Opinion
2018 CU 0272
01-08-2019
ALISA OLEGOVNA ROMADANOVA v. ANDRIY OLEGOVICH CHEBANU
Mark D. Plaisance Marcus J. Plaisance Prairieville, LA And Brian J. Prendergast Baton Rouge, LA Attorneys for Plaintiff/Appellant Alisa O. Romadanova Vincent A. Saffiotti Natalie C. Neale Baton Rouge, LA Attorney for Defendant/Appellee Andriy O. Chebanu
NOT DESIGNATED FOR PUBLICATION On Appeal from the Family Court In and for the Parish of East Baton Rouge State of Louisiana
No. F207164, Div. "D" The Honorable Hunter Green, Judge Presiding Mark D. Plaisance
Marcus J. Plaisance
Prairieville, LA
And
Brian J. Prendergast
Baton Rouge, LA Attorneys for Plaintiff/Appellant
Alisa O. Romadanova Vincent A. Saffiotti
Natalie C. Neale
Baton Rouge, LA Attorney for Defendant/Appellee
Andriy O. Chebanu BEFORE: GUIDRY, McCLENDON, HIGGINBOTHAM, HOLDRIDGE, AND PENZATO, JJ. HOLDRIDGE, J.
In this appeal, the mother appeals from a trial court judgment failing to designate her as the domiciliary parent in a joint custody award. She also challenges the trial court's rulings on the implementation order, child support, health insurance, the child's school, and contempt. Based on a careful review of the record before us, we affirm in part and reverse in part the judgment of the trial court and remand for further proceedings.
FACTS AND PROCEDURAL HISTORY
Andriy Chebanu and Alisa Romadanova were in a relationship beginning in 2009; they never married. A child, A.C., was born of the relationship on June 17, 2012. In December of 2012, both parties and their minor child moved into a home purchased by Andriy in Denham Springs in Livingston Parish. According to Andriy, they moved to Livingston Parish because it had good schools. Andriy worked as a safety inspector for various companies, mainly consisting of industrial plants, and he often worked out of state. In March of 2015, Alisa, who previously had not worked, began working at the Murphy Law Firm. In July of 2015, Andriy began working in Iowa. Andriy and Alisa's relationship ended between June and September of 2015. Alisa moved into an apartment in East Baton Rouge Parish but later returned to live in the Denham Springs home while Andriy was working in Iowa.
Although we are not required to use initials to protect and maintain the privacy of the minor children involved in child custody cases pursuant to Uniform Rules, Courts of Appeal, Rule 5-1 and Rule 5-2, we choose to use the initials of the minor child in this opinion. See Jupiter v. Jupiter, 2014-0395 (La. App. 1 Cir. 9/24/2014), 154 So.3d 1241, 1241 n.1; Rodock v. Pommier, 2016-809 (La. App. 3 Cir. 2/1/17), 225 So.3d 512, 515 n.1, writ denied. 2017-0631 (La. 5/1/2017), 221 So.3d 70.
Andriy returned to Louisiana when his house was flooded in the Great Flood of 2016 so that he could repair and live in the house. When he was working in Iowa, Andriy began a relationship with Lien Beavers, a recently divorced mother of two daughters near his son's age. Lien and her daughters also moved to Louisiana, initially so that Lien could work at a new job in Lake Charles, but when the job did not materialize, she and her daughters began living in Andriy's home. Alisa and A.C. moved out again and began living in a mobile home in Baton Rouge, which Alisa was renting from her parents and which was next door to her grandparents. On November 24, 2016, Andriy and Lien became engaged to be married. Lien was unemployed. Andriy intended to remain in Louisiana for work in order to be with A.C.
Andriy instituted custody proceedings on December 12, 2016, seeking joint custody of A.C. and to be designated as the domiciliary parent. A hearing was set for January 10, 2017, and on the date of the hearing, Alisa filed a reconventional demand seeking joint custody and to be named the domiciliary parent, child support, and additional matters. On the same date, the parties entered into a stipulated judgment that was later signed on February 21, 2017. In the stipulated judgment, among other provisions, Andriy and Alisa were awarded shared custody of A.C. on an equal basis with no designation of domiciliary parent "at this time." According to the judgment, the parties were to alternate equal physical custody of A.C. weekly, and a holiday schedule was set forth.
Legal proceedings in this matter began when Alisa filed a petition for protection from domestic abuse against Andriy on November 28, 2016. Andriy responded by filing the above-mentioned petition for avowal and custody on December 12, 2016. He also filed a motion to dissolve the temporary restraining order (TRO) entered in response to the domestic abuse protection petition. Alisa then filed an answer and reconventional demand as set forth above. The stipulated judgment the parties entered into dismissed the petition for protection from abuse and the TRO and ordered Alisa to pay the attorney's fees and costs associated with the petition for protection from abuse. The judgment also declared Andriy to be the father of A.C.
The judgment also stated that the parties were to exchange information about the child's school and sports activities and his medical and dental appointments and to maintain communications about A.C. for his care and upbringing, including notice of any illness. Each parent had the right of first refusal to keep A.C. if the custodial parent was unavailable, but this provision was not to be interpreted to prevent A.C. from spending reasonable time with his grandparents. Both parents were to have immediate access to records and information about A.C. Both parties were to keep each other advised of the other's residence and business addresses and phone numbers. Provisions concerning travel out of the country, relocation, and communication with A.C. were also included. The judgment also required Andriy to pay Alisa child support of $456 per month until A.C. started kindergarten/school, whereupon child support would increase to $586 per month. Until A.C. started kindergarten/school, Andriy was to pay the entire costs for him to attend Florida Boulevard Baptist Preschool, which obligation was factored in his child support obligation. Andriy was responsible for 83% and Alisa 17% of the child's aftercare and extracurricular expenses and medical expenses incurred by A.C. not covered by insurance. Andriy was granted the right to claim the child for federal and state income tax deductions.
