Opinion
2015 CU 1306
09-09-2016
RICHARD CHARLES BENTS v. KATHRINE PILAR BENTS
Anglea Cox Williams Slidell, LA Attorney for Plaintiff/Appellee Richard C. Bents Richard Ducote Pittsburgh, PA Attorney for Defendant/Appellant Katherine (Bents) Jaubert
NOT DESIGNATED FOR PUBLICATION On Appeal from the Twenty-Second Judicial District Court In and for the Parish of St. Tammany State of Louisiana
No. 2011-14086 The Honorable Mary C. Devereux, Judge Presiding Anglea Cox Williams
Slidell, LA Attorney for Plaintiff/Appellee
Richard C. Bents Richard Ducote
Pittsburgh, PA Attorney for Defendant/Appellant
Katherine (Bents) Jaubert BEFORE: GUIDRY, HOLDRIDGE, AND CHUTZ, JJ. HOLDRIDGE, J.,
Katherine Jaubert appeals a judgment of the trial court finding her in contempt of court. For the reasons that follow, we vacate in part, amend and, as amended, affirm in part.
RELEVANT FACTS
A companion case, Bents v. Bents, 2015-1305, (La.App. 1 Cir. ___/___/16) (unpublished), also rendered this date, contains a thorough recitation of the factual and procedural background of the parties' ongoing litigation. The facts relevant to this contempt proceeding are as follows.
Richard Bents and Katherine Bents (now Katherine Jaubert) were divorced by judgment dated April 3, 2013. On May 29, 2013, the trial court signed a stipulated judgment, which awarded the parties joint custody of their three minor children and designated Richard as the domiciliary parent. Katherine was to have physical custody of the children every other weekend and after school or camp every day until Richard came home from work as well as Wednesday nights beginning in the summer. According to the judgment, Katherine's then paramour, Hank Jaubert, was prohibited from having any contact with the children ("Hank restriction"), and Katherine was required to attend counseling until further court order. The judgment further provided that the trial court's previously ordered co-parenting guidelines would remain in effect. These guidelines mandated, in part, that the parties communicate regarding the children, refrain from making negative comments about one another allow others to make such comments, and refrain from communications regarding any marital or court-related issues when the children were present or within hearing range. The judgment also stated that Katherine was required to obtain full-time employment or enroll in school to enhance her education to obtain full-time employment. Finally, the judgment adjudged Katherine in contempt of court due to her violation of a prior court order barring Hank from being in the presence of the children, sentenced her to 30 days in jail, and then suspended the sentence on the condition that she refrain from any future violations.
The May 29, 2013, stipulated judgment also set forth a summer vacation schedule and maintained the holiday schedule made permanent in a May 17, 2012 judgment.
In August 2013, following a number of unwanted calls made to his place of employment by Katherine's former attorney, Richard filed a petition for injunctive relief. In addition to his complaint about the calls, it was also alleged that Hank was mailing items to Richard, showing up at the office of Richard's attorney, and otherwise intrusively inserting himself into the parties' litigation. Only Katherine was named as a defendant in the injunction proceeding. Following a hearing, the trial court issued a preliminary injunction on October 14, 2013, enjoining Katherine or her agents from calling Richard's place of employment without permission of the court. The judgment also prohibited Hank from having any involvement in the case or mailing items to Richard or showing up at the office of Richard's attorney.
In February 2014, pursuant to discussions with the parties' court-appointed parenting coordinator, Patricia Percy, Richard agreed to voluntarily lift the "Hank restriction," albeit on a trial basis and subject to certain conditions. Ms. Percy sent the court her recommendations regarding this agreement on March 17, 2014. However, before a final agreement could be drafted and signed, Richard claimed that Katherine had already violated the agreed-to conditions. He further alleged that the children's behavior had materially worsened since the lifting of the "Hank restriction." Therefore, he notified Katherine that he was withdrawing his consent to the agreement and henceforth expected the parties to adhere to all court orders in effect.
On May 5, 2014, Richard filed a rule for contempt asserting that Katherine had violated various provisions of the May 29, 2013 and the October 14, 2013 judgments. Richard alleged that after notifying Katherine he no longer agreed to voluntarily lifting the "Hank restriction" and that he expected her to abide by the trial court's judgments, she had violated those judgments by continuing to permit Hank to have contact with the children. In addition, he alleged Katherine had continued to violate the co-parenting guidelines by making negative remarks about him, refusing to share information and communicate with him, and discussing the custody case with the children. Finally, Richard asserted that Katherine was also in violation of the May 29, 2013 judgment due to her failure to obtain employment.
Richard's May 5, 2014 motion for contempt was tried along with several other motions filed by the parties, specifically, the parties' competing custody modification motions and Katherine's motion for the court to remove the "Hank restriction." Following the hearing, the trial court took all of the matters under advisement. On December 16, 2014, the trial court issued a judgment on Richard's motion for contempt. The trial court found Katherine in contempt of court and sentenced her to seven days in jail, suspended the sentence, and placed her on probation, the condition of which was no future findings of contempt. Katherine was also ordered to pay Richard $750.00 in attorney fees and all court costs.
