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Lepine v. Lepine

Court of Appeals of Louisiana, Fifth Circuit

June 15, 2017

MINDY SIMON LEPINE
v.
TROY JOSEPH LEPINE

         ON APPEAL FROM THE TWENTY-FOURTH JUDICIAL DISTRICT COURT PARISH OF JEFFERSON, STATE OF LOUISIANA NO. 753-766, DIVISION "O" HONORABLE DANYELLE M. TAYLOR, JUDGE PRESIDING

          COUNSEL FOR PLAINTIFF/APPELLEE, MINDY SIMON LEPINE Jennifer C. deBlanc Windsor V. Richmond

          COUNSEL FOR DEFENDANT/APPELLANT, TROY JOSEPH LEPINE Lila M. Samuel

          Panel composed of Jude G. Gravois, Marc E. Johnson, and Robert M. Murphy

         MEJ

         JGG

         RMM

          MARC E. JOHNSON JUDGE

         This is a domestic case in which Defendant appeals various rulings of the trial court involving temporary restraining orders, a motion to recuse, pauper status, and a judgment addressing several domestic issues including a protective order based on a finding that Defendant was stalking Plaintiff, the suspension of co-parenting guidelines, the denial of Defendant's request to sell the family home, and the award of attorney fees to Plaintiff and assessment of costs against Defendant. For the following reasons, we affirm.

         FACTS & PROCEDURAL HISTORY

         The parties were married in September 2003 and had two children, D.L. and A.L., born 2005 and 2007 respectively. On September 22, 2015, Mindy Lepine filed for divorce from Troy Lepine under La. C.C. art. 102. In her petition, she requested the parties be awarded joint custody of the minor children with her being designated as the domiciliary parent, and that she be awarded child support, interim periodic spousal support, exclusive use of the family home, and other incidental requests. On October 13, 2015, Mindy filed a supplemental petition for divorce requesting that Troy undergo anger management assessment and possible counseling so he could better parent the children.

         On November 19, 2015, the parties appeared before Hearing Officer Paul Fiasconaro and entered into a consent agreement wherein they agreed to joint custody of the children with Mindy as the domiciliary parent, that Troy should have unsupervised physical custody every other weekend, that they both attend parenting classes, that Troy would pay interim child support in the amount of $517.00/month, and that Mindy would have interim use and occupancy of the family home as well as the 2011 Toyota Sequoia. The parties also agreed to comply with specified co-parenting guidelines. Mindy further agreed to forego her request for interim periodic spousal support. This consent agreement was subsequently signed by Domestic Commissioner Ruben Bailey and made a consent judgment of the court.

         A little over one month later, on December 29, 2015, Mindy filed a Petition for Temporary Restraining Order, Preliminary and Permanent Injunction pursuant to La. C.C.P. art. 3601, et seq., based on an incident that occurred on December 26, 2015, when Troy allegedly came to her home uninvited and tried to enter through the garage door after calling and texting her in a derogatory manner beginning at 1:00 a.m. She stated that she called the police as a result of the incident and attached a copy of the Jefferson Parish Sheriff's Office's item/complaint number. Mindy further alleged that Troy previously made harassing phone calls to her on December 24th. Commissioner Bailey denied Mindy's request for an ex parte temporary restraining order (TRO) and set the matter for a January 19, 2016 hearing.

         The January 19, 2016 hearing was subsequently continued to February 22, 2016 at Mindy's counsel's request. On that same date, Mindy filed a second request for an injunction. Commissioner Bailey denied an ex parte TRO and set the matter for February 22nd.

         The parties appeared before Commissioner Bailey on February 22, 2016.[1]After a hearing, Commissioner Bailey granted Mindy's request for an injunction against Troy, specifically ordering him not to harass Mindy or the children. The injunction was effective until February 22, 2017.

         Thereafter, on April 29, 2016, Mindy filed a Petition for Protection from Abuse pursuant to La. R.S. 46:2131, et seq., alleging Troy was stalking her. She sought an ex parte TRO to prohibit Troy from harassing and stalking her. She also requested authority to move all of the property and equipment of the community business from the family home to a storage unit. On the same date, Mindy filed a Rule to Show Cause why Troy should not be held in contempt of court for violating the February 22, 2016 injunction. Commissioner Bailey denied an ex parte TRO and set both matters for a hearing on May 19, 2016.

         Subsequently, on May 9, 2016, Mindy filed an objection to Commissioner Bailey's denial of her request for a TRO and requested consideration of the issue by the district court judge. On that same date, Judge John Molaison signed an ex parte order granting a TRO against Troy prohibiting him from contacting Mindy through phone, text, or email, and from going near her or her home, except in regards to the children's events and only with Mindy's written permission. The order also required any communication regarding the children be directed to Mindy through Our Family Wizard. Finally, the order granted Mindy's request to move the business equipment to a storage facility.

