOR PLAINTIFF/APPELLEE Edith H. Morris Suzanne Ecuyer Bayle Bernadette R. Lee Sheila H. Willis MORRIS LEE & BAYLE, L.L.C. 1515 Poydras Street, Suite 1420 New Orleans, LA 70112

COUNSEL FOR DEFENDANT/APPELLANT

AFFIRMED SEPTEMBER 11, 2019 The instant appeal arises from the trial court granting of Terence St.

Germain’s (“Mr. St. Germain”) rule for contempt finding Lesley St. Germain

(“Ms. St. Germain”) in contempt of court for failing to abide by the trial court’s

orders to provide all pertinent information related to the health, education, and

welfare of the parties' minor child. The record and testimonial evidence

demonstrates that Ms. St. Germain knew she had a statutory and court-ordered

obligation to confer with Mr. St. Germain, and nevertheless, Ms. St. Germain

admitted at trial that she disregarded the trial court’s orders. Ms. St. Germain

admitted that she selectively provided information to Mr. St. Germain, refused or

failed to provide information, or failed to timely provide information. Therefore,

we find no manifest error in the trial court’s finding that Ms. St. Germain

intentionally and knowingly disobeyed the trial court’s orders. In so finding, we

also find no abuse of the trial court’s discretion in imposing sanctions, including

awarding Mr. St. Germain appropriate attorney’s fees and costs. Accordingly, we

affirm the trial court’s judgment that granted Mr. St. Germain’s rule for contempt

and found Ms. St. Germain in constructive contempt of court.

1 FACTUAL BACKGROUND AND PROCEDURAL HISTORY

Mr. and Ms. St. Germain have engaged in extensive litigation for over ten

years regarding the custody of their minor child. In September 2016, Ms. St.

Germain was designated the primary domiciliary parent with supervised visitation

to Mr. St. Germain. The record indicates that the parties’ minor child struggled

with authority, peer relationships, poor school attendance, and anxiety and panic

attacks. The trial court issued multiple judgments to facilitate better

communication between the parties throughout the course of litigation and to

ensure both parties were involved in the decision-making as it relates to their minor

child and her well-being.

The subject of this appeal is Mr. St. Germain’s rule for contempt filed in

June 2018 and the subsequent supplemental rule for contempt, which allege that

Ms. St. Germain failed to comply with three judgments issued by the trial court

including: (1) a February 21, 2018 judgment rendered in open court, and signed in

July 2018, requiring Ms. St. Germain to share all information pertaining to the

selection and enrollment of the minor child in a school or therapeutic school,

including the identity of persons assisting her in that process; (2) an April 4, 2018

judgment stating Mr. St. Germain is entitled to unfettered and unlimited access to

any and all information pertaining to the care of the child and that he also be

provided with routine progress information; and (3) an August 15, 2018 judgment

ordering the parties to return to Counsel NOLA immediately to resume Mr. St.

Germain’s supervised visitation.

Mr. St. Germain alleged that by virtue of having joint legal custody of the

parties’ minor child, Ms. St. Germain had a statutory and court-ordered obligation

to confer with him about decisions regarding the health, education, and welfare of

2 their minor child. Despite the mandates of the trial court, Ms. St. Germain

intentionally and knowingly disregarded them.

A hearing on Mr. St. Germain’s rule for contempt and supplemental rule for

contempt was held in July 2018 wherein both parties offered extensive testimony.

The trial court took the matter under advisement and rendered judgment with

reasons on October 12, 2018. The trial court granted Mr. St. Germain’s rule for

contempt, finding Ms. St. Germain in constructive contempt of court for her failure

and refusal to abide by the trial court’s February and April 2018 judgments. The

trial court imposed a fine of $300 and awarded Mr. St. Germain attorney’s fees and

court costs against Ms. St. Germain in the amount of $10,725 and $47,

respectively. Additionally, the trial court granted in part Mr. St. Germain’s

supplemental rule for contempt only with respect to Ms. St. Germain’s failure or

refusal to immediately sign the documents required by Counsel NOLA, as ordered

in open court on August 15, 2018.

Ms. St. Germain timely files this appeal, seeking review of the trial court’s

October 2018 ruling granting Mr. St. Germain’s rule for contempt and granting in

part his supplemental rule for contempt.

