Frank Butler and Rhonda Butler v. Christian Kalivoda

NOT DESIGNATED FOR PUBLICATION

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

CA 17-739

FRANK BUTLER AND RHONDA BUTLER

VERSUS

CHRISTIAN KALIVODA

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APPEAL FROM THE
THIRTEENTH JUDICIAL DISTRICT COURT
PARISH OF EVANGELINE, NO. 75374-B
HONORABLE RONALD D. COX, DISTRICT JUDGE

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BILLY HOWARD EZELL
JUDGE

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Court composed of Sylvia R. Cooks, Billy Howard Ezell, and D. Kent Savoie,
Judges.

AFFIRMED IN PART AND REVERSED IN PART.

C. Brent Coreil
P. O. Drawer 450
Ville Platte, LA 70586
(337) 363-5596
COUNSEL FOR PLAINTIFFS/APPELLEES:
Frank Butler
Rhonda Butler

Garth J. Ridge
251 Florida St., Suite 301
Baton Rouge, LA 70801
(225) 343-3700
COUNSEL FOR DEFENDANT/APPELLANT:
Christian Kalivoda

Jacob B. Fusilier
Fusilier & Associates
P. O. Box 528
Ville Platte, LA 70586
(337) 363-6661
COUNSEL FOR DEFENDANT/APPELLANT:
Christian Kalivoda

EZELL, Judge.

Christian Kalivoda appeals the decision of the trial court below finding him

in contempt of court for violating a restraining order against him issued in

protection of Frank and Rhonda Butler. Mr. Kalivoda also appeals the trial court’s

award of attorney fees to the Butlers. For the following reasons, we affirm the

decision of the trial court in part and reverse in part.

On March 30, 2015, a temporary restraining order (TRO) was issued against

Mr. Kalivoda preventing him from “physical abuse or harassment of [the Butlers],

and from going to [their] place of business, residence or employment, or accosting

them in any manner, including social media and coming within [twenty-five] feet”

of the Butlers. This TRO was extended on Mr. Kalivoda’s request as part of a

stipulation to reset a hearing on converting the TRO into a preliminary injunction.

The TRO remained in place until a July 15, 2015 hearing wherein Mr. Kalivoda

and the Butlers stipulated to the issuance of reciprocal preliminary injunctions

which would continue the restrictions of the prior TRO in favor of both parties.

The stipulation was agreed to and discussed in open court with all parties and their

counsel present. However, the injunction was not reduced to writing and signed by

the trial court until December 1, 2015.

On November 23, 2015, after the stipulation but prior to the signing of the

judgment, Mr. Kalivoda violated the injunction by harassing Rhonda Butler. That

day, while Mrs. Butler was driving on the highway that separates the Butlers’

business from Mr. Kalivoda’s house, Mr. Kalivoda pulled dangerously close

behind Mrs. Butler, coming within twenty-five feet of her in defiance of the

injunction. Mr. Kalivoda was yelling and making obscene gestures at Mrs. Butler,

coming close enough to her that she felt panicked and veered off the road, fearing

she would be hit.

In April 2016, the Butlers filed a motion for contempt against Mr. Kalivoda

for his actions. After a hearing on the matter, the trial court found that Mr.

Kalivoda had knowingly violated the injunction and sentenced him to ninety days

in jail, suspended on the condition that he did not come within 1,000 feet of the

Butlers. The trial court also awarded the Butlers $4,000 in attorney fees. From

that decision, Mr. Kalivoda appeals.

On appeal, Mr. Kalivoda asserts three assignments of error. He claims that

the trial court erred in finding that the TRO was violated, when he claims it had

expired by law; he claims that the trial court erred in finding that the stipulated

judgment was in effect prior to being signed; and that the trial court erred in

awarding attorney fees to the Butlers. Mr. Kalivoda has also filed before this court

an exception of no cause of action.

Mr. Kalivoda first claims that the trial court erred in finding he had violated

the TRO signed on March 30, 2015. However, the trial court did not find that he

violated that order but found that he violated the stipulated judgement entered into

on July 15, 2015. This assignment of error is without merit and need not be

discussed further.

Next, Mr. Kalivoda claims that the trial court erred in finding that he

violated the stipulated judgment entered into by the parties on July 15, 2015, as his

actions occurred on November 23 of that year, prior to that judgment actually

being signed on December 1, 2015. We disagree.

First, we note that Mr. Kalivoda does not dispute the factual findings of the

trial court that he violated the TRO. He merely claims that there was no order in

place at the time of his actions. We do not find this to be a compelling argument.