On March 21, 2017, Alisa filed a petition for change of custody and ancillary matters; she sought to continue joint custody but to have herself designated the domiciliary parent, to have child support increased, to have Andriy pay his pro rata share of health insurance premiums and medical expenses, and to have the court order that A.C. should attend Victory Academy in Baton Rouge. Andriy answered the petition, requesting that the parties continue joint shared custody, that he be named domiciliary parent, that his child support be reduced to reflect his current income, and that Alisa be held in contempt for various violations of the stipulated judgment.
The trial court held a hearing on the matters on July 14, 2017, August 11, 2017, and August 29, 2017. On August 11, 2017, the trial court ruled on all but the contempt matter and issued oral reasons for judgment; at the later hearing on August 29, 2017, the trial court found Alisa in contempt. The trial court signed a judgment on October 3, 2017, wherein it ruled that it was in the best interest of the child that neither parent be designated as the domiciliary parent and that the parties continue sharing joint custody of A.C. according to the custodial periods set forth in the February 21, 2017 judgment. The trial court also ordered that the parties engage the services of a parenting coordinator to assist them in resolving disputes and to facilitate communications regarding the child. The trial court also ordered that A.C. attend Lewis Vincent Elementary School (Lewis Vincent) in Livingston Parish. It set child support at $613 per month based upon its determination that Andriy's income was $9,180 per month and Alisa's income was $1,820 per month. According to the judgment, Andriy was to provide health insurance for A.C. and Alisa was to pay 17% of the premium cost. The trial court determined that Alisa was in contempt of court for picking up A.C. early on Andriy's days so as to prevent A.C. from spending time with his paternal grandparents, thereby violating the provision in the stipulated judgment stating that the right of first refusal "shall not be interpreted as to prevent the minor child from spending reasonable amounts of time with his grandparents." The court declined to sentence her for her contempt "at this time and hereby reserves the right to sentence her for the contempt, as well as order the payment of attorney's fees and court costs should she violate the Judgment in the future."
The parties were to cooperate in the scheduling of necessary appointments with the parenting coordinator and share equally the costs of such appointments.
The judgment also provided that Andriy was responsible for 83% and Alisa 17% of aftercare expenses, extracurricular expenses, and medical expenses not covered by insurance. The judgment ordered that Andriy continue to be granted the right to claim A.C. for the federal and state income tax deduction. The judgment also denied the following requests by Alisa: to modify the right of first refusal; to prohibit unrelated overnight guests; to prohibit alcohol consumption during custodial periods; to require the parties to discuss interstate travel forty-eight hours before the trip and to provide destination and contact information; and to return her passport; and to prohibit Lien from picking up A.C. or posting pictures of him on social media.
Alisa appeals the judgment, raising six assignments of error. She contends that the trial court erred in failing to name her as domiciliary parent, in ordering A.C. to attend school in Livingston Parish instead of East Baton Rouge Parish, in failing to establish an implementation order, in using incomplete income information from 2017 to calculate Andriy's child support obligation instead of his 2016 tax return, in ordering that A.C. be placed on Andriy's insurance and that Andriy receive a credit for the premiums, and in finding her in contempt for exercising her right of first refusal. Andriy answered the appeal, contending that the trial court erred in failing to sentence Alisa for her contempt of court and in failing to order her to pay his reasonable attorney's fees and costs incurred in filing the contempt action. Andriy also seeks to be named as the domiciliary parent if this court finds that the trial court erred in failing to designate a domiciliary parent.
While the answer to the appeal states that Andriy was aggrieved by the trial court's failure to designate him the domiciliary parent, in his brief he urges this contention only in the event this court determines the trial court erred in declining to designate a domiciliary parent.
APPLICABLE LAW
The court shall award custody in accordance with the best interest of the child. La. C.C. art. 131. Indeed, the best interest of the child is the sole criterion to be met in making a custody award and the trial court must pursue actively that course of conduct which will be of the greatest benefit to the child. It is the child's emotional, physical, material and social well-being and health that are the court's very purpose in child custody cases; the court must protect the child from the real possibility that the parents are engaged in a bitter, vengeful, and highly emotional conflict. Hodges v. Hodges, 2015-0585 (La. 11/23/15), 181 So.3d 700, 702.
If the parents agree who is to have custody, the court shall award custody in accordance with their agreement unless the best interest of the child requires a different award. La. C.C. art. 132. In the absence of an agreement, or if the agreement is not in the best interest of the child, the court shall award custody to the parents jointly; however, if custody in one parent is shown by clear and convincing evidence to serve the best interest of the child, the court shall award custody to that parent. Id.
Louisiana Civil Code article 132 has been amended by Acts 2018, No. 412 § 1, effective May 23, 2018. The amendment does not have an effect on the analysis in this opinion. See Lowe v. Bacon, 2018-0766 (La. App. 1 Cir. 11/6/18), 2018 WL 5817280, at p.3 n.7 (unpublished opinion).
In determining the best interest of the child, the court shall consider all relevant factors, and such factors may include those enumerated in La. C.C. art. 134. 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. Ehlinger v. Ehlinger, 2017-1120 (La. App. 1 Cir. 5/29/18), 251 So.3d 418, 422. 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. Id. A trial court's determination regarding child custody will not be disturbed absent a clear abuse of discretion. Id.
