State of Louisiana v. Maureen Vallot

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

05-0532

STATE OF LOUISIANA

VERSUS

MAUREEN VALLOT

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APPEAL FROM THE
SIXTEENTH JUDICIAL DISTRICT COURT,
PARISH OF IBERIA, NO. 03-J-935,
HONORABLE KEITH COMEAUX, DISTRICT JUDGE

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JIMMIE C. PETERS
JUDGE

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Court composed of Jimmie C. Peters, Michael G. Sullivan and Glenn B. Gremillion,
Judges.

REVERSED AND REMANDED.

A. C. Elias
District Attorney’s Office
Non-Support Division
300 Iberia Street
New Iberia, LA 70560
(337) 369-4434
COUNSEL FOR APPELLEE:
State of Louisiana

Maureen Vallot
7739-A Main Highway
St. Martinville, LA 70582
(337) 364-7945
In Proper Person

PETERS, J.

Maureen Vallot appeals a trial court judgment ordering her to pay to the

Louisiana Department of Social Services, Support Enforcement Division, the sum of

$200.00 per month as child support for two of her minor children together with an

additional five percent per month administration fee. For the following reasons, we

reverse the trial court judgment and remand the matter for further proceedings.

APPLICABLE LAW

Understanding the current status of this litigation is next to impossible without

first considering the applicable statutes and the procedure mandated by those statutes.

In considering the applicable statutes, we note that this litigation began on November

14, 2003, when the State of Louisiana (state) filed a bill of information charging Mrs.

Vallot with criminal neglect of family, a violation of La.R.S. 14:74.

Louisiana Revised Statutes 14:74(A)(1)(b), which is the applicable section of

the statute, provides that “[c]riminal neglect of family is the desertion or intentional

nonsupport . . . [b]y either parent of his minor child who is in necessitous

circumstances, there being a duty established by this Section for either parent to

support his child.” The penalty for violation of this statute is provided for in La.R.S.

14:74(D)(1), which provides that “[w]hoever commits the offense of criminal neglect

of family shall be fined not more than five hundred dollars or be imprisoned for not

more than six months, or both, and may be placed on probation pursuant to R.S.

15:305.” Additionally, the trial court “may issue a support order, after considering

the circumstances and financial ability of the defendant, directing the defendant to

pay a certain sum at such periods as the court may direct.” La.R.S. 14:74(D)(2).

Obviously, the trial court’s power to impose the punishment provided for in La.R.S.

14:74(D) is conditioned upon a defendant being first convicted of the offense.

The reference to La.R.S. 15:305 in La.R.S. 14:74(D)(1) is a reference to a

special probation statute, the application of which is limited to neglect of family

cases. It provides in pertinent part:

Whenever a person has pleaded guilty or been found guilty of the
misdemeanor of criminal neglect of family or has been found in
contempt of court for failing to pay support as ordered under the
provisions of Children’s Code Article 1353, the judge may suspend the
execution or imposition of sentence and release the offender on
unsupervised probation or probation under the supervision of the
Department of Social Services. The judge may suspend the sentence
and place the defendant on probation although he has begun to serve the
sentence imposed and may impose any specific conditions reasonably
related to the offender’s rehabilitation, including but not limited to the
conditions of probation as set forth in Code of Criminal Procedure
Article 895.

La.R.S. 15:305(A)(1).

As suggested by the reference to La.Ch.Code art. 1353 in the above statute, the

offense of criminal neglect of family is also addressed in the Louisiana Children’s

Code in Articles 1351 through 1355. Specifically, La.Ch.Code art. 1352 provides:

A. With the consent of the defendant, at any time prior to a trial
on a charge of criminal neglect of family brought pursuant to R.S. 14:74
the court, in lieu of imposing the punishment herein before provided,
may issue a support order, after considering the circumstances and
financial ability of the defendant, directing the defendant to pay a certain
sum, at such periods as the court directs, and to maintain health care
insurance.

