Laney Ray Barlow, Jr. v. Sandra Guillot Barlow

STATE OF LOUISIANA

COURT OF APPEAL, THIRD CIRCUIT

11-1286

LANEY RAY BARLOW, JR.

VERSUS

SANDRA GUILLOT BARLOW

**********

APPEAL FROM THE
SEVENTH JUDICIAL DISTRICT COURT
PARISH OF CONCORDIA, NO. 42083-A
HONORABLE F. RAE SWENT, JUDGE AD HOC

**********

JAMES T. GENOVESE
JUDGE

**********

Court composed of Ulysses Gene Thibodeaux, Chief Judge, James T. Genovese,
and Shannon J. Gremillion, Judges.

AFFIRMED.

S. Douglas Busari
S. Douglas Busari & Associates, LLC
506 E. Green Street
Post Office Box 168
Tallulah, Louisiana 71284
(318) 574-2955
Counsel for Plaintiff/Appellant:
Laney Ray Barlow, Jr.

John Scott Sartin
406 Prairie Street
Winnsboro, Louisiana 71295
(318) 435-1224
Counsel for Appellee/Defendant:
Sandra Guillot Barlow

GENOVESE, Judge.

In this domestic case, Plaintiff, Laney Ray Barlow, Jr., appeals the trial

court‘s judgment relative to child support, final periodic spousal support, and

contempt of court. For the reasons set forth below, we affirm the judgment of the

trial court.

FACTUAL AND PROCEDURAL BACKGROUND

This dispute is extremely and exceptionally contentious. Due to the

discordance of the parties, it is necessary to chronicle the procedural history1 of

this case in order to effectuate a proper legal review of the case on appeal.

On December 7, 2006, Laney Ray Barlow, Jr. (Ray) filed a Petition for

Divorce and Ancillary Matters against Sandra Guillot Barlow (Sandra). Though

two children were born of their marriage, only one, Ashley, was a minor when the

petition was filed. Also on December 7, 2006, Ray and Sandra signed a Consent

Judgment of Temporary Custody which addressed custody of Ashley, use and

possession of vehicles and the marital home, and stipulated that Ray would

―deposit $500[.00] after each pay day into the checking account of Sandra . . . until

further order of this court.‖ It further provided that ―a hearing on the issues of

custody, support[,] and possession of the marital home shall be held on the 1st day

of February, 2007.‖ The Consent Judgment of Temporary Custody was signed by

Ray; his counsel at the time, Ann Siddall; Sandra; and, the presiding judge at the

time, Judge Kathy Johnson.

On December 29, 2006, Sandra filed an Answer and Reconvention seeking

joint custody, child support, to be named domiciliary parent, exclusive use of the

1
Not included in this history are the filings of pleadings which are not relevant to the
present appeal, i.e., substitution of counsel.

marital home, and both interim and final periodic spousal support. An Order

signed by Judge Johnson set a hearing on these issues on February 5, 2007;

however, the record does not contain evidence that a hearing was held.

On April 9, 2007, Sandra filed a Motion for Contempt for Violation of

Custody and Support Orders, Modification of Custody and Support Provisions, and

Protective Orders. Sandra alleged that Ray violated several provisions of the

December 7, 2006 Consent Judgment of Temporary Custody and that ―the periods

of physical custody exercised by [Ray] have been detrimental to the health and

well[-]being of the minor child.‖ Sandra requested Ray‘s custody of Ashley be

suspended until a hearing could be held. Judge Johnson set Sandra‘s motion for

hearing on April 19, 2007, suspended Ray‘s custody of Ashley until said hearing,

and appointed an attorney, Anna Ferguson, to represent Ashley.

On April 10, 2007, Ray filed a Motion and Order to Revise Ex Parte Order,

asserting that prior to the filing of Sandra‘s motion the previous day, a hearing in

this matter was already scheduled for May 1, 2007, for which Ray had already

subpoenaed witnesses. Further, Ray complained that Sandra‘s ex parte request to

have his custody of Ashley suspended violated the ―very narrow limitations that

permit the issues of an ex[]parte order of temporary custody‖ as set forth in

La.Code Civ.P. art. 3945.2 Judge Johnson signed an Order wherein the suspension

2
Louisiana Code of Civil Procedure Article 3945(B) specifies:

An ex parte order of temporary custody of a minor child shall not be granted
unless:

(1) It clearly appears from specific facts shown by a verified
petition or by supporting affidavit that immediate and irreparable injury
will result to the child before the adverse party or his attorney can be heard
in opposition.

