Judgment rendered November 22, 2023. Application for rehearing may be filed within the delay allowed by Art. 2166, La. C.C.P.
No. 55,447-CA
COURT OF APPEAL SECOND CIRCUIT STATE OF LOUISIANA
*****
TIFFANY NIELSEN Plaintiff-Appellee
versus
NAKIA NIELSEN Defendant-Appellant
Appealed from the Fifth Judicial District Court for the Parish of Richland, Louisiana Trial Court No. 46,400
Honorable Will Barham, Judge
NEWMAN OLIVEAUX & MAGEE, LLP Counsel for Appellant By: Trey N. Magee
LAW OFFICES OF DAWN H. MIMS Counsel for Appellee, By: Dawn (Mims) Hendrix Tiffany Nielson
MICHAEL R. ELLINGTON Counsel for Intervenor- Assistant District Attorney Appellee, State of Louisiana DCFS
Before PITMAN, STONE, and ELLENDER, JJ.
PITMAN, J., concurs in the results.
ELLENDER, J., concurs in the results. STONE, J.
This civil appeal arises from the Fifth Judicial District Court, the
Honorable Will Barham, presiding. The plaintiff-appellee, Tiffany Nielsen
(“Tiffany”), and the defendant-appellant, Nakia Nielson (“Nakia”), are the
mother and father of J.N., J.S.N., and J.M.N. Tiffany filed a rule to modify
custody, visitation, for contempt of court, court costs, and attorney fees, and
a motion for immediate return of the minor child. Nakia filed an Answer
and Reconventional Demand requesting that he be awarded sole custody of
their eldest child, J.N. The trial court denied both parties’ motions to modify
custody and ordered that the parents continue to have joint legal custody.
The trial court ordered that Nakia’s nondomiciliary custody or visitation
occur in the State of Louisiana, that J.N. be returned to Tiffany, and that the
costs be equally assessed to each party. The trial court further ordered that
Nakia not be held in contempt for failure to return J.N. and for failure to pay
child support. The trial court also deferred the issue of child support to the
Department of Children and Family Services, Child Support Enforcement
(“DCFS”) division. From this judgment, Nakia appeals.
For the reasons set forth below, we reverse the judgment of the trial
court and remand for further proceedings.
FACTS AND PROCEDURAL BACKGROUND
Tiffany and Nakia were married on August 21, 2010, in Delhi,
Louisiana, and three children were born of the marriage, namely: J.N. (DOB:
11/29/08), J.S.N. (DOB: 01/01/13), and J.M.N. (DOB: 05/23/15). Tiffany
and Nakia separated in 2018 and divorced on March 12, 2020. This matter
first came to trial pursuant to Tiffany’s petition for sole custody in October 2018. At the conclusion of the 2018 trial, Tiffany’s request for sole custody
was denied, the parents were awarded joint legal custody, and Tiffany was
designated the domiciliary parent. Nakia was also ordered to pay $1,100 in
child support per month. A considered decree reflecting that ruling was
executed on August 13, 2019.
In 2022 (pursuant to the court order), the children spent the summer
with Nakia in Ohio. At the end of the visit, Nakia returned J.S.N. and
J.M.N. to Tiffany but refused to return J.N. Also at that time, Nakia was
nearly $30,000 in child support arrears.1 As a result of Nakia’s failure to
adhere to the court ordered custody schedule, Tiffany filed the
aforementioned rules, asserting among other things, that: (1) separating the
children will have a harmful and deleterious effect on all the minor children;
(2) since the 2019 judgment, Nakia has moved eight separate times across
several states and does not have a stable residence; (3) Nakia lacks stable
employment and is not financially supporting the children; (4) Nakia
willfully violated the current custody order by keeping J.N. past his allotted
visitation time; (5) during his periods of physical custody of the children,
Nakia willfully interferes with communication between the minor children
and their mother; (6) Nakia has not complied with the custody schedule and
considers visitations to be at his convenience; (7) Nakia neither
communicates nor provides an address to Tiffany where he currently resides
or to where he is relocating; (8) Nakia does not constructively co-parent with
Tiffany, nor is he involved in any decision-making regarding the children’s
educational, medical, or other decisions concerning their welfare; and (9)
1 During his testimony at trial, Nakia admitted to not returning custody of J.N. to Tiffany and to not paying child support as ordered. 2 Nakia has willfully failed and refused to pay court-ordered child support;
and, as a result, should be held in contempt.
