Opinion
2021 CA 0568
08-16-2022
Herbert ANNY and Tina Anny v. Jonathan Jamal JOHNSON
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
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., 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 Uniform Rules-Courts of Appeal, Rules 5–1(b) and 5 –2, the initials of the minor child will be used to protect and maintain the privacy of the minor child involved in this proceeding.
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.
When asked why he denied the Annys visitation with J.J., Mr. Johnson testified to various incidents that he claimed caused him to be concerned for J.J.'s safety and well-being while in the Annys’ care. However, the record reflects that Mr. Johnson also admitted repeatedly, both when questioned by the Annys’ counsel and when questioned by the trial court, that the Annys corrected and addressed the complained-of behaviors when asked. For example, Mr. Johnson stated that when J.J. began visiting with the Annys, he was unable to track J.J. by means of a Verizon watch with GPS tracking he had given J.J. before he deployed. Although testimony was limited because Mr. Johnson had refused to produce the emails that he claimed documented his discussions with the Annys about the issue, the implication was that the Annys did not allow J.J. to wear the watch; nevertheless, Mr. Johnson testified that J.J. was wearing the watch in later-dated videos played before the trial court. Similarly, though Mr. Johnson testified that he was concerned about J.J. riding a lawnmower and a four-wheeler while with the Annys, he also admitted that neither event had been repeated after he voiced his concerns to the Annys. Likewise, while Mr. Johnson expressed that he was uncomfortable that the Annys had a pool but were unable to swim, he was unaware until trial that they had taken swimming lessons to address his concerns. However, because Mr. Johnson does not raise arguments relative to these complaints on appeal, we will not discuss them further here.
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 contempt 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.
In a civil contempt case, the punishment is remedial or coercive; punishment in a criminal contempt case is punitive and intended to vindicate the authority of the court. Estate of Graham v. Levy, 93-0636R (La.App. 1 Cir. 4/8/94), 636 So.2d 287, 290, writ denied, 94-1202 (La. 7/1/94), 639 So.2d 1167. The character of the relief imposed is thus ascertainable by applying a few straightforward rules. If the relief provided is a sentence of imprisonment, it is remedial if the defendant stands committed unless and until he performs the affirmative act required by the court's order, and it is punitive if the sentence is limited to imprisonment for a definite period. If the relief provided is a fine, it is remedial when it is paid to the complainant, and punitive when it is paid to the court, though a fine that would be payable to the court is also remedial when the defendant can avoid paying the fine simply by performing the affirmative act required by the court's order. de Baroncelli v. de Baroncelli, 2011-0271 (La.App. 1 Cir. 6/10/11) (unpublished), 2011 WL 3558187, at *4, n.2. Under these standards, the parish jail sentence imposed in this matter is remedial, as the incarceration order contains a "purge clause" permitting Mr. Johnson to avoid the sentence by complying with the visitation judgment and paying the Annys’ attorney's fees and costs. See Graham, 636 So.2d at 290.
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. 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."
The June 28, 2019 rule further alleged that Mr. Johnson and his wife were attempting to alienate J.J. from his grandparents and irrevocably damage his relationship with them. The Annys maintained that J.J. routinely said things such as "You are keeping me from seeing my Dad," "[My] momma says I don't have to listen to you and I can do what I want," and "Pops [referring to Mr. Johnson's new father-in-law] is going to get you straight." Additionally, J.J. said that the Annys "[are] not part of [his] family," "[my] momma says y'all are liars," and that his parents said he was not allowed at his grandparents’ home anymore. The Annys also asserted that Mr. Johnson's wife routinely interfered with J.J.'s phone calls with his grandparents and that Mr. Johnson constantly changed the exchange location, creating confusion and problems.
In addition, there were complications with the exchanges. Mr. Johnson's wife was several hours late to the June 17 exchange, delaying the Annys’ travel, and J.J. was extremely upset because he had been incorrectly told that Mr. Johnson was coming home that day. When the Annys returned J.J. on June 21, 2019, Mr. Johnson was waiting with a police vehicle. When asked whether he thought it was a good idea for J.J. to witness police attending the exchange when the Annys returned J.J. to Mr. Johnson, Mr. Johnson replied, "Correct."
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 scheduled visit. Mr. Johnson responded that J.J. was unavailable and that the Annys were not being accommodating about "making up time." During trial, Mr. Johnson bluntly admitted to denying the first August visitation, avoiding the makeup visitation, and denying the second August visitation.
