Donald E. Wagoner v. Krisann J. Munoz

NOT DESIGNATED FOR PUBLICATION

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

23-462

DONALD E. WAGONER

VERSUS

KRISANN J. MUNOZ

**********

APPEAL FROM THE
THIRTIETH JUDICIAL DISTRICT COURT
PARISH OF VERNON, NO. 97,845 B
HONORABLE C. ANTHONY EAVES, DISTRICT JUDGE

**********

D. KENT SAVOIE
JUDGE

**********

Court composed of D. Kent Savoie, Candyce G. Perret, and Ledricka J. Thierry,
Judges.

AFFIRMED AS AMENDED.

Mary K. Beaird
Attorney at Law
303 E. Texas Street
Leesville, LA 71446
(337) 944-0299
COUNSEL FOR DEFENDANT/APPELLANT:
Krisann J. Munoz

Elvin Fontenot, Jr.
Attorney At Law
110 E. Texas Street
Leesville, LA 71446
(337) 239-2684
COUNSEL FOR PLAINTIFF/APPELLEE:
Donald E. Wagoner

SAVOIE, Judge.

Krissan Munoz (Munoz) appeals the trial court’s judgment granting Donald

Wagoner’s (Wagoner’s) motion seeking to modify custody and find Munoz in

contempt, awarding Wagoner with sole custody of the parties’ two minor children,

and awarding Wagoner with $9,610.83. For the following reasons, we affirm the

modification of custody and finding of contempt, but we amend the monetary award

in favor of Wagoner to $6,610.83.

FACTUAL AND PROCEDURAL BACKGROUND

Wagoner and Munoz were married on November 12, 2015, and they had two

children.1 On August 6, 2019, Wagoner filed for divorce. After receiving service

through a court-appointed curator, Munoz filed exceptions of subject matter

jurisdiction and lis pendens on November 20, 2019. Munoz alleged that she was

domiciled in Madera County, California, that California was the home state of the

children, and that there was a pending action for divorce in California. Minutes from

a court hearing in the Louisiana trial court held December 12, 2019, indicate that a

telephone conference took place between the Louisiana and California judges,

“California declined jurisdiction[,]” and “Louisiana accept[ed] jurisdiction.”

Thereafter, several years of litigation involving custody of the parties’

children ensued in the Louisiana trial court. During this time, Munoz lived in both

California and Georgia, while Wagoner lived in Louisiana, and this caused conflict

among the parties with respect to exchanging the children. An interim custody order

was signed August 4, 2020, awarding joint custody and designating Wagoner as the

1
The record reflects that a third child was born during the parties’ marriage but was found
by the court to not be Wagoner’s child. The trial court signed a judgment granting Wagoner’s
request for disavowal on May 26, 2020.

interim domiciliary parent. In June 2021, the trial court indicated on the record that

the parties were to meet to exchange the children in either Dallas, Texas, or

Tuscaloosa, Alabama, unless otherwise agreed.

On November 30, 2021, Wagoner sought and obtained a Civil Warrant for the

return of the children after Munoz failed to return the children to the designated

location after visiting with them for Thanksgiving. On December 1, 2021, Munoz

filed a motion seeking to quash the civil warrant, and the trial court denied the

motion on December 13, 2021. Also on December 13, 2021, Wagoner filed a Rule

for Contempt regarding Munoz’s failure to return the children.

A trial on custody and cross motions for contempt was held January 26, 2022.

At that time, Munoz lived in California, and Wagoner lived in Louisiana. Both

parties were present at trial, along with their counsel. Following trial, the trial court

rendered a judgment awarding joint custody, designating Wagoner as the

domiciliary parent, and denying both parties’ motions for contempt. The trial court

also admonished the parties’ actions, noting that they were more focused on “making

each other mad[,]” rather than “do[ing] what’s best for the child[ren].” With respect

to exchanging the children, the trial court stated:

Each party . . . will bare [sic] the cost of travel to pick the child[ren] up.
Which means, if it’s Miss Munoz’s time to exercise visitation, she has
to come to Louisiana or wherever Mr. Wagoner may be. And likewise,
Mr. Wagoner, when it’s his turn. So, you can’t get alon[g], that’s
obvious[]. You can’t even meet in Dallas or Tuscaloosa without
problems. . . . We are going to solve all that nonsense about exchange
points and trying to get things changed and all that. . . . You got to stop
your pettiness. Ya’ll got to grow up. Unfortunately, neither one of you
up to that point have [] shown a willingness to do that. . . .

