David Eugene Garcia v. Michelle Rushing Garcia

STATE OF LOUISIANA

COURT OF APPEAL, THIRD CIRCUIT

10-446

DAVID EUGENE GARCIA

VERSUS

MICHELLE RUSHING GARCIA

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APPEAL FROM THE
FIFTEENTH JUDICIAL DISTRICT COURT
PARISH OF LAFAYETTE, NO. 2004-2846 “M”
HONORABLE PHYLLIS M. KEATY, DISTRICT JUDGE

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JAMES T. GENOVESE
JUDGE

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Court composed of John D. Saunders, Jimmie C. Peters, and James T. Genovese,
Judges.

AFFIRMED IN PART, REVERSED IN PART,
AND REMANDED WITH INSTRUCTIONS.

Michelle Rushing Garcia
In Proper Person
212 Vivian Drive
Lafayette, Louisiana 70508
(337) 212-6834
DEFENDANT/APPELLANT

Julia Autin
Susan L. Theall
The Theall Firm, LLC
1304 Lafayette Street
Lafayette, Louisiana 70501
(337) 264-9000
COUNSEL FOR PLAINTIFF/APPELLEE:
David Eugene Garcia

GENOVESE, Judge.

In this domestic case, Michelle Rushing Garcia appeals the November 16, 2009

judgment of the trial court rendered as a result of hearings held pursuant to the filing

of three contempt motions involving she and her former husband, David Eugene

Garcia. For the following reasons, we affirm in part, reverse in part, and remand this

matter to the trial court with instructions.

FACTUAL AND PROCEDURAL BACKGROUND

David Eugene Garcia (David) and Michelle Rushing Garcia (Michelle) were

married on January 25, 1992. Their minor daughter, Kelsey, was born on July 3,

1994, and their minor son, Bryson, was born on April 22, 1999. The parties separated

and divorced in 2004, at which time they entered into a Stipulated Consent Judgment

wherein child support was agreed upon. The parties also adopted a Joint Custody

Implementation Plan which designated Michelle as the domiciliary parent. In 2006,

David filed a Rule to Change Custody and for Contempt of Court against Michelle.

Michelle countered by filing a Rule to Modify Custody Implementation Plan, to

Modify Child Support, and for Contempt against David. A plethora of cross-motions

were filed thereafter. Ultimately, on July 18, 2008, the parties entered into a Consent

Judgment, stipulating to child support, shared custody with David and Michelle being

co-domiciliary parents of the minor children, and counseling for Kelsey.

The litigation giving rise to this appeal began on August 28, 2008, when David

filed a Rule for Contempt, to Appoint a Counselor for the Minor Child, and to Modify

Child Support. David alleged that Michelle violated the July 18, 2008 Consent

Judgment by refusing to agree to a counselor for Kelsey, by “refus[ing] to

communicate information regarding the children’s school and meetings and fail[ing]

to communicate via [e-mail] in a calm and businesslike manner[,]” by removing

Bryson from day care without David’s consent, and by refusing to pay the children’s

school fees and medical expenses.

On October 9, 2008, Michelle filed a Cross Rule for Contempt and to Make

Past Due Child Support Executory. Michelle alleged that David was delinquent in

paying child support and that he violated the July 18, 2008 Consent Judgment by

“fail[ing] to discuss the selection of a counselor for” Kelsey, by making a unilateral

decision to bring Kelsey to a counselor without first consulting her, and by allowing

his current wife, Haley, to take “disciplinary actions against Kelsey by yelling and

screaming at [her].”

David filed an Amended Rule for Contempt and to Modify Child Support on

April 7, 2009. David alleged that Michelle had “failed to ensure that Kelsey receive

counseling[,]” had “continually failed and refused to communicate information

regarding Kelsey . . . via [e-mail],” had “undermined Bryson’s relationship with

[him]” by making negative comments about him to Bryson, and had “fail[ed] to pay

costs that should [have been] paid from the amount of child support she receives[.]”

Further, David requested that Obligation Worksheet B1 be used, that he be allowed

to pay for all of Bryson’s school and medical expenses, and that Michelle be ordered

to pay for all of Kelsey’s school and medical expenses.

