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APPEAL FROM THE TWENTY-FOURTH JUDICIAL DISTRICT COURT PARISH
OF JEFFERSON, STATE OF LOUISIANA, NO. 751-262, DIVISION
"O", HONORABLE DANYELLE M. TAYLOR, JUDGE PRESIDING
FOR PLAINTIFF/APPELLANT, PEYTON PETTIT GREENE, Phillip A.
Wittmann, Brooke C. Tigchelaar, Matthew S. Almon, Bryant S.
York, New Orleans
FOR DEFENDANT/APPELLEE, LANDON RONALD GREENE, Terri M. Miles
composed of Judges Fredericka Homberg Wicker, Jude G.
Gravois, and John J. Molaison, Jr.
La.App. 5 Cir. 1] Appellant, Ms. Peyton Pettit Greene
("Ms. Greene"), seeks review of a September 26,
2018 judgment of the 24th Judicial District Court, which
resulted in the involuntary dismissal of Ms. Greenes
Expedited Motion for Contempt and Amended Request for
Injunctive Relief Prohibiting Harassment, which she filed
against her former husband Landon Ronald Greene ("Mr.
Greene"). The trial court not only dismissed both
motions, but also ordered that the parties "were not
precluded" from recording custody exchanges of their
children and, further, that a third party— Ms. Greenes
current boyfriend— could not be present during
Greene argues that the trial court erroneously applied
incorrect burdens of proof to the evidence offered in support
of each motion. She further asserts that she would have
prevailed on both motions had the correct burdens been
applied, and thus that this Court should review the facts
de novo in light of the trial courts legal error.
Finally, she asserts that the latter two orders—
pertaining to custody exchanges of the parties
children— should not have been included in the
Judgment, given that neither party had officially moved for
such "relief." For the following reasons, we affirm
in part, vacate in part, and render.
parties were married in 1997. Ms. Greene filed for divorce
from Mr. Greene on July 6, 2015. On August 11, 2015, the
parties entered into the first of three consent judgments
governing issues of custody, support, and property. In the
first consent judgment, the parties agreed to share joint
custody of their three minor children, with Ms. Greene
serving as domiciliary
parent. They also agreed to develop a 50/50 visitation
schedule and to abide by the co-parenting guidelines found in
the Hearing Officers Recommendations form. Regarding
partition of the [19-37 La.App. 5 Cir. 2] parties community
and co-owned property, the judgment included the following
IT IS FURTHER ORDERED, ADJUDGED, AND DECREED that the parties
have discussed resolving any property issues or claims by
LANDON RONALD GREENE. LANDON RONALD GREENE has agreed that
once the property is identified, he will sign over his
interest of any co-owned property unto PEYTON PETTIT GREENE.
judgment of divorce was granted on September 15, 2016.
Thereafter, a dispute arose when Mr. Greene failed to sign
over a Louisiana state income tax refund check made payable
to both parties. The parties met with the Hearing Officer on
October 25, 2016, after Ms. Greene filed a Rule for Contempt.
The parties agreed to a second consent judgment, which
... PEYTON PETTIT GREENE shall immediately receive full
ownership and possession of ... all federal tax refunds
already received by PEYTON PETTIT GREENE, [and] any federal
tax credits which may be claimed by PEYTON PETTIT GREENE in
2016 or future tax years.
... LANDON ROBERT GREENE shall promptly endorse any
remaining or future additional checks which are made payable
to both parties, and those funds shall be promptly received
and owned by PEYTON PETTIT GREENE.
final consent judgment, dated March 22, 2017, acknowledged
that all financial issues were resolved between the parties,
with the understanding that if any additional tax refunds
were paid for a year in which the parties filed a joint
return, "LANDON RONALD GREENE, shall promptly endorse
said funds over to Plaintiff, PEYTON PETTIT GREENE."
September 20, 2017, Ms. Greene filed an "Expedited
Motion for Contempt," alleging that Mr. Greene was in
contempt for violating the prior Consent Judgments by
"receiving a refund check and/or credit" stemming
from Ms. Greenes overpayment towards the parties 2015 joint
federal income tax [19-37 La.App. 5 Cir. 3] return. On
October 5, 2017, she also filed a "Request for
Injunctive Relief Prohibiting Harassment Pursuant to La. R.S.