(2) The applicant‘s attorney certifies to the court, in writing,
either:
2

of Ray‘s physical custody was rescinded and reverted the date of the next hearing

from April 19, 2007, back to May 1, 2007.

On April 20, 2007, Ray filed a Petition for Rule to Show Cause seeking to

have the community property that he and Sandra shared listed for sale. Judge

Johnson signed an Order also setting this issue for hearing on May 1, 2007;

however, the record does not contain evidence that a hearing was held on May 1,

2007.

On July 24, 2007, a Consent Judgment, signed on July 16, 2007, by Judge

Johnson and Anna Ferguson, was filed into the record. The July 16, 2007 Consent

Judgment stated that a ―[c]ourt mediation and an in camera conference [were] held

on May 1st, 2007,‖ wherein Ray and Sandra agreed to: (1) a joint custody visitation

schedule; (2) a therapist with whom Ashley would receive counseling;

(3) submission to an MMPI-2 test; and, (4) other issues relative to visitation. The

July 16, 2007 Consent Judgment also provided that Sandra would remove Ashley‘s

picture from her website advertising her photography business.

On September 5, 2007, an Order was filed into the record detailing that ―[a]

Status Conference was held on August 23, 2007[,] to address several issues

relating to custody and visitation in this matter.‖ The Order provided a visitation

schedule for the remainder of August and for September and was signed by

counsel for Ray and Sandra.

On October 3, 2007, Ray filed a Motion for Visitation Schedule, seeking to

(a) The efforts which have been made to give the adverse party
reasonable notice of the date and time such order is being
presented to the court.

(b) The reasons supporting his claim that notice should not be
required.
3

extend the visitation schedule the parties previously agreed to at the status

conference held on August 23, 2007. Judge Johnson signed an Order which set

forth a visitation schedule for the remainder of the year and which scheduled a

pretrial hearing for October 19, 2007. On October 15, 2007, the pretrial hearing

was reset for October 29, 2007, pursuant to Ray‘s request for a continuance.

On March 18, 2008, an Order was signed by Judge Johnson requiring that

Ray and Sandra each pay one-half of Ashley‘s attorney fees. The Order stated that

―the case shall not proceed to the custody litigation until this sum is paid.‖

On June 5, 2008, Sandra filed a Petition to Alter Visitation Schedule for

Recital of the Glory Bound Cloggers. 3 Judge Johnson signed an Order granting

Sandra custody of Ashley on June 7, 2008, for the purpose of allowing Ashley to

participate in this event.

On May 16, 2008, Ray filed a Motion and Order to Fix asserting ―this matter

is ripe for trial on the merits; therefore, [he requested] that this matter be set for

trial on all issues relating to custody, visitation, child support[,] and spousal

support.‖

On January 30, 2009, Ray filed a Motion and Order to Fix Trial Date

referencing the December 7, 2006 Consent Judgment of Temporary Custody,

asserting that he ―wish[ed] to have this matter scheduled for a permanent custody

hearing and all incidental matters thereto.‖

On March 13, 2009, Sandra filed a Rule for Contempt, to Make Past Due

Child Support Plus Legal Interest Executory, for Suspension of Driver‘s,

Occupational and Recreational Licenses, for Attorney Fees and Costs, for Income

Assignment Order, Income Tax Exemption and Income Tax Refunds. Specifically,

3
A dance group to whom Ashley belonged.
4

Sandra alleged that Ray ―consented to his depositing directly into [her] bank

account five hundred dollars ($500.00) from each of his bi-weekly paychecks in

child support[;]‖ however, he ―has failed to honor the Court‘s December [7], 2006

