Scott Mahfouz v. Angela S. Andries A/K/A Angela Harrison

NOT DESIGNATED FOR PUBLICATION

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

09-961

SCOTT MAHFOUZ

VERSUS

ANGELA S. ANDRIES A/K/A ANGELA HARRISON

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APPEAL FROM THE
NINTH JUDICIAL DISTRICT COURT
PARISH OF RAPIDES, NO. 218,834
HONORABLE GEORGE C. METOYER, JR., DISTRICT JUDGE

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MICHAEL G. SULLIVAN
JUDGE

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Court composed of Jimmie C. Peters, Marc T. Amy, and Michael G. Sullivan, Judges.

AFFIRMED.

Michael H. Davis
Attorney at Law
Post Office Box 12180
Alexandria, Louisiana 71315-2180
(318) 445-3621
Counsel for Plaintiff/Appellant:
Scott Mahfouz

Thomas D. Davenport, Jr.
The Davenport Firm
1628 Metro Drive
Alexandria, Louisiana 71301
(318) 445-9696
Counsel for Defendant/Appellee:
Angela S. Andries a/k/a Angela Harrison

SULLIVAN, Judge.

Scott Mahfouz appeals a judgment rendered in this child custody/support

matter. For the following reasons, we affirm.

FACTS AND PROCEDURAL HISTORY

Scott Mahfouz and Angela Andries are the parents of a minor child, Conner

Harrison, who was born on April 7, 2004. On September 7, 2005, following a two-

day hearing, judgment was rendered awarding Scott and Angela joint custody of

Conner. Angela was named the domiciliary parent, and Scott was granted visitation

pursuant to a schedule outlined in the judgment. Scott was ordered to pay Angela

child support in the amount of $474.74 per month to be divided and paid on the first

and fifteenth of each month. The judgment further provided that Angela and Scott

were to fill out all documents necessary to change Conner’s name to “Conner Wells

Mahfouz” and to indicate that Scott was his birth father.1

On July 17, 2006, Scott filed a motion for contempt and for modification of

child custody and child support. He alleged therein that Angela was guilty of failing

to comply with the judgment in several respects, including the “Babysitter,”

“Wardrobe,” and “Communication” provisions, as well as the directive regarding

Conner’s name change. In addition, he sought to revisit the issue of child support

because of a change in his employment.

Angela responded by filing an exception of vagueness and ambiguity, a

reconventional demand, a rule to show cause why child support should not be

increased, and a motion for contempt. The basis of the exception was that Scott’s

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Scott and Angela were never married to each other. The man listed as Conner’s father on
his birth certificate is Frankie Layfette Harrison, Jr., who was Angela’s husband at the time of
Conner’s birth.

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motion failed to allege any “facts, circumstances or particulars with regard to the

child’s environment, which would tend to show that modification of custody and

visitation is necessary or warranted” nor did the motion “allege how or why the

proposed modification would be in the child’s best interest.” Angela claimed that

Scott was delinquent in fulfilling his child support obligation. As a result, she sought

a money judgment for the arrearages and requested that Scott be held in contempt.

Finally, Angela sought an award of increased child support.

Scott filed three amended rules for contempt and/or modification of

custody/visitation between 2007 and 2009. The matter came for hearing on March 2,

2009, following which the trial court issued oral reasons for judgment. A written

Judgment on Rule was rendered on April 30, 2009.

Scott now appeals that judgment, assigning the following errors. First, he

claims that the trial court erred in modifying the custody judgment resulting in less

time for him, as the non-domiciliary parent, where neither party requested such

modification. Second, he asserts that the trial court erred in not finding Angela in

contempt. Third, he insists that the trial court erred in failing to recalculate child

support in accordance with La.R.S. 9:315-315.20. Finally, he complains that the trial

court erred in modifying the custody judgment on the basis of evidence that had been

excluded as beyond the pleadings.

DISCUSSION

Both Scott and Angela agree that the September 7, 2005 judgment is a

“considered decree, ” as that term was used in Bergeron v. Bergeron, 492 So.2d 1193

(La.1986). In Bergeron, our supreme court held that:

When a trial court has made a considered decree of permanent custody
the party seeking a change bears a heavy burden of proving that the

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continuation of the present custody is so deleterious to the child as to
justify a modification of the custody decree, or of proving by clear and
convincing evidence that the harm likely to be caused by a change of
environment is substantially outweighed by its advantages to the child.

Id. at 1200.

Did the trial court improperly modify the September 7, 2005 judgment?

Scott submits that the trial court improperly modified Section “N” (the

Babysitter provision) of the judgment, resulting in his being entitled to less time with

Conner, despite the fact that neither he nor Angela sought to have the provision

modified. He admits that he did place the provision at issue in arguing that Angela

was in contempt for failing to abide by it but argues that his having done so should

not be interpreted as having enlarged the pleadings so as to permit the trial court’s

modification of the provision.

Angela submits that the trial court did not modify the Babysitter provision, it

merely interpreted the provision so as to prevent Scott from abusing it to the point of

absurdity, which it had the power to do under its inherent judicial authority. She

argues that Scott was misinterpreting the provision so as to make it apply when she

was away from Conner but not when he was away from Conner for the same amount

of time. Angela adds that because Scott claimed that she was in contempt for having

violated the Babysitter provision, the trial court was required to interpret the

provision in order to determine whether Scott’s claims had any merit.

