Opinion
2012 CA 0921
03-21-2013
CHAD INDOVINA v. STEPHANIE BESSON
Mark A. Holden Baton Rouge, Louisiana Attorney for Plaintiff/Appellant Chad Indovina cott P. Gaspard Baton Rouge, Louisiana Attorney for Defendant/Appellee Stephanie Besson
NOT DESIGNATED FOR PUBLICATION
APPEALED FROM THE FAMILY COURT
IN AND FOR THE PARISH OF EAST BATON ROUGE
STATE OF LOUISIANA
DOCKET NUMBER 149,242, DIVISION "D"
THE HONORABLE ANNETTE M. LASSALLE, JUDGE
Mark A. Holden
Baton Rouge, Louisiana
Attorney for Plaintiff/Appellant
Chad Indovina
cott P. Gaspard
Baton Rouge, Louisiana
Attorney for Defendant/Appellee
Stephanie Besson
BEFORE: KUHN, PETTIGREW, AND McDONALD, JJ.
MCDONALD , J.
This is an appeal of a family court judgment. Chad Indovina and Stephanie Besson are the parents of a son, Anthony Indovina, born on September 7, 2001. Mr. Indovina and Ms. Besson were never married. The parties entered into a stipulated judgment, signed by the family court judge in East Baton Rouge Parish on January 12, 2004, awarding joint custody to the parties, as co-domiciliary parents, with alternating week-to-week custody and alternating holidays. Thereafter, on April 27, 2004, a joint motion and order was signed by the family court naming Mr. Indovina as the domiciliary parent.
In 2007, Mr. Indovina moved to Alabama. The parties entered into an extrajudicial agreement allowing Mr. Indovina the majority of physical custody during the school year, with Ms. Besson exercising physical custody on some weekends, some holidays, and most of the summer break. The next year, Mr. Indovina moved to Thibodaux, and the parties continued to follow their extra-judicial agreement.
In July 2011, while Ms. Besson had physical custody of Anthony during the summer break, Mr. Indovina applied for an ex parte civil warrant with the Twenty-First Judicial District Court in Livingston Parish requesting to have Anthony returned to his physical custody and asserting that Ms. Besson was in violation of the parties' custody order. On July 19, 2011, Anthony was removed from Ms. Besson's home by the Livingston Parish Sheriffs Department. That same day, Mr. Indovina filed a rule to enforce visitation and modify visitation and support in the family court of East Baton Rouge Parish.
On September 14, 2011, Ms. Besson filed a rule to modify custody and child support, a rule for contempt, and an exception raising the objection of no cause of action directed at Mr. Indovina's rule to enforce and modify visitation and support. After a hearing on November 15, 2011, the family court signed a judgment on December 16, 2011, sustaining Ms. Besson's exception raising the objection of no cause of action and ordering the parties to follow the custody schedule set forth in the January 12, 2004 stipulated judgment.
Following a hearing on February 6, 2012, the family court judge rendered a judgment, which was signed on February 29, 2012. The family court judge ruled that Mr. Indovina had violated the parties' extra-judicial agreement (modifying the January 12, 2004 judgment of the court) when he removed Anthony from the home of Ms. Besson by use of a civil warrant obtained in Livingston Parish on July 19, 2011, that Mr. Indovina violated the January 12, 2004 judgment by denying physical custody to Ms. Besson subsequent to July 19, 2011, and that those actions constituted constructive contempt of court. As punishment for the contempt, the family court judge ordered Mr. Indovina to allow Ms. Besson to recover the time lost with Anthony; to pay Ms. Besson's attorney fees and costs, including all costs of counseling for Anthony necessary to repair the relationship between Anthony and Ms. Besson; and to serve thirty days incarceration, suspended as long as Mr. Indovina remained in compliance with all orders of the court. The family court also ordered that if Mr. Indovina violated any order of the court, he would begin serving the thirty-day sentence, along with any other sentence imposed by the court; ordered that Mr. Indovina pay a $500 fine to the court; found that Mr. Indovina's actions in obtaining the civil warrant in Livingston Parish, specifically the execution of the sworn affidavit used in support of his application, violated La. C.C.P. art. 863; and found that his actions constituted misrepresentations to the courts and improper use of a summary proceeding, for which the court ordered that Mr. Indovina pay attorney fees and costs of Ms. Besson in the amount of $8,029.65, and ordered that Mr. Indovina pay a $500 fine to the court.