Katherine filed the instant appeal. In her appeal, she contends:
In her motion for appeal, Katherine also sought to have the trial court stay enforcement of the contempt judgment pending review; however, the trial court denied her request. Katherine's subsequent application for writs seeking a stay was likewise denied. Bents v. Bents, 2015-0307 (La.App. 1 Cir. 4/7/2015) (unpublished writ action).
[1.] The trial court clearly erred as a matter of law in applying the "preponderance of evidence" standard of proof in finding [her] in criminal contempt of court instead of the correct "beyond a reasonable doubt" standard.
[2.] The trial court manifestly abused its discretion in finding [her] in contempt of court, where the evidence does not even support a "preponderance" finding.
[3.] The trial court clearly erred in ordering [her] to pay [Richard] $750 in attorney's fees as a contempt sanction, where no legal authority exists for that award.
DISCUSSION
In her first assignment of error, Katherine contends that the contempt proceeding was criminal and not civil, and therefore, the applicable standard of proof should have been beyond a reasonable doubt as opposed to the preponderance of the evidence standard used by the trial court. Katherine argues that the contempt was criminal because it sought to punish her for past behavior and sentenced her to a definite sentence, without a "purge clause." We find Katherine's argument to be without merit.
Katherine contends that the trial court obviously intended to punish her for past behavior because it lifted the "Hank restriction" in a judgment issued one day before it issued the instant contempt ruling. However, her argument patently ignores the fact that she was found to have violated several other provisions in addition to the "Hank restriction."
When a contempt proceeding is incidental to a civil action, it is a civil matter if its purpose is to force compliance with a court order or the punishment imposed is remedial or coercive. Rogers v. Dickens, 2006-0898 (La.App. 1 Cir. 2/9/07), 959 So.2d 940, 947. However, if the purpose of the contempt proceeding is to punish disobedience of a court order or the punishment imposed is punitive and intended to vindicate the authority of the court, it is a criminal matter and the elements of contempt must be proved beyond a reasonable doubt. Id.
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. de Baroncelli v. de Baroncelli, 2011-0271 (La.App. 1 Cir. 6/10/11) 2011WL 3558187 (unpublished opinion). 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. Nevertheless, a court may impose a determinate prison sentence in a civil contempt matter if the sentence contains a "purge clause." A "purge clause" is a provision in the contempt judgment which allows the defendant to avoid imprisonment by performance of the required act or compliance with the court's judgment. Leger v. Leger, 2000-0505 (LaApp. 1 Cir. 5/11/01), 808 So.2d 632, 636, n.3.
In this case, the trial court imposed a sentence of seven days, but then suspended the sentence and placed Katherine on probation "the condition of which" was no further contempt findings. Because the penalty is conditional, i.e., it allows Katherine to purge herself of the contempt by her compliance with the court's judgments, (and also because she was to ordered to pay Richard's attorney fees), the contempt was clearly civil. See Bourne v. Bourne, 2013-2170 (La.App. 1 Cir. 6/18/14) 2014WL3702486, *2-3 (unpublished opinion), writ denied, 2014-1791 (La. 9/12/14), 148 So.3d 936. We find Katherine's first assignment of error to be without merit.
In her next assignment of error, Katherine claims that the trial court erred and abused its discretion in finding her in constructive contempt of court based upon the evidence. According to La. C.C.P. art. 224(2), a person may be found in constructive civil contempt of court for willfully disobeying any "lawful judgment, order, mandate, writ, or process of the court." A finding that a person willfully disobeyed a court order in violation of article 224(2) must be based on a finding that the person violated an order of the court intentionally, knowingly, and purposefully, without justifiable excuse. Carollo v. Carollo, 2013-0010 (La.App. 1 Cir. 5/31/13), 118 So.3d 53, 64.
The burden of proving that the accused violated the court order intentionally, knowingly, and purposely without justiciable excuse is on the moving party. See Rogers, 959 So.2d at 947. The burden of proof in a civil contempt case is by a preponderance of the evidence. Acadian Cypress & Hardwoods, Inc. v. Stewart, 2012-2002 (La.App. 1 Cir. 9/3/13) 2013WL 4746957 (unpublished opinion); Meek v. Meek, 36,467 (La.App. 2 Cir. 9/18/02), 827 So.2d 1191, 1194. Proceedings for contempt must be strictly construed, and the policy of our law does not favor extending their scope. Rogers, 959 So.2d at 946. The trial court is vested with great discretion in determining whether a party should be held in contempt for disobeying a court order, and the court's decision should be reversed only when the appellate court discerns an abuse of that discretion. Boyd v. Boyd, 2010-1369 (La.App. 1 Cir. 2/11/11), 57 So.3d 1169, 1178. However, the trial court's predicate factual determinations are reviewed under the manifest error standard of review. Id.