The two-day trial commenced on November 22, 2022, at which time
Nakia filed an answer and reconventional demand. In his reconventional
demand, Nakia asserted that: (1) due to J.N.’s unhappiness, poor academic
performance, and behavioral issues in Louisiana, it would be best that J.N.
live with him; (2) he did not return J.N. to Tiffany at the end of his visitation
period because he believed it was in J.N.’s best interest and that returning
J.N. to Tiffany would be deleterious to the child; (3) J.N. begged to stay in
Ohio with Nakia and did not want to return to Louisiana to live; (4) he
believed that he should not be held in contempt because he was justified in
keeping J.N. and was in the process of filing for sole custody of J.N. when
he was served with Tiffany’s rules to show cause; and (5) he has made
substantial child support payments to Tiffany and has filed for a reduction in
child support.
During the trial, several witnesses were called by the parties.
However, without the request of either party, the trial court called Mr. Willie
Ray Nielsen (“Mr. Nielsen”), Nakia’s father, as its own witness. Mr.
Nielsen agreed to appear voluntarily. Prior to his testimony, the trial court
stated, “I want you to know … that [Mr. Nielsen’s appearance] was
exclusively my idea; you’re not in any kind of trouble or anything like that.
I just wanted to hear from you so that I can make a good decision with
regard to these three minor children …” Counsel for Nakia cross-examined
Mr. Nielsen but subsequently objected to the trial court’s authority to call its
own witness.
3 In making its custody determination, the trial court stated that it
considered the best interests of the children, as well as any material changes
in circumstances that have occurred since the entry of the original custody
decree. With regard to contempt, the trial court defined contempt as “the
willful and contumacious disregard for a court order.” Although the trial
court found that Nakia’s conduct was willful, the trial court declined to hold
Nakia in contempt because the court did not think that Nakia had a
contumacious disregard for the court order. The trial court expressed that
Nakia’s “heart was in the right place.” As a result, the aforementioned
judgment was imposed.
Nakia appealed, asserting that by calling Mr. Nielsen as its own
witness, the trial court contravened La. C.E. art. 614(A) and that this error
was prejudicial to his case. Nakia argues that he did not have adequate time
to prepare for cross-examination of Mr. Nielsen; and, as a result, he was
severely prejudiced by his father’s testimony.
Tiffany answered the appeal, arguing the following assignments of
error: (1) the trial court erred in denying her motion for sole legal custody of
the three minor children; (2) the trial court erred in denying her motions for
contempt for Nakia’s failure to return J.N. to her and for failure to pay child
support as ordered; and (3) the trial court erred in deferring the motion for
contempt for nonpayment of court-ordered child support to DCFS. Tiffany
further argues that La. C.E. art. 614 gives the court authority to call its own
witnesses. She alternatively asserts that if this court finds that the trial court
erred in calling its own witness, it should be considered a harmless error
(and not a prejudicial one). Furthermore, Tiffany contends that Nakia did
4 not present sufficient evidence to justify the modification of custody that he
was seeking.
DISCUSSION
Calling of witnesses by the court
The appellate court shall render any judgment that is just, legal, and
proper upon the record on appeal. La. C.C.P. art. 2164. Questions of law,
such as the proper interpretation of a statute, are reviewed by this court
under the de novo standard of review. City of Shreveport v. Shreveport Mun.
Fire & Police Civ. Serv. Bd., 52,410 (La. App. 2 Cir. 1/16/19), 264 So. 3d
643. Appellate review of a question of law is to determine whether the trial
court was legally correct or legally incorrect. Johnson v. Breck Constr. Co.,
32,311 (La. App. 2 Cir. 9/22/99), 743 So. 2d 296.