[Consent] Judgment [of Temporary Custody] and is delinquent despite repeated

amicable demands that he comply . . . .‖ According to Sandra, Ray was ―in

arrearage for child support payments[,] as of March 1, 2009[,] in the amount of

$16,519.92, which sum includes the judicial interest owed of $1,168.92 on the

underlying unpaid support payments of $15,350.00.‖ Judge Johnson signed an

Order scheduling a hearing for May 4, 2009.4

On May 14, 2009, Ray filed a Rule for Contempt and Modification of

Existing Custody Order. Ray also sought to be awarded sole custody of Ashley

based on allegations that Sandra violated the terms of both the December 7, 2006

Consent Judgment of Temporary Custody and the July 16, 2007 Consent Judgment

―[o]n several occasions[.]‖ Judge Johnson signed an Order scheduling a hearing

for June 2, 2009.

On May 14, 2009, Sandra filed a Dilatory Exception of Vagueness and

Ambiguity, Motion for Production of Mental Health Records and Contested

Motion for Continuance.5 Sandra sought a continuance of the trial court‘s fixing of

Ray‘s ―rule for sole custody for June 2, 2009, . . . due to the need for production by

the court appointed medical health professionals and their depositions, which can

not be scheduled prior to the hearing date fixed for the contempt rules.‖ In

response to Ray‘s allegations that she should be held in contempt for violating the

4
On May 19, 2009, an Order was filed into the record evidencing that a telephone
conference was held in late-April, and, due to a scheduling conflict with Ray‘s counsel, the
hearing on Sandra‘s rule was rescheduled for June 2, 2009.

5
On May 29, 2009, Ray filed an Opposition to Defendant‘s Exception of Vagueness and
Ambiguity and Motion to Continue.
5

court order, Sandra contested the efficacy of the July 16, 2007 Consent Judgment

on the basis that she did not enter into ―any oral stipulations whatsoever‖ and that

said document did ―not bear the signatures of either party to this litigation nor the

signatures of either of their respective attorneys at the time.‖ Sandra also

requested ―that the existing custody regime . . . be modified [making] her the sole

custodian and limiting [Ray‘s] visitation in accordance with the minor child‘s best

interests.‖ Judge Johnson signed an Order scheduling a hearing for June 2, 2009.

On May 26, 2009, Ray filed an Answer to Rule for Contempt, in which he

denied failing to pay court-ordered child support. Ray argued that the December 7,

2006 Consent Judgment of Temporary Custody did not ―designate[] any amount of

payment ordered by the court . . . as child support.‖

On June 1, 2009, Judge Johnson filed an Order of Recusal into the record

wherein she removed herself from the instant litigation on the basis that she ―is and

can not be fair and impartial[.]‖ On June 2, 2009, Judge Leo Boothe also filed an

Order of Recusal citing ―prior ex parte communications about facts of this case‖

for his abstention from hearing this matter. The supreme court appointed Judge

F. Rae Swent to preside over this matter on July 16, 2009.

On August 10, 2009, Ray filed a Petition for Nullity of Judgment. Ray

asserted that Judge Johnson ―rendered a [C]onsent Judgment of [T]emporary

[C]ustody‖ on December 7, 2006, which ―contained a handwritten provision that

[he] deposit[] $500.00 into the checking account of [Sandra] . . . without stating the

purpose for which it was intended nor did it state the means by which the figure

was determined.‖ According to Ray, ―all Judgments rendered thus far by Judge

Johnson were not impartial nor were they fair to [him,]‖ and he requested ―that all

Judgments rendered thus far by Judge Johnson be annulled for vices of substance.‖

6

Following a three-day hearing held on October 27–28, 2009, and January 29,

2010, the trial court issued written Reasons for Judgment on June 7, 2010. Ray

and Sandra were awarded joint custody, with Sandra being designated as the

domiciliary parent. Ray was ordered to pay $690.81 in monthly child support.

