Lonnie and Janice Rogers VS Everett J. Pastureau
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STATE OF LOUISIANA COURT OF APPEAL FIRST CIRCUIT NUMBER 2012 CU 2008 LONNIE AND JANICE ROGERS VERSUS PASTUREAU EVERETTJ Judgment Rendered Apri126 2013 Appealed from the The Family Court In and for the Parish of East Baton Rouge Louisiana Docket Number 177 826 Honorable Lisa Woodruff Judge Presiding White Fk9 aY 4 aCdCitkk Karen D Downs Counsel for Plaintiffs Baton Lonnie Rogers and Janice Rogers Rouge LA Douglas M Chapoton Baton Rouge LA Counsel for Defendants Everett J Pastureau and Mallory Pastureau BEFORE WHIPPLE C McCLEND01v AND HIGGINBOTHAM JJ J t 1 C l Cl vY IS c5 n P l G S L WHIPPLE C J This matter is before us on appeal by Everett and Mallory Pastureau the father and adoptive mother respectively of Mr Pastureau stwo children from a judgment granting grandparent visitation rights to Lonnie and Janice Rogers the s parents of the children deceased mother Tara Rogers Pastureau For the following reasons we affirm FACTUAL AND PROCEDURAL BACKGROUND Everett Pastureau and Tara Rogers Pastureau were married on August 7 1999 From this marriage two sons were born namely L born on September 3 P 2002 and J born on November 7 2005 Tara and Everett Pastureau resided in a P home ne door to Tara parents Lonnie and Janice Rogers Mr and Mrs s Rogers on False River Tara Pastureau was diagnosed with cancer around July 13 2005 while pregnant with J P She passed away on June 1 2006 when L P was three years old and J was six months old During Tara battle with cancer P s Everett often stayed with Tara in the hospital while Mr and Mrs Rogers often took care of the children After Tara death Everett and the boys continued to live next door to their s grandparents As Everett began traveling to Austin Texas for wark the children often stayed with Mr and Mrs Rogers The children attended the school where Mrs Rogers was a pre teacher the chiidren often ate supper at the kindergarten Rogerses home and the Rogerses bought the children clothing and took them to doctors appointments Everett and the boys briefly moved to Austin in the sumnler of 2009 but Everett and the children moved back to the Baton Rouge area in May of 2010 Everett manied Mallory Pastureau on August 7 2010 According l to Mallory they only began dating in July of 2009 She also testified that eventually they began living together with the boys in an apartment in Baton Rouge 2 However at some time in September of 2009 Everett and Mr Rogers got into a heated argument Everett and Mr Rogers later offered conflicting testimony as to what exactly transpired but both agree that the source of the argument was s Everett anger at a sign made by Mr Rogers in memory of his daughter and placed on the driveway to the False River property When someone kept removing the sign Mr Rogers confronted Everett about the sign removal Although Everett denied actually removing the sign he admitted at trial that the sign made him angry and bothered him because the sign read Tara Annette Drive and this was the name that Tara used prior to marrying Everett As such Everett felt that the sign erected by Mr Rogers was disrespectful of him as in his view the sign did not acknowledge Tara as his wife Sadly after this confrontation the Rogerses were only allowed to see their grandsons on two occasions once in February 2010 and once in May 2010 Their communication with their grandsons was also severely limited Mrs Rogers s telephone records from mid through early November 2010 showed that March eight twenty phone calls to Everett were never answered nor were the calls ever returned On April 22 2010 Mr Rogers sent an email to Everett wherein Mr Rogers expressed his respect for Everett role as a parent his desire and s willingness to extend a effort to make things work far the sake of the sincere children and a request that the grandchildren be allowed to attend his son s wedding stating that the children presence would help ease the pain of not s having Tara there Everett refused to allow the children to attend the wedding complaining that the email was concerning because he did not want his children to carry the burden of filling a void At trial Everett set forth that he refused to allow the children to attend even the church ceremonies of his former brother and current employee because he thought the law in grandparents would be busy partying and would not focus solely on his children 3 On May 6 2010 the Rogerses other daughter Allison who notably was also L Godmother sent an email to Everett requesting that she be allowed to s P see her nephews Everett responded in pertinent part T aren hese tyour boys they aren your family boys they are meant to be with me and we are simply t s happier since we have removed the negative influences in our lives After virtually every effort to see their grandchildren was refused or unacknowledged on December 20 2010 the Rogerses filed a petition for grandparent visitation rights with the Family Court for East Baton Rouge Parish The petition alleged that Mr and Mrs Rogers had been very involved in their slives up until the early months of 2010 when Everett limited and grandchildren then terminated their contact with the children The petition alleged that visitation is in the best interest of the children due to the