Opinion
No. 2011 CU 0271.
June 10, 2011. NOT DESIGNATED FOR PUBLICATION
ON APPEAL FROM THE 22ND JUDICIAL DISTRICT COURT, IN AND FOR THE PARISH OF ST. TAMMANY, STATE OF LOUISIANA TRIAL COURT NO. 2008-10198 HONORABLE MARY C. DEVEREUX, JUDGE PRESIDING.
Amanda A. Trosclair, Raymond C. Burkart, Covington, LA, Attorneys for Plaintiff-Appellant, Kimberly W. De Baroncelli.
Brett R. De Baroncelli, Mandeville, LA, In Proper Person, Appellee.
BEFORE: KUHN, PETTIGREW, AND HIGGINBOTHAM, JJ.
In this contentious divorce and child custody proceeding Kimberly Winters (formerly deBaroncelli) appeals the judgment of the trial court insofar as it increased the custodial time of Brett R. de Baroncelli, found her in contempt, and sentenced her to jail time. She also appeals a previous judgment assessing her with all costs of the expert's testimony. For the following reasons we affirm.
FACTS AND PROCEDURAL HISTORY
Kimberly Winters and Brett R. de Baroncelli were married on July 19, 1998. During the marriage they had two children: Emily de Baroncelli who was born February 7, 2000, and Brandon de Baroncelli who was born April 25, 2003. On January 10, 2008, Ms. Winters filed a petition for divorce based on LSA-C.C. art. 102. In her petition, she requested that the parties be awarded joint custody of the children and that she be designated domiciliary parent. Mr. de Baroncelli answered the petition and reconvened requesting joint custody and that he be named domiciliary parent.
Following the hearing officer and social worker conference, the parties signed a stipulation regarding the custody of the children. The stipulated judgment was signed on October 1, 2008, awarding the parties joint custody, naming Ms. Winters domiciliary parent, and granting Mr. de Baroncelli physical custody of the children every other Wednesday after school until Monday morning at school and in the off weeks Thursday from 4:00 p.m. — 7:00 p.m. As part of the judgment, the parties signed the co-parenting guidelines, which incorporated several provisions, including that neither party shall say or do anything in the presence of the children that would diminish the children's love for the other parent. The parties were divorced by a judgment signed on May 11, 2009.
On July 29, 2009, Mr. de Baroncelli filed rules for contempt, use of assets pending partition, attorney fees and payment of debts, rule to modify custody and support, and a request for a mental health evaluation, alleging a change in circumstances, arguing that his former wife began behaving irresponsibly, i.e., drinking, demonstrating violence, and leaving the children unsupervised. Specifically, Mr. de Baroncelli requested a change in custody in order to be designated as the domiciliary parent and further requested that the trial court require Ms. Winters to undergo a mental health evaluation.
On September 8, 2009, Ms. Winters filed an answer and reconventional demand. In her reconventional demand she alleged that there had been a material change in circumstances since the October 1, 2008 judgment and requested that it be modified to provide Mr. de Baroncelli a typical visitation schedule. She further asked that Mr. de Baroncelli be found in contempt for failing to give her the right of first refusal and speaking negatively about her in front of the children in violation of the previous judgment. After meeting with the hearing officer, Ms. Winters stipulated that she was in contempt for harassing Mr. de Baroncelli and was fined $500.00 plus $185.00 in court costs. Further, the parties stipulated that Dr. Alicia Pellegrin would be appointed to conduct a custody evaluation and that they would split the cost of the evaluation.
On November 20, 2009, Mr. de Baroncelli filed a second rule for contempt against Ms. Winters for failure to pay the fine and the court costs. On December 18, 2009, Ms. Winters answered and reconvened alleging additional contempt against Mr. de Baroncelli for his failure to co-parent. Mr. de Baroncelli answered Ms. Winter's reconventional demand and he again reconvened with new contempt allegations against Ms. Winters.
The trial on modification of custody and multiple issues of contempt commenced on May 19, 2010. On this day, Dr. Pellegrin was the only witness. Based on the recommendations of Dr. Pellegrin, the parties were awarded, in an interim judgment, week-to-week shared custody pending the second day of trial.
Prior to the second day of trial, Mr. de Baroncelli filed a rule to assess expert costs. This matter came for hearing on June 28, 2010. After brief argument from counsel, judgment was signed on July 16, 2010, assessing all costs of the expert's testimony to Ms. Winters.