La. C.E. art. 614 states, in pertinent part:
A. Calling by court. The court, at the request of a party or if otherwise authorized by legislation, may call witnesses, and all parties are entitled to examine witnesses thus called. B. Questioning by court. The court may question witnesses, whether called by itself or by a party. C. Objections. Objections to the calling of witnesses by the court or to questioning of witnesses by it may be made at the time or at the next available opportunity when the jury is not present.2
La. C.E. art. 103 states, in pertinent part:
A. Effect of erroneous ruling. Error may not be predicated upon a ruling which admits or excludes evidence unless a substantial right of the party is affected, and
2 The Louisiana Official Revision Comments under La. C.E. art. 614 state in pertinent part: “It should be observed, however, that in both civil and criminal cases the court has broad discretion to act in the interests of justice, and, although usually one of the parties will request the court to call a necessary witness, it is conceivable that there may be compelling circumstances, e.g. child custody matters, where it would be proper for a court to act on its own motion.” While this comment seems to contradict the article itself, comments are not the law.
5 (1) Ruling admitting evidence. When the ruling is one admitting evidence, a timely objection or motion to admonish the jury to limit or disregard appears of record, stating the specific ground of objection;
In determining the effect of a legal error, the party alleging the error
has the burden of showing that the error was prejudicial to his case. Mosley
v. Griffin, 50,478 (La. App. 2 Cir. 2/24/16), 191 So. 3d 16. “Error is
prejudicial when the error is material and, when compared to the record in
its totality, has a substantial effect on the outcome of the case. Prejudicial
error is reversible error. An error that is not prejudicial is a harmless error
and is not a reversible one.” Duzon v. Stallworth, 01-1187 (La. App. 1 Cir.
12/11/02), 866 So. 2d 837, writs denied, 03-0589 (La. 5/2/03), 842 So. 2d
1101, 03-0605 (La. 5/2/03), 842 So. 2d 1110; Neumeyer v. Terral, 478 So.
2d 1281 (La. App. 5 Cir. 1985), writ denied, 481 So. 2d 631 (La. 1986). See
also Pratt v. Culpepper, 49,627 (La. App. 2 Cir. 2/27/15), 162 So. 3d 616.
“When such a prejudicial error of law skews the trial court’s finding of a
material issue of fact and causes it to pretermit other issues, the appellate
court is required, if it can, to render judgment on the record by applying the
correct law and determining the essential material facts de novo.” Key v.
Monroe City Sch. Bd., 45,096 (La. App. 2 Cir. 3/10/10), 32 So. 3d 1144.
In this case, the trial court called Mr. Nielsen as a witness without the
request of either party. Although we appreciate the reason the trial court
called Mr. Nielsen as a witness, we find that the trial court lacked the
requisite legislative authority to do so. Even if the trial court had the
authority, we find that the trial court’s action was not prejudicial to Nakia’s
case when compared to the record in its totality.
6 Modification of Child Custody
Ordinarily, child custody cases are reviewed under the abuse of
discretion standard. Leard v. Schenker, 06-1116 (La. 6/16/06), 931 So. 2d
355. However, “where one or more trial court legal errors interdict the fact-
finding process, the manifest error or abuse of discretion standard is no
longer applicable, and if the record is otherwise complete, the appellate court
should make its own independent de novo review of the record and
determine the sufficiency of the evidence.” Cook v. Sullivan, 20-01471 (La.
9/30/21), 330 So. 3d 152.
The Louisiana Supreme Court has recognized a distinction between
two types of custody awards. The first type of custody award is a considered
decree, which is an award of permanent custody in which the trial court
receives evidence of parental fitness. The second type of custody award is a
consent decree or a stipulated judgment, which the court renders when both
parties consent to a custodial arrangement and no evidence of parental
fitness is taken. Tracie F. v. Francisco D., 15-1812 (La. 3/15/16), 188 So.
3d 231.
Different burdens of proof apply to modify each of the two types of
custody awards. Those jurisprudential requirements are embodied
in Bergeron v. Bergeron, 492 So. 2d 1193 (La. 1986). First, “the proponent
of change must show that a change of circumstances materially affecting the
welfare of the child has occurred since the prior order respecting custody.”
