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Kaptein v. Kaptein

Court of Appeals of Louisiana, Fourth Circuit

June 14, 2017


         APPEAL FROM CIVIL DISTRICT COURT, ORLEANS PARISH NO. 2014-04304, DIVISION "D" Honorable Nakisha Ervin-Knott, JUDGE



          (Court composed of Judge Terri F. Love, Judge Daniel L. Dysart, Judge Terrel J. Broussard, Pro Tempore)

          Terrel J. Broussard, Pro Tempore Judge

         In this custody dispute, appellant/defendant, Jesse Kaptein, appeals a trial court's decision that awarded sole custody of C.E.K. [1] to appellee/plaintiff, Heather Kaptein, continued the suspension of FaceTime visitation, and determined that reasonable visitation with him was not in the best interest of the child. For the reasons that follow, we hereby affirm the trial court's judgment that awarded sole custody of C.E.K. to Ms. Kaptein, but reverse that part of the judgment regarding the suspension of FaceTime visitation with Mr. Kaptein.


         The parties' daughter, C.E.K., was born on February 25, 2013. On April 30, 2014, Ms. Kaptein filed a petition for divorce and requested sole custody of C.E.K. After a hearing, on May 19, 2015, the trial court awarded Ms. Kaptein interim sole custody, while Mr. Kaptein was awarded interim supervised visitation with C.E.K. each month from the first Saturday until the second Sunday for a minimum time period of two (2) hours to a maximum of eight (8) hours each day, and FaceTime visits. Mr. Kaptein was also ordered to pay Ms. Kaptein interim spousal support of $15, 000 per month and child support of $5, 000 per month. In her reasons for judgment, the judge stated as follows:

The Court finds Mr. Kaptein's lifestyle and travel are not stable. Mr. Kaptein admitted to engaging in multiple extra-marital affairs, with not one, but multiple women in several different countries. He also admitted to paying the travel expenses for such women, so he could not only have sex with them, but have unprotected sex with them, thereby jeopardizing his health, and that of his wife, Mrs. Kaptein. Mr. Kaptein's testimony and admitted indiscretions demonstrate a reckless disregard for his personal safety, which calls into question the safety of the minor child. Adultery alone does not demonstrate a lack of moral fitness on behalf of Mr. Kaptein, but his precarious nature, including the frequency, location, and disregard for safety - exhibited by unprotected sex with women in different countries - does. Mr. Kaptein does not have a stable home, he does not live or work in the United States, nor will he be in this country for an extended period of time. Although Mr. Kaptein's accomplishments as a businessman are commendable, his choices to pursue a career and a scandalous lifestyle away from his family, weigh against him. Therefore, this Court finds it in the best interest of the minor child to award interim sole custody to Mrs. Kaptein.

         On November 9, 2015, Mr. and Ms. Kaptein stipulated that the retroactive amount of child support and interim spousal support arrears was $41, 500.00. At that time, the trial court ordered Mr. Kaptein to pay one-half of the arrearage ($20, 750.00) by November 30, 2015, and the remaining one-half by January 15, 2016.

         On December 7, 2015, Ms. Kaptein filed a rule for contempt alleging that Mr. Kaptein had (1) failed to make the December 5, 2015 child support and interim spousal support payments, (2) failed to pay the $20, 750.00 arrearage payment that was due on November 30, 2015, and (3) paid only $1, 750.00 on December 6, 2015.

         On January 15, 2016, Ms. Kaptein filed an amended and supplemental rule for contempt alleging that Mr. Kaptein (1) failed to make the January 5, 2016 child support and interim spousal support payments, (2) paid only $1, 750.00 on January 6, 2016, (3) failed to pay the $20, 750.00 arrearage payment due on January 15, 2016, and (4) failed to produce financial documents as ordered on multiple occasions by the trial court. Ms. Kaptein also alleged that Mr. Kaptein had not visited with C.E.K. since September 2015.

