Leblanc v. Leblanc

• Decision Date: 07 March 2007
• Docket Number: No. 2006-1307.,2006-1307.
• Citation: 953 So.2d 115
• Parties: Laura Leonard LeBLANC v. Mitchel Brett LeBLANC.
• Court: Court of Appeal of Louisiana — District of US

953 So.2d 115

Laura Leonard LeBLANC v. Mitchel Brett LeBLANC.

No. 2006-1307.

Court of Appeal of Louisiana, Third Circuit.

March 7, 2007.

David Sterling Fitzgerald, Jr., Cox Fitzgerald, L.L.C., Lafayette, LA, for Defendant/Appellee—Mitchel Brett LeBlanc.

Samuel David Abraham, Eric Scott Neumann, Julie Koren Vaughn Felder, Lafayette, LA, for Plaintiff/Appellant—Laura Leonard LeBlanc.

Court composed of ULYSSES GENE THIBODEAUX, Chief Judge, OSWALD A. DECUIR, and MICHAEL G. SULLIVAN, Judges.

THIBODEAUX, Chief Judge.

This case involves a custody dispute between the plaintiff-appellant, Laura Leonard LeBlanc ("Laura"), and the defendant-appellee, Mitchel Brett LeBlanc ("Mitch"), over the parties' minor child, Ryan, who will be fourteen years old in July 2007. The parties entered into a Consent Judgment on January 19, 2005, wherein Laura was to have domiciliary custody of Ryan, and Mitch was to have visitation with Ryan for approximately one half of the summer weeks and for at least 25% of the school year. After a trial in March of 2006, Laura was found in contempt of court for failing to enforce the visitation between Ryan and his father. Mitch was found in contempt of court for violating an interim order that required him to attend anger management and parenting classes. Both Laura and Mitch were awarded joint custody with Laura being designated as the domiciliary parent. Mitch was awarded attorney fees. Both parties have appealed the March 2006 judgment. For the following reasons, we affirm and modify the judgment of the trial court.

I. ISSUES

With regard to the appeal of Laura LeBlanc, we must decide:

(1) whether the trial court erred in finding Laura in contempt for violating the January 19, 2005 Consent Judgment, and whether the sanctions imposed were beyond the scope of the court's power pursuant to La.R.S. 13:4611(d)(e);

(2) whether the trial court erred in excluding transcripts from the Motion for Summary Judgment and in not recognizing the January 19, 2005 Consent Judgment as a "considered decree";

(3) whether the trial court erred in establishing joint custody in violation of La.R.S. 9:335(2)(a);

(4) whether the trial court erred in setting the date for the custody trial; and,

(5) whether the trial court erred in ordering Laura to pay for two-thirds of the cost of counseling for the minor child.

With regard to the appeal of Mitch Le-Blanc, we must decide:

(1) whether the trial court abused its discretion in designating Laura as domiciliary parent;

(2) whether the trial court erred in finding Mitch in contempt of court for failing to attend the assigned classes; and,

(3) whether the trial court erred in not awarding Mitch the full amount of the attorney fees for Laura's contempt.

II. FACTS AND PROCEDURAL HISTORY

Laura and Mitch were married in 1992. Their minor child, Ryan, was born on July 1, 1993. The parties subsequently separated and divorced. In 1999, a judgment granting joint custody with a seven-and-seven visitation schedule (seven days with Laura, then seven days with Mitch, and so on) was implemented. In 2003, two court-appointed psychologists evaluated the parties and the minor child and, finding both parents capable and caring, submitted a joint recommendation that the joint custody with seven-and-seven visitation continue. In 2004, Laura filed a rule to modify custody and visitation, and hearings began wherein Laura presented testimony by various witnesses including Ryan's Catholic school counselor since the first grade. Following this testimony, a temporary order was issued in September 2004 which awarded Mitch domiciliary custody of Ryan for the fall semester of 2004, pending the resolution of the trial scheduled to resume in January 2005.

On January 19, 2005, without the presentation of evidence by Mitch, Laura and Mitch entered into a Consent Judgment. Both agreed that Laura would be the domiciliary parent and Mitch would have visitation with Ryan at Mitch's home for at least 25% of the school year, and each summer, for two weeks in June, two weeks in July, and for ten days in August, of each year. In April of 2005, Mitch filed a rule for contempt against Laura because he had not had visitation with his son since January of 2005. Laura asserted that a counselor whom Laura had contacted, Barbara Walley, found suicidal as well as homicidal tendencies in Ryan against his father. Laura filed for a restraining order around the end of May 2005 to prevent visitation between Mitch and Ryan. However, Mitch worked with Walley and Ryan for several months in attempts to work through the problems alleged by Ryan regarding his relationship with his father. In late August 2005, the trial court appointed Dr. Kenneth Bouillion to evaluate Ryan to determine whether he did in fact have suicidal and homicidal tendencies. Dr. Bouillion did not agree with Ms. Walley, and Dr. Bouillion was appointed to begin a reunification process between father and son.

