Anny v. Johnson

348 So.3d 747

Herbert ANNY and Tina Anny

v.Jonathan Jamal JOHNSON

2021 CA 0568

Court of Appeal of Louisiana, First Circuit.

Judgment Rendered: AUGUST 16, 2022

Vincent A. Saffiotti, Baton Rouge, Louisiana, Counsel for Plaintiffs/Appellees Herbert Anny and Tina Anny

Edmond D. Jordan, Brusly, Louisiana, Counsel for Defendant/Appellant Jonathan Jamal Johnson

BEFORE: WHIPPLE, C.J., GUIDRY, McDONALD, McCLENDON, THERIOT, HOLDRIDGE, CHUTZ, PENZATO, LANIER, WOLFE, AND HESTER, JJ.

McCLENDON, J.

In this grandparents’ visitation rights case, the father, Jonathan Jamal Johnson, appeals a judgment of the trial court that found him in constructive contempt of court, imposed a prison sentence, and ordered Mr. Johnson to pay the grandparents’ attorney's fees. For the following reasons, we affirm.

FACTUAL AND PROCEDURAL HISTORY

This matter has a lengthy and contentious history. On March 21, 2019, the grandparents, Herbert and Tina Anny, filed a petition seeking visitation rights with J.J.,¹ the minor child of their deceased daughter. On April 2, 2019, Mr. Johnson and the Annys agreed to two different visitation schedules, one for a period of time during which Mr. Johnson would be deployed on military duty and one to begin upon his return. The parties’ agreement was reduced to a written stipulation, signed by the parties and their counsel, made part of the record of the trial court, and memorialized in a written judgment executed by the trial court on May 7, 2019 (the consent judgment).

Pursuant to the consent judgment, the Annys would have visitation with J.J. on alternating weekends during Mr. Johnson's deployment. The first visitation period was set for Friday, April 12, 2019 at 5:00 p.m., through Sunday at 10:00 a.m., and the second visitation period was set for Friday, April 26, 2019 at 5:00 p.m., through Saturday at 5:00 p.m., with visitation alternating every other week thereafter. Upon Mr. Johnson's return, the Annys would enjoy visitation one weekend per month, from Friday at 5:00 p.m. through Sunday at 10:00 a.m., to coincide with Mr. Johnson's drill schedule. In addition, the Annys would enjoy three nights of overnight visitation before Christmas during the school holidays each year, and seven days in the summer, to include one of the regularly scheduled weekends. J.J.'s trip to visit Mr. Johnson during his military duty would supercede the Annys’ custodial periods, with their visitation to be made up the following week when J.J. returned. The consent judgment additionally provided that the Annys would have one ten-minute phone call with J.J. during the week; that Mr. Johnson would return the cell phone the Annys gave J.J.; and that the Annys would be notified of serious medical issues/emergencies, school events, extracurricular, and grandparents’ day, etc. The Annys agreed to limit J.J.'s fast food and sugar intake and to wait to take J.J. to Disney World until after Mr. Johnson took him. The Annys also agreed that they would not make unannounced visits to Mr. Johnson's home and that they would not administer medication to J.J. without approval absent an emergency. Finally, the parties agreed to work together to accommodate family functions, weddings, reunions, etc.

Despite the fact that Mr. Johnson consented to the visitation schedule, it is undisputed that Mr. Johnson denied the Annys’ visitation with the minor child on seventeen separate occasions over approximately a year and a half. Seeking redress, the Annys filed a total of seven rules for contempt, attorney's fees, and costs: four of those rules alleged five counts of contempt occurring while Mr. Johnson was on deployment, and three alleged twelve counts of contempt occurring after Mr. Johnson returned from deployment.²

Following two days of hearings, the trial court found Mr. Johnson to be in contempt of court for each denied visitation period. In a written judgment executed on January 12, 2021, the trial court imposed a sentence of thirty days in parish prison for each violation, to be served consecutively, for a total of five hundred ten days. The trial court further ordered that Mr. Johnson pay the Annys’ attorney's fees in the amount of $19,959.54. On appeal, Mr. Johnson argues that the trial court erred in finding him in contempt, because he had justifiable excuses for violating the order of the court, and that the trial court abused its discretion in imposing an excessive sentence and an excessive award of attorney's fees.

STANDARD OF REVIEW

The trial court is vested with great discretion in determining whether a party should be held in contempt, and its decision will only be reversed when the appellate court discerns an abuse of that discretion. Rogers v. Dickens, 2006-0898 (La.App. 1 Cir. 2/9/07), 959 So.2d 940, 945. However, the predicate factual determinations underlying the finding of civil contempt³ of court are reviewed under the manifest error standard of review.