On August 30, 2019, Mr. Johnson filed a motion and order to substitute counsel. A September 3, 2019 minute entry reflects that Mrs. Johnson was present in court with her counsel, Mr. Edmond Jordan, and that the Annys were present in court with their counsel, Mr. Vincent Saffioti. The trial court directed that the party receiving physical custody would retrieve J.J., with the Annys retrieving J.J. from a set location in Port Allen and Mrs. Johnson retrieving J.J. from a set location in Baton Rouge. The trial court further prohibited the parties and their spouses from making negative comments about each other and their families in J.J.'s presence.
On October 1, 2019, Mr. Johnson filed a rule to show cause why the Annys’ visitation should not be terminated. Mr. Johnson alleged that the Annys "failed to responsibly care for the mental, physical, emotional and spiritual health and welfare of [J.J.]." Mr. Johnson further alleged that the Annys were unwilling to encourage a close relationship between J.J., Mr. Johnson, and Mr. Johnson's wife, and had instead attempted to interfere with and sabotage those relationships. Mr. Johnson claimed he was a fit parent and asserted that it was not in J.J.'s best interests to continue visitation with the Annys. The rule to terminate the Annys’ visitation was accompanied by a "Verification by Jonathan Jamal Johnson, Through Power of Attorney, Whitney Crockett-Johnson," which stated that Mr. Johnson's wife filed the rule on his behalf.
On December 3, 2019, Mr. Johnson filed a rule for contempt, injunction, attorney's fees, and court costs. Mr. Johnson repeated the allegations previously made in his rule to terminate visitation. Mr. Johnson further asserted that the Annys failed to abide by the order to refrain from making negative comments about him and his wife in J.J.'s presence. The rule for contempt was accompanied by a "Verification by Jonathan Jamal Johnson, Through Power of Attorney, Whitney Crockett-Johnson," which stated that Mr. Johnson's wife filed the rule on his behalf.
Mr. Johnson further alleged that J.J. reported to his treating psychologist that Mrs. Anny physically struck him. However, it is plain from the record that by the time of trial, there was no concern that such an event actually occurred.
The Annys’ fourth rule for contempt was filed on December 4, 2019, and alleged that Mr. Johnson denied the Annys visitation the weekend of November 22 through November 24, 2019. In an email dated November 11, 2019, Mr. Johnson asked the Annys to reschedule for November 29 through December 1, 2019, because J.J. would be in Cuba the weekend of the regularly scheduled visit. The Annys agreed. However, no one appeared to meet the Annys at the rescheduled exchange on November 29, 2019. Mr. Johnson claimed that his wife and J.J. were still in Cuba due to flight delays and that a power outage had prevented him from notifying the Annys of the delay. No makeup visitation was scheduled.
On January 6, 2020, the Annys filed a motion and order to compel responses to interrogatories and requests for production of documents. The Annys’ motion to compel was set for hearing on January 21, 2020.
On January 9, 2020, the Annys filed a rule to modify visitation. The Annys requested that when Mr. Johnson returned from military duty, their weekend visitation be extended from 5:00 p.m. on Friday through 10:00 a.m. on Sunday, to 5:00 p.m. on Friday through 6:00 p.m. on Sunday. The rule to modify visitation was set for hearing on February 7, 2020.
A January 21, 2020 minute entry reflects that the trial court ordered production of Mr. Johnson's discovery responses by January 28, 2020. However, discovery responses remained outstanding at the time of trial. Also on January 21, 2020, Mr. Johnson filed a motion and order to stay proceedings pursuant to the Servicemembers Civil Relief Act (SCRA), 50 U.S.C. § 3932, in which he alleged that he was unable to attend any hearings, present or assist in any type of defense, or effectively protect his interest in the matter at that time, because he was an active duty servicemember stationed overseas in Guantanamo Bay, Cuba. The motion for stay was supported by a December 20, 2019 letter from Mr. Johnson stating that he was unable to attend the scheduled proceedings because of the nature of his operation, and a December 23, 2019 letter from his commanding officer stating that Mr. Johnson was not able to take leave to address legal matters. Both letters represented that Mr. Johnson would be available for court proceedings in February 2020. Following a January 28, 2020 hearing, the matter was stayed for no less than ninety days, or until Mr. Johnson filed pleadings to end the stay, whichever occurred first. Mr. Johnson returned to the United States on January 31, 2020.
Mr. Johnson admitted at trial that he was aware there were outstanding interrogatories and requests for production of documents, including requests for copies of emails and documents that would establish proof of travel during the relevant time period, which he had refused to produce. Mr. Johnson stated that he had not responded because he did not want to provide his family's personal information and because "that's going to be (inaudible) operational security training for the [U.S.] Navy or any military source cannot hand out your information."
