Kenneth Levantino (Levatino) VS Michelle Levantino (Levatino)
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NOT DESIGNATED FOR PUBLICATION STATE OF LOUISIANA COURT OF APPEAL FIRST CIRCUIT NUMBER 2007 CU 1238 KENNETHLEVATINO VERSUS @ MICHELLE LEV ATINO Judgment Rendered November Appealed 2 2007 from the Family Comi in and for the Parish of East Baton Rouge State of Louisiana Docket Number 157 850 Honorable Annette M Lassalle Counsel for Plaintiff Appellant Dana A Bolton Baton Rouge Kenneth Levatino LA Counsel for Defendant Prendergast Baton Rouge LA Brian J BEFORE q v Michelle Levatino WHIPPLE GUIDRY AND HUGHES JJ 9 1Cl rO J 1 tZ Appellee HUGHES J A father mother as less than the appeals custody judgment designating the cOUl1 family a of the minor children and domiciliary parent He further equal physical custody challenges the provision For the judgment dismissing his rule for contempt awarding following him of the reasons we affinn FACTUAL AND PROCEDURAL HISTORY Kenneth and Michelle Levatinol subsequently had two children Leanna bOlTI in 2002 was a Rouge Fire Depm1ment Michelle SRA as performed her job duties from to job Michelle Specifically make she repeated trips ceased in daughter of the Baton long time employee employed by SRA International Inc engineer Accordingly Michelle although was Nathan and Leanna April occasion she on required was to Michelle Michelle caption Levantino was that she be awarded and the March 29 prayed answer custody to New Michelle was to lease working on a to New York and project on a custody of 6 2006 April and reconventional demand and that she further be allowed to York in order to accept yet another the parties Levatino last name as We further is temporary corporate apmiment this her to Kelmeth filed petition of the name result of her extraordinary travel 2006 Joannie Michelle Levatino legal As result of this increased travel and the accompanying hotel note that Michelle s a that he be awarded served with the an as promotion original petition incorrectly identified clearly establishes that the proper spelling is body The record frequently The need for this on Therein he relocate with the children The 2 more project for SRA that required on a 2006 Michelle filed 24 requesting working 2006 when she received a April petition for divorce On began traveling to New Y ork Unbeknownst 2 home a They travel In 2005 I was software telecommuting a married in March 1992 Nathan born in 2000 and a son Kenneth were the children stay for weeks along with Kenneth at a time 2 costs incUlTed in New York at its expense or 8RA permitted While Michelle their nanny would often travel Days later promotion amended in her and reconventional demand answer current Michelle however working stating her intention from her home in Baton and supplemental a remain to she averred that she Consequently employment position would continue filed Rouge and would remain domiciled in Louisiana On May 2 2006 subsequently reduced to the week on a to week basis that Kenneth and Michelle were which stipulation court awarded on was June 12 joint custody of the parties altelnating physical custody of Nathan and Leanna with the children a writing and signed by the trial Pending trial Kenneth and Michelle 2006 into parties entered were The stipulated judgment also provided to pay monthly community obligations pursuant to the budget they prepared in August 2005 and that the children was nanny to resume continue it until their home school curriculum May 25 a rule for contempt stipulated judgment by refusing by interfering with the children Michelle also filed a May 3 2006 and 2006 Prior to trial Kenneth filed had violated the on s s home rule for contempt alleging that Michelle to pay a mortgage and note schooling and visitation plan similarly asserting that Kenneth had failed to pay certain bills and had failed to maintain the children home s school curriculum A trial August the 2 4 to determine the and 28 2006 parties joint custody of domiciliary parent custody issue The court the children and with Kenneth every other weekend family was rendered enjoying visitation with Nathan and commencing with their dismissal ordered that the parties split the 3 on the as Leanna from school Monday mOlning summer on judgment awarding designating Michelle Thursday and ending when they resumed school court filliher ultimately conducted on The vacation with each party having physical custody of the children for alternating The periods On August for reasons Michelle family s also dismissed each party comi 31 2006 the family judgment emphasizing that its that she intended assurances court to the memorializing parties family court respective rules for contempt From this judgment Kenneth was issued supplemental was reside in Baton signed on written predicated on Rouge and that final written A decision custody s rule for contempt s judgment her work related travel would be nominal week two judgment the dismissing and November 30 2006 appeals DISCUSSION I Custody As preliminary a makes several either were family matter allegations not presented us the