....

. . . [W]hen that judgment is prepared that is what I want to call
the law of the case. You better follow it, but you can deviate from it
when you agree to it.

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. . . [W]hen Mr. Wagoner has to pick the kids up, he’s got to be
at Madera, California if that’s where Miss Munoz - - so, you got to let
them know where you live, okay. Mr. Wagoner, you’ve got to let her
know where you live, okay.

A judgment in conformity with the trial court’s ruling was filed March 11,

2022. It provided that each year Munoz was to have two weeks of visitation in June,

two weeks of visitation in July, and one week of visitation in August, and that Munoz

was to advise Wagoner by April 1 of each year as to when she wished to exercise

that visitation. It also stated that “each party shall be responsible for picking the

children up to begin visitation[.]” The judgment and attached custody

implementation plan further outlined holiday visitation, as well as other issues such

as communication between the parties.

On December 28, 2022, Wagoner filed a Petition for Civil Warrant alleging

that Munoz’s last known address was in California, that Munoz’s mother picked the

children up for the Christmas holiday on December 20, 2022, and that Munoz

refused to return the children on December 24, 2022, when the visitation period was

over. The trial court signed the requested Civil Warrant on December 28, 2022.

Wagoner then filed a Motion for Modification of Judgment of Custody and

Rule for Contempt on January 11, 2023, alleging that “Munoz has a pattern of

conduct where she secrets the children and does not return them as per the Judgment

and Joint Custody Implementation Plan.” He further alleged that on two occasions,

he travelled to California to pick up the children after Munoz’s visitation ended, but

that Munoz refused to return the children and, as a result, the children had not

returned to school and missed doctor appointments. Wagoner also alleged that

Munoz attempted to thwart Wagoner’s custody by filing legal proceedings in

inappropriate forums, including a domestic abuse petition in California, which was

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dismissed, and an action in Colorado based upon an incident in September 2022

during an exchange of the children and Munoz’s refusal to return the children.

Wagoner sought sole custody with supervised visitation to occur only in Louisiana.

The trial court signed an order January 12, 2023, appointing a curator to

represent Munoz and setting the matter for hearing on January 23, 2023. The curator

was served with the Motion for Modification of Judgment of Custody and Rule for

Contempt. On January 17, 2023, the curator provided the pleadings via email to

Munoz and also spoke to Munoz on the phone regarding the proceedings and the

January 23, 2023 hearing date.

On January 20, 2023, Munoz submitted a pro se motion seeking to continue

the January 23, 2023 hearing date. She alleged that she was ordered to appear in

Pueblo Combined Court in Pueblo, Colorado on January 24, 2023, regarding an

action she filed that sought a protective order against Wagoner. She further alleged

that she had also filed a Request for Domestic Violence Order on January 19, 2023,

in Madera County, California, but that it was denied given the pendency of the

Louisiana and Colorado proceedings. Her motion to continue further stated that she

was seeking a continuance until the Colorado, California, and Louisiana courts could

schedule a conference, and also that she needed a continuance to obtain legal counsel.

The trial court set the motion for hearing on January 23, 2023, along with Wagoner’s

motion to modify custody.

A hearing was held on January 23, 2023. The court-appointed curator

appeared on behalf of Munoz and stated that Munoz chose not to be present.

Wagoner’s counsel appeared on his behalf, and Wagoner was also present. The trial

court first considered Munoz’s motion to continue, which was objected to by

Wagoner’s counsel. The trial court stated as follows:

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[S]o I’m just going to clarify for the record, she[,] meaning Ms. Munoz,
sent something to me via UPS . . . . It was a pleading . . . filed in the
state of Colorado in Pueblo County, Colorado, and it appears to be in
our terminology a protective order against Mr. Wagoner. So, because,
I have received those I’m going to file those into the record along with
the UPS envelope as well. . . . [S]he filed something December 20 th,
then the other thing came through January 3rd - - of a particular[] note . . .
in the protective order that she filed in the state of Colorado at no point
in the documents that she sent the Court did she ask for custody of the
two children in question here in Louisiana. . . . Other protected persons
are [M. W.], and . . . that was the child that was disavowed [by
Wagoner], and there is a different father to that child. So it’s not subject
to the litigation in hand. . . . So, by her own pleadings she is only asking
in Colorado for custody of the child that she has custody of. Which is
not Mr. Wagoner’s child . . . .