The Annys filed a fifth rule for contempt, attorney's fees, and costs on March 2, 2020. The March 2, 2020 rule alleged that when the Annys attempted to retrieve J.J. from school for their January 17 through January 19, 2020 visitation period, J.J. was not at school. Makeup visitation was scheduled for, and took place, on January 24, 2020. However, J.J. was not at school when the Annys attempted to pick him up for their visitation period beginning on January 31, 2020, and no makeup visitation was scheduled. In addition, no visitation had been scheduled for February 2020, and the Annys "[had] been informed that [Mr. Johnson] has not decided whether or not he would comply with the Judgment."
On July 21, 2020, the Annys filed a sixth rule for contempt, attorney's fees, and costs. The July 21, 2020 rule alleged that since Mr. Johnson returned from military service on January 31, 2020, the Annys had been denied all monthly visitations and summer visitation. The July 21, 2020 rule further asserted that Mr. Johnson had refused to provide his drill schedule and informed the Annys they were not allowed to contact him. At trial, Mr. Johnson admitted both that he had denied the Annys any visitation with J.J. since January 2020 and that he had not provided his drill schedule as ordered.
A July 21, 2020 minute entry reflects that Mr. Johnson was ordered to produce his drill schedule. The trial court also stated repeatedly during the September 17, 2020 hearing that Mr. Johnson had been ordered to produce his drill schedule.
A rule was set for September 8, 2020, and the attorneys were given a second setting for September 17, 2020, to determine contempt and the rule to terminate visitation. Ultimately, trial on the Annys’ rules for contempt and rule to modify visitation, and Mr. Johnson's rule to terminate visitation and rule for contempt, was held over the course of two days, September 17, 2020 and December 3, 2020. At the conclusion of the September 17, 2020 trial date, the trial court ordered the parties to see Renee McCarthy as a parenting coordinator to work on communication in the interim between the first and second day of trial. Further, the trial court ordered that the Annys’ visitation was to restart on October 2, 2020 at 9:00 a.m.
However, Mr. Johnson again did not comply with the order of the trial court. The Annys filed a seventh rule for contempt, attorney's fees, and costs on November 12, 2020, which alleged that Mr. Johnson denied the Annys’ visitation periods on both October 2, 2020, and on November 6, 2020.
During the December 3, 2020 trial date, Mr. Johnson readily admitted that he was present in court on September 17, 2020, when the trial court explicitly ordered him to restart the Annys’ visitation periods with J.J. on October 2, 2020; that he did not allow the Annys’ visitation on October 2, 2020; that he did not allow the Annys’ visitation on November 6, 2020; that he did not allow makeup visitation for either of the missed visitation periods; and that as of the date of trial, Mr. Johnson had not agreed to any visitation for December 2020.
Regarding the October 2, 2020 visitation, Ms. McCarthy testified that she met with Mr. Johnson and his wife, the Annys, and with Mr. Johnson and Mr. Anny together. While Ms. McCarthy testified that the Annys were cooperative, she stated that Mr. Johnson "was [not] moving forward in the spirit of letting things go and moving forward with the best intention for [J.J.], in my opinion." She asked Mr. Johnson to send the Annys a list of requests prior to their October 2, 2020 visit with J.J. Mr. Johnson sent his list the morning of the scheduled visitation. Ms. McCarthy stated that some of Mr. Johnson's initial requests were not "in the spirit of what we were discussing" or "were not very realistic." After Ms. McCarthy and Mr. Johnson's counsel both advised Mr. Johnson that his original list was excessive, Mr. Johnson then amended his stipulations. The shortened version requested that J.J. bathe unsupervised while at the Annys and that J.J. not be taken to a restaurant.
With respect to the complaints addressed in footnote 2, Ms. McCarthy recounted that Mr. Johnson was unwilling to let go of issues, even after they had been "rediscussed," and that "there was a logical, reasonable explanation between behind [sic] all these things that in my opinion were escalated to issues that did not need to escalate[;] they were somewhat every day - - things that happened with children - - but I think the Annys were put so on guard it was just they didn't want to be accused of anything, and so everything became heightened and hyper emphasized if that's a word."
Mr. Johnson explained that he wanted J.J. to bathe unsupervised because he was trying to teach J.J. about privacy and that he did not want J.J. to be taken to a restaurant because he wanted to protect his then nine-month-pregnant wife, unborn child, and J.J. from Covid-19. Mr. Johnson testified about the precautions he and his wife were taking due to Covid-19, including limiting contact with other family members, wearing masks, using grocery pickup services, and showering and changing clothes upon returning home.
We note that both Ms. McCarthy and the trial court expressed the opinion that because J.J. was five years old at the time, supervision while bathing was appropriate for safety purposes.