Greene filed exceptions to the Request for Injunctive Relief,
on the basis of Vagueness, No Cause of Action, and No Right
of Action. On November 13, 2017, the Domestic Commissioner
denied Mr. Greenes "Peremptory Exception of No Right of
Action," granted Mr. Greenes "Dilatory Exception
of Vagueness" and "Peremptory Exception of No Cause
of Action," and gave Ms. Greene leave to amend her
Greene timely filed her "Amended Request for Injunctive
Relief Prohibiting Harassment" on November 27, 2017, and
again Mr. Greene filed peremptory exceptions of No Right of
Action and No Cause of Action claiming that La. R.S. 9:372.1
only offers injunctive relief prior to the judgment of
divorce. On March 14, 2018, the trial court denied both
trial took place over three days— August 17, September
4, and September 11, 2018. On September 11, 2018, at the
conclusion of Ms. Greenes case-in-chief, counsel for Mr.
Greene orally moved for involuntary dismissal on both
motions. The Court granted Mr. Greenes motion, dismissing
both Ms. Greenes "Amended Request for Injunctive Relief
Harassment" and her "Expedited Motion for
Judgment signed on September 26, 2018, the trial court
included not only its denial of both motions, but also an
order for the parties to put their drop-off and pick-up
schedule in writing and to only communicate through Our
Family Wizard from the point of trial forward unless there
was an emergency. In addition the court ordered that Mr.
Coates, Ms. Greenes boyfriend with whom she lived, should
not be present during the custody exchanges of the children.
Finally, the court decreed that neither party was precluded
from video-taping custody [19-37 La.App. 5 Cir. 4] exchanges.
Ms. Greene moved the court to grant a suspensive appeal of
its judgment, which it did on October 11, 2018.
ASSIGNMENTS OF ERROR
Appeal, Ms. Greene raises several assignments of error:
1. Whether the District Court erred in issuing a Declaratory
Judgment that was not sought by either party and on which no
evidence was presented.
2. Whether the District Court erred in issuing an Injunctive
Order against a nonparty, who is not subject to the Courts
jurisdiction, that was not sought by either party and on
which no evidence was presented.
3. Whether the District Court committed legal error in
applying an incorrect burden of proof to the Appellants
Motion for Contempt.
4. Whether the District Court committed legal error in
relying on an inapplicable statute when adjudicating
Appellants injunction request in direct contradiction of the
District Courts earlier judgment in the litigation.
5. In light of legal error, Appellant is entitled to de
novo review of the evidence relating to her Motion for
6. In light of legal error, Appellant is entitled to de
novo review of the evidence relating to her Injunction
Request to prohibit harassment.
Motion for Contempt
Additional facts relating to Ms. Greenes motion for contempt
are as follows:
Greene was entitled to a $93,600 federal income tax credit
for the 2015 tax year. The Greenes filed a joint federal
income tax return for the 2015 tax year. According to that
return, Ms. Greene had, to that point, personally overpaid a
total of $93,600 towards the couples tax liability, and the
couple would be owed a [19-37 La.App. 5 Cir. 5] credit in
that amount, which they could either apply towards their 2016
tax liability, or elect to have refunded to them in cash.
Because the Greenes divorced on September 15, 2016, however,
they each filed separate tax returns for the 2016 tax year.
In filing his individual return, Mr. Greene made no attempt
to claim the credit for $93,600 that he and Ms. Greene had
been owed as a couple. Ms. Greene did claim the credit on her
2016 individual tax return, as was her right per the consent
judgments mentioned above, and applied it towards her tax
liability for that year.
late July of 2017, Ms. Greene received a notice from the IRS
marked "Third Reminder" which informed her that she
owed over $93,600 in taxes. On or about August 8, 2017, Ms.
Greene contacted Mr. Greene seeking his help in retrieving
the funds for her. Ms. Greenes CPA and tax attorney had
accurately surmised that the credit had been assigned to Mr.