Second, “[t]he party seeking a change bears the heavy burden of proving that
the continuation of the present custody order is so deleterious to the child as
to justify a modification of the custody decree, or of proving by clear and
convincing evidence that the harm likely to be caused by a change of 7 environment is substantially outweighed by its advantages to the child.” Id.
Clear and convincing evidence means a standard more than a preponderance
but less than beyond a reasonable doubt. Under this standard, the existence
of the disputed fact must be highly probable or much more probable than
not. Talbot v. Talbot, 03-0814 (La. 12/12/03), 864 So. 2d 590.
In contrast to considered decrees, “where the original custody degree
is a stipulated judgment, the party seeking modification must prove (1) that
there has been a material change of circumstances since the original
custody decree was entered, and (2) that the proposed modification is in the
best interest of the child.” Evans v. Lungrin, 97-0541 (La. 2/06/98), 708 So.
2d 731.
In the case sub judice, there is no question that the 2019 custody
award is a considered decree and, therefore, subject to the heightened
standard of Bergeron.
The trial court, in its determination, stated:
[T]he primary concern of the Court is the best interest of the children, and when the order is by the consent of the parties, the parent seeking a change of custody must show a material change of circumstances since the entry of the original decree and that the modification proposed is in the best interest of the child and those are the parameters wherein the Court makes the following rulings. We find the trial court committed legal error by not applying the proper
standard⸻the Bergeron standard. Having found the trial court committed a
legal error that interdicted the fact-finding process, and given the complete
trial record, we review the record de novo to determine whether Tiffany
should be granted sole custody of the three minor children.
Since the original custody order in 2019, Tiffany has shown several
instances regarding Nakia’s inability to co-parent effectively and Nakia’s
8 blatant disregard for the trial court’s original custody order that amounted to
a material change in the children’s circumstances and, as a result, had a
deleterious effect on the welfare of the minor children. The record reflects
Nakia’s continuous refusal to obey the trial court’s original custody order.
When questioned about violating the original custody order, Nakia openly
admitted that he retained physical custody of J.N. for four months and that
he did not have such court authority.
Q: … So, did you have a court order allowing you to retain custody of J.N. after August of 2022? … A: No, I did not have a court order for that. … Q: Sir, are you admitting, sir, that you retained custody of physical custody of J.N. beyond the date when he was to be returned to Tiffany Nielsen?
A: Yes, I did.
At trial, Tiffany testified how separating J.N. from his other siblings
had a negative impact on all three children. Tiffany testified how their other
two children cried and often asked when J.N. would be returning home.
Nakia confirmed, during his testimony, that all of the children cried as they
were being separated when J.N. remained with him.
The record also reflects that Nakia has not financially supported the
children and has not paid the required child support award of $1,100 per
month, nor has he made the necessary payments toward his arrearages.
When asked about his disregard for the court’s order and his failure to pay
child support and arrears, Nakia stated:
A: I’m the man of my household, I uphold the law in my household standard, I do not break the law, I do not go outside of the law.
Q: You don’t obey Court orders, right? 9 Court: I’ll make that decision, Ms. Mims.
Q: Well, I mean you don’t pay child support pursuant to the Court order, correct?
A: Not pursuant to the Court order, no.
***
Q: It’s your testimony you’ve sent money every month? How much?
A: It varied depending on – depending on how much I could afford to send at that period. Most of the time it was around three hundred bucks give or take some.
Q: Three hundred dollars a month?
A: No. per time, sometimes it was twice a month, sometimes it was once a month, but every time I sent I sent somewhere you know around three hundred bucks. … Q: It’s supposed to be eleven hundred? So you admit you have not been sending eleven hundred dollars a month?
A: No, I have not been sending eleven hundred a month, I asked for a re-evaluation of that.3 … Q: … So as of this date you’ve not had a court date and your child support has remained unchanged, is that correct?
A: Correct.
Q: Okay. And you understand you’re approximately thirty thousand dollars in arrears at this point?
A: So they say.
