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Greene v. Greene

Court of Appeals of Louisiana, Fifth Circuit

December 11, 2019



          COUNSEL FOR PLAINTIFF/APPELLANT, PEYTON PETTIT GREENE, Phillip A. Wittmann, Brooke C. Tigchelaar, Matthew S. Almon, Bryant S. York.


          Panel composed of Judges Fredericka Homberg Wicker, Jude G. Gravois, and John J. Molaison, Jr.


         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. 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.

         Ms. 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.


         The 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 provision:

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.

         The 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 ordered:

. . . 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[1] 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.

         The 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."

         On 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."

         Mr. 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.

         Ms. 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 exceptions.

         The 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 Contempt."

         In its 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.


         On 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 Contempt.
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. Greene's motion for contempt are as follows:

         Ms. 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.

         In 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. 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.

         After 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.

         Four 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.

         On 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.

         On 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.

         Mr. 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 Harassment

         Additional facts relative to Ms. Greene's request for an injunction prohibiting harassment are as follows:

         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 exchanges.

         The 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.

         As 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 reconcile.

         Evidence 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 so.

         Ms. 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.[2]

         Ms. 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."[3] Mr. Greene admitted to these allegations during discovery.

         Ms. 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.

         On May 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 house.[4]

         From 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.

         Ms. 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. Greene's ...

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