record it existed 5 5 06 the to as Mike v note that in brief to this court regarding family s at the time Trucking 934 So 2d 827 Accordingly Kenneth that pertain to Co Inc matters they form 2005 0238 p within the 2006 1914 that occurred after the underlying judgment will address we or Kenneth proceedings no part of the Our review is limited writ denied 836 So 2d 1094 the trial As such judgment and events court at and cannot be considered record before See Collins of fact had rendered its court we was strictly to rendered App 1 Cir 12 8 06 943 15 La La only those arguments urged by record appellate We turn now to designating Michelle as address the merits of the appeal Kenneth contends that the trial the domiciliary parent and of the children factors that child a in court awarding erred in him less than equal physical custody Louisiana Civil Code article 134 lists twelve trial When the court may family utilize in court exclusive detennining the best interests of the in the instant 4 non matter considered these factors it found that the the testimony parties presented in many equal were trial it concluded that Michelle at supervise the education of the children material needs was more In argues that the When case 550 reviewing v Major The a child light of its is in the foremost determination on position appeal unless Moreover not Court of 844 La 1 Cir App children Appeals primary essentially imperative that each 14 2 849 So 2d 547 03 LSA C C art 131 The court matter ascertain the best interest of the child to trying the given Accordingly an 2d So to La the court s great weight and will abuse of discretion is not be clearly shown Major at 550 court is convinced that had it been the evidence differently If the factual 1989 findings s judgment sitting Rosell are found v ESCO 549 So 2d to be of the variations in demeanor and heavily aware on the listener Rosell 549 So 2d at 844 given much credibility of witness testimony for only the fact finder be it reasonable and to can if the the trier of fact the record the trial court s determinations must be the even as weight especially in regard so trial appellate review of the factual circumstances and evidence weighed supported by that bear s of facts and circumstances set be the basis for reversal of the trial would have 840 p 4 regarding custody is entitled 2002 2131 at p 4 849 will particular for their testimony s it is to between the Kenneth conclusions custody judgment provide relationship crediting Michelle circumstances of set unique reversed in better able paramount consideration in any determination of child custody is the best interest of the child each of these own 2002 2131 close a was to historically had been the court erred family be viewed in Major each disputing better able was facilitate to likely children and the other party and caregIver However based upon respects s Stephens tone of voice understanding and belief in what is said Stephens v 5 2002 0402 p 3 La App 1 Cir 6 21 02 822 So 2d 770 court erred in that it her as the children abuse its discretion in Nor do Kenneth b in awarding the more s regarding family II In even s designate court abused its discretion in did not awarding LSA R S Pursuant to to be shared custody of the children is the matter the particular The continuing comi court equally by the court family parties equal physical custody of the could be rectified court to family with it is feasible and in the best interests of the children structured environment Kenneth family equal physical the instant their best interests concluding doing physical custody to the extent However so family they reside primarily domiciliary parent Clearly the trial find that the than less 9 335A 2 parents we s cannot say the credible and to be testimony s we 9 335B directed the result LSA R S a Michelle Michelle finding Accordingly in the best interests of the children that was As 774 school so family children would not be in noted Nathan that his educational and further stressed the family court anger and refusal we are need for s speech a deficiencies problems created by communicate with Michelle to Because the record matters conclusions court expressly found that compelled to amply supports affirm the the custody award Contempt Finally Kenneth argues that the rule for contempt He maintains that the determining that he had failed his claims that Michelle had to comi erred in family satisfy court was his erroneous in proof with respect to manifestly his burden of willfully violated dismissing the terms of the stipulated judgment Louisiana Code of Civil Procedure contempt of acts as any contempt other than that constitute a a art direct 224 defines one constructive contempt 6 and sets a constructive forth a number including the following judgment order mandate wilful disobedience of any lawful process of the court LSA C C P great deal of discretion in determining whether constructive contempt However a finding that a order in violation of LSA C C P court finding that the accused violated knowingly Inc a and purposefully 2005 1119 p 1 La an without 1 13 06 to review are