The court resumed the second day of the custody and contempt trial on October 26, 2010. At the conclusion, the trial court determined that a material change in circumstances had been proven. The judgment was signed on November 18, 2010, awarding the parties week-to-week custody of the children, designating no domiciliary parent, splitting the holidays, finding both parties in contempt of court, and ordering that they each pay a fine of $1,000.00 and serve forty-eight hours in the parish jail.
It is from these judgments that Ms. Winters appeals asserting the following assignments of error:
1. The district court abused its discretion in granting Mr. de Baroncelli's modification of custody.
2. The district court abused its discretion in not granting Ms. Winters modification of custody.
3. The district court was legally wrong sentencing both parties to criminal contempt particularly jail and a fine without first properly advising them of their rights and providing counsel for [Mr. de Baroncelli].
4. The district court legally erred assessing expert costs against Ms. Winters without any evidence or the opportunity to have a hearing.
APPLICABLE LAW AND ANALYSIS Custody
Each child custody case must be viewed in light of its own particular set of facts and circumstances. Perry v. Monistere, 08-1629 (La. App. 1 Cir. 12/23/08), 4 So.3d 850, 852. There is a distinction between the burden of proof required to change a custody plan ordered pursuant to a considered decree and the burden of proof required to change a custody plan ordered pursuant to a non-considered decree (or stipulated judgment). A stipulated judgment is one in which no evidence is presented as to the fitness of the parents, such as one that is entered by stipulation or consent of the parties, or that is otherwise not contested. Id., 4 So.3d at 853. In cases such as this one where the underlying custody decree is a stipulated judgment and the parties have consented to a custodial arrangement with no evidence as to parental fitness, a party seeking a modification of a consent decree must prove that there has been a material change of circumstances affecting the welfare of the child since the original (or previous) custody decree was entered and that the proposed modification is in the best interest of the child. Id.
The best-interest-of-the-child test is a fact-intensive inquiry, requiring the weighing and balancing of factors favoring or opposing custody in the competing parties on the basis of the evidence presented in each case. See LSA-C.C. art. 134 Martello v. Martello, 06-0594 (La. App. 1 Cir. 3/23/07), 960 So.2d 186, 191. Every child custody case is to be viewed on its own peculiar set of facts and the relationships involved, with the paramount goal of reaching a decision which is in the best interest of the child. Id.
The trial court is vested with broad discretion in deciding child custody cases. Because of the trial court's better opportunity to evaluate witnesses, and taking into account the proper allocation of trial and appellate court functions, great deference is accorded to the decision of the trial court. A trial court's determination regarding child custody will not be disturbed absent a clear abuse of discretion. Id., 960 So.2d at 191-92. An appellate court may not set aside trial court's finding of fact in the absence of "manifest error" or unless it is "clearly wrong." Rosell v. ESCO, 549 So.2d 840, 844 (La. 1989).
Ms. Winters contends that the trial court abused its discretion in finding that Mr. de Baroncelli proved a material change in circumstances sufficient to modify custody, and erred in finding that she did not prove a material change in circumstances. The trial judge stated in her oral reasons for judgment "I find a material change in circumstances . . . and that's grounds for the change in custody to shared."
Dr. Alicia Pellegrin performed a custody evaluation. She recommended to the court that the parties share custody week-to-week. Dr. Pellegrin testified that since the October 2008 stipulated judgment, Ms. Winters has shown poor judgment and impulse control. Ms. Winters admitted sending multiple inappropriate text messages and emails mostly to Mr. de Baroncelli, but also to his girlfriend and his girlfriend's ex-husband. Ms. Winters went to Mr. de Baroncelli's home after midnight with the children in the car. She was criminally charged for kicking in Mr. de Baroncelli's door and in May 2009, she was cited for a DUI. Ms. Winters also made decisions regarding the children's counseling and school without discussing them with Mr. de Baroncelli. Ms. Winters admitted she has done some things she was not proud of and that were not in the best interest of the children.
Dr. Pellegrin stated multiple times that the kids were fabulous children and were "wonderfully well adjusted and doing well." However, she felt they would not remain that way if the parents continued with their current behavior. Dr. Pellegrin stated that she put a lot of consideration into making her recommendation since the children were doing well. She testified that Ms. Winter's behavior was inexcusable and that fifty-fifty custody was in the best interest of the children.