As provided by La. C.C. art. 134 in effect at the time of the hearing, all relevant factors must be considered in determining the best interest of the child. Such factors may include: (1) the love, affection, and other emotional ties between each party and the child; (2) the capacity and disposition of each party to give the child love, affection, and spiritual guidance and to continue the education and rearing of the child; (3) the capacity and disposition of each party to provide the child with food, clothing, medical care, and other material needs; (4) the length of time the child has lived in a stable, adequate environment, and the desirability of maintaining continuity of that environment; (5) the permanence, as a family unit, of the existing or proposed custodial home or homes; (6) the moral fitness of each party, insofar as it affects the welfare of the child; (7) the mental and physical health of each party; (8) the home, school, and community history of the child; (9) the reasonable preference of the child, if the court deems the child to be of sufficient age to express a preference; (10) the willingness and ability of each party to facilitate and encourage a close and continuing relationship between the child and the other party; (11) the distance between the respective residences of the parties; and (12) the responsibility for the care and rearing of the child previously exercised by each party. Louisiana Civil Code article 134 has been amended by Acts 2018, No. 412 § 1, effective May 23, 2018. The amendment does not have an effect on the analysis in this opinion. See Lowe v. Bacon, at p. 3 n.7.
Additionally, as in most child custody cases, the trial court's determination as to what is in the best interest of the child is based heavily on factual findings. It is well settled that an appellate court may not set aside a trial court's findings of fact in the absence of manifest error or unless those findings are clearly wrong. Rosell v. ESCO, 549 So.2d 840, 844 (La. 1989). If the findings are reasonable in light of the record reviewed in its entirety, an appellate court may not reverse those findings even though convinced that had it been sitting as the trier of fact, it would have weighed the evidence differently. Ehlinger, 251 So.3d at 422.
We note that Alisa's reliance on Hodges, 181 So.3d at 703, in support of her contention that the trial court committed legal error in failing to designate a domiciliary parent is misplaced because in Hodges, the trial court designated co-domiciliary parents.
The previous stipulated judgment of February 21, 2017, awarding the parties joint custody without designating a domiciliary parent, stated that it was set "without prejudice to the rights of either party to seek a redetermination thereof without having to show a change in circumstances," thereby dispensing with the heightened burden of proof required in child custody modification cases. See Burns v. Burns, 2017-0343 (La. App. 1 Cir. 11/3/17), 236 So.3d 571, 573. Neither party challenges the validity of this provision as to the burden of proof, and therefore, this court considers the instant case on appeal as it was at trial, as an initial setting of custody.
DOMICILIARY PARENT AND IMPLEMENTATION ORDER
In Alisa's first assignment of error, she contends that the trial court erred in failing to name her as the domiciliary parent, and in her third assignment of error, she contends that the implementation order does not designate the parties' legal authority to make decisions on behalf of A.C. Alisa contends that naming her as domiciliary parent is in the best interest of the child because she has been A.C.'s primary caregiver for an overwhelming majority of his life. She claims that Andriy was absent for large portions of A.C.'s formative years and is incapable of caring for A.C. during his exercise of custody. She next argues that because of Andriy's work hours, Lien, a new person in A.C.'s life, cared for A.C. before daycare and on Saturdays when Andriy worked. Lien also picked A.C. up from daycare. In contrast to Andriy, Alisa states that her work schedule is flexible and, because she is not in a relationship, she could focus on A.C. She also points out that her mother could help her with A.C. and that her grandparents live next door to her whereas Andriy's parents lived in Mississippi.
The trial court in oral reasons for judgment thoroughly considered all the best interest factors in determining that joint custody should be maintained without either parent being designated the domiciliary parent. As to Alisa's contention that she was A.C.'s primary caregiver, particularly when Andriy was working out of state, such that she had more love and affection for the child, the trial court commented that, while that was quite possibly true during A.C.'s first year or two, the court was looking at the entirety of A.C.'s life and considering Andriy's current ties with A.C. The court determined that the love, affection, and emotional ties with A.C. did not weigh in favor of either party, nor did the capacity and disposition of each party to give A.C. love, affection, and spiritual guidance and to continue his education. The trial court commented that the parties had the ability to communicate better. The trial court found that, while both parties had the ability to provide food, clothing, medical care, and other material needs, Andriy was better able to do so. As to the length of time A.C. was in a stable, adequate environment, the trial court noted that Andriy had lived in the same house since A.C. was born, although he noted that there was some carpeting in the house and that Alisa said A.C. was sensitive to it due to allergies. Regarding the permanence of the family unit, the trial court found that, although Andriy was engaged and Alisa was not interested in relationships at the time of the hearing, he was not weighing that factor in either party's favor.
Concerning the moral fitness of each party, and the parties' medical and physical health, the trial court found that both parties were equal. The trial court stated that as to the home, school, and community history, A.C.'s first home was Andriy's home in Livingston Parish so that factor could slightly weigh in favor of Andriy. The trial court commented that because A.C. was only five years old, reasonable preference was not an issue. As to the willingness and ability of each party to facilitate and encourage a close and loving relationship between the child and the other party, the trial court noted that Andriy encouraged A.C.'s relationship with Alisa and freely admitted she was a good mother. However, as to Alisa, the court pointed out that Alisa could not answer when asked whether Andriy loved A.C., and she was very hesitant to state whether A.C. loved Andriy. The trial court added that, other than what A.C. might have told her, there was no evidence to support such hesitation and non-responsiveness. The trial court found that the parties did not live too far from one another. Regarding the responsibility for the care of A.C. previously exercised, the trial court stated that before the hearing, this factor weighed in favor of Alisa, but the court did not want to penalize Andriy because when Andriy and Alisa were together, they jointly decided that Andriy should work out of state to make more money. The trial court determined that after considering all the factors, the current agreement for joint custody should be maintained.