Rogerses prior loving and close relationship with the children and the benefits the children would derive from continuing their close and loving relationship with their grandparents Everett responded to the petition with ailegations that Lonnie Rogers had become violent towards him in front of his two minor sons and that the Rogerses have shown no interest in perpetuating the way that Everett and his new wife Mallory want to raise the children Everett also alleged that the grandparent visitation statutes are unconstitutional After the suit was filed by Mr and Mrs Rogers and was pending Mallory adopted L and J on May 6 2011 pursuant to a decree rendered by the P P Juvenile Court of East Baton Rouge Parish 4 Accordingly the Rogerses then amended their petition for grandparent visitation rights in the pending suit on As 3 required by LSA 13 the Attorney General was served with a copy of the S R 4448 answer in which Everett challenged the constitutionality of the grandparent visitarion statutes on its face and as applied to the facts of this case Around this same time period Everett also adopted Mallory daughter from a prior s relationship 4 August 3 201 l to add Mallory Pastureau as an additional defendant by voluntary joinder Prior to the beginning ofthe full trial on the merits the trial judge ordered an interim visitation schedule to cover week ten a period Due to scheduling conflicts the trial was continued beyond the ten weeks provided for in the interim visitation schedule However in the interim the parties continued to have disagreements over the visitation schedule The Rogerses filed a rule to show cause seeking to extend the terms of the interim visitation schedule until the trial on the merits Mr and Mrs Rogers also filed a rule for contempt alleging that despite the court interim orders they had been denied visitation on week 10 as s provided for in the interim visitation schedule The trial on the merits began on August 15 2011 and resumed on November 21 2011 at which time the trial judge rendered another interim order This interim order provided that the Rogerses were to have visitation with their grandchildren on November 23 2011 and this was to include lunch with Everett and Mallory present The order also provided that the Rogerses were granted the right to visit with the grandchildren on December 27 28 29 and 30 2011 in the Celebration Orlando Florida area As will be discussed more thoroughly below although Mr and Mrs Rogers traveled to Florida with gifts and plans for entertaining the children these December visits never took place due to the actions and misconduct of the Pastureaus in failing or refusing to facilitate the visitation ordered by the court After a bitterly contested trial on the merits which continued over nine additional days the trial concluded on June 11 2012 At trial extensive testimony and evidence was introduced in support of and in opposition to the limited 5 During the course of this litigation the Pastureaus relocated to the Orlando Celebration Florida area 5 visitation sought by Mr and Mrs Rogers As the trial court astutely concluded the sum of the evidence overwhelmingly demonstrates that the Pastureaus acted unreasonably throughout and engaged in an unwarranted and extended course of conduct designed to alienate the children from their grandparents contrary to the s children best interest which was the continuation of the loving relationship that had existed between the children and their grandparents for the majority of their lives For example the record reflects that during two of the interim visits the older grandson became visibly upset and said such things to the Rogerses as I cannot get any new toys because ofthe lawsuiY and w can e thave fun because then you will tell the judge and my dad will go to jail As the trial court noted equally troubling are two videos that were introduced by the Pastureaus into the record In the first video Mallory is shown arguing with the Rogerses at a school fair Everett is videotaping and the children are present The older grandson is crying in the background and saying I don t want to go with them tape it daddy tape it Mallory tells Mr Rogers that the children do not want to go with him she can not make them go against their wishes Pm not going to jail because of this and m kids remember bad y things about you The second video is a tape of events at the Pastureaus home in Orlando Florida made by them using a camera hidden in a teddy bear under the Pastureaus Christmas tree The video camera is pointed at the front door of the home to record the Rogerses coming to pick up the children for the December 27 28 and 29 2011 visits as ordered by the November 21 2011 interim judgment In the video the children come to the door and tell the Rogerses that they do not want to go with them The Rogerses then plead with their grandsons saying it will be fun we have Christmas presents and we are going to the theme park After 6 the children are allowed by the Pastureaus to refuse to go with their grandparents Mr and Mrs Rogers leave Later when asked at trial why visitation with the grandparents would not be beneficial to the children Everett responded that he decided to try to build a whole new family and he does not want the family to be broken According to Everett if he allowed the visits he