Mrs. Anny testified that they did not immediately agree to all of Mr. Johnson's stipulations "[because]... it's like everything they know [J.J.] enjoys doing with us they try to eliminate it." Ms. McCarthy communicated with the parties throughout the day, hoping to help them resolve the dispute. The Annys eventually agreed to Mr. Johnson's stipulations, because they were willing to accommodate Mr. Johnson in order to see J.J. However, Mr. Johnson stopped responding to the group text and never responded to Ms. McCarthy again. Mr. Johnson admitted that even after the Annys agreed to his stipulations, and despite urging from Ms. McCarthy that he comply with the court order, he did not allow the visitation. With respect to the November 6, 2020 visitation, Mr. Johnson stated that his daughter was in the hospital and the Annys’ visitation "wasn't a priority in my mind." Mr. Johnson went on to testify that he was willing to remain in jail indefinitely for denying the Annys’ visitation "to protect my son and to protect my entire family." He further expressed his willingness to remain in jail rather than comply with the court order of visitation.
The trial court took the matter under advisement before issuing a ruling in open court on December 15, 2020, finding Mr. Johnson in contempt of court for each of the seventeen visitation periods he denied the Annys in violation of the consent judgment. As set forth above, Mr. Johnson was sentenced to serve thirty days in parish prison for each violation, for a total sentence of five hundred ten days, to be served consecutively. The sentences were deferred upon Mr. Johnson's compliance with the visitation judgment. Mr. Johnson was also ordered to pay the Annys’ attorney's fees in the amount of $19,959.54. The trial court executed a written judgment memorializing its rulings on January 12, 2021, which is now before this Court on appeal.
FINDINGS OF CONTEMPT
On appeal, Mr. Johnson assigns as error the trial court's granting of the Annys’ rules for contempt, attorney's fees, and costs. He contends that he entered detailed testimonial evidence into the record, establishing that he had two justifiable excuses for violating the consent judgment establishing the Annys’ schedule for visitation with J.J.: (1) he was outside of the United States, in Guantanamo Bay, Cuba, on active classified military duty for several of the rules for contempt at issue while J.J. was in Louisiana; and (2) there were legitimate concerns related to Covid-19 and its effects, "as well as following the Proclamations and Executive Orders of Louisiana's Governor." We disagree.
Mr. Johnson openly admitted during his testimony that he willfully violated the trial court's visitation orders, and he does not dispute this fact on appeal. Rather, as set forth above, Mr. Johnson argues that the trial court erred in granting the Annys’ rules for contempt, attorney's fees, and costs, because Mr. Johnson offered evidence establishing that although he violated the consent judgment, he had two justifiable excuses for doing so. Thus, with respect to the trial court's rulings finding Mr. Johnson in contempt of court, the question before this Court is whether the trial court erred in finding that Mr. Johnson willfully disobeyed the trial court's visitation order without justifiable excuse. Having thoroughly reviewed the record before us, we find that the trial court did not manifestly err in finding that Mr. Johnson willfully disobeyed the order of the court without justifiable excuse and that the trial court did not abuse its discretion in finding Mr. Johnson in contempt for doing so.
Mr. Johnson's claim that he had a justifiable excuse for violating the trial court's visitation order because he was on active classified military duty in Cuba could only apply to the Annys’ first four rules for contempt, filed on June 28, 2019, July 16, 2019, August 26, 2019, and December 4, 2019, as Mr. Johnson returned to the United States before the fifth rule for contempt was filed. Mr. Johnson maintains on appeal that during the time he was in Cuba, he was in a situation beyond his control and that he tried to make the best of the situation. He argues, "Could he meet [the Annys] at the exchange location? Could he coax his son to go with [the Annys] when he vehemently protested?"
However, the undisputed testimony and documentary evidence present in the record clearly reflect that Mr. Johnson was in control of the situation and directly responsible for denying the Annys’ visitation during his deployment. As set forth above, Mr. Johnson openly admitted that he denied the Annys their visitation. Mr. Johnson sent the emails and text messages that notified the Annys that he would not permit them to exercise their visitation with J.J. or to make up the missed visitation. Mr. Johnson's wife, who, according to Mr. Johnson, had physical and legal custody of J.J. during Mr. Johnson's deployment, was copied on these text messages and emails. Over the course of two days of trial, Mr. Johnson did not disavow his responsibility for the missed visitation periods, nor did he suggest that Mrs. Johnson denied any of the visitation against his wishes; thus, the record supports the conclusion that Mrs. Johnson was acting on Mr. Johnson's behest when she failed to appear with J.J. for exchanges.
Mr. Johnson testified at trial that Mrs. Johnson had legal custody of J.J. during his absence.