Regarding the designation of a domiciliary parent, the trial court stated:
[A]t this time, I don't believe that there is a reason to designate a domicil[iary] parent and I'm going to tell you why. Um, I think that once we get the school decision made the parties will be able to go from there and uh, hopefully, make major decisions by discussing it beforehand.
My concern with - with naming [Alisa] domiciliary parent today is, is that there has been evidence submitted that there's not a whole lot of communication right now. And I don't want to take this period of time, this stretch of time, after last November-October/November of last year, and forever say, that [Alisa] doesn't have the ability and is -- and then it's going to be [Andriy].
And at the same time, uh, I think [Andriy] would make good decisions but I - I just feel like that's a penalty to [Alisa] for this period of time, October of last year when the - the - the emotions flared and hopefully it's starting to taper off. Uh, and I think if we had the school decision, everybody's fixed by that, and as long as we have they -- they have to agree on major decisions, otherwise, everybody's coming back to
court after they go to a parenting coordinator first. That's another thing I want to appoint a parenting coordinator for those types of issues.Louisiana Revised Statutes 9:335 governs joint custody arrangements and provides, as follows:
Um, that um, at this point, I don't see uh, -- or I find it uh, - uh, in the best interest of [A.C.] to not name a domiciliary parent at this time.
A. (1) In a proceeding in which joint custody is decreed, the court shall render a joint custody implementation order except for good cause shown.
(2) (a) The implementation order shall allocate the time periods during which each parent shall have physical custody of the child so that the child is assured of frequent and continuing contact with both parents.
(b) To the extent it is feasible and in the best interest of the child, physical custody of the children should be shared equally.
...
(3) The implementation order shall allocate the legal authority and responsibility of the parents.
B. (1) In a decree of joint custody the court shall designate a domiciliary parent except when there is an implementation order to the contrary or for other good cause shown.
(2) The domiciliary parent is the parent with whom the child shall primarily reside, but the other parent shall have physical custody during time periods that assure that the child has frequent and continuing contact with both parents.
(3) The domiciliary parent shall have authority to make all decisions affecting the child unless an implementation order provides otherwise. All major decisions made by the domiciliary parent concerning the child shall be subject to review by the court upon motion of the other parent. It shall be presumed that all major decisions made by the domiciliary parent are in the best interest of the child.
C. If a domiciliary parent is not designated in the joint custody decree and an implementation order does not provide otherwise, joint custody confers upon the parents the same rights and responsibilities as are conferred on them by the provisions of Title VII of Book I of the Civil Code.
(Emphasis added.)
Louisiana Revised Statutes 9:335(A)(2) has been amended by Acts 2018, No. 378 § 1, effective May 20, 2018, to provide that the implementation order shall include a provision covering custody during an emergency or disaster. This amendment has no effect on the analysis in this opinion. See Lowe v. Bacon, at p. 3 n.7.
Louisiana Revised Statutes 9:336 also provides that "[j]oint custody obligates the parents to exchange information concerning the health, education, and welfare of the child and to confer with one another in exercising decision-making authority." Major decisions normally include decisions concerning major surgery or medical treatment, elective surgery, and schools attended, but not the day-to-day decisions involved in rearing a child, e.g., bedtimes, curfews, household chores, and the like. See Griffith v. Latiolais, 2010-0754 (La. 10/19/10), 48 So.3d 1058, 1069. Non-major decisions are not subject to judicial review. Id.
Thus, according to Subsection B of La. R.S. 9:335, the trial court shall designate a domiciliary parent in a decree of joint custody. However, La. R.S. 9:335(B)(1) provides for two circumstances in which a court may decline to name a domiciliary parent in a joint custody context, that is, when "there is an implementation order to the contrary" or "for other good cause shown." An "implementation order to the contrary" must meet the requirements of La. R.S. 9:335(A) by specifically allocating physical custody times for each parent and allocating the legal authority and responsibility of the parents. Hodges, 181 So.3d at 708; Ehlinger, 251 So.3d at 424; Wolfe v. Hanson, 2006-1434 (La. App. 1 Cir. 5/2/08), 991 So.2d 13, 17, writ denied, 2008-1205 (La. 6/27/08), 983 So.2d 1292.
We must now consider whether either of the exceptions sets forth in La. R.S. 9:335(B)(1) exist in this case to justify the trial court's failure to designate a domiciliary parent, that is, whether the trial court issued an implementation order or whether good cause was shown. In Wolfe, this court noted that the statute does not define "good cause" and referred to Walker v. Walker, 38,982 (La. App. 2 Cir. 8/18/04), 880 So.2d 956, 961-62, for guidance. Wolfe, 991 So.2d at 17. In Walker, the Second Circuit held that a trial court's given reasons for not naming a domiciliary parent amounted to an "open-ended conclusion" based on the trial court's "comfort level" that did not reach the standard of "good cause shown." Walker, 880 So.2d at 961-62. Good cause should be supported by facts in the record. If good cause is shown, then section (C) of the statute applies and the custody arrangement will operate under "the provisions of Title VII of Book I of the Civil Code." Wolfe, 991 So.2d at 17. In Wolfe, this court found that good cause did not exist where the mother had previously acted as the domiciliary parent pursuant to court orders, the trial court acknowledged the parties' inability to communicate rationally and effectively, court-appointed experts recommended that a domiciliary parent be named, and "heated arguments" between the parties had led to police involvement. Wolfe, 991 So.2d at 18-19.