Schmidt v. Schmidt, 2018-0202 (La.App. 1 Cir. 1/3/19), 270 So.3d 804, 809. Thus, on review of facts, we do not decide whether the trial court was right or wrong; rather, we consider the entire record to determine whether a reasonable factual basis exists for the finding. When there are two views of the evidence, the factfinder's choice between them cannot be manifestly erroneous. Marshall v. Marshall, 2019-0879 (La.App. 1 Cir. 7/14/20), 308 So.3d 1178, 1182, writ denied, 2020-01009 (La. 11/4/20), 303 So.3d 652.

CONSTRUCTIVE CONTEMPT OF COURT

Authority to punish for contempt of court falls within the inherent power of the court to aid in the exercise of its jurisdiction and to enforce its lawful orders. Rogers, 959 So.2d at 945. A contempt of court is 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. LSA-C.C.P. art. 221. Willful disobedience of any lawful judgment, order, mandate, writ, or process of the court constitutes constructive contempt of court. LSA-C.C.P. art. 224(2). To find willful disobedience, the trial court must find that the person violated the court's order intentionally, knowingly, and purposefully, without justifiable excuse. Marshall, 308 So.3d at 1182. Except as otherwise provided by law, a person charged with committing a constructive contempt of court may be found guilty thereof and punished therefor only after the trial by the judge of a rule against him to show cause why he should not be adjudged guilty of contempt and punished accordingly. LSA-C.C.P. art. 225(A).

RULES FOR CONTEMPT

The Annys’ first rule for contempt was filed on June 28, 2019, and alleged that after agreeing on a week for their summer visitation, Mr. Johnson denied two of the Annys’ seven days.⁴ Text messages, offered into evidence at trial, sent between Mr. Johnson, his wife, and the Annys, reflect that Mr. Johnson offered, and the Annys accepted, the week of June 17, 2019, for summer visitation. However, Mr. Johnson informed the Annys in a June 13, 2019 email that the vacation would have to be rescheduled because "arrangements have been approved for my family to see me the week of June 17th." Mr. Johnson did not offer an alternative week to reschedule the visitation. The trial court held two separate status conferences at which it directed that the Annys receive J.J. for the scheduled visitation from June 17 through June 21. Nevertheless, Mr. Johnson sent the Annys a text message on June 16 seeking an "order" from the court before discussing the June 17, 2019 exchange. Further, during the Annys’ vacation time with J.J., Mr. Johnson sent the Annys an email on June 19, 2019, demanding that the Annys return J.J. to him within twenty-four hours. At trial, Mr. Johnson was asked, "After the first status conference when the court said [the Annys’ visitation] would happen, after the second status conference when the court... said it [would happen], you again tried to defy the order of the court, yes or no?" Mr. Johnson responded, "Yes."⁵

The Annys’ second rule for contempt was filed on July 16, 2019, and alleged that Mr. Johnson denied their visitation period the weekend of July 5 through July 7, 2019. Mr. Johnson admitted at trial that he did not allow the visitation, and a July 3, 2019 email reflects that Mr. Johnson informed the Annys that "[J.J.] will not be able to attend his scheduled visitation for this weekend (5-[7], July 2019)," because "family travels" were scheduled to begin that week. As Mr. Johnson testified that J.J. traveled to Cuba to visit him in June and November 2019, the alleged travel in July 2019 did not supercede the Annys’ visitation under the terms of the consent judgment. The Annys replied to Mr. Johnson's email, requesting to make up their visitation the following weekend. Mr. Johnson did not respond. The Annys attended the exchange as scheduled, but no one else appeared.

An August 13, 2019 minute entry reflects that the trial court held a status conference. Mr. Johnson's current wife, Whitney Johnson, was ordered to come in and sign notice for September 3, 2019. However, she never appeared.

The Annys’ third rule for contempt, filed on August 26, 2019, alleged that Mr. Johnson denied the Annys’ visitation the weekend of August 2 through August 4, 2019, as well as the weekend of August 16 through August 17, 2019. With respect to the weekend of August 2 through August 4, 2019, Mr. Johnson sent an August 1, 2019 email informing the Annys that they could not exercise their visitation that weekend because J.J. was visiting him in Cuba and the return flight was delayed. The Annys requested makeup visitation for the following weekend. Mr. Johnson denied their request in an email dated August 8, 2019.

Regarding the weekend of August 16 through August 17, 2019, Mr. Johnson identified an August 16, 2019 text message thread between the Annys, Mr. Johnson, and Mrs. Johnson, in which the Annys sought confirmation that they would receive J.J. at 5:00 p.m. for their regularly...