would have difficulty explaining to E P s Mallory daughter from a prior relationship whom Everett has now adopted why she is not a part of that family when all along he has been stating to his new family that they are all part of a solid non family Specifically broken when questioned about why visitation would not be beneficial Everett testified s It not beneficial at all because it sends a clear message and fortifies the two families and my whole point in the core purpose sic and what Pm involved in is my family now that we are inclusive At the conclusion of the lengthy trial the trial court concluded that this clearly was one of the warst cases of alienation the court had ever seen that the Pastureaus were the sole cause of the reluctance of the minor children to go with their grandparents that Everett stestimony and explanation were not credible and that Everett memory and recollection was selective and self After s serving finding that the grandparent visitarion statutes were consfitutional the trial judge awarded visitation to the Rogerses and found the Pastureaus in contempt of court Concluding that visitation with their grandparents was in the best interest of the children the trial court then granted specific visitation in favor of Mr and Mrs Rogers ordering that the Rogerses have visitation with their two grandsons consisting of one weekend every other month two nights during the school Christmas break and one week during the school summer break After obviously considering the turmoil bickering and conduct of the Pastureaus that had taken The 6 record also reflects that Mr and Mrs Rogers initially were allowed and agreed to take E on visits with their grandchildren and that they honored her and treated her to gifts on P holidays like their other grandchildren For reasons not clear in the recard these visits were also later disallowed 7 place when the Pastureaus demanded to be included in all family events which clearly interfered with and undermined the attempts of Mr and Mrs Rogers to exercise visitation the trial court further ordered that Everett and Mallory Pastureau were not to be present for the visitation unless specifically invited by the Rogerses The Pastureaus then filed the instant appeal asserting the following assignments of enor 1 The trial court did not have jurisdiction to render the visitation judgment rather the Juvenile Court had jurisdiction as it rendered an adoption decree pertaining to these children 2 The trial judge erred as a matter of law by awarding visitation under the incorrect statute 3 The Louisiana grandparent visitation statutes are unconstitutional on their face and the judgment rendered herein is unconstitutional 4 The judgment rendered herein was manifestly erroneous as it awarded visitation to the grandparents as they requested over how the parents wanted the visitation to occur 5 The portion of the judgment finding the Pastureaus in contempt of court was manifestly erroneous SUBJECT MATTER JURISDICTION Assignment of Error No 1 Louisiana Revised Statute 13 establishes and defines the exclusive but 1401 limited subject matter jurisdiction of the East Baton Rouge Family Court stating that the Family Court has exclusive jurisdiction over custody and visitation of children jurisdiction It is undisputed that the Family Court initially had subject matter over this petition for andparent visitation rights However the Pastureaus argue that the Family Court erred in rendering judgment herein as it 8 subsequently lost jurisdiction when Mallory Pastureau later adopted L and J P P pursuant to an adoption decree rendered by the Juvenile Court In support the Pastureaus rely on LSA art 1265 which provides that C Ch a request for limited visitation rights shall be made by motion of the gandparents and filed with the court which rendered the final decree of adoption Accordingly the Pastureaus argue the Family Court erred in exercising jurisdiction as the Juvenile Court has exclusive subject matter jurisdiction over this visitation action since it rendered the final decree of adoption We disagree Louisiana Children Code article 1265 states that a motion for grandparent s visitation shall be filed with the court which rendered the final decree of adoption When Mr and Mrs Rogers filed their petition no adoption decree had been rendered Thus there was no court which rendered the final decree of adoption in which to file the motion when the visitation was sought Accordingly we find that the clear and unambiguous language of LSA art C Ch 1265 demonstrates that it does not apply herein to govern the Rogerses petition for grandparent visitation filed prior to the adoption of the children Moreover if there is some ambiguiry in the language of LSA art C Ch 1265 then it must be interpreted as having the meaning that best conforms to the purpose of the law LSA art 10 We do not find that the purpose of LSA C C Ch art 1265 is to divest the Family Court of jurisdiction over a properly filed visitation proceeding that has been before the Family Court for several months and with which the Family Court is familiar and has rendered interim orders in simply because an intra adoption decree is later rendered by the Juvenile Court family While we find no merit to the exception or the arguments urged in support we note that the fact that the