Telicia Ann Catalanotto VS Micah Dustin Catalanotto
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NOT DESIGNATED FOR PUBLICATION STATE OF LOUISIANA COURT OF APPEAL FIRST CIRCUIT 2009 CU 2158 TELICIA ANN CATALANOTTO VERSUS MICAH DUSTIN CATALANOTTO Judgment Rendered APR 3 0 Z010 APPEALED FROM THE TWENTYFIRST JUDICIAL DISTRICT COURT IN AND FOR THE PARISH OF TANGIPAHOA STATE OF LOUISIANA DOCKET NUMBER 2007 002891 THE HONORABLE ZORRAINE M WAGUESPACK JUDGE Douglas D Brown Attorneys for PlaintiffIn RuleAppellee Brett K Duncan Telicia Ann Catalanotto Hammond Louisiana C Glenn Westmoreland Attorney for DefendantInRuleAppellant Livingston Louisiana Micah Dustin Catalanotto BEFORE PARRO KUHN AND McDONALD JJ c G 61 444o Gryw McDONALD J This is an appeal of a child custody judgment Micah Dustin Catalanotto and Telicia Ann Catalanotto were married on November 16 2002 They had one child Jayde Madyson Catalanotto born January 19 2007 The Catalanottos were divorced on October 27 2008 On November 21 2009 a stipulated judgment was signed and granted sole custody of Jayde to Ms Catalanotto and supervised visitation to Mr Catalanotto every other Saturday supervised by Mr Catalanotto mother Ms Catalanotto s was ordered to drop Jayde off on her way to work on every other Saturday and pick her up after work On February 9 2009 Mr Catalanotto filed a rule for contempt of court asserting that Ms Catalanotto had failed to deliver Jayde for visitation after November 2008 He also requested attorney fees and costs and asked that his visitation be made unsupervised and that it be increased to include every other weekend alternating holidays and extended time in the summer On March 27 2009 Ms Catalanotto filed a peremptory exception raising the objection of no cause of action asserting that Mr Catalanotto had no cause of action because he had failed to allege a material change in circumstances that would justify a change in the stipulated custody plan She further asserted that a change in visitation would not be in the best interest of Jayde She also filed a motion for contempt asking that Mr Catalanotto be found in contempt of court for failure to pay several months of child support and for continually intimidating and 1 In an earlier stipulated judgment the parties were awarded joint custody with Ms Catalanotto designated as the domiciliary parent and liberal physical custody given to Mr Catalanotto However after that judgment was signed Mr Catalanotto was arrested twice once for breaking and entering which led to a plea of guilty to possession of stolen things and once for reckless operation of a vehicle Ms Catalanotto thereafter filed a motion to modify custody due to a material change in circumstances and later stipulated judgments awarded sole custody to Ms Catalanotto with supervised visitation to Mr Catalanotto every other Saturday At the time of the hearing on the rulings at issue Mr Catalanotto testified he had been arrested for aggravated assault and charges were pending against him 2 harassing Ms Catalanotto She prayed for costs and attorney fees for her contempt motion After a hearing on the motion for modification of visitation the district court judge signed a judgment on July 1 2009 continuing sole custody of Jayde with Ms Catalanotto and continuing supervised visitation for Mr Catalanotto every other Saturday supervised by Mr Catalanotto mother s Ms Catalanotto was ordered to drop off Jayde on her way to work on every other Saturday and pick her up after work Further Mr Catalanotto motion for contempt was denied with s prejudice But he was awarded one additional Saturday visitation per month from April 2009 through July 2009 in order to make up for his missed visitation Each party was ordered to bear its own costs Mr Catalanotto appeals that judgment He raises two assignments of error first that the district court erred by failing to hold Ms Catalanotto in contempt of court for her failure to obey the stipulated judgment in that she failed to bring Jayde for visitation every other Saturday and second that the district court erred by failing to modify the stipulated judgment to provide for visitation every other weekend alternating holidays and extended time in the summer ASSIGNMENT OF ERROR NO 1 In his first assignment of error Mr Catalanotto asserts that the district court erred by failing and refusing to hold Ms Catalanotto in contempt of court for her failure to obey the November 21 2008 stipulated judgment in that she failed to bring Jayde for visitation every other Saturday from December 2008 through March 2009 The trial court is vested with great discretion in determining whether a party should be held in contempt of court and its decision will be reversed only when the 2 Ms Catalanotto smotion for contempt was denied at the hearing The district court did not rule on Ms Catalanotto peremptory exception raising the objection of no cause of action Thus s it is deemed denied 3 appellate court discerns a clear abuse ofthat great discretion Haydel v Pellegrin 070922 p 5 La App 1 Cir 9970 So 629 632 07 14 2d A review of the record shows a good deal of acrimony between the parties and a failure to communicate Each party filed a motion for contempt against the other and both motions were denied During the time period that Ms Catalanotto failed to comply with the visitation order she was pregnant went into preterm labor was placed on bed rest and gave birth six weeks before her due date She testified that she did not believe Mr Catalanotto wanted her new husband to transport Jayde for visitation Also the record indicates that on some of the days that Ms Catalanotto did not deliver Jayde for visitation Mr Catalanotto was working out of state After a thorough review we find no abuse of discretion by the trial court in not holding Ms Catalanotto in contempt ASSIGNMENT OF ERROR NO 2 In his second assignment of error Mr Catalanotto asserts that the district court erred in failing to modify the November 21 2008 stipulated judgment to allow him regular visitation consisting of every other weekend alternating holidays and extended time in the summer When the original child custody decree is a stipulated judgment a party seeking modification of custody or visitation must prove that there has been a material change in circumstances since the original decree and that the proposed modification is in the best interest of the child D v D 03 2212 Aquilla Aquilla p 5 La App 1 Cir 4 879 So 145 148 writ denied 041083 La 04 2 2d 04 25 6 876 So 838 2d The paramount consideration in any determination of child custody is the consideration of the best interest of the child 131 D 03 2212 at p 5 879 So at 148 Aquilla 2d L La C art Mr Catalanotto argues that Ms Catalanotto willfully disobeyed the court ordered visitation by failing to deliver the child to him and that such conduct amounts to a material change in circumstances warranting a modification of the existing visitation order In his argument he relies upon Louisiana Revised Statute 4611 13 which provides that Except as otherwise provided for by law 1 The supreme court the courts of appeal the district courts family courts juvenile courts and the city courts may punish a person adjudged guilty of a contempt of court therein as follows f A pattern of willful and intentional violation of this Section without good cause may constitute a material change in circumstances warranting a modification of an existing custody or visitation order As noted in assignment of error number one with regard to the missed visitation Ms Catalanotto had been put on bed rest given birth to a baby prematurely and believed Mr Catalanotto did not want her new husband transporting Jayde for visitation Also on some of the visitation days Mr Catalanotto was working out of state The district court judge spent a good amount of time at the end of the hearing admonishing the parties that they must work together for the good of their child The district court did not find a pattern of willful and intentional violation on Ms Catalanotto part that constituted a material change in circumstances s warranting a modification of the existing visitation order After a thorough review of the record we cannot say that the trial court erred in that determination Thus for the foregoing reasons the district court judgment is affirmed Costs of this appeal are assessed against Mr Catalanotto AFFIRMED 5
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