....

. . . [A]nd she [Munoz] is asking for a continuance based upon
litigation pending in other states. For the record, the litigation filed
in . . . California happened after the litigation was initiated here. I mean,
we’ve had jurisdiction on this case for years, and legally we keep
jurisdiction. . . . and she ask[ed] for custody in California, but that was
denied. And, so . . . there is nothing from another state under the
UCCJA granting even temporary custody, which is allowed under
certain circumstances[,] to Ms. Munoz. . . . I don’t have an order from
a court saying that . . . the mom has been granted temporary custody in
another state [of the two children subject to the instant litigation]. I
know we have service based upon the curator’s answer being filed . . . .

....

. . . So I’m going to deny the motion to continue filed by Ms.
Munoz in this matter. Unfortunately, this isn’t the first time that we’ve
went down this road prior to the considered decree. Not speaking to
the validity of anything that may[]be pending in another state, but just
- - she’s not returning [the] kids in the past, and I’ve had to sign civil
warrants . . . . I’m going to deny the motion to continue[.]

The trial court then proceeded with hearing testimony and evidence on

Wagoner’s motion seeking to modify custody and for contempt. In its oral reasons

for granting the requested relief, the trial court stated:

There was never an issue of custody brought up involving these two
children subject to the litigation present before the [c]ourt today until it
was raised here again [by] Mr. Wagoner . . . . Then when Ms. Munoz
became aware of it she went and filed on the 19 th of January in

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California. And unfortunately, this is a pattern of hers over the course
of the years that I’ve dealt with her. Not necessarily protective orders,
but either one, not returning the children on numerous occasions and
also instituting litigation in several states at a time. And, so . . . I’m
going to find her in contempt. I’m going to order her to pay the
$9,610.83 as attorney fees and reimbursement to Mr. Wagoner. She just
can’t keep doing this. This is repeated, repeated, repeated, repeated and
at some[]time she has to pay. I don’t know what else to do with her. . . .
[B]ecause of the repeated - - first of all, this is a considered decree. I
heard evidence, and I’m going to modify that considered decree. I’m
going to limit her visitation to . . . Louisiana. . . . Mr. Wagoner is now
married, [so] it’s going to occur in whatever state that [Mr. Wagoner]
may be so we don’t have to come back to court. You know, if Mr.
Wagoner’s wife gets back from deployment in two years, and she is
stationed in, I don’t know, Alaska, well it will have to occur in
Alaska. . . . And, so, and I’m going to grant the sole custody. At some
point, Ms. Munoz has to stop, and she will not stop unfortunately.

The trial court signed a judgment on January 23, 2023, denying Munoz’s

motion to continue, awarding Wagoner with sole custody, ordering that Munoz’s

visitation was to be supervised by Wagoner and take place in Louisiana or any other

state where Wagoner resides, finding Munoz in contempt, and ordering Munoz to

pay Wagoner $9,610.83 in attorney fees and expenses Wagoner incurred in

attempting to retrieve his children from the physical custody of Munoz.

Munoz appeals. On appeal, she asserts the following as assignments of error:

1. Whether the trial court abused its discretion when it denied Krisann
Munoz’s motion to continue when she resides in California and was
served on January 17, 2023, for trial to commence on January 23 rd,
2023, and was previously ordered on January 3 rd, 2023, to attend
court in Colorado on January 24, 2023, in violation of her due
process rights and jurisprudence that supports that an out-of-state
litigant is required to be served notice at least ten days prior to
commencement of trial.

2. Whether the trial court abused its discretion when it awarded Donald
Wagoner sole custody with no finding that the current custody
arrangement was so deleterious to the health and welfare of the
children so as to warrant a modification and sole custody award, and
further inhibited Ms. Munoz[’s] visitation with the children by
limiting her visitation to occur only in the state where Donald
Wagoner is domiciled.