B. This support shall be ordered payable to the applicable payee.

C. The amount of support as set by the court may be increased or
decreased as the circumstances may require.

D. The court may also require the defendant to enter into a
recognizance, with or without surety, in order to insure the payment of
support and the maintenance of health care insurance. The condition of
the recognizance shall be that the defendant shall make his or her
personal appearance in court whenever required to do so, and shall
further comply with the terms of the order or of any subsequent
modification thereof.

2

The “applicable payee” referred to in La.Ch.Code art. 1352(B) is defined as “the

spouse, the tutor or custodian of the child, the court-approved fiduciary of the spouse

or child, or the [Louisiana Department of Social Services] in a FITAP case or in a

non-FITAP case in which the department is rendering services as designated by the

court to be the payee.” La.Ch.Code art. 1351(6). The abbreviation “FITAP” refers

to the Family Independence Temporary Assistance Program. La.Ch.Code art.

1351(5). Additionally, La.Ch.Code art. 1353, which is referred to in La.R.S.

15:305(A)(1), purports to provide for punishment for a defendant who has violated

an order issued pursuant to La.Ch.Code art. 1352.

Despite the specific language of La.Ch.Code art. 1352, a criminal neglect

proceeding is not always a prerequisite to a stipulation with regard to support under

the Children’s Code. Specifically, La.Ch.Code art. 1355 provides:

In cases in which the responsible parent or other person owing a
duty of support and the district attorney stipulate to an order of support,
the court shall have the power to issue an order of support under the
provisions of Article 1352 without the necessity of instituting criminal
proceedings pursuant to R.S. 14:74.

With this understanding of the applicable procedure, we turn to a discussion

of the history of this litigation.

PROCEDURAL AND FACTUAL HISTORY

The state charged Mrs. Vallot with criminal neglect of family by a bill of

information filed November 14, 2003. The bill of information is short on detail and

simply states that Mrs. Vallot “[d]id intentionally fail and neglect to support [her] 2

(TWO) minor children, they being persons of necessitous circumstances in violation

of the provisions of R.S. 14:74 of the State of La.”

3

Despite charging Mrs. Vallot with the offense, the state has not pursued this as

a criminal charge. Instead, on January 16, 2004, a preprinted form was filed in the

record, reflecting that the hearing officer of the Sixteenth Judicial District Court had

held a hearing on that day addressing Mrs. Vallot’s obligation to provide her minor

children with medical support. The hearing officer checked boxes on the preprinted

form recommending that the trial court issue an immediate income assignment order

and an immediate medical support order directed to Mrs. Vallot. In a blank on the

form used to describe the nature of the proceedings, the hearing officer placed the

notation “M/S only.” We interpret this notation to indicate that the hearing was for

the purpose of considering the medical support issue. Although the form states that

only Mrs. Vallot and the assistant district attorney were present, it also contains the

signature of Leroy Vallot, Jr., who is described as the complainant. The preprinted

form also contains a notation that Mrs. Vallot did not timely appeal the hearing

officer’s recommendation, and the trial court executed an order on January 23, 2004,

effecting acceptance of the hearing officer’s recommendations. The order is a part

of the hearing officer’s preprinted form and appears at the bottom of that form.

The trial court minutes reflect that on that day the hearing officer held a hearing

in juvenile court, but the minutes are silent concerning the appearance of either Mrs.

Vallot or the assistant district attorney. Moreover, nothing in the record explains how

this matter came to be placed on the docket. Additionally, the record contains no

transcript of the hearing.

The notation on the preprinted form that Mrs. Vallot had not timely appealed

the hearing officer’s recommendations was incorrect, because, on the day of the

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hearing, Mrs. Vallot filed her appeal with the trial court. The trial court first set the

hearing for February 25, 2004, but later rescheduled it for March 24, 2004.