Greenes account instead of Ms. Greenes— IRS policy is
to assign such credits to the social security number of the
person listed as the "taxpayer" on the return, and
Ms. Greene was listed as the "spouse." Ms. Greenes
tax attorney, Laura
Plunkett, also contacted Mr. Greene on that date asking that
he reach out to the IRS to confirm their suspicions and seek
instructions on how to transfer the credit to Ms. Greene.
several subsequent conversations with Ms. Plunkett regarding
the issue, Mr. Greene attempted to call the IRS directly on
September 13, 2017. Mr. Greene explained that he was unable
to navigate the automated phone tree to speak with an actual
person that day. On September 15, 2017, Ms. Greene contacted
the IRS. She claimed that she was told by an agent during
that phone call that the credit was "gone," and
that her only course of action was to take Mr. Greene to
court to obtain the funds.
days later, on September 19, 2017, Mr. Greene emailed Ms.
Plunkett to alert her that his attempt to resolve the issue
by speaking with the IRS personally [19-37 La.App. 5 Cir. 6]
had failed. In the same email, Mr. Greene indicated that he
had contacted his CPA, Mr. Tommy Doussan, about the issue,
that Mr. Doussan had already contacted Ms. Plunkett, and that
Mr. Doussan had provided a different telephone number to try.
September 20, 2017, Ms. Greene filed an Expedited Motion for
Contempt stating that Mr. Greene was "in violation of
this Courts Consent Judgment, by receiving a refund check
and/or credit associated with the income tax refunds or
credits owed to Ms. Greene." Mr. Greene was served with
the motion for contempt on September 25, 2017.
September 27, 2017, Mr. Doussan sent a Power of Attorney to
Mr. Greene, which he filled out and promptly returned. Mr.
Doussan was thereafter able to speak with the IRS on Mr.
Greenes behalf. He learned that the IRS had sent several
notices to Mr. Greene regarding the allocation of the tax
credit without receiving a response. Given that the deadline
for directing the credit had passed, the IRS would be issuing
a refund check to Mr. Greene by October 9, 2017. The IRS
instructed Mr. Doussan that Mr. Greene would have to wait for
the check to arrive, write "VOID" on it, and send
it back to the IRS with a signed statement directing that the
credit be assigned to Ms. Greene.
Greene then emailed Ms. Plunkett a redacted version of his
communications with Mr. Doussan (primarily leaving out the
fact that numerous notices had been sent regarding the tax
credit), and requested that Ms. Plunkett prepare the
statement for the IRS that he needed to sign. On October 11,
2017, Mr. Greene received the refund check from the IRS. He
immediately voided it, signed a statement prepared by Ms.
Plunkett, and provided the documents to Ms. Greene.
Request for Injunction Against
Additional facts relative to Ms. Greenes request for an
injunction prohibiting harassment are as follows:
La.App. 5 Cir. 7] Ms. Greene alleges that since before the
divorce was finalized, Mr. Greene has "consistently
engaged in harassing and threatening behavior towards Ms.
Greene." At trial, Ms. Greene attempted to establish a
pattern of harassment on the part of Mr. Greene occurring
over two years— beginning with their July 6, 2015
separation and ending with her October 5, 2017 filing of her
Request for Injunctive Relief. Ms. Greene presented
documentation of about a dozen specific episodes in the form
of email or text correspondence and video recordings taken by
both parties. Most of these episodes occurred during custody
parties never reduced a custody arrangement or schedule into
writing, beyond merely agreeing to share custody 50/50.
However, Ms. Greene relayed what she believed to be the
parties set custody schedule during her direct examination at
the injunction proceedings. Since the beginning of their
separation in July of 2015, the parties adhered to a regimen
of daily morning custody exchanges of their three minor
children. One of their daughters attended school in Metairie,
while the other children went to school uptown. The parties
developed a routine whereby every morning Ms. Greene would
drive their daughter to school in Metairie, while Mr. Greene
would take the uptown group, regardless of where the children
had spent the night before. As for where the children would
spend each night, the parties agreed to have the children