Mr. Indovina has appealed that judgment, and makes the following assignments of error. He maintains that the family court erred in finding him in contempt for violation of an extra-judicial agreement of visitation that modified the January 12, 2004 judgment; erred in finding him in contempt for violating the January 12, 2004 judgment by not allowing visitation after July 19, 2011, until the rule on August 16, 2011; applied the wrong burden of proof for contempt; erred in awarding La. C.C.P. art. 863 sanctions against him (related to his filing of a La. R.S. 9:343 civil warrant) for improper use of summary proceedings; erred in awarding La. C.C.P. art. 863 sanctions against him because of the affidavit attached to his civil warrant request; erred by improperly sustaining exceptions for Ms. Besson and refusing to allow Mr. Indovina's counsel to ask questions, argue exceptions, call witnesses, and present evidence; erred in awarding attorney fees of $8,029.65 to Ms. Besson; erred by sustaining an exception raising the objection of no cause of action raised by Ms. Besson orally on the day of trial, and dismissing Mr. Indovina's rale for contempt against Ms. Besson; and erred in refusing to hear the rule for setting child support, which was included in the initial rule for modi fication of visitation.
Ms. Besson filed a motion to strike Mr. Indovina's reply brief, asserting that his reply brief failed to comply with the Uniform Rules, Courts of Appeal Rule 2-12.6, as it was not strictly confined to rebuttal of points urged in her brief. We find that Mr. Indovina's reply brief properly rebuts arguments made in Ms. Besson's original brief, and we deny the motion to strike.
ASSIGNMENTS OK ERROR NOS. 1, 2 AND 3
In these assignments of error, Mr. Indovina asserts that the family court erred in finding him in contempt for violating the extra-judicial agreement of visitation, erred in finding him in contempt for not allowing visitation after July 19, 2011 until the rale on August 16, 2011, and erred in applying the wrong burden of proof for contempt.
The trial court has great discretion in determining whether a party should be held in contempt for disobeying a court order, and an appellate court should reverse the trial court's decision only when it finds an abuse of that discretion. Barry v. McDaniel, 2005-2455, (La. App. 1 Cir. 3/24 /06), 934 So.2d 69, 73. However, the predicate factual determinations underlying the finding of civil contempt of court are reviewed under the manifest error standard of review. See Rogers v. Dickens, 2006-0898 (La. App. 1 st Cir. 2/9/07), 959 So.2d 940, 945.
The record shows that the stipulated custody judgment was signed on January 12, 2004, setting forth week-to-week alternating periods of custody. After Anthony began attending school, the parties entered an extra-judicial agreement allowing Anthony to stay with Mr. Indovina during the school year, with Ms. Besson having custody on holidays and most of the summer. Mr. Indovina then made a unilateral decision to return to week-to-week custody. He obtained a civil warrant and used the Livingston Parish Sheriff's Department to take Anthony away from Ms. Besson on July 19, 2011. He then failed to return to the week-to-week custody arrangement (which he claimed to have returned to) by failing to return Anthony to Ms. Besson for a period of four weeks. Based upon our review of the record, we find no manifest error in the family court's predicate factual determinations in this case. Further, we find no abuse of discretion in the family court's finding that Mr. Indovina was in contempt of court.
ASSIGNMENTS OF ERROR NOS. 4 AND 5
In these assignments of error, Mr. Indovina asserts that the family court erred when it imposed La. C.C.P. art. 863 sanctions against him for the assertions he made in an affidavit attached to his civil warrant request and for his improper use of summary proceedings.
Louisiana Code of Civil Procedure article 863 provides:
A. Every pleading of a party represented by an attorney shall be signed by at least one attorney of record in his individual name, whose address shall be stated. A party who is not represented by an attorney shall sign his pleading and state his address.
B. Pleadings need not be verified or accompanied by affidavit or certificate, except as otherwise provided by law, but the signature of an attorney or party shall constitute a certification by him that he has read the pleading , [sic] and that to the best of his knowledge, information, and belief formed after reasonable inquiry, he certifies all of the following:
(1) The pleading is not being presented for any improper purpose, such as to harass, cause unnecessary delay, or needlessly increase the cost of litigation.
(2) Each" claim, defense, or other-legal assertion in the pleading is warranted by existing law or by a nonfrivolous argument lor the extension, modification, or reversal of existing law.
(3) Each allegation or other (actual assertion in the pleading has evidentiary support or, for a specifically identified allegation or factual assertion, is likely to have evidentiary support alter a reasonable opportunity for further investigation or discovery,
. . . . .
D. If. upon motion of any party or upon its own motion, the court determines that a certification has been made in violation of the provisions of this Article, the court shall impose upon the person who made the certification or the represented party, or both, an appropriate sanction which may include an order to pay to the other party the amount of the reasonable expenses incurred because of the filing of the pleading, including reasonable attorney fees.
E. A sanction authorized in Paragraph D shall be imposed only after a hearing at which any party or his counsel may present any evidence or argument relevant to the issue of imposition of the sanction.
. . . . .
G. If the court imposes a sanction, it shall describe the conduct determined to constitute a violation of the provisions of this Article and explain the basis for the sanction imposed.