The trial court found Sandra free from fault and in need of support. The trial court

also found that Ray had the ability to pay, and he was thus ordered to pay Sandra

$200.00 per month as final periodic spousal support. The trial court considered the

issue of Ray‘s alleged child support arrearage ―[t]he most difficult aspect of this

case[,]‖ stating:

The first problem with [Ray‘s] argument is that [Sandra] filed a
[Motion for Contempt for Violation of Custody and Support Orders,
Modification of Custody and Support Provisions, and Protective
Orders] in March[6] 2007, when the parties did not have a hearing as
scheduled for February 1 or February 5, 2007. [Sandra] made a
specific complaint that he had not paid the $500.00 due every payday
and alleged an arrears of $2,147.30. There can be no way that [Ray]
did not know or understand that [Sandra] contended the payments to
her were for support, not just house payments. Besides, it does appear
that [Ray] filed federal income tax returns that identified the money
he paid as spousal support. Further, neither party testified to any
agreement to deviate from the $500.00 every payday.

The second problem with the argument made by both parties is
that the amount of payment to [Sandra] was set before she made any
demand; that is, she had not yet asked for any child support, interim
spousal support or permanent spousal support. Obviously, each of
these various types of support have a different standard for
calculation, as well as a different time period for imposition and
duration. This court cannot guess what the parties intended at any
particular time. The court can only look to the party who should bear
the burden of proof as to what was meant by a consent judgment.

Despite the plethora of pleadings filed by both parties in this
case, [Ray] never complained of being ordered to pay the $500.00
each payday. He did file a specific pleading that alleged [Sandra] was
not helping him pay community debts[,] and he proposed that the
property she and the child lived in be sold; but, he never once filed

6
This pleading was actually filed on April 9, 2007.

7

anything that referenced any misunderstanding or inequity about
support or house payments. In particular, he never complained that he
could not pay the $500.00, every payday[,] and pay the house note or
community debts, also. Instead, after a few initial payments, he just
didn‘t pay [Sandra] anything. He just decided on his own to pay the
house notes. Now, he can get credit in the Partition for one half of
what he paid, which [Sandra] agrees was $18,039.00, but that is
another matter. In this matter of custody and support, he must be
found in contempt and stand in judgment for the failure to either pay
her as ordered or get the judgment changed. Here, [Ray] never filed
any pleading to change, clarify or even reduce the amount he was
ordered to pay to [Sandra] in the December 2006 consent judgment.

The trial court found Ray in contempt and calculated the amount he owed pursuant

to the December 7, 2006 Consent Judgment of Temporary Custody to be

$29,330.62. The trial court also ordered Ray ―to pay one-fourth of the attorney

fees incurred by [Sandra] as the amount attributable to prosecution of the claim for

arrears.‖ The Judgment, signed by the trial court on April 5, 2011, specified that

Ray pay Sandra ―$5,649.18 in attorney fees plus legal interest on same until paid

(one[-]fourth of the $22,596.75 in attorney fees incurred and paid by or on behalf

of [Sandra]) as the amount attributable to prosecution of [Sandra‘s] arrearage

claim.‖ From this judgment, Ray appeals.

ASSIGNMENTS OF ERROR

On appeal, Ray asserts four assignments of error. He contends that the trial

court erred in: (1) denying his petition to annul the December 6, 2007 Consent

Judgment of Temporary Custody and ordering him to pay child support arrearages

in the amount of $29,330.62; (2) awarding Sandra final periodic spousal support;

(3) calculating the amount of Sandra‘s final periodic spousal support award; and,

(4) finding him in contempt and ordering that he pay one-fourth of Sandra‘s

attorney fees, which the trial court deemed attributed to her arrearage claim.

8

STANDARD OF REVIEW

An appellate court cannot set aside a trial court‘s findings of
fact in the absence of manifest error or unless those findings are
clearly wrong. Rosell v. ESCO, 549 So.2d 840 (La.1989). If the
findings are reasonable in light of the record reviewed in its entirety,
an appellate court may not reverse those findings even though
convinced that had it been sitting as the trier of fact, it would have
weighed the evidence differently. Id.

The standard of review in child custody matters
has been clearly stated by this court:

The trial court is in a better position to
evaluate the best interest of the child from
its observance of the parties and witnesses;
thus, a trial court‘s determination in a child
custody case is entitled to great weight on
appeal and will not be disturbed unless there
is a clear abuse of discretion.

Hawthorne v. Hawthorne, 96-89, p. 12 (La.App. 3 Cir.
5/22/96), 676 So.2d 619, 625, writ denied, 96-1650
(La.10/25/96), 681 So.2d 365.