When asked to explain how he went from $17,000 in arrears in 2018
to $30,000 in arrears in 2022, Nakia could not explain how this number
3 At trial, Tiffany introduced a print out from the child support enforcement website that showed: (1) in December 2021, Nakia was submitted to the State Tax Refund Offset Program; (2) in August 2022, Nakia was submitted to the State Tax Refund Offset Program, as well as the Passport Denial Program; and (3) in September 2022, Nakia was submitted to the credit bureaus, and that the most recent review and adjustment process was completed and that modification of his child support obligation was not justified. In addition, the child support enforcement logged that they are unable to locate Nakia and that they did not have a current employer for him on file. 10 drastically increased but stated that he “tried to get in contact with the state
and the case worker” to no avail. The record shows the opposite to be true.4
Nakia is under the misconception that $300 per month is sufficient to
provide for the needs of three minor children and has no problem with
relegating his parental obligations to Tiffany. Nakia’s testimony shows that
he pays child support at his convenience and that he disregards the financial
pressure he has placed on Tiffany. Nakia’s lack of financial support has
exhausted Tiffany to the point that she no longer bothers to ask Nakia for
help with any extracurriculars for the children because he does not make any
attempt to pay his full child support obligation. In the past five years that
the children have played sports, Nakia has only paid for one of the children’s
All-Star uniforms and fees.5 Most recently, the two youngest children have
taken up karate, and Tiffany shoulders the responsibility of paying for that as
well. This further shows that Nakia has no interest in financially supporting
or facilitating the social and physical development of the children.
Furthermore, Tiffany testified that in order to “do the right thing” and
facilitate out-of-state visitations between the children and their father, she
has experienced financial strain. Specifically, Tiffany testified that
transporting the children halfway to whichever state Nakia happens to be
living in at that time is hard on her and dramatically increases her expenses.
Tiffany also stated that Nakia does not reimburse her for gas or for the extra
distances she has to travel to meet him halfway to exchange the children. In
addition, when she exercises her visitation with the children during Nakia’s
4 See footnote 3. 5 All-star teams are generally non-school league teams that offer an elevated level of play for highly skilled athletes. Participating in All-star sports are often extremely expensive due to the costs of uniforms and travel accommodations. 11 summer visitation, she has to bear the cost of making yet another lengthy
drive to see the children — again, with no financial help from Nakia.
Tiffany mentioned that while Nakia offered to purchase plane tickets for the
children in the spring of 2022, she declined due to her and J.N.’s concerns
about flying. She found it concerning that Nakia could afford to purchase
plane tickets for the children but could not contribute child support for the
children’s daily lives. The decision to extract himself from his children’s
lives was Nakia’s decision and choice alone. Moving from state to state, as
he wishes, clearly demonstrates Nakia’s disregard for the financial
considerations Tiffany must endure in making travel arrangements for
herself and the children. Tiffany testified that she often has to plan far in
advance to be able to afford her bills and make the trips to exchange the
children with Nakia. This further proves that there has been a material
change in circumstances affecting the welfare of the children because she
has borne the majority of the financial responsibilities for their children with
little to no help from their father, Nakia.
Another glaring material change affecting the welfare of the children
is Nakia’s lack of gainful employment and transient lifestyle since the
original decree was entered. The record outlines approximately eight
different states that Nakia has lived in since 2018, namely: Ohio, South
Dakota, Delaware, Oklahoma, Louisiana, Kansas, Wyoming, and Missouri.
Nakia is a labor hand who works for third-party contractors that provide
labor for job sites throughout the country. Moreover, due to his
unpredictable out-of-state housing situation and extreme distance from
Louisiana, Nakia is sometimes unable to exercise his summer visitation and
can hardly ever exercise weekend visitation with the children. It is clear that 12 visitation is arranged only when it is convenient for Nakia. Consequently,
the minor children do not see Nakia during the school year and go several
months at a time without seeing him at all. Nakia has also had several stints
of unemployment and layoff periods that prevent him from carrying or
maintaining healthcare insurance coverage for the children. As a result of
the circumstances mentioned above, Nakia has not played any substantial
role in the children’s day-to-day lives. The vast majority, if not all, of the
responsibility has fallen on Tiffany to support the children emotionally,
financially, medically, and educationally. The record shows that Nakia’s
only major involvement with the children’s education occurred when he kept
J.N. in violation of the court order and enrolled him in an online school.