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3. Whether the trial court abused its discretion when it awarded Donald
Wagoner reimbursement of $9,610.83, including a reimbursement
for attorney fees for an out of state attorney in another case when no
receipt was presented and for reimbursement of the entire $6,000 for
[Wagoner’s counsel] when at least a portion of the fee was used for
the modification and not in relation to the contempt itself.

ANALYSIS

Denial of the Motion to Continue

“A continuance may be granted in any case if there is good ground therefor.”

La.Code Civ.P. art. 1601.

A continuance shall be granted if at the time a case is to be tried, the
party applying for the continuance shows that he has been unable, with
the exercise of due diligence, to obtain evidence material to his case; or
that a material witness has absented himself without the contrivance of
the party applying for the continuance.

La.Code Civ.P. art 1602.

A trial court’s denial of a motion to continue will not be disturbed on appeal

“absent a clear abuse of discretion.” State in Interest of G.M.A., 16-405, p. 4 (La.App.

3 Cir. 9/28/16), 201 So.3d 1014, 1019, writ denied, 16-1945 (La. 11/18/16), 210

So.3d 290 (quoting State in Interest of J.T., 11-1646, p. 8 (La.App. 4 Cir. 5/16/12),

94 So.3d 847, 853.)

In her first assignment of error, Munoz argues that the trial court abused its

discretion in denying her motion to continue because service of Wagoner’s motion

was not properly made. However, an objection regarding insufficiency of service of

process is properly raised through a declinatory exception in accordance with

La.Code Civ.P. art. 925(A)(2), and exceptions to contradictory motions “shall be

filed prior to the time assigned for, and shall be disposed of at, the trial.” La.Code

Civ.P. art. 2593. Because neither Munoz, nor the curator who appeared on her behalf

at the hearing, submitted an exception of insufficiency of service of process prior to

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trial, the exception was waived and may not be asserted for the first time on appeal.

See La.Code Civ.P. arts. 2593, 2596, and 925(C).

Further, Munoz does not suggest, and the record does not reflect, that any

grounds requiring the granting of a continuance contemplated by La.Code Civ.P. art.

1602 exist in this case. Rather, Munoz suggests that the trial court abused its

discretion in denying the requested continuance because she had a court appearance

scheduled in another case in Colorado the following day, and because she needed

time to obtain counsel. However, the trial court provided extensive reasons as to

why it denied Munoz’s request, and we fail to find an abuse of discretion on the part

of the trial court. Therefore, this assignment of error lacks merit.

Modification of Custody

The Louisiana Supreme Court stated in Mulkey v. Mulkey, 12-2709, pp. 9–15,

118 So.3d 357, 364–367 (footnotes omitted):

The primary consideration in a determination of child custody is
the best interest of the child. This applies not only in actions setting
custody initially, but also in actions to change custody. . . . In an action
to change custody rendered in a considered decree, additional
jurisprudential requirements set forth by this court in Bergeron v.
Bergeron, [492 So.2d 1193 (La.1986),] are also applied. . . . [T]he
burden of proof on the party seeking to modify custody is dictated by
Bergeron.

. . . Recognizing that the heavy burden of proof rule could
inflexibly prevent a modification of custody that is in the child’s best
interest, and also cognizant of the need to protect children from the
detrimental effects of too liberal standards in custody change cases, we
restated the burden of proof rule as follows:

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 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.

8

[Id. at 1200]. Thus, when a party seeks to change custody
rendered in a considered decree, the proponent of change must not only
show that a change of circumstances materially affecting the welfare of
the child has occurred since the prior order respecting custody, but he
or she must also meet the burden of proof set forth in Bergeron.

....

Every child custody case must be viewed based on its own
particular facts and relationships involved, with the goal of determining
what is in the best interest of the child. Our decision in Bergeron was
not meant to tie the hands of a court when the facts and circumstances
of a case and the needs of a child necessitate a change in custody.

Whether the party seeking modification has met this burden “is a question of

fact which will not be disturbed absent manifest error.” DeSoto v. DeSoto, 94-1048,

p. 2 (La.App. 3 Cir. 3/1/95), 651 So.2d 497, 498.

