FROM THE THIRTY FIRST JUDICIAL DISTRICT COURT PARISH OF
JEFFERSON DAVIS, NO. C-398-14 HONORABLE STEVE GUNNELL,
M. Oubre ATTORNEY FOR PLAINTIFF/APPELLANT: Kimberly Beth
Cassidy ATTORNEY FOR DEFENDANT/APPELLEE: Nathaniel Stuart
composed of Chief Judge Ulysses Gene Thibodeaux, Sylvia R.
Cooks, and Elizabeth A. Pickett, Judges.
R. COOKS JUDGE
Beth Hensgens Guinn (Kimberly) filed a petition for divorce
from Nathaniel Stuart Guinn (Stuart) on June 25, 2014, in
which she prayed for joint custody of their three minor
children. The three children are ages ten (M.K.G),
eight (N.S.G.) and six (G.E.G.). She also asked to be named
domiciliary parent with Stuart to have reasonable access to
the children. Stuart filed an answer and reconventional
demand on July 18, 2014 seeking joint custody and equal
access to the children by both parents. On August 12, 2014,
the parties appeared in open court and entered into the
record a consent agreement on custody and visitation. The
parties agreed to joint custody with Kimberly named as
domiciliary parent. The agreement set forth an express
schedule of visitation for Stuart covering the immediate
future but left summer visitation "to be determined
later." The trial court instructed Kimberly's
attorney to prepare a judgment based upon the stipulations
and directed Stuart's attorney to prepare a
"standard joint custody implementation plan." The
agreement also provided that neither party engage in any
activity to alienate or adversely affect the children and
provided "alternating holiday periods according to the
school calendar." Neither party filed any judgment or
implementation plan with the trial court.
November 5, 2014, Stuart filed a motion and order in which he
asserted that the stipulation made in court on August 12,
2014, had never been reduced to a signed judgment. He
attached a proposed implementation plan and a proposed
judgment, and sought a new court date for a hearing to
determine custody and visitation of the three children. Two
days later, November 7, 2014, Kimberly filed a motion to
modify and/or clarify custody and visitation. She, too,
asserted the stipulation of August 12, 2014 was not reduced
to writing and she further alleged Stuart's proposed
judgment and proposed implementation plan did not conform to
the agreement made in open court. Kimberly asserted the two
proposed documents "expands to areas/issues not
stipulated to by the parties nor raised in any pleading to
date." Kimberly sought to have the trial court adopt a
joint custody plan.
and Kimberly once again appeared in court on December 16,
2014. According to the court minutes, following a pre-trial
conference with the parties and their attorneys present, the
trial court entered an order on the record, in open court.
The court minutes reflect that: "Both parties are
present in the Courtroom and state that they have heard the
stipulation, understand it and agree to it"
(emphasis added). The judgment, signed on December 30, 2014,
provided for joint custody of the minor children "with
the parties having such custodial privileges and Christmas
Holiday visitation, as specifically stated by and
acknowledged by both parties in Open Court, this date,
pending further order of this court" (emphasis added).
The judgment also ordered that neither party "shall
allow Paul Douglas Blank (Doug) to have any contact
whatsoever with the minor children of the parties, pending
further order of this Court." The parties were also
ordered to mediate the issues of custody and visitation and
to develop "an appropriate Joint Custody Implementation
Plan." The trial court continued all pending rules
without date "pending the completion of the mediation
next filed a petition on rule on April 28, 2015, alleging
Kimberly was in contempt of the court's ruling by
allowing contact between the minor children and Doug six
different times from March 14, 2015 to April 16, 2015. Stuart
also prayed to be made domiciliary parent of the minor
children and that the children be permitted to continue
living in Jennings.
and Stuart next appeared in court on May 5, 2015. The trial
court set a date for hearing because the effort at mediation
failed. The trial court refused Kimberly's request to
remove the prohibition previously put in place forbidding
Doug from being in the presence of the parties' minor
children. The trial court emphasized that the prohibition was
"the Court's order." Kimberly and Doug share a
child out of wedlock born prior to her marriage to Stuart,
and they have a child recently born out of marriage during
the pendency of these proceedings. Kimberly and Doug were
romantically involved before Kimberly met Stuart, and, when
this child was almost a year old, Doug was incarcerated for
seven years. Stuart raised this child as his own and has
remained emotionally attached to the child. Kimberly and Doug
do not permit Stuart to visit with this child.
next filed a "Motion and Order to Amend Existing
Orders" asking the court to allow the children to be in
Doug's presence because she was about to give birth to
another child, fathered by Doug, and alleging Doug had
received "in-house substance abuse treatment" with
"continuing follow-up treatment." Attached to
Kimberly's motion, in support of her contentions, was a
written report by Eddie Windham, LCSW. The report includes a
history of Doug's drug abuse up to June of 2015, which we
will discuss at length later.
