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.
COUNSEL FOR PLAINTIFF/APPELLANT, PEYTON PETTIT GREENE,
Phillip A. Wittmann, Brooke C. Tigchelaar, Matthew S. Almon,
Bryant S. York.
COUNSEL FOR DEFENDANT/APPELLEE, LANDON RONALD GREENE Terri M.
composed of Judges Fredericka Homberg Wicker, Jude G.
Gravois, and John J. Molaison, Jr.
FREDERICKA HOMBERG WICKER JUDGE.
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. Greene's 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. Greene's
current boyfriend-could not be present during exchanges.
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 court's 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 Officer's Recommendations
form. Regarding partition of the 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. Greene's overpayment towards the parties'
2015 joint federal income tax return. On October 5, 2017, she
also filed a "Request for Injunctive Relief Prohibiting
Harassment Pursuant to La. R.S. 9:372.1."
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. Greene's "Peremptory Exception of No
Right of Action," granted Mr. Greene's
"Dilatory Exception of Vagueness" and
"Peremptory Exception of No Cause of Action," and
gave Ms. Greene leave to amend her pleading.
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. Greene's case-in-chief, counsel for Mr. Greene
orally moved for involuntary dismissal on both motions. The
Court granted Mr. Greene's motion, dismissing both Ms.
Greene's "Amended Request for Injunctive Relief
Against 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 dropoff 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. Greene's 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 exchanges. Ms. Greene
moved the court to grant a suspensive appeal of its judgment,
which it did on October 11, 2018.
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
Court's 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 Appellant's
Motion for Contempt.
4. Whether the District Court committed legal error in
relying on an inapplicable statute when adjudicating
Appellant's injunction request in direct contradiction of
the District Court's 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.
facts relating to Ms. Greene's motion for contempt are as
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 couple's tax liability, and
the couple would be owed a 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.
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. Greene's CPA and tax attorney had
accurately surmised that the credit had been assigned to Mr.
Greene's account instead of Ms. Greene's-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.
Greene's 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 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 Court's 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.
Greene's 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.
for Injunction Against Harassment
facts relative to Ms. Greene's request for an injunction
prohibiting harassment are as follows:
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
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
stay with Mr. Greene on Sundays, Mondays, and Tuesdays, and
with Ms. Greene on Wednesdays, Thursdays, and Fridays.
Saturdays alternated on a weekly basis.
previously stated, most of the episodes Ms. Greene cites as
harassment occurred during these daily custody exchanges. The
first cited episode of alleged harassment occurred on August
27, 2015, within a month of the couple's separation. Ms.
Greene had by then required Mr. Greene to abide by strict
"boundaries" that she set and informed Mr. Greene
of via text message and email. Ms. Greene instructed Mr.
Greene, when picking up his children, to park his vehicle no
closer than across the street from the former family home at
1409 Homestead Avenue and to remain in his vehicle for the
duration of the exchange. Mr. Greene admitted to ignoring
these boundaries on occasion. Ms. Greene produced a video
recording of the August 27, 2015 incident that Mr. Greene had
taken with his cell phone, unbeknownst to her at the time.
The video captures a conversation between Mr. Greene and Ms.
Greene in the foyer of the Homestead residence while Mr.
Greene waits for the children to finish getting ready to
leave. Mr. Greene is heard saying that he is trying to tell
Ms. Greene how he feels. Ms. Greene explained, at trial, that
she was uninterested in Mr. Greene's attempts to
of several other episodes was introduced to prove that Mr.
Greene did not adhere to Ms. Greene's demands to remain
in his vehicle across the street during custody exchanges.
Nor did Mr. Greene obey a further demand to cease recording
the exchanges once Ms. Greene became aware that he was doing
Greene produced video documentation of one of the custody
exchanges at the Homestead residence from January 9, 2017.
The footage was originally taken by a security camera that
Mr. Greene had installed at the Homestead residence years
prior. The video shown in court was a recording Ms. Greene
had taken with her phone of the raw footage as she narrated
what was going on. The video showed Mr. Greene standing on
the front porch of the Homestead residence, waiting for his
children to come outside, with his car parked on "Ms.
Greene's" side of the street. Ms. Greene alleged in
her testimony that as he stood there, Mr. Greene engaged in
"threatening" behavior-"waiving at us,
flipping us off, saying-mouthing something. I have no idea
what. Videoing." Jonathan Coates, Ms. Greene's
boyfriend who lived in her home, testified that he was inside
the house that day and that the waiving, winking, and
shooting the bird was directed at him. He also claimed that
the silent video captured Mr. Greene saying the words,
"[s]ue, motherfucker" to Mr. Coates.
Greene testified that a second incident allegedly occurred at
some other point on that same day of January 9, 2017, this
time while she was dropping the children off at Mr.
Greene's home. The second incident was not recorded,
though Ms. Greene referred to it in an email to Mr. Greene
after the fact. Ms. Greene testified that during this
incident, Mr. Greene came out to her vehicle, opened the
passenger-side door, leaned in, and called her a
"whore." Mr. Greene admitted to these allegations
Greene also presented second-hand security camera footage
from March 19, 2017, showing Mr. Greene standing on the front
porch of the Homestead residence during a custody exchange.
On this occasion, Mr. Greene allegedly engaged in ringing the
doorbell repeatedly, video-recording Ms. Greene as she
answered, and "making fun" of Ms. Greene's
demands that he not record her. One cannot see the door or
the doorbell from the video, and the surveillance footage
does not reproduce sound.
11, 2017, Mr. Greene allegedly engaged in similar behavior.
On this occasion, Ms. Greene alleged that Mr. Greene crossed
the threshold of the front door to enter the house while
waiting for the children during a custody exchange. The trial
court noted for the record that the video introduced was a
"video of a video," which obviously left out parts
of the exchange and did not actually show Mr. Greene inside
the time of the parties' separation, Ms. Greene was
especially keen that Mr. Greene not be allowed to enter or
even view the inside of the home she occupied. In this
effort, she prohibited the children from using FaceTime to
video chat with their father while inside the house. Ms.
Greene opined that Mr. Greene was "obsessed with my
life, with accessing my home, trying to access my home."
As evidence of his intentions, Ms. Greene relayed an incident
that occurred on a Saturday in June of 2016.
Greene cited this incident as the first of two wherein Mr.
Greene had attempted to "use her children to gain
access to her house." Mr. Greene had taken the children
out to celebrate a birthday, and on the way home, they made
an unscheduled stop by Ms. Greene's Homestead residence
to put some leftover cake in the refrigerator. Ms. Greene and
her boyfriend were at her home at the time. The children
knocked on the door, but it was locked, and no one came to
answer. None of the children were allowed to have a key
because, according to Ms. Greene, "I know he [Mr.
Greene] wants nothing more than to get into my house."
However, Ms. Greene's car was in the driveway, and the
children knew the code to the keyless entry. Mr. Greene
showed the children how to use the code to enter Ms.