The record contains a transcription of the March 24, 2004 hearing. After

conducting the hearing, the trial court orally ordered that “should [Mrs. Vallot] get

employment, and should it be available, and should the cost be reasonable, then she

has to provide medical insurance. Otherwise, she doesn’t have to.”1 At the hearing

itself, the state presented no evidence and the trial court simply questioned Mr. and

Mrs. Vallot without placing either under oath. Mrs. Vallot stated that she was

unemployed and attempted to raise other issues concerning the proceedings, but the

trial court would not allow her to do so. She claimed to have custody of one of the

three children born of the marriage between Leroy Vallot and herself and stated that

she had been continuously seeking employment. She suggested that the matters that

the trial court would not allow her to discuss were the reasons that she could not

obtain employment. Leroy Vallot stated that he was disabled and acknowledged that

he had custody of the two children at issue.

The next pleading in the record now before us is a motion by the state filed

October 7, 2004, requesting that the trial court order Mrs. Vallot to pay child support

pursuant to “the provisions of LSA R.S. 9:315 et al.”2 The motion references the trial

court order of January 16, 2004, but makes no reference to the pending criminal

charge. The trial court set the motion for hearing on November 19, 2004.

1
The minutes found in the record state that the trial court did affirm the hearing officer’s
recommendation and ordered “that if defendant gets a job the Court will review the matter to
determine the amount medical coverage would cost if available.” No such language appears in the
transcript.
2
This is a reference to the general guidelines for the determination of child support in any
given case. Louisiana Revised Statutes 9:315.19 provides a specific schedule for the underlying
determination.

5

The November 19 hearing occurred before the hearing officer, not the trial

court. As was the case with the January 16, 2004 hearing, the record contains no

transcript of the hearing and contains only the hearing officer’s standard preprinted

form. This time, the hearing officer entered the purpose of the hearing as being to

“Set C/S order.” We conclude that C/S stands for child support. As was the case in

the January 16 hearing, the form reflects that only Mrs. Vallot and the assistant

district attorney appeared. However, unlike the January 16 form, this form

specifically states that Mrs. Vallot waived her right to counsel and that she entered

into a voluntary agreement or stipulation to pay $200.00 per month effective

December 1, 2004, together with a five percent administration fee. The form bears

the signature of the hearing officer and Mrs. Vallot.

The court minutes of November 19, 2004, confirm that a hearing took place

in juvenile court, but, as was the case in January of 2004, the minutes differ from the

content of the hearing officer’s form. Specifically, the court minutes provide that

Mrs. Vallot appeared “for arraignment on charges of non support, waived counsel

and entered into a voluntary agreement.” (Emphasis added.) The reference to

counsel in the preprinted form and the trial court minutes is the first time Mrs.

Vallot’s right to counsel is mentioned in the record. Additionally, the reference to the

arraignment in the trial court minutes is the first reference in the record to the pending

criminal charge of criminal neglect of family. Interestingly, the hearing officer’s

preprinted form provides a box to be checked when a party appears for arraignment,

and, in this case, the hearing officer failed to check that box.

Despite the notation on the preprinted form concerning the voluntary nature of

Mrs. Vallot’s agreement to the stipulation, questions arise with regard to that issue

6

from the very next filing in the record. Attached to the hearing officer’s preprinted

form is a form agreement the party at issue is to sign to show consent to the five

percent administration fee. Although Mrs. Vallot signed this agreement, she placed

the written notation below her signature that she “will appeal.” Additionally, on that

same day, Mrs. Vallot filed a form motion to appeal the hearing officer’s

recommendation.

The trial court responded to the appeal motion by executing an order on

November 22, 2004, scheduling a hearing for December 14, 2004. On that same day,

Mrs. Vallot filed a pleading asserting supporting evidence for her appeal of the

hearing officer’s recommendation. In that pleading, she listed a number of prior

events that she wished to present in support of her position.