April 7, 2016, the trial court rendered judgment in the
matter awarding joint custody of the three minor Guinn
children to Stuart and Kimberly, and naming Stuart the
domiciliary parent of all three children. Kimberly was
awarded visitation on alternating weekends and every other
Wednesday. Major holidays are to be alternated between Stuart
and Kimberly "with the understanding that these holidays
shall take precedence over the visitation custodial
schedule." The trial court terminated interim periodic
spousal support to Kimberly and, further found Kimberly was
not free from fault in the breakup of the marriage. The judge
denied her claim for periodic final spousal support. The rule
for contempt filed by Kimberly against Stuart also was
denied. Stuart's rule for contempt filed against Kimberly
was granted. Kimberly was held in contempt of the court's
order prohibiting her from allowing the children to be in
Doug's presence. The trial court only issued a warning to
Kimberly admonishing her not to disobey the court's order
in the future. The trial court issued written reasons for its
ruling stating "the Court finds at this time it is in
the best interest of the minor children to live with their
father." Kimberly's motion for new trial was denied.
Kimberly appeals the judgment of the trial court asserting
the trial court erred in:
1) Naming the father [Stuart] as the domiciliary parent, and
granting the mother only limited visitations instead of equal
time sharing between the mother and her children.
2) Finding the mother in contempt of a previous order denying
all contact between the children of this marriage and the
father of two of her other children.
asserts that the judgment rendered in open court on December
16, 2014, and later reduced to writing, is not valid because
"there was no testimony presented; no evidence produced;
and no stipulations offered; only a pre-trial conference was
held." We first note that Kimberly's present counsel
was not her attorney at this appearance. She was represented
at that court appearance by Mr. Joshua Guillory.
Kimberly's current representation that "no
stipulations [were] offered" at the hearing on December
16, 2014, is simply not true. The minutes clearly reflect
that the judge stated in open court, on the record, that both
Kimberly and Stuart were present in the courtroom and that
both "state that they heard the stipulation, understand
it and agree to it." Likewise, the judgment signed on
December 30, 2014, recites in the opening paragraph (emphasis
Present were Kimberly Hensgens Guinn and her attorney, Joshua
S. Guillory; and, Nathaniel Stuart Guinn and his attorney,
Tim Cassidy. Considering the record of these proceedings, the
arguments of counsel and the stipulations of the parties made
in open court this date, the law and evidence being in favor
thereof. . ."
transcript of the proceeding also reflects that both parties
and their attorneys were present in court and recites that
much was discussed in chambers to reach the understanding of
what was being placed on the record. The trial judge asked
both parties to confirm their own understanding of what was
being made the order of the court. Both acknowledged they
understood. Neither the parties nor their attorneys disagreed
with any of the recitations being made by the trial judge. As
the minutes reflect, all present acknowledged that "the
matter was discussed in Chambers." The particulars of
the agreement reached in chambers, which the trial judge
recited on the record, and the parties individually
acknowledged they understood, included the following:
The court orders both parties to mediation with Judge Ronald
D. Cox. In the interim, while the children are in the custody
of Mrs. Guinn, Mr. Paul Douglas Blank cannot be present.
Costs of mediation will be born (sic) by the parties. A
mutual restraining order will issue against both parties from
alienating or disposing of community property. Mr. Guinn was
allowed to enter into the community savings to pay certain
bills. Mr. Guinn can enter that account to retrieve $800.00
to pay for mediation with Judge Cox. The custody agreement
will remain in place. Counsel advise the Court that the
minutes do not reflect everything that was discussed; it was
hand crafted. A joint custody implementation plan will be
prepared. Temporarily, joint custody of every other weekend
will remain in place. Mr. Cassidy will prepare the judgment.
