Frances Jean Crow Givens VS Kenneth Blake Givens
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NOT DESIGNATED FOR PUBLICATION STATE OF LOUISIANA COURT OF APPEAL FIRST CIRCUIT NUMBER 2010 CU 1152 FRANCES JEAN CROW GIVENS VERSUS KENNETH BLAKE GIVENS Judgment Rendered December 22 2010 Appealed from the Thirty Second Judicial District Court In and for the Parish of Terrebonne Louisiana Trial Court Number 1 50 883 Honorable David W Arceneaux Judge John W Waters Jr Jaime Crow Waters Attorneys for Plaintiff Appellant New Orleans LA Frances Jean Crow Givens Bernard F Levy Attorneys for Defendant Appellee Houma LA and Kenneth Blake Givens Michael S Zerlin Melissa LeBlanc Thibodaux LA BEFORE CARTER C GAIDRY AND WELCH JJ J WELCH J Frances Jean Crow Givens appeals a judgment finding her in contempt of court for failing to allow Kenneth Blake Givens his physical custodial time with their child Olivia pursuant to a custody judgment and its incorporated joint custody plan ordering her to pay Kenneth Givens attorney fees in the amount of 00 500 and awarding Kenneth Givens additional physical custodial time with the child for the time that he lost Finding no abuse of the trial court broad discretion s with regard to such matters we affirm BACKGROUND At issue in this case is Frances Givens failure to abide by the July 24 2009 custody judgment and its attached joint custody plan which is the subject of the appeal in the companion case also rendered on this date Givens v Givens 2010 0680 La App 1 Cir 12 10 22 3d So The July 24 2009 judgment was rendered following a contentious custody trial The judgment specifically awarded Frances Givens and Kenneth Givens joint custody of the child designated Frances Givens as the child domiciliary parent and awarded Kenneth Givens specific s physical custodial periods with the child in accordance with an attached joint custody plan According to the joint custody plan Kenneth Givens was given exclusive custody and control of the child every other weekend from Friday at 6 00 m p until Sunday at 6 p beginning on Friday July 31 2009 plus specific 00 m custodial time during holidays and the summer Francis Givens appealed that judgment essentially complaining about the award of overnight custodial periods in favor of Kenneth Givens Following our review of the matter the judgment was Frances Givens and Kenneth Givens were awarded joint custody of their minor child However we note that both parties and the trial court have used the term visitation with reference to Kenneth Givens custodial time Visitation as provided for in La C art 136 applies only when a parent does not have custody or joint custody The time that parents with joint legal custody share with their children is more properly described as physical custody allocation of a joint custody plan rather than as visitation La R 9 Cedotal v Cedotal S 335 20051524 p 5 La App 1 Cir 11 927 So 433 436 see Evans v Lungrin 970541 05 4 2d pp 1011 La 2 708 So 731 737 98 6 2d Oil affirmed See Givens v Givens 20100680 at p 19 3d So On Friday October 9 2009 Kenneth Givens was supposed to take custody and control of Olivia at 6 p However at Frances Givens request the time 00 m was moved to 10 p in order to accommodate an extra curricular activity that 00 m Olivia wanted to attend at her school Apparently for this particular custodial weekend Kenneth Givens planned to surprise Olivia by inviting two of her childhood friends from Houma to spend the weekend with them at his home in Mississippi On his way from Houma to New Orleans to pick up the Olivia at her school Kenneth Givens encountered several delays First the highway on which he was traveling was temporarily closed because a movie was being filmed on the highway Then after the highway reopened and as Kenneth Givens approached the New Orleans area his car had a flat tire While changing the flat tire the jack stripped requiring him to call the police to request help with changing the tire At this point shortly before 10 p Kenneth Givens called Frances Givens to 00 m apprise her of the situation and to let her know that due to the delays he encountered he was probably not going to arrive at Olivia school by 10 p s 00 m so Francis Givens agreed to pick Olivia up from the school arriving shortly after 00 m 10 p After Kenneth Givens resolved his tire problem he called Frances Givens to let her know that he was on his way to pick up Olivia At that time Frances Givens informed Kenneth Givens that she was not going to allow him to take Olivia Kenneth Givens arrived at Frances Givens home approximately ten to twenty minutes after Frances Givens and Olivia arrived home Frances Givens did not answer the door and Frances Givens brotherinlaw who is also her attorney told Kenneth Givens that he could have Olivia