Moreover, as set forth above, Mr. Johnson voluntarily agreed to the visitation schedule set forth in the consent judgment, which specifically provided one visitation schedule that would apply when Mr. Johnson was out of the country and another that would come into effect when Mr. Johnson returned. There is simply no evidence that Mr. Johnson's presence in Cuba, which was anticipated and addressed in the consent judgment, somehow created or constituted a justifiable excuse for willfully disobeying that same judgment. This argument lacks merit.
We note that the Servicemembers Civil Relief Act (SCRA), 50 U.S.C. § 3932 is not automatically applied. Rather, the statute provides that "the court may on its own motion and shall, upon application by the servicemember, stay the action ...." 50 U.S.C. § 3932(b)(1). Here, Mr. Johnson did not file for a stay until January 21, 2020, and a ninety-day stay was granted on January 28, 2020. Before Mr. Johnson requested a stay, he filed motions to enroll counsel on May 23, 2019, and on August 30, 2019; his wife appeared in court on his behalf on September 3, 2019; he filed a motion to terminate the Annys’ visitation on October 1, 2019, through his wife, acting on authority of his power of attorney; and he filed a rule for contempt on December 3, 2019, through his wife, acting on authority of his power of attorney. Moreover, Mr. Johnson testified that he saw the pleadings his wife filed on his behalf during his deployment before she signed them. Thus, Mr. Johnson was actively participating in, and appropriately represented in, all proceedings up until the point he requested and was granted a stay pursuant to the SCRA.
Mr. Johnson's argument that he had a justifiable excuse for violating the trial court's visitation order on the basis of purported concerns about Covid-19 could only apply to the Annys’ last three rules for contempt, filed on March 2, 2020, July 21, 2020, and November 12, 2020, because Covid-19 was not a factor during the time periods addressed in the Annys’ first four rules for contempt. With respect to the March 2, 2020, July 21, 2020, and November 12, 2020 rules, the Annys contend that Mr. Johnson did not raise the issue of Covid-19 at all during the first day of trial on September 17, 2020, and that although Mr. Johnson "alluded to nebulous concerns about COVID-19 with regard to the [Annys'] visitation" during the December 3, 2020 trial date, "nothing in the record suggests that COVID-19 was ever articulated to anyone as a ‘concern’ by Mr. Johnson until October 2, 2020 - the first visitation scheduled to take place after the trial had begun."
Our review of the record confirms the Annys’ assertion. Despite being questioned repeatedly as to why he denied the Annys’ visitation during the September 17, 2020 trial date, and being specifically asked by the trial court whether he "[had] a defense as to why he did what he did," Mr. Johnson did not mention Covid-19 during the entire September 17, 2020 trial date. Mr. Johnson's counsel attempted to bring up Covid-19 at one point, but at no point did Mr. Johnson raise Covid-19 as a contributing factor to his decision to deny the Annys’ visitation with J.J. In addition, as the trial court noted during the December 3, 2020 trial date, if Mr. Johnson had concerns about J.J.'s visitation with the Annys related to Covid-19, the appropriate remedy was to seek relief from the court. Mr. Johnson did not do so.
In response, Mr. Johnson's counsel attempted to argue that Mr. Johnson had sought relief from the court by filing his motion to terminate visitation; however, the motion to terminate visitation was filed before Covid-19 became an issue, and Mr. Johnson subsequently delayed the trial of his motion to terminate by seeking continuances.
While Mr. Johnson did attempt to raise Covid-19 as a justifiable excuse for denying the Annys’ visitation during the December 3, 2020 trial date, we cannot say that the trial court abused its discretion or manifestly erred in finding that Mr. Johnson's late-voiced concerns about Covid-19 did not constitute a justifiable excuse for denying the Annys’ visitation periods in violation of the consent judgment. The trial court was in the best position to evaluate all of the facts in the instant matter, and it did so accordingly over a two-day trial. Each party to this lawsuit was able to testify, and the trial court was able to consider matters of credibility and weigh the evidence. See Fradella v. Rowell, 49,350 (La.App. 2 Cir. 8/13/14), 147 So.3d 817, 820. This argument lacks merit.
SENTENCE FOR CONTEMPT AND AWARD OF ATTORNEY'S FEES
While not specifically assigned as error, Mr. Johnson also argues in his appellate brief that the trial court abused its discretion in imposing an excessive sentence and an excessive award of attorney's fees. We disagree.