The parties will schedule mediation within 30 days. Counsel
advise the Court that holiday visitation should be okay with
no problems. Mrs. Guinn will have the Friday from school to
Christmas as 5 P.M. Mr. Guinn agrees. Mr. Guinn will withdraw
Christmas monies from the community funds.
the judgment and the transcript of the proceeding contained
in this record reflect the same provisions and acknowledgment
of understanding by the parties and their lawyers as
succinctly set forth in the court minutes. Reviewing all
three documents made part of this record it is clear that the
parties stipulated to the judgment recited in open court on
December 16, 2014. We therefore reject Kimberly's
assertion that this judgment is invalid.
asserts, alternatively, that even if the judgment signed on
December 30, 2014 is valid, she is not guilty of contempt
because her actions "did not constitute an indirect
contempt." She asserts that 1) only she testified to the
facts concerning contact between the children and Doug; 2)
"the encounters [between Doug and the children] were
nothing but innocuous events with no intent to defy
the court; and 3) as to one of the admitted encounters
between one of the children and Doug the child did not
actually see Doug because "Kimberly told [Doug] to go to
a bedroom" while the child went to the bathroom.
upon our thorough review of the record we find the trial
judge did not abuse his discretion in finding Kimberly in
contempt of his express order. Kimberly's admissions, in
her deposition and later in court, would alone be sufficient
to establish she knowingly and willfully violated the
court's order prohibiting contact between her and
Stuart's minor children and Doug. Stuart's testimony
provides additional strong support for the trial court's
ruling as does Mr. Windham's report.
Garcia v Garcia, 10-446 pp. 4-5 (La.App. 3 Cir.
11/3/10), 49 So.3d 601, 605 this court recapped our law on
contempt in a child custody matter:
Louisiana Code of Civil Procedure Article 221 defines
contempt of court as "any act or omission tending to
obstruct or interfere with the orderly administration of
justice, or to impair the dignity of the court or respect for
its authority. Contempts of court are of two kinds, direct
and constructive[.]" Pursuant to La.Code Civ.P. Art.
224(2), constructive contempt is "[w]illful disobedience
of any lawful judgment, order, mandate, writ, or process of
the court." Constructive contempt "must be based on
a finding that the accused violated an order of the court
'intentionally, knowingly, and purposefully, without
justifiable excuse.' " Lang v. Asten, Inc.,
05-1119, p. 1 (La.1/13/06), 918 So.2d 453, 454 (quoting
Brunet v. Magnolia Quarterboats, Inc., 97-187, p. 10
(La.App. 5 Cir. 3/11/98), 711 So.2d 308, 313, writ
denied, 90-990 (La.5/29/98), 720 So.2d 343). "A
trial court is vested with great discretion to determine
whether a party should be held in contempt for willfully
disobeying a trial court judgment." Barnes v.
Barnes, 07-27, p. 9 (La.App. 3 Cir. 5/2/07), 957 So.2d
251, 257 (citing Fink v. Bryant, 01-987
(La.11/28/01), 801 So.2d 346).
deposition testimony Kimberly stated:
Q. The ban, have you violated that ban a time or two?
A. Yes, I did.
Q. Why did you do that?
A. Why did I do that? Because how do you tell a
five-year-old, a seven-year-old, and an eight-year-old - - or
nine-year-old, excuse me, you cannot tell this person hello,
do not talk to this person? They don't understand.
Q. But the judge gave you a direct order and -
A. You're right. He did.
Q. He said no contact whatsoever.
A. He did. And then Doug and I also share a child together
which makes it very difficult.
Q. And so Doug was aware of the order and you were aware of
the order and ya'll violated it?
Object. As far as Doug goes, she doen't know what Doug
was thinking, but you can ask her.
Q. Well, was Doug aware of the order?
Q. And so - - and you were aware of the order?
Q. And you violated it anyway?
A. Yes, I did.
Q. Do you find that to be anti-authority behavior on the part
of both of you?
Q. But the other day when we were at court - and I don't
know - it wasn't with your first lawyer; it was with your
second one, Mr. Guillory, and we went to court. It was right
before you terminated Mr. Guillory's services. And we
went to court, and on the way out, Doug ran down the stairs
and he was mad and he was kind of going to get him [Stuart]
and a deputy had to go and kind of stop him. Do you know
about that incident?
A. Yes, I do.
Q. And, again, does Doug have an aggressive personality? Is
that something that just pops up every now and then? Is it -
A. Well, when you - -
Q. Something he works with every day?
A. - - when you hear that the judge made a statement saying
if he finds me in contempt, pregnant or not, he will put me
in jail. And sitting and watching what he has done to me and
those children, it's very hard to keep control of your
emotions. And sometimes you do -- he stopped. He wasn't
going. It was just a reaction.
Q. A reaction that - -
A. I wanted to - -
Q. Do you think that was also indicative of
A. I believe that he would do the same thing.
A. Because he has done it.
Stuart was deposed he related the following concerning his
knowledge and experience with Doug:
Q. Tell me why he can't be around ...