Mr. de Baroncelli also used poor judgment regarding the best interest of the children. He took custody pleadings to the school, spoke negatively about Ms. Winters to the faculty, threatened the children's counselor, and failed to properly communicate about when he would not be able to make his afternoon visitation. He also called Ms. Winters a "f**king" liar in front of Emily. Ms. Caillouet, Ms. Winter's counselor, testified that she felt Mr. de Baroncelli's actions showed an unwillingness to participate in the co-parenting classes.
Ms. McAllister, the children's counselor testified about her concerns since the children began the week-to-week schedule. She testified that the children have to go to aftercare and are not able to start their homework until late on Mr. de Baroncelli's weeks. She also stated that Emily has been more withholding since starting the new schedule. She felt the kids preferred the old schedule.
Both parties have made some poor decisions regarding what is in the best interest of the children, and have clearly let their disdain for one another get in the way of what is in their children's best interests. However, after a thorough review of the record, we find that the trial court did not abuse its vast discretion in finding that Mr. de Baroncelli proved a material change in circumstances affecting the welfare of the children had occurred since the rendition of the stipulated judgment and that the change in custody to week-to-week was in the best interest of the children.
Contempt
Ms. Winters argued that the trial court was legally wrong in sentencing both parties to criminal contempt without properly advising them of their rights. To find a person guilty of constructive contempt, it is necessary to find that he or she violated the order of court intentionally, knowingly, and purposely, without justifiable excuse. The trial judge is vested with great discretion in determining whether a party should be held in contempt for disobeying a court order. Estate of Graham v. Levy, 93-0636 (La. App. 1 Cir. 4/8/94), 636 So.2d 287, 290,writ denied, 94-1202 (La. 7/1/94), 639 So.2d 1167. The court's decision should be reversed only when the appellate court discerns an abuse of that discretion. de Nunez v. Bartels, 97-1384 (La. App 1 Cir. 9/9/98), 727 So.2d 463, 469-70. If a person is found guilty of contempt, "the court shall render an order reciting the facts constituting the contempt, adjudging the person charged with contempt guilty thereof, and specifying the punishment imposed." LSA-C.C.P. art. 225(B).
Ms. Winters argued that Mr. de Baroncelli was sentenced in violation of his due process rights because he was not advised of his right to counsel. Because Mr. de Baroncelli did not raise that issue, we do not address it.
This case contains multiple pleadings of contempt filed against each other, often for minor issues. As the trial judge stated, these parties were "at war." Ms. Winters was found in contempt for violating the co-parenting guidelines by talking negatively to the children about their dad, and Mr. de Baroncelli was found in contempt for violating the co-parenting guidelines and being late for his alcohol screenings. The trial court ordered Ms. Winters to pay a fine of $1000.00 to the court and sentenced her to forty-eight hours in the parish jail. She was given no opportunity to purge herself of this contempt. Therefore, under the rationale of Feiock v. Feiock, 485 U.S. 624, 108 S.Ct. 1423 99 L.Ed.2d 721 (1988), the punishment is criminal in nature and could be imposed only if state and federal constitutional protections were applied in the contempt proceeding. If the contempt proceeding is in the nature of a civil proceeding, but without the constitutional safeguards afforded to a criminal defendant, a sentence of incarceration without affording the defendant the opportunity to purge the sentence would be impermissible.See Feiock, 485 U.S. at 632, 108 S.Ct. at 1429-30. However, if the constitutional safeguards are afforded the defendant, including proof of the contempt beyond a reasonable doubt and that the defendant be afforded counsel, no opportunity to purge the sentence is required. Leger v. Leger, 00-0505 (La. App. 1 Cir. 5/11/01), 808 So.2d 632, 637. In the co-parenting guidelines made a judgment of the court, the parties agreed to not "say or do anything in the presence . . . of the children that would in any way diminish the children's love or affection for the other parent." Ms. Winters admitted during her testimony that she read a portion of the pleadings filed by her husband to the children when she was served at her home. She also called her counselor and told her what she had done. This admission was sufficient to prove beyond a reasonable doubt that she violated the provision of the judgment that prohibited her from doing or saying anything in front of the children that may diminish their affection for Mr. de Baroncelli. In this matter, we find that it was established beyond a reasonable doubt that Ms. Winters intentionally, knowingly, and purposely violated the order of the court. Further, Ms. Winters was represented by counsel throughout the proceeding. The punishment was criminal in nature; however, the trial court afforded Ms. Winters the proper constitutional protections, therefore, this assignment of error lacks merit.