         After a hearing held on January 26, 2016 on Ms. Kaptein's contempt rule and amended contempt rule, the trial court signed a written judgment on February 4, 2016, that (1) granted Ms. Kaptein's rule for contempt and found that as of the date of the hearing, Mr. Kaptein owed $78, 000.00 in past due support, (2) ordered Mr. Kaptein to pay $2, 225.50 in attorney's fees and $47.00 in court costs, (3) ordered Mr. Kaptein to pay $25, 000.00 within 30 days from date of the hearing or otherwise spend 30 days in Orleans Parish Prison for his failure to abide by the judgments of May 19, 2015, and October 29, 2015, and (4) suspended Mr. Kaptein's rights to visitation through FaceTime pending further orders from the trial court. At that time, the trial court set the final custody hearing on July 1, 2016.

         On March 7, 2016, attorney Cindy H. Williams filed a notice of limited appearance on behalf of Mr. Kaptein seeking to appear only as appellate counsel for him in his appeal of the February 4, 2016 judgment. [2]

         On May 9, 2016, Ms. Kaptein filed a trial subpoena requesting the court-appointed mental health evaluator's, Dr. Daliah Bauer, appearance at the custody hearing set on July 1, 2016. On May 17, 2016, Ms. Kaptein served Mr. Kaptein through Mr. Brett Bonin, who was appointed by the trial court on January 26, 2016 as agent for service of process, with a notice of perpetuation deposition notifying him of her intent to "take the perpetuation deposition of Dr. Daliah Bauer, Ph.D., on June 17, 2016." On May 20, 2016, Mr. Bonin emailed that notice to Mr. Kaptein and Ms. Williams, and no one objected.

         On June 27, 2016, the trial court denied Mr. Kaptein's (1) June 23, 2016 motion to continue the custody trial scheduled for July 1, 2016, and (2) motion to enroll Ms. Williams as his trial counsel. However, on June 28, 2016, Ms. Williams was allowed to enroll as trial counsel without a continuance.

         The hearing on Ms. Kaptein's motion for sole custody was tried on July 1, 2016, whereby the trial court granted Ms. Kaptein sole custody, maintained its previous order suspending Mr. Kaptein's FaceTime visitation, and held that "reasonable visitation with Mr. Kaptein is not in the best interest of the child." In its reasons for judgment, the trial court stated:

In any determination of child custody, the paramount consideration is the best interest of the child. La. C.C. art. 131. 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. La. C.C. art. 132. The court shall consider all relevant factors in determining the child's best interest. La. C.C. art. 134. The list of factors provided by La. C.C. art. 134 is nonexclusive, and the determination of the weight to be given each factor is left to the discretion of the trial court. See Comment (B), La. C.C. art. 134. The Court finds Ms. Kaptein met her burden in showing by clear and convincing evidence that sole custody is in the best interest of the child.
(1) The love, affection, and other emotional ties between each party and the child.
Ms. Kaptein has strong emotional ties with C.[E.]K. Contrarily, no evidence was presented to show that the child has strong ties to Mr. Kaptein. Mr. Kaptein has failed to demonstrate a willingness to be a part of C.[E.]K.'s life. Ms. Kaptein testified, on cross-examination, that C.[E.]K. has never asked the whereabouts of her father. This factor weighs strongly in favor of Ms. Kaptein.
(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.
Mr. Kaptein has shown little interest in providing C.[E.]K. with love and guidance. He has not seen C.[E.]K. for over half of her life because he has resided in a different country. Mr. Kaptein has previously testified he is an atheist. Ms. Kaptein has been the sole caretaker of C.[E.]K. and testified she takes C.[E.]K. to church and preschool during the week. Ms. Kaptein shows a genuine desire to see C.[E.]K. prosper academically and in extracurricular activities like swimming, dance, and music. No evidence, aside from Mr. Kaptein's alleged desire to lift the FaceTime visitation suspension, was presented to show Mr. Kaptein is interested in seeing or rearing his child.
(3) The capacity and disposition of each party to provide the child with food, clothing, medical care, and other material needs.
Ms. Kaptein testified she is not currently employed. She testified her intention is to secure a job once this litigation has ended. The evidence shows that Mr. Kaptein is a successful businessman with the means to provide food and material needs for the child. Mr. Kaptein is under orders to pay support to Ms. Kaptein, and Mr. Kaptein has been held in contempt for his failure to follow those orders.
(4) The length of time the child has lived in a stable, adequate environment, and the desirability of maintaining continuity of that environment.
The best interest of the minor child is served by keeping the child in New Orleans, where the child has lived for ...

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