Gremillion v. Gremillion, 07-492, p. 4 (La.App. 3 Cir. 10/3/07), 966
So.2d 1228, 1231-32.

Westbrook v. Weibel, 11-910, p. 2 (La.App. 3 Cir. 12/7/11), ___ So.3d ___, ___.

DISCUSSION

In his first assignment of error, Ray submits that the trial court ―committed

manifest error in failing to annul the Judgment rendered by Judge Johnson on

December 7, 2006 and awarding arrears of [$29,330.62]7 therefrom.‖ Ray sought

to annul the December 7, 2006 Consent Judgment of Temporary Custody for vices

of substance pursuant to La.Code Civ.P. art. 2004.8

[A] final judgment obtained by fraud or ill practices may be annulled,

7
In brief, Ray erroneously states that the trial court awarded arrears of $22,596.75;
however, the trial court awarded arrears of $29,330.62 and calculated the attorney fees Sandra
incurred to prosecute the arrearage claim as $22,596.75.
8
Louisiana Code of Civil Procedure Article 2004(A) provides: ―A final judgment
obtained by fraud or ill practices may be annulled.‖
9

La.Code Civ. Proc. art. 2004(A), and trial courts are permitted
discretion in deciding when a judgment should be annulled because of
fraud or ill practices, to which discretion reviewing courts will defer.
Kem Search, Inc. v. Sheffield, 434 So.2d 1067, 1070 (La.1983).

Power Mktg. Direct, Inc. v. Foster, 05-2023, p. 11 (La. 9/6/06), 938 So.2d 662,

670.

The sole basis for Ray‘s argument that the December 7, 2006 Consent

Judgment of Temporary Custody was prejudicial and detrimental to him is that

Judge Johnson recused herself in July 2009, citing an inability to be fair and

impartial. Ray complains that Judge Johnson made handwritten inscriptions—one

of which is the provision that Ray pay Sandra $500.00—on the December 7, 2006

Consent Judgment of Temporary Custody. Ray asserts that ―[i]f knowing she

could not be impartial, Judge Johnson should have recused herself from the onset

of the case rather than rendering a Judgment that is prejudicial and detrimental to

him.‖

Sandra counters that ―absolutely no evidence was presented during the

pendency of this matter to support [Ray‘s] contention that Judge Johnson was not

fair and impartial when the December 7, 2006 [Consent Judgment of Temporary

Custody] was rendered by her.‖ Further, Judge Johnson ―made no decisions

regarding the December 7, 2006 [Consent Judgment of Temporary Custody] other

than taking the stipulation of the parties.‖

The inference from Ray‘s references to Judge Johnson‘s handwritten

inscriptions on the December 7, 2006 Consent Judgment of Temporary Custody is

judicial misconduct, i.e., fraud or ill practice; however, the record reveals that the

handwritten inscriptions are consistent with the oral stipulations made in court.

Ray does not allege that falsehoods and misrepresentations made by Sandra caused

him to enter into the December 7, 2006 Consent Judgment of Temporary Custody.
10

Instead, he alleges that Judge Johnson rendered said judgment against him and that

said judgment was prejudicial and detrimental to him. There is no evidence to

support Ray‘s allegation that Judge Johnson could not be fair and impartial to him

when she signed the stipulation he entered into and which was contained in the

December 7, 2006 Consent Judgment of Temporary Custody. We note that Ray

was present in court with his attorney. In fact, the signature of Ray‘s counsel

appears on the consent judgment while the signature of Sandra‘s counsel does not.

Though he asserts he was misled into signing the December 7, 2006 Consent

Judgment of Temporary Custody by his understanding that it would be temporary,

we find this allegation, without more, is insufficient to support a claim to annul the

judgment for vice of substance on the bases of fraud or ill practice. Therefore, we

find no merit in this contention.

Having found no abuse of the trial court‘s discretion in denying Ray‘s

Petition for Nullity of Judgment, we find no merit in his contention that the trial

court erred by awarding arrears of $29,330.62 therefrom to Sandra. Ray

admittedly stopped making payments to Sandra as ordered by the December 7,

2006 Consent Judgment of Temporary Custody. We find no manifest error in the

trial court‘s ruling ordering him to pay the $29,330.62 arrearage pursuant to the

December 7, 2006 Consent Judgment of Temporary Custody. This assignment of

error is without merit.