Having reviewed the record with the foregoing precepts in mind, we find Katherine's arguments regarding several of the grounds for contempt to be legally meritorious. However, we find no error in the trial court's determination that Katherine was in contempt for violating the co-parenting guidelines by permitting the discussion of the parties' case in the presence of the children. This finding is sufficient, in and of itself, to affirm the trial court's judgment finding Katherine in constructive contempt of court.
For instance, it was arguably an abuse of the trial court's discretion to hold Katherine in contempt for not gaining employment when she has not been in arrears in making her court-ordered child support payments.
The pertinent mandatory guideline provides:
Communication concerning their children and/or any marital and court related issues shall occur at agreed upon appropriate times and places when the children are not present or within hearing range.
By her own admission, on Mother's Day 2014, while attending church services, Katherine sat silently with her three children while her adult son, Paeton (born before her marriage to Richard), stood up in front of the entire congregation and began discussing the parties' custody litigation, and particularly an upcoming custody hearing. After announcing the date of the hearing, Paeton urged all of the parishioners to attend the hearing to show their support for Katherine and to "protest the evil" that was being done in the case by the "evil court." Although Katherine admitted Paeton spoke for a few minutes, she made no attempt to stop him or to escort the minor children outside.
In addition, Ms. Percy testified that when scheduling a date to visit the children at Katherine's home, she specifically told Katherine not to tell the children anything about her impending visit. However, soon after her arrival, one of the children asked Ms. Percy something along the lines of "Are you the lady from the court that we were not supposed to know was coming?" To Ms. Percy, it was apparent that court-related issues had been discussed with the children. While Katherine and Hank attempted to refute Ms. Percy's testimony, the trial court obviously did not credit their testimony. Accordingly, we find the trial court was neither manifestly erroneous nor did it abuse its discretion in holding Katherine in contempt of court.
This express admonition supports a finding that Katherine's violation of the pertinent guideline was willful and knowing and without justifiable excuse.
In her third and final assignment of error, Katherine challenges the trial court judgment insofar as it ordered her to pay Richard $750.00 in attorney fees. She claims that there is no statutory provision providing for the award of attorney fees in this case. We agree.
Under the pertinent version of La R.S. 13:4611, which sets forth the available punishments for contempt of court, we note that attorney fees are only sanctioned for "visitation order" violations. Cognizant that La. Const. art. 5, §2 provides that the power to punish for contempt of court "shall be limited by law" and that contempt matters must be strictly construed, we cannot say that the violation at issue herein is one of a "visitation order." La. R.S. 13:4611(1)(e). The language of the statute, when construed as a whole, reveals that, at least with respect to an award of attorney fees, the violation of a visitation order is one in which a noncustodial parent has been prevented from exercising his or her visitation rights at times provided for in a court-ordered schedule. See La. R.S. 13:4611(1)(e)(i). See also La. R.S. 9:346 (providing potential award of attorney fees in a contempt action for the "failure to exercise or to allow child visitation, custody or time rights pursuant to the terms of a court-ordered schedule"). The pertinent provision that Katherine violated does not implicate the parties' visitation or custody schedule, and her violation did not interfere with Richard's physical custody of the children. Therefore, we vacate that portion of the trial court's judgment that awards Richard $750.00 in attorney fees.
Pursuant to its amendment by 2016 La. Acts 132, effective August 1, 2016, La. R.S. 13:4611 now provides for an award of attorney fees to the prevailing party on all contempt matters.
The only issue before us concerns the propriety of an award of attorney fees in this case. Therefore, we expressly limit our conclusion as to what constitutes a "visitation order" accordingly.
In addition, we note that the trial court's judgment improperly subjected Katherine to an indefinite period of probation. The term of probation is expressly limited by law. Pursuant to La. R.S. 13:4611(3) a "term of probation shall not exceed the length of time a defendant may be imprisoned for the contempt, except in the case of contempt for disobeying ... an order for the right of custody or visitation, when the term of probation may extend for a period of up to two years." (Emphasis added.) We have already determined that this matter does not involve the violation of an order regarding a party's right of custody or visitation. The maximum sentence, and thus the maximum term of probation in this case is three months, commencing the day the trial court imposed sentence. See La. R.S. 13:4611(1)(d)(i). Therefore, we amend the trial court's judgment to specify a probation term of three months.
We emphasize that this provision specifically refers to "the right" of custody as opposed to "a right" of custody. The latter would arguably encompass certain conditions that must be adhered during a party's exercise of their custody or visitation time.
Obviously, this term has already expired. --------
CONCLUSION
For all of the foregoing reasons, we vacate that portion of the trial court judgment awarding Richard Bents $750.00 in attorney fees. We further amend the trial court judgment so that "probation" reads "probation for a term of three months," and we affirm the judgment as amended. Katherine Jaubert is assessed with all costs of this appeal.
VACATED IN PART; AMENDED AND, AS AMENDED, AFFIRMED IN PART.