"There is little doubt that ‘the fair and efficient administration of justice requires that respect for the dignity of the courts be maintained and that willful disobedience or deliberate defiance of the court's authority be punished.’ " State v. Bullock, 576 So.2d 453, 458 (La. 1991), (quoting In re Milkovich, 493 So.2d 1186, 1199 (La. 1986) ). The punishment for contempt of court is provided in LSA-R.S. 13:4611(1). LSA-C.C.P. art. 227 ; City of Baton Rouge v. Douglas, 2016-0655 (La.App. 1 Cir. 4/12/17), 218 So.3d 158, 166, Specifically, according to LSA-R.S. 13:4611(1)(d), a trial court may punish constructive contempt for failure to obey a court's order by a fine of not more than five hundred dollars, or imprisonment for not more than three months, or both. Boudreaux v. Vankerkhove, 2007-2555 (La.App. 1 Cir. 8/11/08), 993 So.2d 725, 734. In addition to or in lieu of those penalties, when a parent has violated a visitation order, the trial court may also order the payment of all court costs and attorney's fees incurred by the other party. LSA-R.S. 13:4611(1)(e)(iv) ; Underwood v. Underwood, 2021-0277 (La.App. 1 Cir. 10/21/21), 332 So.3d 128, 154. Moreover, a person found to be in contempt has no right to a suspension of sentence, but, in fact, is the beneficiary of the court's clemency when such a suspended sentence is imposed. Howard v. Oden, 44,191 (La.App. 2 Cir. 2/25/09), 5 So.3d 989, 998, writ denied, 2009-0965 (La. 6/26/09), 11 So.3d 496.
Louisiana Revised Statutes 13:4611 provides, in pertinent part:
Except as otherwise provided for by law:
(1) The supreme court, the courts of appeal, the district courts, family courts, juvenile courts and the city courts may punish a person adjudged guilty of a contempt of court therein, as follows:
...
(c) For a deliberate refusal to perform an act which is yet within the power of the offender to perform, by imprisonment until he performs the act; and
(d) (i) For any other contempt of court, including disobeying an order for the payment of child support or spousal support or an order for the right of custody or visitation, by a fine of not more than five hundred dollars, or imprisonment for not more than three months, or both.
...
(e) In addition to or in lieu of the above penalties, when a parent has violated a visitation order, the court may order any or all of the following:
(i) Require one or both parents to allow additional visitation days to replace those denied the noncustodial parent.
(ii) Require one or both parents to attend a parent education course.
(iii) Require one or both parents to attend counseling or mediation.
(iv) Require the parent violating the order to pay all court costs and reasonable attorney fees of the other party.
(f) A pattern of willful and intentional violation of this Section, without good cause, may constitute a material change in circumstances warranting a modification of an existing custody or visitation order.
(g) The court may award attorney fees to the prevailing party in a contempt of court proceeding provided for in this Section.
Here, the record overwhelmingly supports the trial court's finding that Mr. Johnson willfully and deliberately violated the trial court's order, consistently and without justification, over the course of roughly a year and a half. Mr. Johnson denied the Annys’ visitation with J.J. on seventeen separate occasions, two of which occurred after Mr. Johnson was directly instructed by the court at the September 17, 2020 trial date to permit the Annys’ visitation. Moreover, the record contains Mr. Johnson's explicit statements of his willingness and intent to serve a jail sentence rather than comply with the trial court's orders, as detailed in the following exchange:
Mr. Saffiotti: [If] you are taken into custody and put in jail - - until you comply with the court order of visitation, are you going to allow that visitation to occur?
Mr. Johnson: I will remain in jail.
The Court: Pardon me.
Mr. Johnson: I will remain in jail.
The Court: Okay. Pardon once more, please?
Mr. Johnson: I will remain in jail.
The Court: [Okay], you know there's a provision by which the court can do that?
Mr. Johnson: Yes, ma'am, I do. I understand.
Our jurisprudence holds that the severity of a sentence imposed is within the sound discretion of the trial court and is a matter into which appellate courts will not inquire so long as the sentence imposed is within the limits fixed by law. Marshall v. Marshall, 2021-0608 (La.App. 1 Cir. 12/27/21), 340 So.3d 931, 933-35, (citing Dabezies v. Bourg, 273 So.2d 622, 627 (La.App. 1 Cir.), writ denied, 277 So.2d 445 (La. 1973) ). In reviewing contempt proceedings under its supervisory powers, an appellate court will examine only those matters relating to the jurisdiction or power of the court and the regularity of the proceedings. Dabezies, 273 So.2d at 627, (citing Gautreau v. Gautreau, 225 La. 254, 261-62, 72 So.2d 497, 499 (1954) ). In this matter, the trial court was presented with Mr. Johnson's undisputed history of willful disobedience of the orders of the court, coupled with his unambiguous declaration of intent to continue to defy the orders of the court. Thus, there is ample support for the trial court's obvious belief that the court's lawful order would not be enforced absent a significant sentence. Accordingly, we do not find that the trial court abused its discretion in sentencing Mr. Johnson to thirty days per finding of contempt, thirty days being well within the three-month limit authorized by LSA-R.S. 13:4611.