STANDARD OF REVIEW

Appellate courts review a trial court’s finding of contempt for manifest

error. State through Dep’t of Children & Family Servs. Child Support Enforcement

v. Knapp, 16-0979, p. 11 (La. App. 4 Cir. 4/12/17), 216 So.3d 130, 139 (citing

Jaligam v. Pochampally, 14-0724, p. 5 (La. App. 4 Cir. 2/11/15), 162 So.3d 464,

467.

Contempt of court is defined as “any act or omission tending to obstruct or

interfere with the orderly administration of justice, or to impair the dignity of the

3 court or respect for its authority.” La. C.C.P. art. 221. There are two types of

contempt, direct and constructive. Here, the trial court found Ms. St. Germain in

constructive contempt. Pursuant to La. C.C.P. art. 224(2), the “[w]ilful

disobedience of any lawful judgment, order, mandate, writ, or process of the court”

constitutes constructive contempt of court. In order for the trial court to find the

accused in constructive contempt of court, the trial court must find that the accused

“violated an order of the court ‘intentionally, purposely, and without justifiable

excuse.’” Knapp, 16-0979, p. 13, 216 So.3d at 140. (quoting Burst v. Schmolke,

10-1036, p. 6 (La. App. 4 Cir. 4/6/11), 62 So.3d 829, 833). “The trial court is

vested with great discretion in determining whether a party should be held in

contempt for disobeying a court order and the court's decision should be reversed

only when the appellate court discerns an abuse of that discretion.” Id., 16-0979, p.

13-14, 216 So.3d at 140. Ms. St. Germain seeks to have the trial court’s ruling

finding her in contempt of court for failing to abide by the trial court’s February,

April, and August 2018 judgments vacated on appeal.

DISCUSSION

Rendition of February Judgment in Open Court

Before addressing the substantive claims raised on appeal, we address first

Ms. St. Germain’s claim that while the February 21, 2018 judgment was rendered

in open court, the judgment can only be enforced from the date it is reduced to

writing and signed by the trial judge. The written judgment was not signed until

July 12, 2018, and therefore, she contends she cannot be held in contempt for

failing to follow an order of the court until after the order was signed on July 12,

2018. We disagree.

On February 21, 2018, the parties appeared on Mr. St. Germain’s motion to

4 modify custody and rule for contempt as well as Ms. St. Germain’s motion to

compel discovery. The judgment at issue was an interlocutory judgment as it did

not determine the merits of the underlying cause of action. La. C.C.P. art. 1841.

Pursuant to La. C.C.P. art. 1914, the rendition of an interlocutory judgment in open

court constitutes notice to all the parties. Thus, notice of signing of the judgment is

not required for the trial court’s order to be enforceable. See Chambers v. Ortho

Pharmaceutical Corp., 383 So.2d 46 (La. App. 3rd Cir. 1980) (finding

interlocutory order requiring party to answer certain interrogatories was rendered

in open court, no notice was necessary to the party even though notice was

requested).

Furthermore, the parties do not dispute that the trial court rendered judgment

in open court or that the trial court expressly ordered Ms. St. Germain to “share

with [Mr. St. Germain] all information pertaining to the selection and/or

enrollment of the minor child in school or therapeutic school, including but not

limited to the name of the person or persons retained or utilized by Ms. St.

Germain to assist her in finding a school or facility.” Additionally, Ms. St.

Germain admitted at the trial on the present rule for contempt that she understood

she was obligated to follow the trial court’s order at the time it was issued in open

court. Therefore, we find no merit to this argument.

Failure to Abide by February and April 2018 Judgments

Next, Ms. St. Germain contends that the trial court committed manifest error

in its determination that she wilfully disobeyed its February 2018 judgment

regarding the sharing of information pertaining to the minor child’s selection and

enrollment in a school or therapeutic school, in addition to the identity of persons

assisting her in that process. Ms. St. Germain avers that the trial court abused its

5 discretion when it held her in contempt of court based on this finding. She

similarly challenges the April 2018 judgment which stated that:

[Mr. St. Germain] be entitled to unfettered and unlimited access to any and all information pertaining to the care of the child […] and the facility, Blue Ridge Therapeutic Wilderness: Wilderness Therapy Program in Georgia. This includes, but is not limited to, the packet of information given at the time of entering the facility.

As noted above, Ms. St. Germain knew she was obligated to follow the trial

court’s February 2018 order at the time it was issued in open court. She admitted

at trial that she was aware of the trial court’s order directing her to share

information regarding the selection process. Nevertheless, Ms. St. Germain

acknowledged that she did not inform Mr. St. Germain that she was considering

sending their daughter to Blue Ridge, a residential therapeutic program in Georgia.