at 8 a the following 00 m day The following day at 8 a Kenneth Givens picked Olivia up and went 00 m to his home in Mississippi In response to these events Kenneth Givens filed a rule for contempt of t court for Frances Givens refusal to allow him his custodial time with Olivia on Friday October 9 2009 After a hearing the trial court found that Frances Givens was in contempt of court for willfully and intentionally violating the judgment of the court ordered Frances Givens to pay attorney fees in the amount of 500 00 and awarded Kenneth Givens additional time to make up for the visitation A judgment in accordance with the trial court ruling was signed on March 19 2010 s From this judgment Frances Givens appeals asserting that the trial court erred in finding that she violated the joint custody plan Essentially she argues that the parties agreed to modify the joint custody plan on October 9 2009 to provide that Kenneth Givens would pick up the child at 10 p and because he failed to do 00 m so she did not violate the joint custody plan She also argues that she did not deny Kenneth Givens his custodial time but rather that she delayed it until the following morning Alternatively on appeal Frances Givens contends that if she did violate the joint custody plan the trial court erred in finding that her actions were intentional knowing and purposeful and without justifiable excuse Specifically Frances Givens contends that she withheld the child from Kenneth Givens on Friday October 9 2009 because she was concerned about the safety of the child and because she did not think it was safe for the child to be traveling late at night on a desolate highway in Kenneth Givens car because it was a late model with no spare and a stripped jack LAW AND DISCUSSION Louisiana Revised Statutes 9 provides in pertinent part 346 A An action for the failure to exercise or to allow child visitation custody or time rights pursuant to the terms of a court ordered schedule may be instituted against a parent The action shall be in the form of a rule to show cause why such parent should not be held in contempt for the failure and why the court should not further render judgment as provided in this Section C C If the action is for the failure to allow child custody visitation or time rights pursuant to a courtordered schedule and the petitioner is the prevailing party the defendant shall be held in contempt of court and the court shall award to the petitioner 1 A reasonable sum for any actual expenses incurred by the petitioner by the loss of his visitation custody or time rights 2 Additional visitation custody or time rights with the child equal to the time lost 3 All attorney fees and costs of the proceeding 4 All costs for counseling for the child which may be necessitated by the defendant failure to allow visitation custody or s time rights with the child Additionally willful disobedience of any lawful judgment constitutes constructive contempt of court La C art 224 To find a person guilty of P 2 constructive contempt the trial court must find the person violated the court s order intentionally purposely and without justifiable excuse Barry v McDaniel 2005 2455 p 5 La App I Cir 3 934 So 69 73 If a person is found 06 24 2d guilty of contempt the court shall render an order reciting the facts constituting the contempt adjudging the person charged with contempt guilty thereof and P B specifying the punishment imposed La C art 225 The trial court is vested with great discretion in determining whether a party should be held in contempt for disobeying a court order and the court decision should be reversed s only when the appellate court discerns an abuse of that discretion Boudreaux v Vankerkhove 20072555 pp 1011 La App 1 Cir 8 993 So 725 St 08 11 2d VAN In oral reasons for judgment the trial court stated The issue in this case of course has to be resolved with reference to the judgment of the court and there no question that the s previous judgment which was signed July 24 2009 provided that Mr Givens would enjoy visitation rights with Olivia every other weekend and there no question that October the 9 beginning at s th 00 m 6 p was one of those visitation periods 2 See also La R S 13 and e d 1 4611 5 Mr Givens agreed to delay the commencement of his time with Olivia to ten o that night apparently at the request of Mrs clock Givens The joint custody plan attached to the judgment of the court contained several provisions and clearly provides that Mr Givens had the right to take the exclusive custody and control of Olivia beginning at 6 p on 00 m Friday October the 9th Now he didn take exclusive custody and control of her at six t but he certainly had the right to do that And I suppose he could have refused to pick her up at ten o at school but he