In addition to the details already provided herein, the record is replete with examples of Mr. Johnson's general disregard for the dignity and authority of the court. During the September 17, 2020 trial date, the trial court repeatedly had to instruct Mr. Johnson to cooperate with the Annys’ counsel by answering questions and speaking clearly. Specifically, after Mr. Saffiotti, counsel for the Annys, asked, "Mr. Johnson, do you need to smirk each time you answer my questions? Is it funny to you?" The trial court stated, "Sir, you know we'll come up here fifteen days if you need to. I'd rather try to do it in one or two. But you are here for the purpose of answering questions ... and [giving] us the facts from your perspective." Six pages later in the transcript, the trial court had to address Mr. Johnson's uncooperativeness again, and stated, "Alright, I do need you to just answer the questions; otherwise, you can be on that witness stand until 3:00 this afternoon." Two pages later, the trial court yet again had to address Mr. Johnson's refusal to cooperate, stating, "Ok, like I said, he can sit there until 3:00 this afternoon. And this can go on forever and ever ... sir, you have to answer the questions." The trial court had to instruct Mr. Johnson to answer or speak clearly four more times in the next fifteen pages of the transcript alone.
Similarly, during the December 3, 2020 hearing, the trial court made several statements reflecting Mr. Johnson's general disrespect for the trial court. Following his admission that he denied the Annys their October 2, 2020 visitation, the trial court stated, "He's obviously thumbing his nose at me ... that was [an] opportunity for him to get back on track." Shortly thereafter, while still discussing the same topic, the trial court stated, "if you continue to refuse the questions I'm going to hold you in contempt for that. I have advised you three times now. You have to answer his question." Subsequently, the trial court advised that Mr. Johnson was close to being found in contempt and ordered a recess so that Mr. Johnson's attorney could speak to him about not answering questions asked by Mr. Saffiotti and the trial court.
To the extent it may be argued that Mr. Johnson was deprived of the opportunity to correct his behavior because multiple contempt rules were heard contemporaneously, we find that the undisputed history of Mr. Johnson's behavior invalidates such an argument in this matter. As discussed, despite receiving explicit direction during the September 17, 2020 trial date to allow the Annys’ visitation in the interim between the September 17, 2020 trial date and the December 3, 2020 trial date, Mr. Johnson denied two more visitation periods. Thus, Mr. Johnson was given an opportunity to correct his behavior; rather than doing so, he demonstrated an ongoing intent to defy the orders of the trial court, thereby necessitating further action by the court to ensure the fair and efficient administration of justice and to uphold the dignity of the courts. We also note that Mr. Johnson's sentence has been suspended provided he commit no further acts of contempt. Thus, it is completely within Mr. Johnson's power to avoid serving any of the sentence imposed.
With respect to Mr. Johnson's argument that the award of attorney's fees was excessive, it must be remembered that the trial court has much discretion in fixing an award of attorney's fees and its award will not be modified on appeal absent an abuse of discretion. Anglin v. Anglin, 2009-0844 (La.App. 1 Cir. 12/16/09), 30 So.3d 746, 752. As set forth above, LSA-R.S. 13:4611(1)(e)(iv) provides that a parent who has violated a visitation order may be ordered to pay all court costs and attorney's fees incurred by the other party. Underwood, 332 So.3d at 154. Additionally, LSA-R.S. 13:4611(1)(g) authorizes courts to award attorney's fees to a party who successfully prosecutes a rule for contempt of court. Luv N’ Care, Ltd. v. Jackel International Limited, 2019-0749 (La. 1/29/20), 347 So.3d 572, 578-79. Thus, LSA-R.S. 13:4611 provides two grants of authority for the trial court's award of attorney's fees in this situation.
Factors to be taken into consideration in determining the reasonableness of attorney's fees include: (1) the ultimate result obtained; (2) the responsibility incurred; (3) the importance of the litigation; (4) the amount of money involved; (5) the extent and character of the work performed; (6) the legal knowledge, attainment, and skill of the attorneys; (7) the number of appearances made; (8) the intricacies of the facts involved; (9) the diligence and skill of counsel; and (10) the court's own knowledge. See Rule 1.5(a) of the Rules of Professional Conduct ; Anglin, 30 So.3d at 752. This Court in Bourne v. Bourne, 2013-2170 (La.App. 1 Cir. 6/18/14), 2014 WL 3702486, *8 (unpublished), writ denied, 2014-1791 (La. 9/12/14), 148 So.3d 936, upheld an award of $7,825 in attorney's fees related to a single contempt motion. Similarly, in Foret v. Foret, 2020-1263 (La.App. 1 Cir. 6/16/21), 2021 WL 2451873, *9-11 (unpublished), writ denied, 2021-01030 (La. 9/27/21), 324 So.3d 624, this Court affirmed an award of $6,000 in attorney's fees, representing $2,000 for each of three rules for contempt filed within a one-year period, as well as an award of court costs for the filing of each contempt rule and other interrelated pleadings. And, in Parker v. Finch, 2019-1473R (La.App. 1 Cir. 6/3/21), 2021 WL 2251624, *5-6 (unpublished), writ denied, 2021-00973 (La. 9/27/21), 324 So.3d 624, this Court upheld an award of attorney's fees and costs in favor of the father in the amount of $3,793.55, where the grandmother was found in contempt of court for intentionally interfering with the father's visitation.
