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Evans v. Evans

Court of Appeals of Louisiana, Fourth Circuit

May 16, 2018

RONALD EVANS, JR.
v.
KRISSY SINGLETON EVANS

          APPEAL FROM CIVIL DISTRICT COURT, ORLEANS PARISH NO. 2013-07085, DIVISION "H-12" Honorable Monique E. Barial, Judge

          HILLIARD C. FAZANDE and ERNEST L. JONES

          LAKEISHA N. JEFFERSON JEFFERSON LAW FIRM, APLC and N. KIM NGUYEN COUNSEL FOR DEFENDANT/APPELLANT

          Court composed of Chief Judge James F. McKay III, Judge Daniel L. Dysart, Judge Dale N. Atkins

          JAMES F. MCKAY III CHIEF JUDGE

          In this child custody case, defendant, Krissy Singleton Evans (currently "Mrs. Brumfield"), appeals the trial court's April 28, 2017 judgment, rendered in connection with her motion for modification of custody and motion for contempt against plaintiff, Ronald Evans, Jr. ("Mr. Evans"). For the reasons set forth below, we affirm.

         STATEMENT OF FACTS AND PROCEDURAL HISTORY

         Mr. Evans and Mrs. Brumfield were married in 2005, and divorced in 2012. They have a twelve-year-old son. Mr. Evans lives in Houston, Texas; Mrs. Brumfield lives in New Orleans, Louisiana.

         Pursuant to an emergency petition for custody, Mr. Evans was given interim custody of the child on July 29, 2013. On October 14, 2013, the parties entered into a written stipulation, agreeing to joint custody with Mr. Evans designated as the domiciliary parent. Mrs. Brumfield was given liberal visitation. The stipulated decree further provided that Mrs. Brumfield's then boyfriend, now husband, Jarrod Brumfield ("Mr. Brumfield"), shall not be alone with the child without adult supervision and shall not inflict corporal punishment on the child. This stipulation was made in connection with Mr. Brumfield's admission that he spanked the child on two or three occasions. In accordance with the parties' stipulations, the court signed an Interim Judgment on October 24, 2013.

         On April 9, 2014, Mrs. Brumfield sought to modify custody. After a hearing on April 15, 2014, the trial court amended aspects of visitation but maintained domiciliary status with Mr. Evans.

         On December 23, 2014, Mrs. Brumfield filed a motion to modify custody seeking domiciliary status, a motion to appoint an independent evaluator, and a motion for contempt against Mr. Evans for failing to abide by the visitation schedule. The matters were set for April 9, 2015. In connection with that proceeding, the parties entered into a written stipulation to amend the visitation schedule. No ruling was made at that time in connection with Mrs. Brumfield's motion to modify custody.

         On June 4, 2015, the parties appeared before the court on various motions. The trial court rendered multiple judgments on June 23, 2015, appointing Diedre D. Hayes ("Ms. Hayes") as an independent evaluator, amending the visitation schedule, and continuing all other motions filed by Mrs. Brumfield.

         On August 25, 2015, Mrs. Brumfield filed a rule for contempt against Mr. Evans for failure to participate with the court appointed evaluator. Judgment was rendered on September 28, 2015, finding Mr. Evans in contempt of court for failing to comply with the court's orders, in that he failed to schedule his sessions with Ms. Hayes.

         On March 8, 2016, Mrs. Brumfield filed an emergency motion for a status conference and expedited rule for contempt. Mrs. Brumfield alleged therein that Mr. Evans failed to complete the court ordered evaluation. Additionally, she alleged that Mr. Evans continued to interfere with the court ordered visitation, and that such interference was grounds for modification of the custody decree pursuant to La. R.S. 9:346(H). The matter was set for May 5, 2016, but was continued.

         On May 12, 2016, Mrs. Brumfield filed another rule for contempt against Mr. Evans for his failure to abide by the visitation schedule. The parties appeared before the court on July 7, 2016. Mrs. Brumfield testified that she had not been allowed to visit with her son since February 7, 2016. She indicated that Mr. Evans informed her that he was not allowing visitation due to an ongoing investigation being conducted by the Houston Police Department and Child Services in Texas. She was told by the authorities that her son alleged that Mr. Brumfield attempted to sexually assault him during the visit to Houston on the weekend of February 5 through 7, 2016. Mrs. Brumfield acknowledged that the Houston Police Department investigation was still pending, but introduced a document to show that Child Services completed their investigation and ruled out any abuse. Mrs. Brumfield also testified that Mr. Brumfield was not in Houston during that weekend. Mr. Brumfield testified that he was in New Orleans on the weekend in question.

         In connection with the July 7, 2016 hearing, a judgment was rendered August 8, 2016, finding Mr. Evans in contempt of court for failure to comply with the court ordered visitation. Mr. Evans was ordered to post a $1, 500.00 bond to ensure his compliance with the orders of the court. He was also ordered to pay Mrs. Brumfield's attorney's fees and costs incurred in connection with a failed attempt to visit the child in Houston. Mrs. Brumfield's request for an immediate modification of custody was denied.

         On July 26, 2016, Mrs. Brumfield filed an emergency request for modification of custody and a rule for contempt against Mr. Evans for failure to abide by the court ordered visitation schedule. The parties appeared before the court on October 19, 2016. Judgment was rendered November 9, 2016, denying Mrs. Brumfield's request for immediate modification of custody. Trial on the modification of custody was continued pending the completion of Ms. Hayes' report. Mr. Evans was found in contempt of court and ordered to post a $1, 500.00 bond to ensure his compliance with the visitation orders. Mr. Evans was ordered to pay attorney's fees and costs to Mrs. Brumfield. Mr. Evans was also ordered to purge himself of the prior contempt adjudications by paying the amounts ordered in the August 8, 2016 judgment.

         On December 2, 2016, Mrs. Brumfield filed another rule for contempt, alleging that Mr. Evans failed to pay attorney's fees and costs, and failed to post bond as ordered in the August 8, 2016, and November 9, 2016 contempt judgments. On December 19, 2016, the trial court and the parties received Ms. Hayes' evaluation report.

         The motion to modify custody and the motion for contempt came for trial on March 13, 2017. The court heard testimony from Mr. Evans, Mrs. Brumfield, Mr. Brumfield, Emika Singleton (Mrs. Brumfield's sister-in-law), and Connie Singleton Johnson (Mrs. Brumfield's sister). Notably, Ms. Hayes was not called to testify, and her custody evaluation report was not introduced into evidence.

         Following submission of the case for post-trial briefing, the trial court rendered judgment on April 28, 2017, awarding joint custody to the parties, with Mr. Evans designated as the domiciliary parent. Essentially, the judgment denied Mrs. Brumfield's motion to modify custody. The judgment further granted Mrs. Brumfield's rule for contempt, sentencing Mr. Evans to incarceration in Orleans Parish Prison for five days, with a suspension of the sentence. Attorney's fees and costs were not awarded to Mrs. Brumfield. Mrs. Brumfield's timely appeal of the April 28, 2017 judgment followed.

         On appeal, Mrs. Brumfield asserts that the trial court erred in: 1) relying on the report of the court appointed evaluator that was not introduced into evidence; and 2) failing to award attorney's fees and costs pursuant to La. R.S. ...


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