Pastureaus have raised the objection of lack of subject matter jurisdiction for the first time in this appeal is of no moment as the issue of subject matter jarisdiction can not be waived and can be considexed at any time LSA art 925 P C C In addition to raising the issue of subject matter jurisdiction in their brief the Pastureaus also filed a separate pleading entitled Exception of Lack of Subject Matter Jurisdiction with this court Thus this issue is properly before us 9 Such a result would be contrary to the principles of judicial efficiency and would encourage forum shopping For the foregoing reasons we conclude that LSA art 1265 is not C Ch dispositive of this petition for grandparent visitation rights The Family Court lawfully maintained jurisdiction over this matter despite the subsequent adoption Accordingly we deny the exception of lack of subject matter jurisdiction at the movers costs DETERMINATION OF APPLICABLE LAW S R344 LSA 9 or Ch Art C 1256 Assignment of Error No 2 There are three legislative enactments addressing grandparent visitation rights in Louisiana First LSA art 136 provides in pertinent part that C under extraordinary circumstances a by blood or affinity may be relative awarded reasonable visitation rights if found to be in the best interest of the child Second LSA 9344 provides for visitation rights of grandparents i of S R fone the parties to a marriage dies is interdicted or is incarcerated and there is a minor child or children of such marriage Third LSA art 1256 provides that C Ch following the rendition of a final adoption decree grandparents may obtain limited visitation rights to the adopted child Emphasis added The Pastureaus contend that the trial court erred as a matter of law by awarding visitation to the grandparents under LSA 9344 grandparents can S R obtain visitation upon death of a party to the marriage and LSA art 136 C B relative by blood or affmity may get reasonable visitation if in the child best s interest rather than under LSA art 1256 after adoption grandparents can C Ch Subsequent B to the filing of the petition herein LSA art 136 was amended by Acts C 2012 No 763 1 eff June 12 2012 10 obtain limited visitation The Pastareaus further argue that on de novo review this court should further limit the Rogerses visitation because LSA art C Ch 1256 grants gandparents only limited visitation rights We find no merit to these arguments As previously stated at the time the Rogerses initially filed their petition for visitation the grandchildren were not adopted by their step Accordingly mother when the petition was filed the Rogerses clearly had a right of action to seek visitation under LSA 9344 as they were the parents of a deceased party to a S R marriage and there were minor children of such marriage Further we do not find that the subsequent adoption of the children negated the rights of the grandparents to pursue court visitation under LSA ordered S R 9344 As this Court recently noted in Francis v Francis 2011 La App lst 2ll6 Cir 697 So 1091 1094 writ denied 2012 La 793 So3d 12 13 3d 1635 12 24 582 the clear and unambiguous language of Article 1256 does not foreclose any rights to visitation that grandparents may have pursuant to other authority We further note that LSA 9 was enacted after LSA art S R 344 C Ch 1256 Moreover in its enactment of LSA 9344 the legislature did not S R include language therein stating that in the event of a conflict the provisions of the Children Code article would supersede those of the statute In comparison LSA C art 136 specifically states E n ithe event of a conflict between this Article and R 9 the provisions of the statute shall supersede those of this S 344 Article The 9 trial judge stated the following in her oral reasons for judgment Under the provisions of Revised Statute 9 I find visitation to the 344 grandparents to be in the best interests of L and J Under the provisions of P P Civil Code Article 136 I find extraordinary circumstances exist to grant reasonable visitation to the grandparents Louisiana s 10 Children Code ar 1256 was enacted by Acts 1991 No 235 12 However LSA 9344 was enacted by Acts 1993 No 261 S R No 1352 1 and Acts 2012 No 763 2 11 5 and amended by Acts 1999 Far these reasons we conclude that the ruling in the instant matter is not interdicted or governed by LSA art 1256 We further clarify that the ruling C Ch in the instant matter was properly rendered under LSA 9344 as LSA S R C art 136 unequivocally provides that in the event of a conflict the provisions of E S R 344 LSA 9 shall supersede those of LSA art 136 C THE TROXEL V GRANVILLE STANDARDS Assignment of Error No 3 Citing Troxel v Granville 530 U 57 120 S Ct 2054 147 L Ed 2d 49 S 2000 the Pastureaus next contend that the trial judge erred by failing to give material or special weight to their decision that as parents they should be present at all times for their children visits with the Rogerses We find no merit s to this argument In Troxel paternal grandparents after their son death sought visitation s with their granddaughters from the girls mother pursuant to a Washington statute The Washington statute permitted a person to petition for visitation rights at ny any time and authorized the state courts to grant such rights when visitation may serve the best interest of the child The trial court