After meeting with Mitch and Ryan on numerous occasions and working through various problems, Dr. Bouillion recommended unsupervised visitation between father and son in December 2005. Apparently there were additional gaps in visitation between Christmas 2005 and the custody trial in March 2006. The trial court issued a judgment awarding joint custody to both parents and issued a Joint Custody Implementation Plan. Domiciliary custody was to remain with Laura, but the seven-and-seven visitation was to resume with specific provisions for counseling and specific provisions for holiday visitation. The judgment also found Laura in contempt for violating the January 19, 2005 Consent Judgment with regard to the minimum visitation between father and son, and it found Mitch in contempt for failing to attend required parenting classes. It is from this judgment that the parties appeal.

III.

LAW AND DISCUSSION

Standard of Review

An appellate court may not set aside a trial court's findings of fact in absence of manifest error or unless it is clearly wrong. Stobart v. State, Through DOTD, 617 So.2d 880 (La.1993); Rosell v. ESCO, 549 So.2d 840 (La.1989). This is especially applicable in a child custody dispute wherein appellate courts accord substantial deference to the trial judge's conclusions. "The trial judge is in a better position to evaluate the best interest of a child from his observance of the parties and the witnesses and his decision will not be disturbed on review absent a clear showing of abuse." Deason v. Deason, 99-1811, p. 12 (La.App. 3 Cir. 4/5/00), 759 So.2d 219, 220 (quoting State in the Interest of Sylvester, 525 So.2d 604, 608 (La. App. 3 Cir.1988)) (citing Bagents v. Bagents, 419 So.2d 460 (La.1982)).

Every child custody case must be viewed within its own peculiar set of facts, and a trial court's award of custody is entitled to great weight and will not be overturned on appeal unless an abuse of discretion is clearly shown. Connelly v. Connelly, 94-0527 (La.App. 1 Cir. 10/7/94), 644 So.2d 789. Both the Louisiana Legislature and the Louisiana Supreme Court have made it abundantly clear that the primary consideration and prevailing inquiry is whether the custody arrangement is in the best interest of the child. See Evans v. Lungrin, 97-541, 97-577 (La.2/6/98), 708 So.2d 731.

Contempt of Laura LeBlanc

Laura contends that the trial court erred in finding her in contempt for violating the January 19, 2005 Consent Judgment and erred in the sanctions imposed. The sanctions included ordering her to pay all court costs from January 19, 2005, to the date the judgment was signed, to pay a fine of $500.00, to pay $13,137.00 in attorney fees to Mitch LeBlanc, and to spend seven days in jail or provide weekly reports to Mitch documenting her efforts to improve the relationship between the minor child, Ryan, and his father, Mitch. Mitch responds that the trial court did not err in finding Laura in contempt because she violated the January 19, 2005 Consent Judgment by failing to enforce the minimum visitation requirement therein, and further responds that the court did not err in conditioning the seven day jail sentence on whether Laura documented positive steps to improve the relationship between Ryan and his father.

Pursuant to our Code of Civil procedure, constructive contempt is "[w]ilful disobedience of any lawful judgment, order, mandate, writ, or process of the court." La.Code Civ.P. art. 224(2). "[A] finding that a person wilfully [sic] disobeyed a court order in violation of La.Code of Civil Proc. art. 224(2) must be based on a finding that the accused violated an order of the court `intentionally, knowingly, and purposefully, without justifiable excuse.'" Lang v. Asten, Inc., 05-1119, p. 1 (La.1/13/06), 918 So.2d 453, 454 (quoting Brunet v. Magnolia Quarterboats, Inc., 97-187, p. 10 (La.App. 5 Cir. 3/11/98), 711 So.2d 308, 313, writ denied, 98-0990 (La.5/29/98), 720 So.2d 343, cert. denied sub nom. Polaris Ins. Co., Ltd. v. Brunet, 525 U.S. 1104, 119 S.Ct. 869, 142 L.Ed.2d 771 (1999)). In the present case, the order that Laura is accused of willfully disobeying is the January 19, 2005 Consent Judgment which named her as domiciliary parent of Ryan, subject to summer visitation with Mitch for the first fifteen days of June, the first fifteen days of July, and the first ten days of August, of each year. The Consent Judgment further provided that Ryan's visitation with Mitch during the school year would be as follows:

SCHOOL YEAR: Whenever Ryan desires to go to MITCHELL BRETT LEBLANC's home to visit; however, not less than 25% of the total school year. LAURA LEONARD RITCHEY shall give reasonable notice by telefax to MITCHEL BRETT LEBLANC's telefax number (337) 896-3487 Ryan's desire to visit with his Dad, and MITCHEL BRETT LEBLANC shall telefax back to LAURA LEONARD RITCHIE's telefax number (337) 988-1121 within two (2) hours of receipt of the telefax if he can be available to have Ryan for visitation. Anytime that Ryan's wishes are...