Belway v. Thyssen
| Decision Date | 12 December 2018 |
| Docket Number | NO. 2018-CA-0455, NO. 2018-CA-0723,2018-CA-0455 |
| Citation | 318 So.3d 766 |
| Court | Court of Appeal of Louisiana — District of US |
| Parties | Shakti BELWAY v. Gregory Neal THYSSEN Shakti Belway v. Gregory Neal Thyssen |
Richard L. Ducote, ATTORNEY AT LAW, 318 East Boston Street, 2nd Floor, Covington, LA 70433, COUNSEL FOR PLAINTIFF/APPELLANT
Edith H. Morris, Bernadette R. Lee, Suzanne E. Bayle, Sheila H. Willis, MORRIS LEE & BAYLE, L.L.C., 1515 Poydras Street, Suite 1420, New Orleans, LA 70112, COUNSEL FOR DEFENDANT/APPELLEE
(Court composed of Judge Terri F. Love, Judge Joy Cossich Lobrano, Judge Dale N. Atkins )
This domestic matter is a child custody case. Plaintiff/appellant, Shakti Belway ("Mother"), appeals two judgments of the district court: (1) January 5, 2018 judgment finding Mother in contempt of court; and (2) April 13, 2018 judgment modifying child custody. For the reasons that follow, we affirm both judgments.
The parties, Mother and defendant/appellant, Gregory Neal Thyssen ("Father"), were married in 2007, and divorced in 2016. This litigation stems from a custody dispute concerning the parties' minor child ("Child"), who is presently four years old. On October 7, 2016, when Child was two years old, the parties entered into a consent judgment governing custody (the "consent judgment"),1 which provided, in pertinent part, as follows:
Less than one month later, on November 3, 2016, Mother sent a relocation letter to Father via certified mail announcing her intention to move with Child from New Orleans, Louisiana to Santa Barbara, California. In the relocation letter, Mother stated that she and Child would return to New Orleans approximately once per month and that Father's visitation would "approximate that which we agreed upon." Father did not object to the relocation. Nevertheless, litigation over custody ensued in both New Orleans and Santa Barbara, though the Santa Barbara court ultimately declined jurisdiction on December 8, 2017, and this matter proceeded before the Civil District Court for the Parish of Orleans.
On September 20, 2017, Father filed a rule for contempt and to modify visitation, in which he argued that Mother failed to abide by the visitation and medical decision-making provisions in the consent judgment. Father filed a supplemental rule for contempt on December 4, 2017, raising additional arguments regarding Mother's failure to abide by the medical decision-making provisions in the consent judgment. Following a hearing on December 20, 2017, the district court rendered judgment on January 5, 2018 (the "contempt judgment"), granting Father's motion for contempt and casting Mother with court costs and attorney's fees in the amount of $2,122.00. Mother's timely appeal followed.
On February 26, 2018, Father filed a rule for ex parte custody. The district court denied his request for provisional temporary physical custody, and scheduled a custody hearing on March 16, 2018. On April 13, 2018, the district court rendered judgment (the "custody judgment") granting Father's rule for custody in part, maintaining joint custody of Child, maintaining Mother's designation as domiciliary parent, awarding Father visitation of Child during the majority of the summer and certain holiday periods, and awarding nightly Skype communication with Child to the parent not exercising physical custody. Mother also timely appealed this judgment, and thereafter, both appeals were consolidated.
With respect to the contempt judgment, Mother contends that the district court erred in finding that Mother failed to (1) abide by the physical custody schedule in the October 7, 2016 consent judgment; and (2) confer with Father regarding "any major, serious and life threatening issues of the minor child."
Regarding the custody judgment, Mother argues that the district court erred (1) by failing to apply the standard for modification of custody set forth in Bergeron v. Bergeron , 492 So.2d 1193 (La. 1986) ; (2) by granting Father unsupervised visitation "despite [Father's] history of untreated family violence and alcohol abuse"; and (3) by modifying custody without "proof the modification was in [Child's] best interest, and where the modification violated the Post-Separation Family Violence Relief Act, La. R.S. 9:361 -367."
This Court has set forth the relevant standards of review as follows:
State through Dep't of Children & Family Servs. Child Support Enf't v. Knapp , 2016-0979, pp. 11-13 (La. App. 4 Cir. 4/12/17), 216 So.3d 130, 139-40.
We first consider the appeal of the contempt judgment. La. C.C.P. art. 221. "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." La. C.C.P. art. 222. La. C.C.P. art. 224(2). "A court's finding that a person willfully disobeyed a lawful judgment in violation of La. C.C.P. art. 224(2) must be based on a finding that the accused violated an order of the court ‘intentionally, purposely, and without justifiable excuse.’ " Knapp , 2016-0979, p. 13, 216 So.3d at 140 (quotation omitted).
La. C.C. art. 136.1. Louisiana Revised Statute 13:4611(d)(i)...
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