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Thomas v. Thomas

Court of Appeals of Louisiana, Third Circuit

November 22, 2017



          Jamarcus Thomas In Proper Person Plaintiff/Appellant.

          William C. Vidrine Vidrine & Vidrine Counsel for Defendant/Appellee: Louina Denis.

          Court composed of John D. Saunders, Billy Howard Ezell, and Phyllis M. Keaty, Judges.


         A father, in proper person, appeals a judgment concerning the custody, child support, and visitation of his minor son. For the following reasons, we amend and render.


         This matter has been pending since February 12, 2016, when Jamarcus Thomas, through counsel, filed a petition for divorce from Louina Denis, whom he married on October 9, 2015. In an amended petition, Mr. Thomas requested the issuance of a Temporary Restraining Order (TRO) to prevent Ms. Denis from coming near his home or place of business. According to the pleadings filed by Mr. Thomas, no children had been born of the marriage before the parties separated in January 2016. In an answer and reconventional demand, Ms. Denis asserted that she was "currently pregnant and due to give birth on July 2, 2016." She sought, and was granted, a TRO on April 27, 2016, preventing Mr. Thomas from harassing her and from going to her home and place of business. Ms. Denis gave birth to a son, Isaiah Jovan Thomas, on June 25, 2016. Paternity testing later revealed a 99.99% probability that Mr. Thomas is Isaiah's biological father. According to court minutes dated July 11, 2016, the trial court vacated the earlier granted TRO and entered a reciprocal order prohibiting the parties from harassing each other and allowing the father limited visitation with the child. In early July 2016, Mr. Thomas's original counsel filed a motion to withdraw on the basis that Mr. Thomas had retained other representation. On July 25, 2016, Mr. Thomas, in proper person, filed a motion for him and Ms. Denis to undergo mental health evaluations pursuant to La.R.S. 9:331.

         The parties appeared before a hearing officer ("HO") on July 26, 2016, following which the HO filed recommendations into the record. Among other things, the HO recommended that the parties share joint custody of Isaiah, with Ms. Denis being the domiciliary custodial parent and Mr. Thomas exercising visitation according to a detailed schedule. Mr. Thomas was ordered to pay $246 per month in child support.[2] Several days later, Mr. Thomas filed an objection to the recommendation made by the HO. Following a September 12, 2016 hearing, the trial court made the HO's recommendations the interim order of the court, subject to a few minor modifications regarding the visitation schedule.

         Beginning in mid-August 2017, Mr. Thomas, in proper person, filed multiple rules for contempt alleging that Ms. Denis committed various acts interfering with and/or preventing his court-ordered visitation. He also filed a motion to modify interim custody and child support. Contrarily, after Mr. Thomas failed to pay a single penny of child support to her, Ms. Denis filed a single motion for contempt against him.

         The judgment being appealed was signed following a January 18, 2017 hearing at which Ms. Denis was represented by counsel and Mr. Thomas appeared pro se. Before addressing the merits, the trial court noted that Mr. Thomas's current counsel had filed a motion to withdraw that morning, indicating that Mr. Thomas no longer wanted his services. Upon having Mr. Thomas confirm his desire to terminate counsel, the trial court signed the motion to withdraw, but advised Mr. Thomas that his lack of representation could put him at a disadvantage. After some discussion, the parties agreed to continue all issues regarding contempt to a later date and to go forward with the issues of child support, custody, and visitation.[3] The hearing was then recessed to give the parties an opportunity to reach an agreement regarding those matters. Upon resumption of the hearing, the parties put a stipulation on the record agreeing to share joint custody of Isaiah, with Ms. Denis being named the domiciliary parent and Mr. Thomas being entitled to reasonable visitation. The parties also had an agreement as to when Mr. Thomas would exercise visitation from March 2017 forward. The trial court then assisted the parties in working out an agreement regarding Mr. Thomas's visitation schedule in January and February 2017 in light of some upcoming changes in his work schedule. With the help of the trial court, the parties also came to an agreement regarding the amounts of past and future child support owed from Mr. Thomas to Ms. Denis. Mr. Thomas was sworn in and agreed on the record to each item relating to visitation and child support. At the conclusion of the hearing, the trial court ordered the mother's attorney to prepare a judgment and send it to the trial court and the father. The trial court explained that it would not sign the judgment for five days to give Mr. Thomas the opportunity to dispute any part of the judgment. In such case, Mr. Thomas was directed to telephone the trial court, and if it determined that the "problem [wa]s real, " it would attempt to fix the problem with the mother's attorney or reset the matter for hearing.[4] The trial court stated that it would sign the proposed judgment if five days passed without any call from Mr. Thomas.

         A judgment prepared by Ms. Denis's attorney was signed on February 9, 2017. The judgment referenced a joint custody plan which was attached to and made a part of the judgment. Mr. Thomas timely appealed and is now before this court, in proper person, asserting that: 1) the judgment did not reflect what the parties agreed to with regard to January and February 2017, thus conflicting with his work schedule and making it impossible for him to exercise visitation during those months; 2) the judgment did not incorporate the parties' agreement that he would be furnished with a bill showing the cost of the child's day care; and 3) although he called the trial court to point out the inconsistencies between the proposed judgment and the agreement reached in court, those inconsistencies were not addressed by the trial court.


         "Although the courts may not always hold a layman to the same standards of skill and judgment that is required of an attorney, when he chooses to appear in proper person, he assumes all responsibility for his own inadequacy and lack of knowledge of procedural and substantive law." Deville v. Watch Tower Bible & Tract Soc'y, Inc., 503 So.2d 705, 706 (La.App. 3 Cir. 1987). Nevertheless, in the past, this court has given more leeway to pro se litigants who "lack[] formal training in the law ...

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