The trial court heard testimony and received evidence on September 30, 2009,

October 2, 2009, October 13, 2009, and November 16, 2009. Following the last day

of trial, the trial court rendered its judgment finding Michelle in contempt of court for

“fail[ing] to communicate via e-mail, failing to ensure that Kelsey Garcia is placed

in counseling, for removing Bryson Garcia from day care and failing to pay day care

1
Louisiana Revised Statutes 9:315.20 contains Obligation Worksheets A & B. Obligation
Worksheet B is implemented when parents share custody.

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and failing to pay Bryson Garcia’s school lunches, and by supporting the lack of

relationship between Kelsey Garcia and her father.” The trial court judgment ordered

that effective April 7, 2009, child support would be calculated using Obligation

Worksheet B, that effective October 1, 2009, David would pay all school and medical

expenses relative to Bryson, and that Michelle would pay all school and medical

expenses relative to Kelsey. The trial court judgment ordered that “the visitation

between [David] and his daughter, [Kelsey, be] reinstated as originally set forth in the

Joint Custody Implementation Plan signed and filed on July 18, 2008.” Michelle

appeals.

ISSUES

Michelle urges this court to consider:

(1) whether the trial court erred in finding Michelle in contempt of court for

violating the July 18, 2008 Consent Judgment by: (a) failing to communicate via

e-mail; (b) failing to ensure that Kelsey was placed in counseling; (c) removing

Bryson from day care and failing to pay day care; (d) failing to pay for Bryson’s

school lunches; and (e) failing to support the relationship between Kelsey and her

father, David;

(2) whether the trial court erred in ordering the use of Obligation Worksheet

B to calculate the parties’ child support obligation;

(3) whether the trial court erred in ordering that David be responsible for 100%

of Bryson’s school clothes and shoes, school supplies, school meals, school fees,

medical expenses, and extracurricular expenses and that Michelle be responsible for

100% of Kelsey’s school clothes and shoes, school supplies, school meals, school

fees, medical expenses, and extracurricular expenses;

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(4) whether the trial court erred in ordering that the seven-and-seven visitation

schedule relative to Kelsey be reinstated; and

(5) whether the trial court erred in ordering that Michelle and David attend

parenting classes.

LAW AND DISCUSSION

Standard of Review

As set forth by this court in LeBlanc v. LeBlanc, 06-1307, p. 4 (La.App. 3 Cir.

3/7/07), 953 So.2d 115, 119-20, the applicable appellate standard of review is as

follows:

An appellate court may not set aside a trial court’s findings of fact
in absence of manifest error or unless it is clearly wrong.
Stobart v. State, Through DOTD, 617 So.2d 880 (La.1993);
Rosell v. ESCO, 549 So.2d 840 (La.1989). This is especially applicable
in a child custody dispute wherein appellate courts accord substantial
deference to the trial judge’s conclusions. “The trial judge is in a better
position to evaluate the best interest of a child from his observance of
the parties and the witnesses and his decision will not be disturbed on
review absent a clear showing of abuse.” Deason v. Deason, 99-1811,
p. 12 (La.App. 3 Cir. 4/5/00), 759 So.2d 219, 220 (quoting State in the
Interest of Sylvester, 525 So.2d 604, 608 (La.App. 3 Cir.1988))(citing
Bagents v. Bagents, 419 So.2d 460 (La.1982)).

(1) Contempt of Michelle

Michelle contends that the trial court erred in finding her in contempt of court

for violating the July 18, 2008 Consent Judgment. Louisiana Code of Civil Procedure

Article 221 defines contempt of court as “any act or omission tending to obstruct or

interfere with the orderly administration of justice, or to impair the dignity of the

court or respect for its authority. Contempts of court are of two kinds, direct and

constructive[.]” Pursuant to La.Code Civ.P. art. 224(2), constructive contempt is

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

court.” Constructive contempt “must be based on a finding that the accused violated

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an order of the court ‘intentionally, knowingly, and purposefully, without justifiable

excuse.’” Lang v. Asten, Inc., 05-1119, p. 1 (La. 1/13/06), 918 So.2d 453, 454

(quoting Brunet v. Magnolia Quarterboats, Inc., 97-187, p. 10 (La.App. 5 Cir.