The United States Supreme Court stated in Feiock v. Feiock "If it is for civil contempt the punishment is remedial, and for the benefit of the complainant. But if it is for criminal contempt the sentence is punitive, to vindicate the authority of the court." Gompers v. Buck's Stove Range Co., 221 U.S. 418, 441, 31 S.Ct. 492, 498, 55 L.Ed. 797 (1911). The character of the relief imposed is thus ascertainable by applying a few straightforward rules. If the relief provided is a sentence of imprisonment, it is remedial if "the defendant stands committed unless and until he performs the affirmative act required by the court's order," and is punitive if "the sentence is limited to imprisonment for a definite period." Id., at 442, 31 S.Ct. at 498. If the relief provided is a fine, it is remedial when it is paid to the complainant, and punitive when it is paid to the court, though a fine that would be payable to the court is also remedial when the defendant can avoid paying the fine simply by performing the affirmative act required by the court's order. These distinctions lead up to the fundamental proposition that criminal penalties may not be imposed on someone who has not been afforded the protections that the Constitution requires of such criminal proceedings, including the requirement that the offense be proved beyond a reasonable doubt. Feiock v. Feiock, 485 U.S. 624, 631-632, 108 S.Ct. 1423, 1429-1430, 99 L.Ed. 2d 721 (1988).
Expert Witness Fees
Ms. Winters contends that the trial court legally erred when it assessed all costs of Dr. Pellegrin's testimony to Ms. Winters without an opportunity to have a hearing. Under LSA-R.S. 13:3666 and 13:4533, as well as LSA-C.C.P. 1920, the trial judge has great discretion in awarding costs, including expert witness fees, deposition costs, exhibit costs, and related. On appeal, the amount and fixing of expert fees will not be disturbed in the absence of an abuse of discretion. Samuel v. Baton Rouge Gen. Med. Center, 99-1148 (La. App. 1 Cir. 10/2/00), 798 So.2d 126, 131-32.
A writ filed by Ms. Winters challenging the trial court's assessment of expert witness lees was denid. See de Baroncelli v. de Baroncelli, 10-1387 (La. App 1st Cir. 10/5/2010) (an unpublished writ action).
Mr. de Baroncelli filed a rule to assess expert costs. This matter came for hearing on June 28, 2010. After brief argument from counsel, judgment was signed on July 16, 2010, assessing all costs of the expert's testimony to Ms. Winters. In oral reasons for judgment, the trial judge found that because there was a request that Dr. Pellegrin's report be stipulated to and Ms. Winters refused, she was ordered to pay the costs as well as the cost of the rule brought by Mr. de Baroncelli. The transcript clearly reflects Ms. Winter's unwillingness to stipulate to Dr. Pellegrin's report, which necessitated Dr. Pellegrin's appearance and testimony. In the instant matter, Dr. Pellegrin was under subpoena by Ms. Winters and was required to appear in court as ordered therein. As such, the trial court did not abuse its discretion in the assessment of 100 percent of the costs of the Dr. Pellegrin's testimony to Ms. Winters.
DECREE
For the foregoing reasons, the judgments of the trial court are affirmed.
AFFIRMED.
I write separately to point out the inequity placed upon people of ordinary means by the procedure in place for litigants subject to the jurisdiction of the Twenty-Second Judicial District Court. The use of hearing officers is elaborate and extensive. See Rules of the Twenty-Second Judicial District Court, Rule 35.
At the behest of a hearing officer, litigants can find themselves incurring costs associated with mediation, parenting coordination, mental health evaluation, and custody facilitation by a social worker. If the parties do not agree on a qualified professional, the appointment of these professionals may be required by the hearing officer, in which case the litigants are denied their opportunities to voir dire the experts about their qualifications. It appears to me that much of the power bestowed upon the hearing officers, as a practical matter, leaves litigants with rulings issued by an appointed magistrate rather than by the district court judge they elected to serve the jurisdiction and who may well reject the qualifications and opinion of the "expert" appointed by the hearing officer. Additionally, it appears the rules allow the court to appoint an "expert" and call them as a witness but makes no mention of a party's right to voir dire the "expert." Does such a procedure insure impartiality?