We find that the trial court's determination that the parties' lack of communication was temporary and based largely on one major issue (their disagreement over the choice of their son's first elementary school) was sufficient to constitute good cause not to designate a domiciliary parent under the particular circumstances of this case. With the trial court deciding which school A.C. should attend and appointing a parenting coordinator, the trial court determined that the parties would be able to make major decisions jointly and would be able to communicate better. The trial court effectively maintained the stipulated judgment the parties entered into one month before Alisa filed her rule to be named domiciliary parent. We cannot say that the trial court abused its discretion in failing to designate a domiciliary parent and Alisa's first assignment of error has no merit.
Because we find the trial court did not abuse its discretion in declining to designate a domiciliary parent, we need not address the alternate contention Andriy raised in his answer to the appeal, that is, if this court found the trial court erred in failing to designate a domiciliary parent, he should be named the domiciliary parent.
As to Alisa's third assignment of error, that the trial court erred in failing to establish an implementation order, Alisa contends that where there is no domiciliary parent, the trial court must enter an implementation order designating which party has the legal responsibility to make decisions for the child. Alisa requests that if this court affirms the trial court's failure to designate a domiciliary parent, it should remand the matter for the entry of an implementation order that validly allocates the legal authority and responsibility for the parents, citing La. R.S. 9:335(A)(3).
The instant judgment sets forth the school A.C. will attend, child support, responsibility for health insurance, entitlement to the income tax deduction, financial responsibility for aftercare, extracurricular, and medical expenses not covered by insurance, and the requirement that the parties engage a parenting coordinator to "to assist them in resolving disputes and facilitating communications regarding the minor child." The judgment also states that the trial court declined to modify the physical custody schedule in the prior stipulated judgment except as to Father's Day and A.C.'s birthday. In addition to specifically referring to the prior stipulated judgment for its physical custody provisions, the instant judgment states that Alisa's request to modify the right of first refusal as set forth in the stipulated judgment is denied. Otherwise, the instant judgment does not refer to the prior judgment as a basis for the parties' authority.
Louisiana Revised Statutes 9:358.1 provides for the appointment of a parenting coordinator, as follows:
A. On motion of a party or on its own motion, the court may appoint a parenting coordinator in a child custody case for good cause shown if the court has previously entered a judgment establishing child custody, other than an ex parte order. The court shall make the appointment on joint motion of the parties.
B. The initial term of the appointment of the parenting coordinator shall not exceed one year. For good cause shown, the court may extend the appointment of the parenting coordinator for additional one year terms.
C. The court shall order each party to pay a portion of the costs of the parenting coordinator. No parenting coordinator shall be appointed by the court if a party has been granted pauper status or is unable to pay his apportioned cost of the parenting coordinator.
The judgment at issue does not set forth the legal authority and responsibility for major decisions such as medical care, elective surgery, dental care, or orthodontic care. The prior stipulated judgment contained the following language:
IT IS FURTHER ORDERED, ADJUDGED AND DECREED that the following custody provisions be implemented:This language is not specifically referred to in the judgment on appeal, and additionally, in the judgment at issue, a parenting coordinator was appointed to assist the parties in resolving disputes and to facilitate communications about A.C.
. . .
4. It is agreed that the parties shall maintain regular and open communications regarding the child in an effort to mutually agree concerning the general health, welfare, education and development of the minor child to the end that they may adopt a mutually harmonious policy concerning the child's care and upbringing. It is agreed that neither shall ignore the input of the other by the failure to communicate or inform each other of decisions on important matters[.]
Andriy contends that the judgment at issue is a valid implementation order. In Ehlinger, this court recently determined that an implementation order wherein the court awarded joint custody without designating a domiciliary parent was insufficient where the judgment allocated physical custody and the authority to administer medical care along with steps for resolution of any disputes regarding medical care, but did not allocate legal authority and responsibility for major decisions. Ehlinger, 251 So.3d at 426.
In Ehlinger, this court remanded the matter to the trial court for the entry of a joint custody implementation order allocating not only the legal authority and responsibility of the parents regarding health decisions for the minor children, but also the legal authority and responsibility of the parents with regard to other major decisions as to the health, education, and welfare of the minor children. Ehlinger, 251 So.3d at 426.
In the case at bar, the judgment does not clearly allocate legal authority and responsibility for major decisions as is required for an implementation order. In Hodges, the supreme court commented that a court is not required to issue a joint custody implementation order when there is good cause shown, referring to La. R.S. 9:335(A)(1). Hodges, 181 So.3d at 705. In this case, the trial court did not indicate that an implementation order was not necessary based on good cause. In cases where the trial court fails to name a domiciliary parent, it is incumbent upon the trial court to render a definite implementation order in accordance with La. R.S. 9:335(A)(1). The parties must have a clear understanding of their rights and responsibilities. Because there is no valid joint custody implementation order in this case, Alisa's third assignment of error has merit, and we remand this matter to the trial court for the entry of a joint custody implementation order allocating the legal authority and responsibility of the parents. See Ehlinger, 251 So.3d at 426.