entered a visitation decree ordering visitation with the grandparents one weekend per month one week during the summer and four hours on each of the grandparents birthdays Troxel 530 S U at 61 120 S at 2057 The Washington Supreme Court reversed the Ct 2058 decision finding that the Washington statute infringed on the fundamental rights of parents to rear their children Troxel 530 U at 63 120 S at 2058 The U S Ct S Supreme Court then granted certioriari and affirmed finding that the visitation order in the case was an unconstitutional infringement on the s mother fundamental right to make decisions concerning the care custody and control of Moreover as set forth in our discussion of the remaining assignments of enor even if we were to find enor in the trial court sreliance on or citation to LSA 9 and LSA C S R 344 art 136 we would nonetheless affirm As the record amply demonstrates the visitaYion and limitations upon such granted to Mr and Mrs Rogers were reasonable and warranted and satisfies the standard of limited visitation envisioned by LSA Cart 1256 Ch 12 her two daughters The U Supreme Court commented that the trial court failed S to accord the determination of Granville the mother a fit custodial parent any material weight Troxel 530 U at 71 120 S at 2063 In addressing the trial S Ct s court failure to give special weight to the mother determination of her s daughters best interests the U Supreme Court took issue with the trial judge S s comments that it is normaliy in the best interest of the children to spend quality time with the grandparent unless the grandparent sic there are some issues or problems involved wherein the grandparents their lifestyles are going to impact adversely upon the children The U Supreme Court found that by said S statement the trial judge in effect placed on the mother the burden of disproving that visitation would be in the best interest of her daughters Troxel 530 U at S 69 120 S at 2062 Ct Contrary to the Pastureaus contention the trial judge herein did not place the burden on the Pastureaus of disproving that visitation with the Rogers would be in the best interest of the children The trial judge correctly explained in her reasons for judgnent that case law has established that the non has the parent burden of proving that visitation would be reasonabie and in the best interest of the children Moreover when the trial judge entered an interim visitation order Everett was to be present for the first four scheduled visits between the Rogerses and the grandchildren and the visits were to take place at both the Pastureaus and the Rogerses homes The trial judge then entered another interim arder wherein the Pastureaus and the Rogerses were to have lunch together prior to the Rogerses having visitation alone with their grandchildren As these interim orders demonstrate the trial judge did give material or special weight to the Pastureaus expressed desires and concerns about being present for the visits in order to build a single family unit Nevertheless the record 13 demonstrates that the inclusion of the Pastureaus has not worked in the past due to the Pastureaus own conduct and unjustified action in preventing visitation Given the record as a whole and the high level of animosity between the parties we find no error in the limitations placed by the court on the interaction of the parents and grandparents as the ruling was clearly based on evidence establishing that such an order was warranted and in the best interest of the children FACIAL CONSTITUTIONALITY OF GRANDPARENT VISITATION STATUTES Assignments of Error Nos 4 and No 5 The Pastureaus next contend that LSA 9344 LSA art 136 S R C B and LSA arts C Ch 1256 and 1264 are unconstitutional on their face and unconsritutional as they violate the Equal Protection Clauses of the United States Constitution and Louisiana Constitution As we have previously determined that the instant matter is govemed by LSA 9 we will only address the S R 344 constitutionality of this specific statute This Court in Barrv v McDaniel 2005 La App lst Cir 3 2455 06 24 934 So 69 76 thoroughly addressed the constitutionality of LSA R 9344 2d S and found the statute constitutional on its face In reaching its decision this court emphasized the well principle that when a court can reasonably established I construe a statute to preserve its constitutionality it must do so 2d B 934 So at 76 citine Metro Riverboat Assoicates Inc v Louisiana Gaming Control Board 0185 2001 La 10 797 So 656 662 The opinion then summarized how O1 16 2d prior decisions of this Court have interpreted and applied LSA R 9344 stating S as follows should refrain from reaching or determining the constitutionality of legislation unless in the context of a particular case the resolution of the constitutional issue is essential to the decision of the case or controversy State v Brown 2003 La 7 879 So 2788 04 6 2d 1276 1280 14 In Babin v Babin 2002 La App lst Cir 7 854 0396 03 30 So 2d 403 410 writ denied 2003 La 9 854 So 411 2460 03 24 2d 338 cert denied sub nom Babin v Darce 540 U 1182 124 S S Ct 1421 158 L 86 2004 and in Wood 835 So at 573 this Ed2d 2d court noted that a proper interpretation of La R 9344 requires the S trial court to balance the statute against a fit parent constitutionally s protected fundamental right of privacy