In his second assignment of error, Ray argues that the trial court ―erred in

failing to find that [Sandra] was free from fault in the dissolution of the marriage

and awarding her permanent spousal support.‖ Ray asserted that Sandra was at

fault in the dissolution of their marriage due to an alleged extramarital relationship

with Jeff Goeggle.

11

Louisiana Civil Code Article 111 provides:

In a proceeding for divorce or thereafter, the court may award
interim periodic support to a party or may award final periodic
support to a party who is in need of support and who is free from fault
prior to the filing of a proceeding to terminate the marriage in
accordance with the following Articles.

Louisiana Civil Code Article 112 requires that Sandra, seeking final periodic

spousal support, prove that she was free from fault in the dissolution of the

marriage. See Terry v. Terry, 06-1406 (La.App. 3 Cir. 3/28/07), 954 So.2d 790.

Louisiana Civil Code Article 112 provides, in pertinent part, ―When a spouse has

not been at fault and is in need of support, based on the needs of that party and the

ability of the other party to pay, that spouse may be awarded final periodic

support . . . .‖

―It is well settled that a trial court‘s factual findings in the area of
domestic relationships are given great deference on review. If the trial
court‘s findings are reasonable, i.e. not manifestly erroneous or clearly
wrong, then they will not be disturbed.‖ [Terry, 954 So.2d] at 793
(citing Coleman v. Coleman, 541 So.2d 1003 (La.App. 3 Cir.1989).

Henry v. Henry, 08-692, p. 2 (La.App. 3 Cir. 12/10/08), 999 So.2d 255, 256-57.

Sandra denied being at fault in the dissolution of the marriage and testified

that Ray‘s temper and threats of violence were an ongoing problem during the

marriage. She alleged Ray demanded that she leave the marital home and

threatened violence if she returned. Sandra denied having a relationship with

Mr. Goeggle prior to Ray‘s filing of the petition to terminate the marriage. She

further contends that the evidence relied upon by the trial court to make its

determination was sufficient to serve as a basis for granting her request for final

periodic spousal support.

Ray wants this court to assume and accept his contention that because a

romantic relationship between Sandra and Mr. Goeggle now exists, one existed

12

prior to the dissolution of his marriage to Sandra. However, that is not the standard

by which this issue is determined. To refute Sandra‘s assertion that she is free

from fault by proving she was guilty of having an extramarital relationship, thereby

causing the dissolution of the marriage, Ray must have evidence, not conjecture

and innuendo. The trial court found that Sandra met her burden of proof and that

Ray did not meet his burden of proof. In fact, the trial court stated that while Ray

―proved what he thinks happened, he did not prove that is what actually did

happen.‖

Based on our review of the record, we find the evidence supports the finding

that Sandra was free from fault prior to the filing of the proceeding to terminate the

marriage as required by La.Civ.Code art. 111. Hence, we likewise find no error in

the trial court‘s ruling on that issue.

In his third assignment of error, Ray asserts that the trial court ―committed

manifest error in failing to consider [Sandra‘s] income potential and resources and

ordering [him] to pay $690.81 as child support.‖ Ray argues that Sandra receives

recurring monetary gifts and is voluntarily underemployed.

For the purpose of determining child support, La.R.S. 9:315(C)(3)(a)

(emphasis added) defines ―gross income‖ as:

The income from any source, including but not limited to
salaries, wages, commissions, bonuses, dividends, severance pay,
pensions, interest, trust income, recurring monetary gifts, annuities,
capital gains, social security benefits, workers‘ compensation benefits,
basic and variable allowances for housing and subsistence from
military pay and benefits, unemployment insurance benefits, disaster
unemployment assistance received from the United States Department
of Labor, disability insurance benefits, and spousal support received
from a preexisting spousal support obligation[.]