Therefore, in order to reverse a factfinder’s determination, this
court must (1) find from the record that a reasonable factual basis does
not exist for the trial court’s finding and (2) determine that the record
establishes that the finding is clearly wrong (manifestly erroneous).
Stobart v. State, Department of Transportation and Development, 617
So.2d 880 (La.1993). We are bound to review the record in its entirety
and resolve the issue of “not whether the trier of fact was right or wrong,
but whether the factfinder’s conclusion was a reasonable one.” Id. at
882. If the factfinder is faced with choosing between two permissible
and conflicting views of the evidence, his decision, especially when
based on reasonable evaluations of credibility and reasonable
inferences drawn from the evidence, should not be reversed unless it is
clearly wrong. Rosell v. ESCO, 549 So.2d 840 (La.1989).

Oliver v. Oliver, 95-1026, pp. 17–18 (La.App. 3 Cir. 3/27/96), 671 So.2d 1081,

1091–92.

On appeal, Munoz argues that the trial court failed to make a finding that the

current custody arrangement was deleterious to the children’s welfare and warranted

a change in custody, that it failed to give appropriate weight to the Colorado court

pleadings involving a protective order attached to Munoz’s motion to continue, and

that it failed to consider Wagoner’s aggressive behavior toward Munoz. In response,

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Wagoner points out that Munoz failed to appear at the hearing, that there was no

evidence establishing that Wagoner was aggressive towards Munoz, that neither the

Colorado nor California actions resulted in findings of domestic violence or abuse,

and that the Louisiana trial court considered, and rejected, similar allegations of

violence Munoz made in connection with the January 26, 2022 custody trial.

At the January 23, 2023 hearing on Wagoner’s motion to modify custody and

for contempt, Wagoner testified that since the March 2022 custody judgment, he and

Munoz had agreed for exchanges of the children to take place at the Dallas airport

and at the San Francisco airport with respect to summer visitation, but, despite this,

Munoz would change the agreed-upon locations and times to exchange the children

with respect to every visitation that had occurred since the judgment.

Wagoner also testified that Munoz retrieved the children from him on

December 20, 2022, and brought them to California. He said that he then went to

California on December 24, 2022, to retrieve them from Munoz, but Munoz did not

return the children. He said that since December 2022, he has gone to California

twice in attempts to retrieve the children, but he was unsuccessful. Wagoner also

indicated that as of the January 2023 hearing, the children were still with Munoz,

and, to Wagoner’s knowledge, had not been attending school. Wagoner also

indicated that while it was his understanding that the children were living at Munoz’s

parents’ house in Madera California, he was not sure of their whereabouts. He stated:

I actually had four wellness checks made, and throughout the
time of me being in California and as far as the police department, they
w[ere] aware - - I made four wellness checks whenever I was there.
And that’s part of whenever I first went to California and the second
time I went to California and no police officer was able to tell me that
they had even seen my children at any of the locations that I had. And
the one time that I did accompany the police officer we still never even
saw Ms. Munoz or either of my children.

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Wagoner also testified that he was “very concerned” regarding the welfare of

the children and what they were going through by not being back in his home where

they resided, and that he “know[s] for a fact they don’t even have their o[w]n beds

over there.”

With respect to Munoz’s allegations filed in connection with the Colorado

proceedings, Wagoner noted that many of the allegations were previously

considered, and rejected, by the trial court in connection with the January 2022 trial

on custody and cross motions for contempt.2

Given Munoz’s failure to return the children to Wagoner in accordance with

the March 2022 judgment, enroll them in school, or provide Wagoner with

information concerning their whereabouts, we cannot say that, under the

circumstances of this case, the trial court was manifestly erroneous in granting

Wagoner’s request to modify custody, awarding Wagoner with sole custody, and

limiting Munoz’s visitation to take place under Wagoner’s supervision in Louisiana

or wherever Wagoner resides. While the trial court did not specifically state that

“the present custody is so deleterious to the child as to justify a modification”, it

clearly considered Bergeron, and the record supports the trial court’s apparent

conclusion that modification of custody was appropriate thereunder.