3/11/98), 711 So.2d 308, 313, writ denied, 90-990 (La. 5/29/98), 720 So.2d 343). “A

trial court is vested with great discretion to determine whether a party should be held

in contempt for wilfully disobeying a trial court judgment.” Barnes v. Barnes, 07-27,

p. 9 (La.App. 3 Cir. 5/2/07), 957 So.2d 251, 257 (citing Fink v. Bryant, 01-987 (La.

11/28/01), 801 So.2d 346).

(a) E-mail

At trial and in brief, Michelle admits that she stopped communicating with

David via e-mail because she began receiving harassing and derogatory e-mails from

him. Though Michelle claims that she did not believe David was the author of said

e-mails, she unilaterally decided that she would no longer communicate with David

via e-mail. Instead, Michelle either mailed or hand delivered information she deemed

pertinent to David while she claims that she waited for her attorney to make

arrangements with David on an alternate means of communication. We find no error

in the trial court’s determination that Michelle is in contempt of court for failing to

communicate with David via e-mail “concerning all factors affecting the health,

education, and welfare of the children.”

(b) Counseling for Kelsey

Michelle asserts, in brief, that she originally requested that Kelsey have

counseling; however, the July 18, 2008 Consent Judgment “stated [that] Kelsey

should start counseling with no stipulations as to a time period and how a counselor

was to be chosen.” She further contends that she made efforts as early as July 22,

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2008, via e-mail, to coordinate with David on the selection of a counselor; however,

David never responded to her e-mail.

David alleges that he made several attempts to enroll Kelsey in counseling;

however, his efforts were thwarted by Michelle. In brief, David contends that “[t]he

evidence supports a finding of wilful violation of a court order without justifiable

excuse.” The trial court found that David was more credible than Michelle. That

determination is within the discretion of the trial court. After reviewing the evidence

in that regard, we cannot say that the trial court erred in its determination that

Michelle is the party responsible for violating the July 18, 2008 Consent Judgment

by failing to enroll Kelsey in counseling.

(c) Bryson’s day care

According to the terms of the July 18, 2008 Consent Judgment, Bryson was to

be enrolled in day care unless and until both Michelle and David decided to remove

him. Further, Michelle was responsible for paying the cost of Bryson’s day care.

Admittedly, Michelle did not enroll Bryson in day care. According to Michelle,

Bryson was not allowed enrollment in day care due to an outstanding balance

occurring as a result of David not being current in paying his child support obligation.

David asserts that Michelle’s admission is inexcusable and unjustifiable,

considering the fact that a specific sum for net child-care costs was included in the

child support calculation. Consequently, Michelle was responsible for paying for day

care out of the money she received from him as child support, and her failure to do

so was a violation of the Consent Judgment. We agree. Considering Michelle’s clear

understanding of her obligations under the Consent Judgment and her own admission,

we find no abuse of discretion in the trial court’s decision to hold Michelle in

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contempt of court for failing to pay the costs of day care in order to keep Bryson

enrolled therein.

(d) Bryson’s school meals

As the domiciliary parent, Michelle was also responsible for paying the

expenses associated with the meals Bryson ate at school from the child support she

received. David testified that Bryson’s school account ran out of money on more than

one occasion and, though he would attempt to get Michelle to pay the expenses

associated with Bryson’s meals at school, he ultimately sent money to Bryson’s

school because Michelle did not. David introduced into evidence an e-mail wherein

he notified Michelle that Bryson’s account was out of money, to which he testified

that Michelle did not respond. Though Michelle disputed David’s allegations that she

allowed Bryson’s school account to become delinquent, she does, in brief, admit that

“she was not aware that Bryson was also eating breakfast at school on the weeks that

he was in [David’s] custody, [and] she was only providing enough money to the

school to cover his lunches, this is why his account was depleted on occasion without

[her] knowledge.” The trial court accepted the testimony and evidence offered by

David. This determination was based upon the parties’ credibility and was within the

discretion of the trial court. After reviewing the evidence in the record, we do not

find that the trial court erred or abused its discretion in its determination that Michelle

was in contempt of court for her failure to pay for Bryson’s meals at school.

(e) Kelsey’s relationship with David

Michelle denied ever sabotaging the relationship between Kelsey and David.