The record contains a transcript of the December 14, 2004 hearing, which was

conducted similarly to the March 24, 2004 hearing. The state presented no evidence,

and the trial court merely interrogated Mrs. Vallot, again without placing her under

oath. Based upon this interrogation, the trial court determined that Mrs. Vallot was

underemployed and affirmed the hearing officer’s recommendation. As was the case

with the first hearing, the trial court would not allow Mrs. Vallot to explain herself

and kept the matter to the basics of her finding employment. The trial court signed

a judgment making the hearing officer’s recommendations a judgment of the court on

that same day. The executed judgment included a requirement that Mrs. Vallot pay

the $200.00 per month and the administration fee through an income assignment to

the Louisiana Department of Social Services, Support Enforcement Division

(department).

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On December 22, 2004, Mrs. Vallot filed a motion for appeal to the United

States Fifth Circuit Court of Appeals, wherein she referenced the December 14, 2004

judgment as the judgment being appealed. On January 11, 2005, the trial court signed

an order granting Mrs. Vallot an appeal and setting a return date of April 18, 2005.

In granting the appeal, the trial court referenced the December 22 motion, but made

no mention of the fact that the appeal was to the federal, and not the state, court of

appeal. The trial court then signed a second order granting Mrs. Vallot an appeal on

January 31, 2005. In this order, the trial court specifically stated that the grant was

to this court and again assigned a return date of April 18, 2005. Additionally, the trial

court appointed the Louisiana Appellate Project (Project) to assist Mrs. Vallot in her

appeal. It cited as authority for this appointment La.R.S. 15:1550.3

On February 17, 2005, the Project filed a motion to have the January 31, 2005

order appointing it to represent Mrs. Vallot vacated on the basis that the appellate

issue was a misdemeanor and/or a child support issue and that the Project has no

statutory authority to assist in such proceedings. The next day, the trial court signed

an order vacating the prior order and appointing the Sixteenth Judicial District Court

Indigent Defender Board to assist Mrs. Vallot on appeal.

Up to this point in the litigation, Mrs. Vallot had represented herself, and this

order did not change matters, as no attorney has appeared on her behalf in this appeal.

Mrs. Vallot sought to have this court appoint her appellate counsel, but, by an

unpublished opinion, another panel of this court denied her motion. See State v.

Vallot, 95-532 (La.App. 3 Cir. 11/9/05). In doing so, this court noted that it has no

authority to appoint counsel in civil matters and that the Sixteenth Judicial District

3
We find no such statute in Title 15.

8

Indigent Defender Board’s failure to comply with the order of February 18, 2005,

must first be addressed in the trial court.

ISSUES ON APPEAL

Mrs. Vallot’s pro se brief filed with this court does not remotely resemble that

which is required by Uniform Rules—Courts of Appeal, Rule 2-12.2. It contains no

specifications of error or description of the issues to be reviewed. In fact, the brief

itself is only two pages in length. However, Mrs. Vallot has attached a number of

evidentiary exhibits to her brief and requests that we consider these in rendering our

decision. The attached exhibits are not a part of the appellate record.

We have no evidence of the state’s position as it has filed no brief or other

response to the appeal.

OPINION

We first note the well-established rule that this court cannot receive new

evidence and cannot consider evidence not in the record on appeal. C & B Sales &

Serv., Inc. v. Slaughter, 04-551 (La.App. 3 Cir. 10/20/04), 885 So.2d 683. Therefore,

we cannot consider the attachments to Mrs. Vallot’s brief. However, in considering

the record before us, we do find that she is entitled to relief.

The state’s filing of the bill of information charging Mrs. Vallot with criminal

neglect of family precluded the use of La.Ch.Code art. 1355 to effect a stipulation,

as that article applies only before institution of criminal proceedings. Additionally,

because Mrs. Vallot has never been convicted of the criminal charge, the trial court

had no authority to issue a support order pursuant to La.R.S. 14:74(D)(2). Thus, the

only statutory authority for the trial court to issue a support order in this matter rests

within the provisions of La.Ch.Code art. 1352.