Contempt

In connection with her third assignment of error, Munoz challenges the trial

court’s finding that she was in contempt of court. Louisiana Code of Civil Procedure

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

2
According to the record, Munoz’s allegations filed in Colorado involved an incident that
allegedly occurred in October 2022. In January 2022, the Louisiana trial court appears to have
considered some allegations about alleged incidents in Germany and possibly New Orleans.

11

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

court or respect for its authority.” “A constructive contempt of court is any contempt

other than a direct one.” La.Code Civ.P. art. 224. Constructive contempt includes

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

the court[.]” La.Code Civ.P. art. 224(2).

A trial court’s determination as to whether or not a party is in contempt of

court for disobeying a court order is reviewed for an abuse of discretion. 6th

Ward/Crowley Gravity Drainage Dist. v. Benoit, 17-82 (La.App. 3 Cir. 10/4/17),

229 So.3d 590. “However, the trial court’s ‘predicate factual determinations are

reviewed under the manifest error standard.’” Id. at 596 (quoting Capital City Press,

L.L.C. v. La. State Univ. Sys. Bd. of Supervisors, 13-1803, 13-1804, p. 7 (La.App. 1

Cir. 12/30/14), 168 So.3d 669, 674).

Munoz argues that there is insufficient evidence in the record to support a

finding of contempt. Specifically, she argues that she did not intentionally, or with

malintent, refuse to return the children to Wagoner, but rather did not return the

children because she was caused to file a protective order against Wagoner in

Colorado. However, the trial court thoroughly addressed the Colorado proceedings,

noting that they did not involve the parties’ children, and found that Munoz’s failure

to return the children in accordance with the custody judgment, after having failed

to return the children on previous occasions, warranted a finding of contempt. We

find no manifest error in the trial court’s factual finding that Munoz violated the

March 2022 custody judgment by failing to return the children, and no abuse of

discretion in finding Munoz in contempt given the circumstances.

On appeal, Munoz also takes issue with the trial court’s judgment ordering

her to pay Wagoner $9,610.83 as a result of finding her in contempt.

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Louisiana Revised Statutes 9:346 states in pertinent part:

A. An action for the failure . . . to allow child visitation, custody
or time rights pursuant to the terms of a court-ordered schedule may be
instituted against a parent. The action shall be in the form of a rule to
show cause why such parent should not be held in contempt for the
failure and why the court should not further render judgment as
provided in this Section.

....

C. If the action is for the failure to allow child custody, visitation,
or time rights pursuant to a court-ordered schedule, and the petitioner
is the prevailing party, the defendant shall be held in contempt of court
and the court shall award to the petitioner:

(1) A reasonable sum for any actual expenses incurred by the
petitioner by the loss of his visitation, custody or time rights.

(2) Additional visitation, custody or time rights with the child
equal to the time lost.

(3) All attorney fees and costs of the proceeding.

(4) All costs for counseling for the child which may be
necessitated by the defendant’s failure to allow visitation, custody, or
time rights with the child.

....

H. A pattern of willful and intentional violation of this Section,
without good cause, may be grounds for a modification of a custody or
visitation decree.

The amount Munoz was ordered to pay to Wagoner as a result of her contempt

included $6,000.00 for attorney fees in connection with the instant proceeding,

$3,000.00 as reimbursement of undocumented fees Wagoner alleged to have paid to

an attorney in Colorado, and $610.83 as reimbursement for documented expenses

Wagoner incurred while traveling to California in efforts to retrieve his children.

While the trial court was authorized to order Munoz to pay Wagoner attorney

fees incurred in connection with the instant proceeding and Wagoner’s travel costs

associated with attempting to retrieve the children from California, it was not

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authorized to order reimbursement of Wagoner’s undocumented attorney fees

allegedly incurred in connection with the Colorado proceedings. Therefore, we

amend the judgment to award Wagoner with $6,610.83

DECREE

For the reasons stated above, we affirm the trial court’s judgment modifying

custody and finding Munoz in contempt, but we amend the trial court’s monetary

award in favor of Wagoner to $6,610.83. Costs of this appeal are assessed to Krisann

Munoz.

AFFIRMED AS AMENDED.

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

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