However, in October of 2008, after an argument between David and Kelsey

culminated in Kelsey being asked to leave his home and not return until she could be

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respectful, Michelle photographed Kelsey as she stood outside on the curb in front

of David’s home. Kelsey did not return to David’s home until the trial court ordered

Michelle to facilitate visitation after the hearing held October 13, 2009. David

testified that Kelsey intimated that Michelle shared with her that David was

delinquent in paying child support.

The trial court heard testimony over four days and even interviewed Kelsey on

the final day of trial. After thoroughly reviewing the record and the divergent

versions of events contained therein, we find no abuse of the trial court’s discretion

in concluding that Michelle was in violation of the July 18, 2008 Consent Judgment

by failing to foster the relationship between Kelsey and David.

(2) Obligation Worksheet B

The November 16, 2009 trial court judgment ordered that, effective April 7,

2009, David’s child support obligation be reduced from $1,347.00 per month to

$877.50 per month and that, beginning September 30, 2009, David’s child support

obligation be further reduced to $496.11 per month. In brief, Michelle complains that

the trial court’s imposition of Obligation Worksheet B to calculate child support is

an illegal punishment for her contempt of court. Having reviewed the record, we

agree.

At the end of trial, during its oral reasons for judgment, the trial court was

questioned whether its ruling was for child support to be calculated using Obligation

Worksheet B, to which the trial court responded:

Worksheet B. And it’s Worksheet B, it’s part of the penalty for
the [c]ontempt, to tell you the truth. I’m not fining Mom. I’m not fining
her, I’m not ordering her to go to jail or suspending it for any length of
time or anything, but I am ordering the parties to follow Worksheet B,
because I do not want to fine Mom and I don’t want to give her a jail
sentence. And it’s not a gender thing. It’s just because there’s [sic] too

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many contempts and I need her to be available for Kelsey.

In Ezernack v. Ezernack, 04-1584 (La.App. 3 Cir. 4/6/05), 899 So.2d 198, the

trial court allocated the balance due on an automobile as the husband’s contempt of

court punishment. This court reversed the trial court stating:

The punishment which a court may impose upon a person
adjudged guilty of contempt of court is provided in La.R.S. 13:4611. It
provides that a person who disobeys an order of the court may be
punished “by a fine of not more than five hundred dollars, or
imprisonment for not more than three months, or both.” La.R.S.
13:4611(1)(d). “Proceedings for contempt must be strictly construed,
and the law does not favor extending their scope.” George v. Nero,
02-1140, p. 4 (La.App. 3 Cir. 3/5/03), 839 So.2d 1085, 1087. A
contempt proceeding is designed for vindication of the dignity of the
court rather than for the benefit of a litigant. Davis v. Harmony House
Nursing Home, 35,080 (La.App. 2 Cir. 10/31/01), 800 So.2d 92, writ
denied, 01-3162 (La.2/22/02), 810 So.2d 1143.

Id. at 201.

Just as the punishment in Ezernack was “not authorized as a form of

punishment which the court may mete out for the contempt[,]” the imposition of

Obligation Worksheet B is not an authorized punishment under La.R.S. 13:4611 for

Michelle’s contempt. Id. As such, the trial court exceeded its authority.

Accordingly, the portion of the November 16, 2009 judgment ordering the use of

Obligation Worksheet B to calculate David’s child support is reversed, and we

remand the contempt matter to the trial court for it to resentence Michelle in

accordance with La.R.S. 13:4611.

(3) Kelsey and Bryson’s school and medical expenses

Based upon the foregoing finding that the trial court exceeded its authority in

ordering the use of Obligation Worksheet B to calculate child support, we likewise

find the trial court erred in requiring Michelle to pay for all of Kelsey’s school and

medical expenses and David to pay for all of Bryson’s school and medical expenses.

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We find it noteworthy that our review of the record reveals that in its oral ruling made

in open court on the same day that the written judgment was signed, the trial court did

not articulate a ruling on this issue; however, this ruling appears in the written

judgment signed by the trial court. Regardless, the requirement that Michelle and

David each pay for all of the school and medical expenses for Kelsey and Bryson,

respectively, is couched in the ruling that Michelle and David share an equal child

support obligation which utilizes Obligation Worksheet B to determine child support.