In Hodges, because the trial court provided a judgment that sufficed as an implementation order in all aspects except allocating legal authority, the supreme court remarked that it was apparent the trial court intended its judgment to serve as an implementation order, and, therefore, the trial court did not find good cause for not issuing an implementation order. Hodges, 181 So.3d at 711. In Ehlinger, as in Hodges, the court did not consider whether good cause existed "for not issuing an implementation order as the trial court rendered a "Judgment on Rule Granting Joint Custody with Incorporated Implementation Order," clearly finding that an implementation plan was necessary. Ehlinger, 251 So.3d at 425 n.7.
SCHOOL
In Alisa's second assignment of error, she contends that the trial court erred in ordering A.C. to attend school in Livingston Parish, arguing that he had always been educated in East Baton Rouge Parish. She also alleged that the trial court found that Lewis Vincent was "more convenient" to Andriy, the only parent residing in Livingston Parish; however, she pointed out that Andriy was unable to transport A.C. to and from school and would rely on Lien to do so. Alisa points out that she was able to drive A.C. to and from school, but if he had to attend school in Livingston Parish, she would have to drive from Central in the morning to the school, then back to Baton Rouge for work, with a return trip to Livingston Parish and then Central in afternoon traffic.
Before trial, Alisa argued that A.C. should attend Victory Academy, a private school in East Baton Rouge Parish, but at the trial she put forth Bellingrath Hills Elementary School (Bellingrath) in Baton Rouge as the preferred school for the first time, over the objection of Andriy's counsel. Alisa's testimony focused on her convenience in choosing the school, referring to her drive and the traffic. The trial court found no reasonable expectation that A.C. would go to school in Baton Rouge when he had lived from birth in Livingston Parish; it also found that Lewis Vincent was a higher-rated school and, while it was conveniently located for Andriy, traveling to the school was not extraordinarily inconvenient for Alisa.
The trial court did not abuse its discretion in finding that requiring A.C. to attend Lewis Vincent was in his best interest. The court relied on several factors in determining the school for A.C. to attend. The court noted that the Louisiana Department of Education report card received in evidence showed that Lewis Vincent had an "A" rating and Bellingrath had a "B" rating with a downward trend in ratings each year. Additionally, we note that, while Alisa contends that A.C. always attended school in East Baton Rouge Parish, he was not in school, but rather enrolled in daycare and preschool in Baton Rouge at three different locations, not kindergarten or elementary school. Therefore, we find, based on the factors outlined by the trial court in stating his reasons, that Alisa's second assignment of error has no merit.
CHILD SUPPORT
In Alisa's fourth assignment of error, she contends that the trial court erred in basing its child support award on Andriy's 2017 income instead of his 2016 income tax return. She claims that the 2017 income information is limited and incomplete.
The Louisiana Child Support Guidelines set forth the method for implementation of the parental obligation to pay child support. See La. R.S. 9:315.1(A). Louisiana Revised Statutes 9:315.2 requires the court to calculate a basic child support obligation by combining the parents' adjusted gross incomes, determining each party's percentage share of the combined adjusted gross income, and applying these calculations to the schedule contained in La. R.S. 9:315.19. Louisiana Revised Statutes 9:315.2(A) states, in pertinent part:
Each party shall provide to the court a verified income statement showing gross income and adjusted gross income, together with documentation of current and past earnings. . . . Suitable documentation of current earnings shall include but not be limited to pay stubs or employer statements. The documentation shall include a copy of the party's most recent federal tax return.Generally, an appellate court will not disturb a child support order unless there is an abuse of discretion or manifest error. Nezat v. Guzman, 2014-0358 (La. App. 1 Cir. 3/17/15) 2015 WL 1231551, *3 (unpublished opinion), writ denied, 2015-0748 (La. 5/15/15), 170 So.3d 970.
(Emphasis added).
As noted earlier in this opinion, the stipulated judgment the parties entered into that was signed in February of 2017 provided that it was without prejudice to either party's rights to seek a redetermination without having to show a change in circumstances.
In its reasons for judgment, the trial court determined that Alisa's earnings were $1,820 per month. The trial court calculated that Andriy earned $9,180 per month based on his paycheck stubs from Brock Services, LLC (Brock) from May 7, 2017 through July 23, 2017. The trial court then applied the Louisiana Child Support Guidelines to these figures to determine child support.
We note that the check stub that Alisa submitted showed that she earned $12 per hour and worked twenty-seven hours for the period from May 14, 2017 to May 27, 2017. However, the trial court based its finding on Alisa's testimony that she worked thirty-five hours per week and earned $1,820 per month and her mother's testimony that Alisa's hours were from nine in the morning until four in the afternoon. There was no challenge to these figures by any party.
To obtain the $9,180 figure, the trial court divided the gross earnings of $23,041.18 by 2.51, which represented the time Andriy worked for Brock Services, LLC.
The trial court did not consider Andriy's income in 2016 as shown on his income tax return, nor did it consider his income earlier in 2017 from two other employers. Andriy testified that since his job in Washington between February and March of 2017, he had not worked, and would no longer be working, out of state. He testified that he earned more money working out of state but that his priority was his son. Thus, the trial court did not consider income from Andriy's work out of state, which was reflected in the 2016 tax return and in the Washington state job Andriy held in February of 2017 for five weeks.