         The next day, on May 10, 2016, counsel for Troy enrolled and filed an answer to the petition for divorce and reconventional demand for incidental matters. Judge Molaison recused himself from the case on May 11, 2016 because he was related to Troy's newly enrolled counsel, and the case was re-allotted to Judge Danyelle Taylor. On May 12, 2016, Mindy sought another TRO on the basis of domestic abuse, which Judge Taylor granted through May 19, 2016, the scheduled date of a hearing before Commissioner Bailey regarding Mindy's petition for protection from abuse and contempt rule. When the parties appeared before Commissioner Bailey on May 19th, the parties advised him that the issues were going to be heard by Judge Taylor on May 24, 2016. On that same date, Mindy filed a request for a TRO, essentially seeking to extend the earlier TRO through the May 24th hearing date, which was granted by Commissioner Bailey.

         The parties appeared before Judge Taylor on May 24, 2016. At that time, all pending matters, including the petition for protection from abuse and rule for contempt, were continued by consent of the parties until June 24, 2016. Additionally, Judge Taylor extended the TRO against Troy through the next hearing date of June 24th.

         On June 24, 2016, Judge Taylor held a hearing on Mindy's petition for abuse, rule for contempt, and several other issues, including Troy's petition to partition co-owned property and Mindy's motion for costs. The matter did not fully conclude and the hearing was held open and continued to July 26, 2016, with the temporary injunction remaining in effect until then.

         In the interim, on July 14, 2016, Mindy filed a second rule to show cause why Troy should not be held in contempt of court for violating the TRO that was in effect from June 24 - July 26, 2016. On the same day, Mindy filed a supplemental and amending petition for protection from abuse alleging that Troy's abusive behavior had escalated. Mindy requested that all visitation and phone calls between Troy and the children be suspended until the July 26th hearing. Judge Glen Ansardi, who was the duty judge, granted a TRO on July 15th, ordering Troy not to contact Mindy except regarding the children and community property and only through Our Family Wizard; however, the TRO did not address visitation or the nightly phone calls. Three days later, on July 18, 2016, Mindy filed another request for a TRO, which Judge Taylor granted specifically prohibiting Troy from any contact with Mindy and the children and suspending all visitation and phone calls between Troy and the children until the July 26th hearing.

         On July 26, 2016, prior to the scheduled hearing, Troy filed a motion to recuse Judge Taylor on the basis of alleged impropriety in Judge Taylor's TRO dated July 18, 2016. Specifically, Troy challenged Judge Taylor's impartiality in suspending Troy's visitation and phone calls with his children when the duty judge, Judge Ansardi, had not deemed it necessary three days earlier when he granted Mindy's request for a TRO. Judge Taylor denied the motion on the basis it failed to state a ground for recusal or allege any facts supporting a ground for recusal, and that it was untimely. Thereafter, Judge Taylor proceeded with the scheduled hearing. Again, the matter did not conclude and the hearing was held open and continued to July 29, 2016. Judge Taylor ordered that the temporary injunction was to remain in effect until the new hearing date.

         On July 29, 2016, the hearing on Mindy's petition for protection from abuse and other matters resumed. At the conclusion of the hearing, the trial court found that Troy was guilty of domestic abuse by stalking and granted a protective order for 12 months, suspended the co-parenting guidelines, ordered Troy to undergo anger management classes, a psychiatric evaluation and counseling, and found Troy in contempt of court for violation of the injunction against harassment. The trial court ordered Troy to pay $1, 000 in attorney fees plus court costs in connection with the contempt of court finding related to harassment and $4, 000 in attorney fees plus court costs in connection with the protective order. It further denied Troy's request to list the family home for sale. The trial court signed a written judgment to this effect on September 23, 2016.[2] Troy timely filed a motion for devolutive appeal.[3]

         ISSUES

         Troy raises numerous issues on appeal. He first challenges the ex parte TRO issued by Judge Molaison on May 9, 2016. Next, he argues Judge Taylor erred in the following regards: (1) "rubber stamping" Judge Molaison's May 9, 2016 ex parte TRO and expanding it; (2) granting an ex parte TRO on July 18, 2016 when the duty judge had denied relief one business day earlier; (3) granting pauper status to Mindy; and (4) denying his motion to recuse. Finally, Troy challenges several parts of the September 23, 2016 judgment; specifically, (1) finding his actions constituted stalking for purposes of a protective order under the domestic abuse statutes; (2) suspension of the co-parenting guidelines; (3) the denial of his request to sell the family home; (4) awarding attorney fees to Mindy in the amount of $5, 000; and (5) assessing all court costs against him.

         DISCUSSION

         Temporary Restraining Orders

         On appeal, Troy challenges several TROs that were issued throughout this case. First, he argues Judge Molaison abused his discretion in granting the May 9, 2016 TRO because it was untimely and unsubstantiated, thereby violating his due process rights. Troy contends Judge Molaison did not have jurisdiction to issue the TRO because Mindy failed to timely object to Commissioner Bailey's denial of the TRO. Specifically, Troy asserts that Mindy's objection was filed ten days after Commissioner Bailey denied the TRO in violation of the three-day time period under La. R.S. 13:717(F)(4)(b). He further asserts Judge Molaison should have had a hearing to ...


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