in child rearing and to remember that any rights of nonparents are ancillary to that of a fit parent Further the nonparent has the burden of proving visitation or a modification of visitation would be reasonable and in the best interesP of the child as is required by the statute Wood 835 So at 2d 573 574 Babin 854 So at 410 In considering the best interest of 2d the child the trial court must be aware that as nonparent visitation increases the infringement and burden on the parent fundamental s right of privacy in child rearing increases proportionally Wood 835 2d So at 573 Babin 854 So at 410 Visitation that unduly 2d 411 burdens parental rights would be unconstitutional regardless of the provisions of statutory law Wood 835 So at 573 Babin 854 2d 2d So at 411 This court concluded that given the jurisprudentially imposed guidelines as established in Babin and Wood and the duty to construe a statute to preserve its constitutionality LSA 9344 is constitutional on its face B 934 Sa2d at S R 76 While recognizing that this Court has addressed the issue and rendered its decision in B the Pastureaus nonetheless contend that the jurisprudential rules are insufficient to render the statute constitutionaL Instead they contend the language of the statute itself must contain language protecting the constitutional rights of the parents The Pastureaus argument fails to recognize that when a court can reasonably construe a statute to preserve its constitutionality it must do so Moreover the U Supreme Court in Troxel s also recognized that judicial S ra interpretation of a statute may come into play when considering constitutionality As set forth in Troxel in pertinent part The Washington Supreme Court had the opportunity to give 3 160 2610 a narrower reading but it declined to do so See e g 137 Wash at 5 969 P at 23 The statute allow any person 2d 2d s at any rime to petition for visitation without regard to relationship to the child without regard to changed circumstances and without 15 its regard to harm id at 20 969 P at 30 The statute allow 2d s any persod to petition for forced visitation of a child at any time with the only requirement being that the visitation serve the best interest of the child Emphasis added Troxel 530 U at 67 120 S at 2061 S Ct Accardingly given the jurisprudentially imposed guidelines which 1 place the burden of proof on the non and 2 mandate recognition that the rights parent of a non are ancillary to that of a fit parent we again find that LSA parent S R 9344 is not unconstitutional on its face As to the Pastureaus alternative argument that LSA 9 is S R 344 unconstiturional in that it violates the equal protection clause of the United States Constitution and Louisiana Constitution we likewise find no merit The basis of the Pastureaus equal protection argument is that the grandparent visitation statutes treat adoptive parents differently from biological parents despite other provisions of law providing that adoptive parents are given all rights as if the children were bom to them Specifically the Pastureaus contend that adoptive parents are subject to grandparent visitation rights even when against what they believe to be in the best interest of their children whereas there is no such infringement allowed on a natural s parent right to raise their children We find no merit to this argument Equal treatment of all claimants in all circumstances is not required The law merely requires equal application in similar circumstances 2d Greenhouse 2005 La 2 922 So 501 505 0765 06 22 Beauclaire v Applying said principle we find that LSA 9344 does not treat an adoptive parent any S R differently from a biological parent in similar circumstances where there has been a death of the child other parent A biological parent would also be subject s to a claim of grandparent visitation under such circumstances if shown to be in the best interest of the child 16 CONSTITUTIONALITY OF JUDGMENT RENDERED Assignments ofError Nos 6 7 and 8 In assignments of error numbers six and eight the Pastureaus assert that 1 the judgment violates their fundamental right as parents to make decisions concerning their children and 2 the judgment violates the due process clause These separate assignments of error are addressed as one herein as they are interrelated The crux of both ofthese arguments is that this particular judgment is unconstitutional as it unduly burdens the Pastureaus parental rights The Pastureaus argue that this judgment is unduly burdensome because 1 it orders the parents away from their minor children so that the Rogerses can exercise the visitation in the manner and under the conditions which they choose and 2 the judgment is unduly burdensome as it requires them to travel and bear the expenses of travel in order for the Rogerses to have visitation We find no merit to these arguments The judgment does not give Mr and Mrs Rogers the right to exercise grandparent visitation as they choose Instead the judgment outlines a very specific visitation schedule consisting of weekend visits every other month two days during the holiday break and one week during the suminer for a total of only one twenty days per year We further find that the trial judge made all reasonable efforts to fairly and appropriately allocate the visitation travel expenses Clearly the burden