In addition to his job for Brock in Louisiana in 2017, Andriy testified he worked in Louisiana for Marathon/SWAT in January and part of February of 2017 for four to five weeks or less. According to Andriy, he earned $36 to $37 per hour for forty hours per week initially, then sixty to seventy hours per week in turnaround mode. He then worked in Washington, and when he returned to Louisiana, he was unemployed for a while before working for Brock. When questioned, it was unclear whether Andriy had paycheck stubs from the Marathon job; the trial court commented that if it was not supplied pay stubs from the beginning of the year, it would use only the "146", which was the gross income of $146,523 from Andriy's 2016 tax return. Alisa's counsel replied, "I'm fine with that. ... [Andriy's counsel] doesn't have them." The trial court then said if the parties wanted to get the actual documents and set another date for a child support hearing, it would do that. Thereafter, a discussion ensued about the consideration of Andriy's current earnings rather than his earlier income, with Alisa's counsel interjecting, "So I'd like to reserve it, open, to supply all of the paychecks, from all the various—because he's had four to five jobs up until now, for this year." The trial court responded, "Okay. Well, let's go ahead and admit what you've got, and I'll take a look at that." The court left the record open for Andriy to supply all of his employee payroll records for 2017. At the conclusion of the trial, when the trial court in its oral ruling did not use the 2016 income in determining child support, but rather based the calculations on the Brock earnings, Alisa's counsel did not request a continuance or object; moreover, counsel did not raise the issue at the later hearing the trial court held to rule upon the contempt issue.
We cannot say that the trial court abused its discretion in declining to include Andriy's past income from temporary out-of-state jobs in calculating child support because this income was not his current income. Alisa complains in brief that this matter should be remanded because the trial court did not have all of the evidence on Andriy's current wages. We note that while this matter was tried on July 14, 2017, August 11, 2017, and August 29, 2017, Alisa did not seek an order from the trial court or request a continuance so that Andriy could submit the additional paystubs. This assignment of error has no merit.
As in all child support proceedings, Alisa has the right to request an increase in child support if she can show a material increase in Andriy's wages.
HEALTH INSURANCE
In Alisa's fifth assignment of error, she contends that the trial court erred in ordering A.C. to be placed on Andriy's insurance and that Andriy receive a credit for the premiums. She asserts that there was no evidence as to the insurance's availability, nature, or expenses to show that it was in the best interest of the child.
Louisiana Revised Statutes 9:315.4(A) provides that in any child support case, the court may order one of the parties to enroll or maintain an insurable child in a health benefits plan, policy, or program. In determining which party should be required to maintain such insurance on behalf of the child, the court shall consider each party's individual, group, or employee's health insurance program, employment history, and personal income and other resources. La. R.S. 9:315.4(A). The trial court is vested with much discretion on the issue of health insurance and medical expenses. In re Touchet, 2013-0815 (La. App. 1 Cir. 9/13/13), 135 So.3d 30, 35.
Based on Andriy's testimony, the trial court found it was in the best interest of A.C. for Andriy to have A.C. on his insurance policy. While Alisa is correct that there was no testimony or evidence regarding the insurance coverage, we cannot say the trial court abused its discretion. Andriy testified that he had health insurance through his employer whereas Alisa did not present testimony or evidence as to whether she had health insurance available to her through her employer. Therefore, this assignment of error has no merit.
Andriy's check stubs for July of 2017 show deductions for medical insurance whereas Alisa never had private health insurance on A.C.; according to her testimony, she and A.C. were covered by Medicaid.
CONTEMPT
In Alisa's sixth assignment of error, she contends that the trial court erred in finding her in contempt. Andriy answered the appeal, arguing that the trial court erred in declining to sentence Alisa for contempt and to assess her with attorney's fees and costs. The trial court found Alisa in contempt of court for violating the provision in the February 2017 stipulated judgment that provided the noncustodial parent's right of first refusal "shall not be interpreted as to prevent the minor child from spending reasonable amounts of time with his grandparents." Specifically, the instant judgment states that the trial court found Alisa in contempt of court "for picking up the minor child early on [Andriy's] days so as to prevent [A.C.] from spending time with his paternal grandparents...." The trial court declined to sentence Alisa at the time of the judgment and reserved "the right to sentence her for the contempt, as well as order the payment of attorney's fees and court costs should she violate the Judgment in the future."
The entire first refusal provision states:
Each parent shall have the right of first refusal to keep the minor child should the custodial parent be unavailable overnight. The parent who will be unavailable shall advise the other parent as soon as they learn they will be unavailable. The parent who has the option to keep the minor child shall promptly respond as to whether or not they wish to exercise the right of first refusal so that alternate arrangements can be made if they decline to keep the child. This provision shall not be interpreted as to prevent the minor child from spending reasonable amounts of time with his grandparents.
According to La. C.C.P. art. 224(2), a person may be found in constructive 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 v. Dickens, 2006-0898 (La. App. 1 Cir. 2/9/07), 959 So.2d 940, 947. The burden of proof in a civil contempt case is by a preponderance of the evidence. Bents v. Bents, 2015-1306 (La. App. 1 Cir. 9/9/16) 2016 WL 4719795, *3 (unpublished opinion), writ denied, 2016-1822 (La. 11/29/16), 211 So.3d 389; 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.
In this case, the parties treat the contempt as civil; however, whether the contempt is civil or criminal is determined based upon the sentence imposed. Without a sentence in this case, we cannot determine the appropriate burden of proof. Suazo v. Suazo, 2010-0111 (La. App. 1 Cir. 6/11/10), 39 So.3d 830, 832. While the trial court's intent may have been to allow Alisa to purge herself of the contempt if she complied with the trial court's judgment and thereby make any penalty for contempt conditional, the judgment did not achieve this effect because no sentence for contempt was ever imposed. Although the ruling may be interlocutory due to the trial court's failure to impose a sentence, we will review it pursuant to our supervisory jurisdiction. See La. Const. art. V § 10(A). We note that Alisa filed her motion to appeal from the trial court's judgment within the thirty-day delay for seeking supervisory writs. See Uniform Rule 4-3; La. C.C.P. art. 1914.