Here, the Annys’ counsel made eight court appearances, attended two full days of trial, and participated in numerous status conferences. He prepared seven rules for contempt, as well as a motion to compel. Mr. Saffiotti also conducted research, prepared for court appearances, and received and responded to phone calls and correspondence from the Annys, Mr. Johnson's counsel, and Ms. McCarthy. He submitted a detailed affidavit of attorney's fees and costs to the trial court, which established that between June 16, 2019 and December 2, 2020, the Annys incurred fees and costs in the amount of $18,159.54. The affidavit did not include fees and costs for the December 3, 2020 trial date, which may not have even been necessary had Mr. Johnson been more cooperative during the first day of trial. All of this work was necessitated by Mr. Johnson's continuing refusal to comply with the trial court's order, which did no more than adopt the terms to which Mr. Johnson himself had previously agreed. Accordingly, under the specific facts and circumstances of this case, we find that the trial court did not abuse its discretion in ordering Mr. Johnson to pay the Annys’ attorney's fees in the amount of $19,959.54.
DECREE
Based on the foregoing, the January 12, 2021 judgment finding Jonathan Jamal Johnson in contempt of court on seventeen counts, and sentencing him accordingly, and ordering him to pay attorney's fees and costs, is affirmed. All costs of this appeal are assessed to Jonathan Jamal Johnson.
AFFIRMED.
GUIDRY, J., dissents in part and assigns reasons.
Holdridge J. concurs w/ reasons
GUIDRY, J., dissenting in part. I agree with the majority that Mr. Johnson should have been held in contempt. However, I disagree with the sentence imposed under La. R.S. 13:4611. As found by the majority, the incarceration order rendered by the trial court was remedial in that the purpose was to coerce Mr. Johnson into allowing the maternal grandparents visitation with his minor child. In addition to the penalties and imprisonment sanctioned by La. R. S. 13:4611, the statute provides the trial judge "may allow additional visitation days to replace those denied..." La. R.S. 13:4611(1)(e)(i). Clearly, the intent of the contempt penalty statute as to visitation is to have one contempt judgment granted with the appropriate penalties and sanctions awarded. In the event visitation is withheld after the initial contempt judgment, a subsequent contempt motion may be filed and the defendant can again be subject to being sentenced to a five hundred dollar fine and imprisonment of not more than three months. In no way does La. R. S. 13:4611 contemplate that a party in an initial contempt proceeding be sentenced to imprisonment in the parish jail for 510 days. Such a sentence would defeat the remedial nature of the contempt statute for visitation violations.
Holdridge J., agreeing and concurring in part.
I agree with the majority that Mr. Johnson should have been held in contempt. I concur with the sentence imposed under La. R.S. 13:4611 only because the statute is not clear as to whether multiple contempt motions may be filed and multiple jail sentences imposed at the initial hearing of contempt. As found by the majority, the incarceration order rendered by the trial court was remedial in that the purpose was to coerce Mr. Johnson into allowing the maternal grandparents visitation with his minor child. In addition to the penalties and imprisonment sanctioned by La. R.S. 13:4611, the statute provides the trial judge "may allow additional visitation days to replace those denied...." La. R.S. 13:4611(1)(e)(i). Clearly, the intent of the contempt penalty statute as to visitation is to have one contempt judgment granted with the appropriate penalties and sanctions awarded. In the event visitation is withheld after the initial contempt judgment, a subsequent contempt motion may be filed and the defendant can again be subject to being sentenced to a five hundred dollar fine and imprisonment of not more than three months. In no way does La. R.S. 13:4611 contemplate that a party in an initial contempt proceeding be sentenced to imprisonment in the parish jail of 510 days. Such a sentence would defeat the remedial nature of the contempt statute for visitation violations. However, it is the legislature that should clarify La. R.S. 13:4611 to make clear that only one five hundred dollar fine and one imprisonment of up to three months may be imposed at each contempt hearing.