of travel expenses and time is greater for the Rogerses The judgment provides that Mr and Mrs Rogers are to travel to Florida for the weekend visits in January March May July September and November In contrast the Pastureaus are only required to In 13 assignment of enor number 7 the Pastureaus argue that this particular judgment is unconstitutional because it violates the equal protection clause The Pastureaus brief does not discuss how this exact judgment violates the equal protection clause Accordingly other tha our earlier discussion of whether LSA 9 violates the equal protection clause on its face S R344 we pretermit further discussion on this issue as the Pastureaus have raised no additional argwnents 17 bring the children to Louisiana two times during the year ionce during the e Christmas break and once over the summer break Considering the record as a whole we conclude that the provisions of the judgment are reasonable as the Pastureaus have other relatives in Louisiana whom they routinely travel to Louisiana to visit with The Pastureaus provided no testimony or evidence regarding their finances ar inability to pay travel expenses When questioned about the logistics of traveling to Louisiana Mallory only took issue with the possibility of traveling to Louisiana for weekend visits Again the judgment does not require the Pastureaus to travel to Louisiana far any weekend visits Moreover we find that the terms of this visitation order are less burdensome than the grandparent visitation ordered in prior cases before this court which we have previously upheld In Babin v Babin 2002 La App 0396 lst Cir 7 854 So 403 411 writ denied 2003 La 9 03 30 2d 412 2460 03 24 854 So 338 cert denied sub nom Babin v Darce 540 U 1182 124 S 2d S Ct 1421 158 L 86 2004 the grandmother was awarded four hours of 2d Ed visitation every three weeks with her grandchildren The grandmother and the father were also ordered to attend counseling This Court affirmed the visitation finding the trial court was careful to limit the grandparent visitation so as not to be a significant intrusion upon the children relationship with their father In B s 934 So at 72 79 this court affirmed the judgment of the trial court granting 2d the grandparents visitation with their granddaughter on the first weekend of every month from 6 p on Friday through 6 p on 5unday and one week 00 m 00 m during summer For the foregoing reasons we conclude the judgment rendered in this matter is amply supported by the recard and does not unduly burden the Pastureaus parental rights and violate their due process rights or 18 MANIFEST ERROR IN THE JUDGMENT Assignments of Error Nos 11 and 12 The Pastureaus next argue that the judgment was manifestly erroneous We find no merit to this argument The trial court is vested with vast discretion in matters of child custody and visitation Accordingly its determination regarding the same is entitled to great weight and will not be disturbed on appeal unless an abuse of discretion is clearly shown As an appellate court we cannot set aside the trial court factual findings s unless we determine that there is no reasonable factual basis for the findings and the findings are clearly wrong manifestly erroneous If the findings are reasonable in light of the record reviewed in its entirety an appellate court may not reverse even though convinced that had it been sitting as the trier of fact it would have weighed the evidence differently Babin 854 So at 408 citins Ste hpens v 2d Ste hens 2002 La App lst Cir 6 822 So 770 774 and Stobart 0402 02 21 2d v State Department of Transportation and Development 617 So 880 882 2d La 1993 As reflected in the voluminous recard generated over the eleven trial of day this matter the trial judge heard extensive testimony regarding the close and loving relationship that Mr and Mrs Rogers and their extended family members had with their grandsons prior to Everett terminating their communication and visits with these children Notably Everett began to limit the Rogerses interaction with their grandsons only after he got into an argument with NIr Rogers about an issue that clearly had no relevance to the Rogerses extensively documented loving and nurturing relationship with the children which had existed far the duration of the s children lives The record does not reflect that the Rogerses ever interfered or disregarded in any manner whatsoever Everett and Mallory rights as parents to s make decisions far their children concerning their health education or religion At 19 most there was only one instance discussed wherein Everett claimed the Rogerses placed their grandsons in a dangerous situation Specifically a picture was introduced showing Mrs Rogers holding a beer while on abarge with her party grandsons Mrs Rogers acknowledged that she had a beer in her hand in the picture but further explained that she does not like beer so she at most only had a few sips with her lunch Further while we are cognizant of the dangers of mixing alcohol and boating especially in the presence of children we note that when factual findings are based on the credibility of witnesses the fact finder decision s to credit a witness testimony must be given great deference by the appellate s court Babin 854 So at 408 On review we find no error in the trial court 2d s acceptance