On February 23, 2017, while Andriy was working in Washington, he sent Alisa a text stating that his parents wanted to visit with A.C. during his weekend and that he would have Lien pick A.C. up from school. Alisa texted back "No, custody is between you and me[,] not our partners." She picked up A.C. from school early so that when Lien arrived at the school, A.C. was already gone. Andriy's counsel then sent Alisa a letter stating that Andriy's parents wanted to have A.C. the weekend of March 10, 2017, but Alisa again picked up A.C. from school early.
Alisa testified that, because she knew Andriy was working out of state, she knew he would not be bringing A.C. to Mississippi where his parents lived. She testified that in the past, Andriy's parents would call or text her to arrange their visit and they would meet in Hammond to pick up A.C. from her. According to her, she texted Andriy that his parents were welcome to see A.C. anytime, but she did not want Lien to transport A.C. out of the state to Mississippi. She did not believe the judgment allowed Lien to pick Andriy up from school. Alisa testified she told Andriy his parents could call or text her so they could arrange to meet somewhere as they had done in the past, and they never did contact her or pick up A.C. Alisa stated that because Andriy's parents had not contacted her, she did not know what arrangements had been made for them to see A.C. Alisa testified that Andriy's parents were not communicating with her; Andriy testified that he did not have them contact Alisa as to the visitation because he had told them not to communicate with her.
On appeal, Alisa argues that the trial court's first refusal order was vague. She also asserts that she did not prevent Andriy's parents from having A.C. as they could have picked him up from her, and they did not. Andriy claims that Alisa knowingly violated the first refusal provision without justifiable excuse. After reviewing the testimony and the stipulated judgment, we find that Alisa's contentions have merit and that the trial court abused its discretion in finding that she willfully disobeyed the judgment without justifiable excuse. The judgment provided that the party exercising his or her right of first refusal was not to interfere with reasonable visitation by the grandparents. This provision is vague and subject to multiple interpretations. Such a vague provision shall not be the basis for a contempt action.
Therefore, we find Alisa's sixth assignment of error has merit, and we reverse the trial court's finding of contempt. We need not address Andriy's contention regarding the trial court's failure to sentence Alisa for contempt or to assess her with a punishment.
DECREE
For the above and foregoing reasons, we affirm those parts of the judgment concerning the refusal to designate a domiciliary parent, the designation of Lewis Vincent Elementary School as the child's school, the requirement that Andriy Olegovich Chebanu provide health insurance for the child, and the child support award. We reverse that part of the judgment finding Alisa Olegovna Romadanova in contempt of court. We remand this matter to the trial court for the entry of a joint custody implementation order consistent with this opinion. We deny Andriy Olegovich Chebanu's answer to the appeal.
The costs of this appeal are assessed equally to Alisa Olegovna Romadanova and Andriy Olegovich Chebanu.
AFFIRMED IN PART, REVERSED IN PART, AND REMANDED; ANSWER TO APPEAL DENIED. PENZATO, J., concurs.
I respectfully concur with the majority opinion. I agree with the result reached, but I believe that this court lacks appellate jurisdiction to review the October 3, 2017 judgment and I would elect to exercise our supervisory jurisdiction and convert the appeal to an application for supervisory writs.
The October 3, 2017 judgment that Ms. Romadanova appealed decreed that she was in contempt of court, but it failed to impose a sanction. As recognized by the majority, this portion of the judgment is an interlocutory ruling which is not appealable. See Suazo v. Suazo, 2010-0111 (La. App. 1 Cir. 6/11/10), 39 So. 3d 830, 832. While those portions of the October 3, 2017 judgment concerning custody, visitation, and child support are subject to appellate review pursuant to La. C.C.P. art. 3943, I do not agree that a portion of a judgment can be subject to appellate review, while another portion of the same judgment is interlocutory and not appealable. HIGGINBOTHAM, J. dissenting in part and concurring in part.
I respectfully disagree with the portion of the opinion reversing the trial court's decision finding Alisa in contempt for a willful violation of the "right of first refusal" provision in the stipulated judgment. The stipulated judgment provided that the right of first refusal provision "shall not be interpreted as to prevent the minor child from spending reasonable amounts of time with his grandparents." The evidence revealed that on at least two occasions, when Alisa was advised that Andriy's parents would be visiting with A.C. during Andriy's custodial period, Alisa picked up A.C. from school early to prevent visitation with Andriy's parents, visitation that was explicitly permitted in the judgment.
Alisa admitted that on one of those occasions, despite being advised by counsel that Andriy's parents would be exercising visitation with A.C. and being asked not to interfere, she checked A.C. out of school early thereby preventing Andriy's parents from visiting with A.C. as previously scheduled. Alisa's testimony indicated that she did so knowingly and without justifiable excuse. Considering the evidence, the trial court did not abuse its great discretion in finding Alisa in contempt for a willful violation of the stipulated judgment. I would remand the matter to the trial court to specify and execute Alisa's sentence and punishment for finding her in contempt.
Additionally, remanding this matter to the trial court for a joint custody implementation order is unnecessary. The judgment in its reference to and continuation of the custody and implementation order provisions of the earlier detailed judgment and in its establishment of additional provisions regarding the rights and responsibilities of the parties, clearly meets the requirements of La. R.S. 9:355 for implementing a joint custody order.
In all other respects, I concur with the decision of the majority.