Only then did Nakia make any substantial effort to be involved in J.N.’s
education. Nakia has failed to pull his own weight since the considered
decree was ordered. For these reasons, the joint custody regime has proven
to be deleterious and insufficient for the needs of the children.
On the record before us, we find that Tiffany has proven a material
change in circumstances that negatively impacts the children. Tiffany has
also met the Bergeron standard and showed that the current circumstances
are so deleterious to the minor children that a change in custody is
warranted. Therefore, based on our de novo review of the record, we find
that Tiffany should be awarded sole custody of the minor children with
Nakia to have visitation only in the State of Louisiana and that the joint
custody award be reversed.
Motion for Contempt
La. C.C.P. art. 224 states, in pertinent part:
13 A constructive contempt of court is any contempt other than a direct one. Any of the following acts constitutes a constructive contempt of court: … (2) Willful disobedience of any lawful judgment, order, mandate, writ, or process of the court;
La. C.C.P. art. 222 states, in pertinent part: A direct contempt of court is one committed in the immediate view and presence of the court and of which it has personal knowledge, or a contumacious failure to comply with a subpoena or summons, proof of service of which appears of record. Any of the following acts constitutes a direct contempt of court:
(1) Contumacious, insolent, or disorderly behavior toward the judge, or an attorney or other officer of the court, tending to interrupt or interfere with the business of the court, or to impair its dignity or respect for its authority;
A contempt of court is any act or omission tending to obstruct or
interfere with the orderly administration of justice, or to impair the dignity of
the court or respect for its authority. La. C.C.P. art. 221. The trial court is
vested with great discretion in determining whether a party should be held in
contempt for disobeying the court’s order. Such a determination will be
reversed only when the appellate court can discern an abuse of that
discretion. Miller v. Madison Par. Police Jury, 53,955 (La. App. 2 Cir.
5/17/21), 320 So. 3d 479. “To find a person guilty of constructive contempt,
it is necessary to find that the contemnor violated the order of the court
intentionally, knowingly, and purposely without justifiable excuse.” Rockett
v. Rockett, 51,453 (La. App. 2 Cir. 6/21/17), 223 So. 3d 1227. “The
authority to punish for contempt of court falls within the inherent power of a
court to aid in the exercise of its jurisdiction and to enforce its lawful
orders.” In re Merritt, 391 So. 2d 440 (La. 1980).
14 The record is clear that Nakia failed to make a substantial amount of
child support payments, pay the proper amount of $1100 per month in child
support, and pay $200 per month toward arrears per the court’s original
custody decree and that he retained J.N. without a court order to do so. The
trial court defined contempt as the “willful and contumacious disregard for a
Court order.” The trial court further stated that Nakia’s conduct was “willful
by any standard.” Based on our review of the contempt statute, the trial
court’s impression that Nakia’s conduct had to be both willful and
contumacious is incorrect. We find that the trial court conflated the
difference between direct and constructive contempt and that Nakia
committed constructive contempt in retaining J.N. and in failing to pay his
specified child support obligation. We, therefore, will remand this issue to
the trial court to determine the appropriate punishment under La. R.S.
13:4611(1)(d)(i) for violation of its judgment.
Deferring Child Support Matters to Child Support Enforcement
Pursuant to U.R.C.A. Rule 2-12.4, “all assignments of error and issues
for review must be briefed, and the appellate court may consider as
abandoned any assignment of error or issue for review which has not been
briefed.” A mere statement of an assignment of error in a brief does not
constitute a briefing of the assignment. State v. Free, 48,260 (La. App. 2
Cir. 11/20/13), 127 So. 3d 956.
Because Tiffany failed to brief this assignment of error properly, this
issue is deemed to be abandoned.
CONCLUSION
For the reasons stated above, the joint custody award is reversed, and
Tiffany shall be awarded sole custody of the minor children. The matter is 15 to be remanded to the trial court to determine the appropriate punishment
under La. R.S. 13:4611(1)(d)(i) for violation of its judgment. All costs of
this appeal are assessed to the appellant.
REVERSED AND REMANDED.