Louisiana Revised Statutes 9:315(C)(5) defines ―income‖ as:

(a) Actual gross income of a party, if the party is employed to
full capacity; or
13

(b) Potential income of a party, if the party is voluntarily
unemployed or underemployed. A party shall not be deemed
voluntarily unemployed or underemployed if he or she is absolutely
unemployable or incapable of being employed, or if the
unemployment or underemployment results through no fault or
neglect of the party.

(c) The court may also consider as income the benefits a party
derives from expense-sharing or other sources; however, in
determining the benefits of expense-sharing, the court shall not
consider the income of another spouse, regardless of the legal regime
under which the remarriage exists, except to the extent that such
income is used directly to reduce the cost of a party‘s actual expenses.

Ray alleges that Sandra received ―generous monetary assistance‖ and that

she possessed the ability to earn income from several different sources, i.e., driving

a medical transport vehicle, cleaning houses, bookkeeping, and photography. Ray

contends that Sandra ―was a skilled photographer with about $10,000.00 worth of

photographic equipment and that she does wedding photography for income.‖

Sandra testified that she had not earned money working for a medical

transport company for nearly eighteen years and that she owned only two cameras.

According to Sandra, by the conclusion of the trial, she had obtained employment,

was earning more than she had at any time during her marriage to Ray, and the

worksheet of her income and expenses that she presented to the trial court reflected

these facts. Sandra denied the allegation that she received recurring monetary

gifts. Sandra contends that ―[a]bsolutely no evidence was presented that

demonstrated that [her] mother, brother or Jeff Goeggle made any consistent

monetary gifts to her on a recurring basis; rather, Sandra‘s family and friends

would simply step up and assist her as the need arose.‖

This issue before the court is whether the trial court was manifestly

erroneous in its judgment. See State, Dep’t of Social Services v. Swords, 08-580

(La.App. 3 Cir. 11/5/08), 996 So.2d 1267 (citing McDaniel v. McDaniel, 03-1763

14

(La.App. 3 Cir. 5/19/04), 878 So.2d 686). Considering the record before us, we

find sufficient evidence to support the trial court‘s determination. Ray offered only

his testimony, without documentary or other corroborating evidence, to support his

allegations that Sandra was receiving recurring monetary gifts and that she was

voluntarily underemployed. Considering this was a factual determination and a

credibility call, we find no manifest error in the trial court‘s ruling. Therefore, this

assignment of error is without merit.

In his final assignment of error, Ray contends that the trial court manifestly

erred in finding him ―in contempt of court and [ordering] him to pay the sum of

$5,649.18 as attorney[] fees to [Sandra].‖

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 in the dignity of the court or respect for its authority.

Contempts of court are 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 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, 98-990 (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).

15

As we discussed in Ray‘s first assignment of error relative to the consent

judgment, he admitted that he stopped making payments to Sandra as ordered by

the December 7, 2006 Consent Judgment of Temporary Custody. As a result

thereby, the trial court rendered judgment in favor of Sandra making Ray‘s past-

due payments executory. Pursuant to this finding, Ray was found to be in

contempt and ordered to pay Sandra $5,649.18 in attorney fees.

Ray argues that ―[a]ttorney fees are not allowed unless authorized by statute.

Maggio v. Robinson, 31,913 (La.App. 2 Cir. 5/5/99), 741 So.2d 103.‖ Sandra

contends that La.R.S. 9:375(A) grants the trial court the authority to award her

attorney fees. We agree with Sandra.

Louisiana Revised Statutes 9:375(A) provides:

When the court renders judgment in an action to make
executory past-due payments under a spousal or child support award,
or to make executory past-due installments under an award for
contributions made by a spouse to the other spouse‘s education or
training, it shall, except for good cause shown, award attorney‘s fees
and costs to the prevailing party.

In the present case, the trial court made the child support executory. The trial

court‘s written reasons did not set forth any specific finding of ―good cause

shown.‖ Therefore, the trial court found La.R.S. 9:375 to be applicable herein.

We find no manifest error in the trial court‘s factual determinations and no abuse

of its discretion in awarding $5,649.18 in attorney fees to Sandra.

DECREE

For the foregoing reasons, the judgment of the trial court is affirmed in its

entirety. Costs of this appeal are assessed against Plaintiff/Appellant, Laney Ray

Barlow, Jr.

AFFIRMED.

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