Having reversed that determination, we likewise reverse the ruling requiring the

parties’ payment of the children’s school and medical expenses.

Considering our reversal of the trial court’s judgment relative to child support,

including Kelsey and Bryson’s school and medical expenses, we find it necessary to

clarify our instructions to the trial court. The record reveals that pursuant to a

Consent Judgment dated December 7, 2004, David paid $600.00 per month for child

support. Pursuant to a Rule to Modify Custody Implementation Plan, to Modify

Child Support, and for Contempt filed by Michelle on October 31, 2006, an Intake

Conference was held on October 16, 2007, wherein the hearing officer recommended

that David pay $1,297.00 in child support for November and December of 2006, and

$1,397.00 in child support beginning on January 1, 2001.2 The parties entered into

a Consent Judgment on July 18, 2008; however, this judgment is silent on the issue

of child support and addresses the shared custody of the children.

On August 28, 2008, David filed a Rule for Contempt, to Appoint a Counselor

for the Minor Child, and to Modify Child Support. Michelle filed a Cross Rule for

Contempt and to Make Past Due Child Support Executory on October 9, 2008. David

2
Both Michelle and David filed Objections to the recommendations made by the hearing
officer on October 19, 2007.

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then filed an Amended Rule for Contempt and to Modify Child Support on April 7,

2009.3

Therefore, we remand this matter to the trial court with the instruction that it

address the repetitive motions filed by the parties relative to child support which the

record reveals have not been addressed by the trial court since the hearing officer

made its recommendations on October 16, 2007.

(4) Kelsey’s visitation with David

In October of 2008, an argument between David and Kelsey culminated in

Kelsey being asked to leave and not return until she could be respectful. Very

divergent testimony was heard about the facts and reasoning behind why David did

not have visitation with Kelsey for over a year following this incident. On appeal,

Michelle argues that the trial court erred in ordering a reinstatement of the

seven-and-seven visitation schedule relative to Kelsey. David asserts that this issue

is not properly before this court on appeal. We agree.

On July 18, 2008, the parties entered into a Consent Judgment wherein David

and Michelle agreed to the seven-and-seven shared custody visitation schedule

relative to Kelsey and Bryson. Presently before this court is the November 16, 2009

judgment. Therefore, we will not address the complaints raised by Michelle relative

to this issue.

(5) Parenting Classes

On October 13, 2009, the trial court ordered Michelle and David to see a

parenting coordinator in order to learn “how to parent [Kelsey] and Bryson [and] on

3
Notably, this is the first request for the utilization of Obligation Worksheet B to calculate
child support since the parties began sharing custody in July of 2008; however, also noteworthy is
the fact that when this request was made, Kelsey was not abiding by the seven-and-seven visitation
schedule with David.

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how to communicate.” A Temporary Order incorporating same was signed October

22, 2009. Further, the November 16, 2009 judgment incorporated the ruling that

“Connie LeBlanc shall continue in her position as parenting co-ordinator and render

periodic reports to the [c]ourt as she deems necessary or as requested by the [c]ourt.”

Michelle argues in brief that “with the reduction in child support[,]” she cannot

afford to continue attending parenting classes because the expense of doing so “is

putting an even bigger financial burden on already strained household finances.”

David asserts this argument “should be ignored” because it “is an improper attempt

to present additional evidence . . . which was not presented to the trial court.” While

this court concurs with David’s assertions, we also find it necessary to point out that

the parties’ tumultuous relationship necessitated the trial court’s order that they attend

parenting classes. Louisiana Revised Statutes 13:4611(1)(e)(iii) states that “when a

parent has violated a visitation order, the court may order . . . one or both parents to

attend counseling or mediation.” Thus, there was no abuse of discretion by the trial

court in this regard.

DECREE

For the foregoing reasons, we affirm the judgment of the trial court in all

respects, except as to the punishment for Michelle’s contempt of court in ordering

that Obligation Worksheet B be used to calculate David’s child support obligation.

In reversing that aspect of the judgment, we remand this matter to the trial court for

resentencing relative to Michelle’s contempt of court and for consideration of the

issue of child support. We assess costs of this appeal equally between the parties.

AFFIRMED IN PART, REVERSED IN PART, AND REMANDED WITH
INSTRUCTIONS.

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