didn But he clock t had the right beginning at six o to take exclusive custody and clock control and he agreed to delay that until ten o Due to clock circumstances which I think any reasonable person would believe were not planned by him he was delayed Now Mrs Givens testified that it about Olivia safety and s s comfort and that was I think an exact quote I think she said I her m And the s mother and it about Olivia safety and comfort s assumption in that statement is that either Olivia makes a decision about what going to be safe and comfortable or that Mrs Givens s will make that decision But there apparently is no room in Mrs Givens mind for Mr Givens to make that decision about what is safe and what is comfortable and what will be done with Olivia when it s his turn to visit with her Apparently based on the evidence that the court has heard Mrs Givens decided to substitute her judgment for the judgment of Mr Givens and of course beginning at ten o Mr Givens had clock the right to make all those decisions And whether he was there at ten clock o or eight o the next morning seems to be irrelevant He clock had the right to make the decisions beginning ordinarily at six o clock He put it off to ten o at the request of Mrs Givens And I clock suppose if Mrs Givens had wanted to if I follow her logic because Mr Givens wasn there at ten o then to carry her logic to a t clock logical conclusion she could have refused him the entire weekend Yet she expects the court to somehow bless her actions because she was gracious enough to allow Mr Givens to come back at eight clock o the next morning This was not Mrs Givens decision It was Mr Givens decision And if Mr Givens thought it was safe enough to travel to Wesson Mississippi at ten o at night that Mr Givens choice clock s And for Mrs Givens to substitute her opinion and her judgment for that of the father of the child under these circumstances and with this judgment in place is the height of arrogance This was Mr Givens decision And the child should It was not Mrs Givens decision have been available when Mr Givens showed up He didn do t anything unreasonable except maybe bang on that door a little louder 31 I find Mrs Givens obviously in contempt of court for failing to abide by this judgment of the court I find it willful I find it intentional I find it designed to frustrate Mr Givens visitation rights And I hold her in contempt of court m I not going to assess any penalty other than s attorney fees And I going to order that Mr Givens visitation for Easter be m extended to the Sunday after Easter Sunday rather than the Tuesday after Easter Sunday to make up for the time that was lost After a thorough review of the record we find the evidence supports a finding that Frances Givens violated the orders of the court intentionally knowingly and without justifiable excuse There is no dispute that pursuant to the July 24 2009 judgment on October 9 2009 Kenneth Givens was entitled pick up Olivia at 6 p to commence his custodial weekend and that he agreed to move 00 m the time to 10 p at Frances Givens request 00 m Although Kenneth Givens arrived approximately thirty to forty minutes late Frances Givens refused to allow Kenneth Givens his custodial time on that date Regardless of whether Frances Givens actions are characterized as denying or delaying the custodial time of Kenneth Givens her actions were still in direct contravention of the July 24 2009 judgment and its attached joint custody plan The justification offered by Frances Givens for her refusal to allow Kenneth Givens his custodial time was his late arrival that evening and her personal opinion that the child comfort and safety s were compromised However the evidence established that the delays encountered by Kenneth Givens were clearly unforeseeable and that Frances Givens was well aware of what had happened prior to the designated pick up time Thus Kenneth Givens late arrival was not a justification for denying his custodial time Furthermore as the trial court succinctly noted at 10 p on October 9 00 m 2009 it was Kenneth Givens custodial time and therefore any decisions concerning the comfort and safety of the child were for Kenneth Givens to make not for Frances Givens to unilaterally decide iA Therefore considering the evidence at the contempt hearing in light of the acrimonious nature of the underlying proceedings that culminated in the July 24 2009 judgment we do not find that the trial court abused its discretion in finding Frances Givens in contempt of court CONCLUSION For all of the above and foregoing reasons the March 19 2010 judgment of the trial court is affirmed All costs of this appeal are assessed to the appellant Frances Jean Crow Givens AFFIRMED
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