A trial court's determination regarding the imposition of sanctions is subject to the manifest error or clearly wrong standard of review. Once the trial court finds a violation of Article 863 and imposes sanctions, the determination of the type and/or the amount of the sanction is reviewed on appeal utilizing the abuse of discretion standard. Stroscher v. Stroscher, 2001-2769 (La. App. 1 Cir. 2/14/03), 845 So.2d 518, 526.
The record shows that Mr, Indovina filed an affidavit in the Twenty-First Judicial District Court in Livingston Parish asserting that Ms. Besson had kept Anthony in violation of a child custody judgment. The affidavit was attached to the motion and order for return of a child kept in violation of a custody judgment. However, Mr. Indovina admitted at trial that the parties had modified the child custody judgment by mutual agreement. Thus, we find no manifest error in the family court judge's determination that Mr. Indovina made a misrepresentation to the courts in his affidavit. Likewise, we find no manifest error in the family court judge's finding that these actions by Mr. Indovina amounted to an improper use of summary process.
ASSIGNMENT OF ERROR NO. 6
In this assignment of error, Mr. Indovina asserts that the family court erred in sustaining exceptions by Ms. Besson and in refusing to allow his counsel to ask questions, argue exceptions, call witnesses, and present evidence. Mr. Indovina maintains that the family court erred in repeatedly refusing to allow evidence regarding Anthony's statements to show Anthony's state of mind with respect to staying with his mother, and in refusing to allow Anthony to testify.
The family court ruled that the minor child's testimony was not relevant to the contempt and sanctions issues that were before the court. The court repeatedly stated during the hearing that the only issues before the court were the contempt issue and sanctions issue. We find no abuse of discretion by the family court in this regard.
ASSIGNMENT OF ERROR NO. 7
In this assignment of error, Mr. Indovina asserts that the family court erred in awarding attorney fees in the amount of $8,029.65 to Ms. Besson. Louisiana Code of Civil Procedure article 863D provides that appropriate sanctions may include an order to pay the other party's reasonable expenses incurred because of the filing of the pleading, including reasonable attorney fees. Additionally, La. R.S. 13:4611 provides in pertinent part:
Except as otherwise provided for by law:
(1)The supreme court, the courts of appeal, the district courts, family courts, juvenile courts and the city courts may punish a person adjudged guilty of a contempt of court therein, as follows:
. . . . .
(iv) Require the parent violating the order to pay all court costs and reasonable attorney fees of the other party.
It was within the discretion of the family court judge to require the payment of Ms. Besson's attorney fees relative to the contempt of court finding. We find no abuse of discretion by the family court in ordering Mr. Indovina to pay the attorney fees of Ms. Besson in this matter.
ASSIGNMENT OF ERROR NO. 8
In this assignment of error, Mr. Indovina asserts that the family court erred in sustaining an exception raising the objection of no cause of action raised by Ms. Besson orally on the day of trial, and that the family court judge erred in dismissing his contempt rule against Ms. Besson.
Louisiana Code of Civil Procedure 927A article provides:
The objections which may be raised through the peremptory exception include but are not limited to the following:
. . . . .
(5) No cause of action.
Louisiana Code of Civil Procedure article 928B provides:
The peremptory exception may be pleaded at any stage of the proceeding in the trial court prior to a submission of the case for a decision and may be filed with the declinatory exception or with the dilatory exception, or both.
The family court ordered Mr. Indovina to amend his defective pleading in the interim judgment signed on September 27, 2011. When the grounds of the peremptory exception raising the objection of no cause of action may be removed by amendment of the petition, the judgment sustaining the exception shall order such amendment within the delay allowed by the court. If the grounds of the objection cannot be so removed, or if plaintiff fails to comply with the order to amend, the action shall be dismissed. La. C.C.P. art. 934. The decision to allow amendment is within the sound discretion of the trial court. Stroscher v. Stroscher, 845 So.2d at 523.
After Mr. Indovina's rule for contempt was found deficient, he was ordered to amend it prior to trial, and he failed to do so. Thus, we cannot say that the family court abused its discretion in granting Ms. Besson's exception raising the objection of no cause of action and in dismissing Mr. Indovina's contempt rule against Ms. Besson.
ASSIGNMENT OF ERROR NO. 9
In this assignment of error, Mr. Indovina asserts that the family court erred by refusing to hear the rule for setting child support, which was included in the initial rule for modification of visitation.
Ms. Besson filed a peremptory exception raising the objection of no cause of action in response to Mr. Indovina's rule to enforce visitation and modify visitation and support. Thus, after the family court granted Ms. Besson's peremptory exception of no cause of action, the family court did not err in refusing to hear the rule for setting child support brought by Mr. Indovina. We find no abuse of discretion by the family court is this regard.
DECREE
For the foregoing reasons, we affirm the judgment of the family court. The motion to strike is denied. The costs of this appeal are assessed against Mr. Indovina.
AFFIRMED, MOTION TO STRIKE DENIED.