Nor did she inform Mr. St. Germain about the child’s placement at Blue Ridge

until a few days before she was scheduled to attend. Ms. St. Germain also revealed

she did not tell Mr. St. Germain about the third party agency she hired to transport

their daughter from Louisiana to the therapeutic program in Georgia.

At trial, she defended her decision to not share information about Blue Ridge

with Mr. St. Germain, testifying that everything was happening quickly, and she

was trying to do what was best for their daughter. Still, she was ordered pursuant

to both the February and April 2018 judgments to provide unfettered and unlimited

access to all information about their daughter and Blue Ridge, and she failed to do

so. The trial testimony reveals further that Ms. St. Germain did not inform Mr. St.

Germain that she had been in contact with an educational consultant before the

February 2018 judgment and after the judgment. Nor did Ms. St. Germain apprise

Mr. St. Germain of her hiring of Brenda Loringer of Eduplanner to help her find a

suitable place for the minor child.

6 Ms. St. Germain testified at trial that she was “reticent” to tell Mr. St.

Germain about Blue Ridge because “[h]e doesn’t want to pay” and that he has a

history of interfering. Moreover, Ms. St. Germain admitted she was considering

other out of state therapeutic facilities and schools at that time, but never offered

the names, information about the facilities, or what information she had provided

to them, if any, to Mr. St. Germain.

Evidence was also presented that the minor child was sent to summer camp

in North Carolina; however, she did not stay. Ms. St. Germain’s testimony

established that she failed to tell Mr. St. Germain that their daughter was no longer

attending summer camp until several days after she had already left. Ms. St.

Germain testified, “I didn’t need to tell him.”

In another instance, when the minor child failed to return home one day, Ms.

St. Germain made efforts to find her daughter when the minor child failed to

respond to her phone calls and text messages. Testimony was presented that Ms.

St. Germain contacted the minor child’s friends as well as their parents, the minor

child’s designated attorney, as well as the police. However, at no point during her

efforts to locate her daughter did Ms. St. Germain notify Mr. St. Germain that their

child was missing. Mr. St. Germain testified that he learned that his daughter was

missing from one of the parents that Ms. St. Germain had contacted a day earlier.

Mr. St. Germain testified that it was he, who contacted Ms. St. Germain to find out

what was happening. Mr. St. Germain testified that she did not initially respond

when he contacted her. Once it was learned that the minor child was in Baton

Rouge, Ms. St. Germain refused to provide Mr. St. Germain information regarding

the specifics of their daughter’s location. Ms. St. Germain would not say with

whom their daughter was with in Baton Rouge; she only indicated that the minor

7 child was safe.

While Ms. St. Germain testified that it was appropriate for her to call the

police, contact her daughter’s attorney, and have others assist in locating her

daughter, she did not find it necessary to inform her child’s father. Ms. St.

Germain stated that because someone else called him, albeit the next day, and told

him that his daughter was missing, “I didn’t need to.” She justified her decision to

not inform Mr. St. Germain, claiming that in the past Mr. St. Germain never

returned his phone calls, so she did not see a reason to contact him.

Mr. St. Germain also alleged in his rule for contempt that Ms. St. Germain

did not inform him that their daughter was withdrawn from the school she was

attending on October 23, 2017, until November 7, 2017. At trial, the Dean of

Students at the minor child’s school testified that the child had a number of

absences which led to her withdrawal on October 23, 2017. Ms. St. Germain

acknowledged the school absences and explained that her daughter was being

bullied on social media by her fellow classmates. Consequently, the minor child

did not want to attend school.

Failure to Abide by the August 2018 Judgment

Finally, on August 15, 2018, the trial court ordered Ms. St. Germain to

return immediately to Counsel NOLA, the counseling service designated to

facilitate supervised visitation with Mr. St. Germain and the minor child. In order

for supervised visitation to occur, Counsel NOLA required certain paperwork to be

completed and signed. At trial, Ms. St. Germain acknowledged that she was aware

that the paperwork was necessary to begin supervised visitation. Moreover,

despite knowing what was required and the trial court’s order and admonishment

in open court, Ms. St. Germain admitted that she refused to sign the paperwork

8 until twelve days after she was told to do so immediately.

Trial Court’s Factual Findings

After extensive testimony and arguments presented by the parties, the trial

court rendered a written judgment granting Mr. St. Germain’s rule for contempt

and granted in part his supplemental rule for contempt and imposed sanctions

against Ms. St. Germain. Pursuant to La. R.S. 9:336, “[j]oint custody obligates the

parents to exchange information concerning the health, education, and welfare of

the child and to confer with one another in exercising decision-making authority.”

