52 So. 3d 264
La. Ct. App.2010Background
- Consent Judgment (2003) ordered Smith to pay $1,982 monthly child support with joint custody and Pillow-Smith as primary domiciliary parent; divorce finalized April 13, 2004.
- 2005 Judgment increased base child support to $2,550 and added $500 monthly toward past-due arrears.
- 2006 contempt for failure to return children resulted in a bond of $3,950 under La. R.S. 9:342.
- 2009 Pillow-Smith filed Rule for Contempt for failure to pay support, arrears, school tuition, and health costs; stipulations fixed monthly support at $2,050, arrears at $27,603.65, and Pillow-Smith would cover health insurance; $2,500 awarded for 2004 tuition damages.
- Prior mootable issues included motions to modify judgment and various custody-related matters; trial on contempt issues proceeded October 8, 2009.
- Trial court found no contempt for failure to pay or return Cydney, denied forfeiture of bond, and denied additional bond; judgment affirmed in part and remanded in part regarding attorney’s fees.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Contempt for failure to pay child support | Pillow-Smith argues Smith wilfully disobeyed the order by underpaying. | Smith paid various expenses and sometimes more than ordered; not willful. | Not willful contempt; affirm. |
| Contempt for failure to return child and bond matters | Pillow-Smith seeks contempt and forfeiture or new bond to ensure future compliance. | Smith made efforts to return Cydney; not contempt; bond issues properly denied. | Not contempt; bonds denied; affirmed. |
| Attorney’s fees and costs under RS 9:375(A) | Prevailing party entitled to fees and costs due to failure to pay past-due support. | Good cause may negate fee award; not automatic. | Remand to determine good cause regarding fee award. |
| Cross-examination of Smith after direct examination | Trial judge improperly curtailed cross-examination. | No formal objection or proffer yet; error waiver. | Waiver; assignment meritless. |
Key Cases Cited
- Fink v. Bryant, 801 So.2d 346 (La. 2001) (great discretion in contempt determinations; abuse of discretion standard)
- In re S.L.G., 920 So.2d 363 (La.App. 2 Cir. 2006) (elements of contempt and requisite intent)
- Howard v. Oden, 5 So.3d 989 (La. App. 2 Cir. 2009) (contempt aims at vindicating court dignity)
- Leard v. Schenker, 35 So.3d 1152 (La. App. 4 Cir. 2010) (deference to trial court in custody matters)
- Bergeron v. Bergeron, 492 So.2d 1193 (La.1986) (custody and contempt standards)
- Hodges v. Hodges, 827 So.2d 1271 (La. App. 3 Cir. 2002) (bond provisions in visitation matters)
- Briscoe v. Briscoe, 641 So.2d 999 (La.App. 2 Cir. 1994) (waiver when no objection or proffer)