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Guinn v. Guinn

Court of Appeals of Louisiana, Third Circuit

May 31, 2017

KIMBERLY HENSGENS GUINN
v.
NATHANIEL STUART GUINN

         APPEAL FROM THE THIRTY FIRST JUDICIAL DISTRICT COURT PARISH OF JEFFERSON DAVIS, NO. C-398-14 HONORABLE STEVE GUNNELL, DISTRICT JUDGE

          Evelyn M. Oubre ATTORNEY FOR PLAINTIFF/APPELLANT: Kimberly Beth Hensgens Guinn

          Tim Cassidy ATTORNEY FOR DEFENDANT/APPELLEE: Nathaniel Stuart Guinn

          Court composed of Chief Judge Ulysses Gene Thibodeaux, Sylvia R. Cooks, and Elizabeth A. Pickett, Judges.

          SYLVIA R. COOKS JUDGE

         Kimberly 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.[1] 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.

         On 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.

         Stuart 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 hearing."

         Stuart 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.

         Kimberly 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.

         Kimberly 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.

         On 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.

         LAW AND ANALYSIS

         Kimberly 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 added):

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. . ."

         The 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.

         Both 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.

         Kimberly 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.

         Based 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.

         In 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).

         In her 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?
A. Yes.
Q. And so - - and you were aware of the order?
A. Yes.
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?
A. Yes.
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 anti-authority-type behavior?
A. I believe that he would do the same thing.
Q. Okay.
A. Because he has done it.

         When Stuart was deposed he related the following concerning his knowledge and experience with Doug:

Q. Tell me why he can't be around ...

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