9

The hearing officer in the Sixteenth Judicial District Court derives his authority

to consider criminal non-support matters from Rules of Court—Sixteenth Judicial

District Court, Rule 36.5, which references the authority provided in La.R.S.

46:236.5. That statute allows hearing officers to “[h]ear and make recommendations

on enforcement of child and spousal support, including but not limited to proceedings

under Children’s Code Articles 1352 through 1355.” La.R.S. 46:236.5(C)(3)(c).

However, in exercising that authority, the hearing officer “shall act as a finder of fact

and shall make written recommendations to the court.” La.R.S. 46:236.5(C)(3)

(emphasis added). Additionally,

The written recommendation of the hearing officer shall contain
all of the following:

(a) A statement of the pleadings.

(b) A statement as to the findings of fact by the hearing officer.

(c) A statement as to the findings of law based on the pleadings
and facts, including his opinion thereon.

(d) A proposed judgment.

La.R.S. 46:236.5(C)(5) (emphasis added).

A party disagreeing with the hearing officer’s ruling may file an objection with the

trial court, and, if timely filed, the trial court “shall schedule a contradictory hearing

where the judge shall accept, reject, or modify in whole or in part the findings of the

hearing officer.” La.R.S. 46:236.5(C)(6) (emphasis added). Further, “[i]f the judge

in his discretion determines that additional information is needed, he may receive

evidence at the hearing or remand the proceeding to the hearing officer.” Id.

(emphasis added).

10

In this matter, the hearing officer did not comply with the requirements of

La.R.S. 46:236.5(C)(5) in that the record contains no statement of the pleadings, no

findings of fact, no findings of law, and no proposed judgment. The trial court held

a contradictory hearing, but had no information before it upon which to make a

decision, as is evident by the questions asked of Mrs. Vallot by the trial court.

Furthermore, the trial court ordered that Mrs. Vallot make her payments to the

department despite the fact that no evidence exists that it was rendering services or

that this was a FITAP case.

The most damaging defect in the record is the fact that it contains no evidence

that Mrs. Vallot knowingly waived her right to counsel. This alone requires that we

reverse the trial court judgment and remand this matter for further proceedings.

The legislature enacted La.Ch.Code art. 1352 by 1993 La. Acts No. 442, § 2,

and it became effective on June 9, 1993. Its provisions with regard to a consent

agreement had previously been incorporated into a former version of La.R.S. 14:75,

and the supreme court had previously considered the same language in La.R.S. 14:75

and concluded:

After defendant is charged with criminal neglect of family, the
provisions of R.S. 14:75, 75.1 and 75.2 come into play. Some of these
are necessarily criminal in nature. The defendant is entitled to counsel
and if he cannot afford one, counsel must be appointed to represent him.
The trial judge shall explain the defendant’s rights to him (cf. the
customary “Boykin” examination) before any proceeding under 14:75
is initiated.

State v. Broussard, 490 So.2d 273, 273-74 (La.1986).

In State v. St. Pierre, 515 So.2d 769, 773 (La.1987), the supreme court further stated:

Broussard requires that a defendant be advised of Boykin protections at
the time any stipulation of support is entered under R.S. 14:75. The
provisions of that statute are “necessarily criminal in nature,” as they

11

establish a means for the resolution of a pending criminal charge which
. . . is analogous to a plea bargaining agreement.

Given the status of the record before us and considering all of the matters

discussed herein, we find that the trial court erred in rendering the judgment at issue

ordering Mrs. Vallot to pay the department $200.00 together with administration

costs per month as child support.

DISPOSITION

For the foregoing reasons, we reverse the trial court judgment ordering

Maureen Vallot to pay $200.00 and a five percent administration fee per month to the

Louisiana Department of Social Services, Support Enforcement Division. We remand

this matter to the trial court for further proceedings.

REVERSED AND REMANDED.

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