La In his rule Kenneth stipulation by failing However the at a must be order of the justifiable the that time in mandatory App willfully disobeyed court the Lang excuse attempted court family light of the arrearage form of the Local Rules of The 2006 to on a Asten v While 454 per curiam party in contempt of court is subject 1 Cir 2 9 07 Mayl based intentionally its predicate factual standard error 959 So 2d 940 specifically alleged that Michelle had to pay of the trial Kenneth issue person 224 2 art reviewed under the manifest Dickens 2006 0898 p 7 claim a a party should be held in under the abuse of discretion standard determinations day a 918 So 2d 453 trial court s ultimate decision to hold or A trial comi is afforded 224 2 art writ mOligage offer 945 violated the substantiate his to Kenneth from prohibited v On the second note testimony Rogers addressing the fact that he had failed to attach to his rule required under the local rules Family Court of East Baton Rule 5 92 E Rouge Parish provides Motions filed seeking arrearages and or contempt for failure to child support shall be accompanied by a schedule of arrearages in the form attached to and made part of this rule Failure to comply with this rule may result in pay alimony and sanctions provided by law When this failure that she would or was brought to amend and her attention Kenneth ever filed however attorney indicated submit the arrearage form Our review of the record indicates that was s on August 11 7 no amended rule for contempt 2006 Kenneth did file an arrearage form unaccompanied bills in addition to In its oral failure failed the reasons for Kenneth failed to Accordingly we comply with cannot say Similarly in erroneous we cannot In his rule to this s determination that Kenneth claim was family record does Days not the minor children before the to was manifestly establish Michelle on May 3 not that home allowing the 2006 s Michelle nanny However does it paliies entered into the stipulation the Michelle had nanny that her services would not be needed because she would be 3 court 3 wrong substantiate his claim already informed the judgment clearly specifically alleged intentionally interfered with the home schooling by to home school of the local rule stipulated judgment provision regarding Kenneth s technicality it is clear that requirements court that the say a determining that Kenneth had failed willful violation of the schooling Albeit that the trial as cited Kenneth court his rule and concluded that he had to the express satisfy his burden of proof family the judgment satisfy his burden of proof to failed to May 2006 mortgage bill pled in his rule attach the arrearage fonTI to incidentally detailed several other which taking provide that care only on May 3 of the children herself Nowhere in the the nanny is permitted to home school the subsequent filing could be construed as compliance we would nonetheless find that the record provides a reasonable basis for the family cOUli s conclusion that Kenneth failed to establish that Michelle had intentionally knowingly and purposefully violated the comi s order Initially we note that that the parties stipulation was orally entered into the record on May 2 However the stipulated 2006 and that Kenneth filed his rule for contempt on May 25 2006 Therefore it was only after not reduced to writing or signed until June 12 2006 judgment was this point in time that the paliies unequivocally possessed certain and tangible evidence of its Even if his terms review ofthe Moreover a the record by Kenneth s May 2 2006 stipulation which was read into that the pertinent provision was not without ambiguity transcript attorney reveals of the parties It states patiies will maintain the financial status quo that they have been doing they have prepared a budget in August 2005 each patiy will maintain those bills until Levatino knows the bills she is paying and Ms we come to trial ofthe matter Mr Levatino knows what s he is paying At trial the patiies offered conflicting testimony regarding their interpretation of this provision and and what the budget prepared in August 2005 entailed Considering the relevant testimony for the family cOUli s authority to assess credibility the record herein provides reasonable support to bear his burden of proof notwithstanding his failure to the factual finding that Kenneth failed The comply with the local rule 8 children and Indeed Michelle had chosen the curriculum significance However its administration subsequently supervised is the fact that Michelle originally taught it indisputably of far greater abandoned her pre arranged plans and did allow the nanny to home school the children that day we Accordingly dismissing Kelmeth s find no abuse of discretion by the family comi in constructive contempt claims CONCLUSION F or all of the affirmed Further foregoing reasons the motion to Levatino is also denied the family supplement All costs of this Levatino AFFIRMED 9 appeal court the are judgment is hereby record filed assessed to by Mr Kenneth
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