We find there was a valid consent judgment in place, on the record, between the

parties as of July 15, 2015. On that date, both parties were present in court and
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both were represented by counsel. The Butlers’ counsel stated that the parties had

reached an agreement or consent judgment. Mr. Kalivoda’s attorney then stated

that his client agreed to the terms of the consent judgment, emphasizing that his

agreement was based on the injunction being applied reciprocally. The parties

agreed to reciprocal injunctions in “the same form and substance as the TRO” that

was in place at the time of the hearing. All parties were aware that the TRO they

were agreeing to prevented harassment, or coming within twenty-five feet of the

each other.

Louisiana Civil Code Article 3072 (emphasis ours) provides that “[a]

compromise shall be made in writing or recited in open court, in which case the

recitation shall be susceptible of being transcribed from the record of the

proceedings.” In Tate v. Tate, 09-591 (La.App. 5 Cir. 1/12/10), 30 So.3d 1000, the

consent judgment or compromise was not perfected in writing at all, but was

merely recited in open court. The court found there to be a valid consent judgment

on the date of the recitation and that the judgment had been valid and in place for

nine years.

In this case, the stipulated judgment was eventually perfected in writing in

December 2015; however, that judgment was effective when recited in open court

after a discussion on the record in July of that year. It is clear that Mr. Kalivoda

fully acquiesced in the stipulation. He was aware of, and agreed to, continuing the

terms of the existing TRO, preventing him from harassing or coming within

twenty-five feet of the Butlers. There is no evidence Mr. Kalivoda had any

mistaken belief as to the terms of the agreement. To the contrary, he was aware of

the proscribed behavior, as he specifically requested that it be applied to the

Butlers as well. Mr. Kalivoda was fully appraised of his rights and obligations

under the agreement, but knowingly violated them anyway. The TRO was valid at
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the time it was recited in open court, and the trial court did not err in finding him in

contempt of that order. This assignment of error is without merit.

Because there was a valid stipulated judgment in effect at the time Mr.

Kalivoda harassed Mrs. Butler, his exception of no cause of action is likewise

without merit and is denied.

However, we do find merit in Mr. Kalivoda’s assertion that the trial court

erred in awarding attorney fees to the Butlers. An award of attorney fees is a type

of penalty imposed not to make the injured party whole, but rather to discourage a

particular activity on the part of the opposing party. In re Jones, 10-66 (La.App. 5

Cir. 11/9/10), 54 So.3d 54. A contempt proceeding, however, is designed for the

vindication of the dignity of the court rather than for the benefit of a litigant. City

of Kenner v. Jumonville, 97-125, 97-210, 97-602 (La.App. 5 Cir. 8/27/97), 701

So.2d 223, writ denied, 97-2890 (La. 1/30/98), 709 So.2d 718, cert. denied, 524

U.S. 953, 118 S.Ct. 2371 (1998). Attorney fees are not awarded generally in

Louisiana unless authorized by statute or provided by contract. Rivet v. State, Dept.

of Transp. and Dev., 96-145 (La. 9/5/96), 680 So.2d 1154.

At the time of Mr. Kalivoda’s actions, the punishment for such contempt did

not include an award of attorney fees or costs. See Lockett v. UV Ins. Risk

Retention Grp., Inc., 15-166 (La.App. 5 Cir. 11/19/15), 180 So.3d 557. Louisiana

Revised Statutes 13:4611(g), which provides for an award of attorney fees for the

prevailing party in a contempt of court proceeding, did not become effective until

August 1, 2016, after the actions and proceedings in this matter began. An

obligation to pay attorney fees arising in situations where no such obligation

existed before the enactment of the statute constitutes a substantive change in the

law and can be applied prospectively only. Benson v. City of Marksville, 01-1078

(La.App. 3 Cir. 2/6/02), 812 So.2d 687, writ denied, 02-1066 (La. 6/14/02), 817
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So.2d 1158. While the Butlers were clearly not entitled to attorney fees under

statute at the time of this hearing, they claim they may recover attorney fees under

the stipulated judgment, which serves as a contract between the parties. We

disagree.

“A compromise settles only those differences that the parties clearly

intended to settle, including the necessary consequences of what they express.”

La.Civ.Code art. 3076. The judgment stipulated to by the parties made no mention

of attorney fees awards for enforcement of the order; nor did the original TRO that

served as the basis for this stipulation. Rather, the trial court mentioned attorney

fees as a warning to the parties on his own. While this court understands the

rationale behind the trial court’s award, especially in light of the reckless nature of

Mr. Kalivoda’s behavior, attorney fees were not part of the original TRO and were,

therefore, not part of agreement between the parties. Because attorney fees were

not agreed to by the parties and were not provided for by law at the time of the trial,

the trial court’s award of attorney fees was in error and must be reversed.

For the above reasons, we hereby reverse the award of attorney fees and

affirm the judgment in all other respects. Costs of this appeal are hereby assessed

against Mr. Kalivoda.

AFFIRMED IN PART AND REVERSED IN PART.

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

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