In addition to Ms. St. Germain’s statutory obligation, the trial court issued specific

orders for the exchange of information relating to the parties’ minor child in three

judgments in February, April, and August of 2018. Thus, Ms. St. Germain had both

a statutory and court-ordered obligation to confer with Mr. St. Germain about the

health, education, and welfare of the minor child. After considering the testimony,

the trial court found Ms. St. Germain “implicitly admitted” that prior to the August

15, 2018 judgment rendered in open court that she failed to comply with the trial

court’s orders. The trial court found:

[Ms. St. Germain] selectively provided some information to Mr. St. Germain regarding the minor child and refused or failed to provide other information, or failed to provide it timely. As this Court previously instructed her on record, Ms. St. Germain does not get to qualify which information to share with Mr. St. Germain and which information not to share. The fact that Mr. St. Germain has to go out of his way to obtain information which Ms. St. Germain fails or refuses to provide him (timely), does not excuse her statutory and court-ordered duty to keep him informed about the health, education, and welfare of the minor child that they share together.

In Gordon v. Gordon, this Court explained that “[a]ppellate courts review

the trial court's factual findings with the manifest error/clearly wrong standard of

review.” Id., 16-0008, p. 2 (La. App. 4 Cir. 6/8/16), 195 So.3d 687, 688 (internal

9 citations omitted). Thus, the appellate court may not set aside the district court’s

“finding of fact unless that finding is clearly wrong in light of the record reviewed

in its entirety.” Id.,16-0008, p. 2, 195 So.3d at 688-89. Further, we noted that an

appellate court “may not merely decide if it would have found the facts of the case

differently. Even though an appellate court may feel its own evaluations and

inferences are more reasonable than the factfinder's, reasonable evaluations of

credibility and reasonable inferences of fact should not be disturbed upon review

where conflict exists in the testimony.” Id. (internal citation omitted). See also

Knapp, 16-0979, p. 16, 216 So.3d at 141-42.

After reviewing the record and extensive testimony in this case, we cannot

say the trial court was manifestly erroneous. By Ms. St. Germain’s own testimony

and admission, she refused to confer with, failed to provide, or failed to provide

timely information about the health, education, and welfare of their minor child.

We find the record establishes a reasonable basis upon which the trial court could

find Ms. St. Germain willfully disobeyed the trial court’s February, April, and

August judgments and was in constructive contempt of court when she failed to

provide information and confer with Mr. St. Germain on decisions relating to the

health, education and welfare of their minor child.

SANCTIONS

Finally, we address the trial court’s judgment insofar as it imposes sanctions

and awards attorney’s fees and costs.1 Pursuant to La. R.S. 13:4611(1)(d)(i), the

district court may punish a person adjudged guilty of contempt of court “by a fine

of not more than five hundred dollars, or imprisonment for not more than three

1 Ms. St. Germain does not specifically address or assign as error the trial court’s imposition of sanctions in its October 2018 judgment.

10 months, or both.” The statute further provides that the court may award attorney’s

fees to the prevailing party in a contempt action. La. R.S. 13:4611(1)(g). Having

determined that the trial court did not err in finding Ms. St. Germain in contempt of

court for violating the trial court’s February, April and August judgments, we find

it was not an abuse of the trial court’s discretion to impose sanctions in the amount

of $300 and award attorney’s fees and costs to Mr. St. Germain in the amount of

$10,725 and $47, respectively.

CONCLUSION

After reviewing the record and extensive testimony in this case, we cannot

say the trial court was manifestly erroneous. By Ms. St. Germain’s own

admission, she refused to confer with, failed to provide, or failed to provide timely

information about the health, education, and welfare of their minor child. We find

the record establishes a reasonable basis upon which the trial court could find Ms.

St. Germain willfully disobeyed the trial court’s February, April, and August

judgments and was in constructive contempt of court when she failed to provide

information and confer with Mr. St. Germain about decisions relating to the health,

education, and welfare of their minor child.

Considering we find the trial court did not err in finding Ms. St. Germain in

constructive contempt of court, we also find it was no abuse of the trial court’s

discretion to impose sanctions and award attorney’s fees and costs against Ms. St.

Germain pursuant to La. R.S. 13:4611(1)(d)(i) and (1)(g).

DECREE

For the foregoing reasons, we affirm the trial court’s October 12, 2018

judgment.

AFFIRMED