of Mrs Rogerses testimony regarding this event Accordingly after thoroughly reviewing the testimony in the record and the documentary evidence introduced by the parties we find no manifest error in the trial court ultimate finding that visitation with Mr and Mrs Rogers was in the s s children best interest CONTEMPT Assignments ofError Nos 9 and 10 The Rogerses filed two rules for contempt in these proceedings which were both granted by the trial judge at the conclusion of the trial on the merits On appeal the Pastureaus contend that the trial judge erred in finding them in contempt We disagree The first rule for contempt was filed by Mr and Mrs Rogers on April 21 2011 This rule alleged that the Pastureaus failed to abide by the provision in the interim visitation order of February 28 201 l which provided that on week 10 the Rogerses would have visitation with the grandchildren on Sunday from 1 to 00 00 m 6 p unless the parties agreed otherwise The rule alleged that the time was In 14 doing do we pretermit discussion of the evidence regarding Everett Pastureau sown actions which purportedly resulted in his arrest in Texas 20 changed by agreement of the parties in order to accommodate the children so that they could attend a birthday party However when Mr and Mrs Rogers arrived at the Pastureaus home to pick up the children Everett became very upset when he was informed that the children aunt the Rogerses daughter would be part ofthe s visitation Everett then forced the children to decide between going with the Rogerses or going to a birthday party and Earth Day The Rogerses eventually left the Pastureaus home without exercising visitation In response to the rule for contempt the Pastureaus stated that the Rogerses had gone outside the judgment and invited other persons to the visitation However we note that there was no provision in the February 28 2011 judgment prohibiting additional family members including the Rogerses daughter the saunt from participating in the visitation with the grandchildren children The second rule for contempt was filed on February 9 2012 and pertained to the court visitation that was scheduled to take place on December 27 ordered 28 29 and 30 2011 in the Orlando Florida area pursuant to the Celebration November 21 2011 interim judgment In this rule Mr and Mrs Rogers alleged that after they had incurred travel expenses in traveling to Florida and attempted to exercise visitation there when they arrived at the Pastureaus home on December 27 28 and 29 they were met at the door by Everett or Mallory and the children and were informed that the children did not want to go with them The rule essentially alleged that Everett and Mallory made no effort to facilitate the court ordered visitation and refused to encourage the children to go with the Rogerses The rule further alleged that the Pastureaus willfully acted to prevent Mr and Mrs Rogers from being able to enjoy a positive visitation experience with the children The Pastureaus response to this rule for contempt states that there was no evidence presented by Mr and Mrs Rogers which demonstrates that the Pastureaus did not do everything to try to facilitate this visitation We disagree 21 I As previously mentioned the Pastureaus videotaped the Rogerses arrival at their home on December 27 28 and 29 to pick up the children and the videos were introduced into evidence The videos clearly show that the Pastureaus made no attempts to get the children to go with the Rogerses they simply called the children to the door and had the children state they did not want to go Moreover Mallory admitted at trial that during these exchanges Everett never instructed the children to go with the Rogerses rather he said if you want to go boys go To find a person guilty of constructive contempt the court must find that he or she violated the order of the court intentionally knowingly and purposely without justifiable excuse 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 appellate court discerns a clear abuse of that great discretion Havdel v Pellegrin 2007 La App lst Cir 9 970 So 0922 07 14 2d 629 632 On thorough review of the record herein including the affidavits filed in conjunction with the rules far contempt the parties testimony as to the disputed visitations and in particular the videos made by the Pastureaus themselves depicting the rebuffed efforts of the Rogerses to exercise the visitation that had been lawfully granted to them we find the record overwhelmingly supports the trial court finding that the Pastureaus acted willfully and in contempt of the s s court orders as alleged in both contempt rules CONCLUSION For the reasons stated herein the trial court judgment is hereby affirmed s The exception of lack of subject matter jurisdiction and motion for stay filed by the Pastureaus as separate pleadings with this Court are also hereby denied All costs of this appeai are assessed to the appellants Everett and Mallory Pastureau JUDGMENT AFFIRMED EXCEPTION AND MOTION DENIED 22 STATE OF LOUISIANA COURT OF APPEAL FIRST CIRCUIT 2012 CU 2008 LONNIE AND JANICE ROGERS VERSUS EVERETT 7 PASTUREAU AND MALLORY A PASTUREAU McCLENDON J concurs and assigns reasons Based on the specific facts presented I concur with the result reached by the majority
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