The original custody judgment contained the following provision:

N. Babysitter: Scott and/or his immediate family shall be given the
first option as babysitter whenever Angela requires
the child for her other than normal work day
daycare, and this shall be uncompensated. In the
event that Scott cannot exercise his visitation,
Angela would be given the first option of keeping
Conner. Further, Angela shall see to it that Scott

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and his mother are on the list of people allowed to
pick up the child from daycare on the day of Scott’s
visitation without prior permission.

The judgment rendered on April 30, 2009, provided that:

[I]f either parent, during the time that the respective parent has the
physical custody of the child, requires to be gone overnight, away from
the child, then, and in that event, the parent who will be gone away from
the child is required to notify the other parent so that the other parent
can have the first opportunity to have the physical custody of the child
during the other parent’s temporary absence[.]

We find that the trial court did not improperly modify the Babysitter provision.

Instead, it merely offered an expounded interpretation of the provision that comported

with the intent and purpose of the September 7, 2005 judgment, as necessitated by

Scott’s flawed interpretation of the provision as it was originally stated.

Did the trial court err in not finding Angela in contempt?

Scott contends that he proved that Angela violated the Babysitter provision of

the September 7, 2005 judgment on at least three separate occasions. Angela counters

that the trial court interpreted the provision, heard the evidence, and determined that

the provision had not been violated.

“Constructive contempt” is defined in La.Code Civ.P. art. 224(2) as an act of

“[w]ilful disobedience of any lawful judgment, order, mandate, writ, or process of the

court.” The second circuit discussed constructive contempt in Midyett v. Midyett,

32,208, pp. 4-5 (La.App. 2 Cir. 9/22/99), 744 So.2d 669, 673 (citations omitted),

noting that:

In order for a court to find a person guilty of constructive contempt, it
is necessary to find that [they] violated the order of court intentionally,
knowingly and purposefully, without justifiable excuse. In making this
determination, the trial court is vested with great discretion. The trial
court’s decision will only be reversed when the appellate court can
discern an abuse of that discretion.

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Scott offered testimony in support of his contention that Angela had violated

the Babysitter provision on three separate occasions. On the other hand, while

Angela did not specifically deny Scott’s allegations, she did supply the trial court

with full and complete explanations concerning the times in question. The trial court

was satisfied with her explanations and ruled that she was not in contempt.

Moreover, the trial court obviously felt compelled to expound on the meaning of the

Babysitter provision to prevent future problems with the parties’ interpretation of the

provision. We find no abuse of discretion in the trial court’s decision in this regard.

Did the trial court err in failing to recalculate child support?

Scott contends that the trial court erred in failing to recalculate child support,

in accordance with the relevant statutory guidelines, when the issue had been squarely

placed before it. Angela counters that the trial court had no other option but to leave

the previous child support calculation in effect, given Scott’s failure to provide

specific testimony regarding his income and expenses. She adds that despite the fact

that Scott requested that the record be held open for the submission of additional tax

documents, he chose to appeal the judgment rather than to submit the documents.

In light of the incomplete record presented to the trial court on the issue of

child support and Scott’s request to have the record remain open on the issue, we find

no error in the trial court’s decision that “[c]hild support will be left the same.”

Did the trial court err in modifying the September 7, 2005 judgment on the basis of

excluded evidence?

Scott complains that the trial court improperly modified the original custody

judgment when it included a provision in its April 30, 2009 judgment providing that

“any medication prescribed for the minor child[] will be controlled by the child’s

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pediatrician or Angela Andries Harrison, as the domiciliary parent.” He submits that,

because the trial court sustained his objection that Angela was attempting to enlarge

the pleadings when she sought to offer testimony regarding her claim that Scott had

improperly changed Conner’s prescription medication, the trial court erred in

addressing the issue of medication. Angela disputes Scott’s characterization of the

provision as a modification of the original custody judgment. She contends that the

provision was merely a recital of the law found in La.R.S. 9:335(B)(3) regarding the

authority of a domiciliary parent to “make all decisions affecting the child unless an

implementation order provides otherwise.”

We note that Angela did raise the issue of Scott “unilaterally chang[ing]

[Conner’s] medically prescribed medication” and that his “blatant acts intentionally

interfer[ed]” with her obligations as the domiciliary parent as stated in the

aforementioned statute in her reconventional demand. Moreover, in the context of

his objection to Angela’s introduction of testimony on the issue of medication, Scott’s

attorney stated, “I’m sure the court can admonish the parties” about Conner’s

medications.

Louisiana Revised Statutes 9:335(B)(3) states that: “It shall be presumed that

all major decisions made by the domiciliary parent are in the best interest of the

child.” We conclude that the trial court did not improperly modify the original

custody judgment when it inserted the complained of provision into its April 30, 2009

judgment. The provision consists of a very general statement regarding prescription

medication and does nothing more than recite the law with regard to the authority of

a domiciliary parent to make decisions affecting the child after a joint custody order

had been rendered.

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DECREE

For the reasons expressed herein, the April 30, 2009 judgment is affirmed in

all respects. All costs of this proceeding are assessed against the appellant, Scott

Mahfouz.

AFFIRMED.

This opinion is NOT DESIGNATED FOR PUBLICATION.
Uniform Rules—Courts of Appeal, Rule 2–16.3.

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