Opinion
2021 CA 0709
02-25-2022
JOHN J. FAVALORO v. MELISSA LYNN FAVALORO
Elisabeth W. Ramirez Joshua D. Allison Covington, Louisiana Attorneys for Defendant/ Appellant Melissa Lynn Favaloro Carol T. Richards Covington, Louisiana Attorney for Plaintiff/ Appellee John J. Favaloro
NOT DESIGNATED FOR PUBLICATION
APPEALED FROM THE 22ND JUDICIAL DISTRICT COURT, DIVISION L ST. TAMMANY PARISH, LOUISIANA DOCKET NUMBER 2016- 14514 HONORABLE DAWN AMACKER, JUDGE
Elisabeth W. Ramirez Joshua D. Allison Covington, Louisiana Attorneys for Defendant/ Appellant Melissa Lynn Favaloro
Carol T. Richards Covington, Louisiana Attorney for Plaintiff/ Appellee John J. Favaloro
BEFORE: McDONALD, LANIER, WOLFE, JJ.
McDonald, J.
Melissa L Favaloro appeals a judgment from the 22nd Judicial District Court: (1) holding her in contempt of court for violating a judgment granting John J. Favaloro, her ex-husband, authority over educational and medical decisions regarding their minor children, and (2) denying her motion to hold John Favaloro in contempt of court for violating purported court-ordered stipulations. After review, we affirm.
FACTUAL AND PROCEDURAL BACKGROUND
John and Melissa Favaloro were married in 2011, and they had two children, JF, a daughter born in 2012, and JFII, a son born in 2016. In 2016, John filed a petition for divorce; Melissa answered the petition and reconvened. Both parties sought designation as domiciliary parent. The trial court held a hearing on the matter on February 2, 2017, and the parties agreed to certain stipulations. In April 2017, the trial court signed a consent judgment granting the parties joint custody of the children, with Melissa designated as domiciliary parent. The parties were divorced by a judgment signed on January 4, 2018.
The February 2, 2017 hearing minute entry indicates the trial court directed John's counsel to submit a judgment setting forth certain stipulations, but such a judgment is not a part of the appellate record.
The April 2017 consent judgment is not a part of the appellate record.
On October 11, 2018, John filed a rule to change the domiciliary parent designation and for contempt of court against Melissa. John alleged, among other things, that Melissa had, without just cause, made JF habitually absent from or tardy to school while she was in Melissa's custody. He also alleged that Melissa was unwilling or unable to see that JFII received proper medical treatment for autism.
On January 22, 2019, Melissa filed a cross motion for contempt of court against John, alleging, among other things, that he violated the parties' February 2, 2017 stipulations by seeking medical treatment for JFII without her knowledge and violated the April 2017 consent judgment by failing to return JFII to her physical custody on multiple occasions.
On July 8, 2019, the trial court signed a judgment granting John's emergency petition for "legal authority over both children for educational decisions and medical decisions" until further order of the court. Favaloro v. Favaloro, 21-0300 (La.App. 1 Cir. 1/20/22), 2022 WL 177694, *1 (Favaloro I). On January 7, 2020, John filed another contempt motion against Melissa for failure to respect his educational and medical decisions regarding JFII. Specifically, John alleged Melissa failed to take JFII to therapy on two occasions in December 2019.
The trial court held a hearing on the parties' three contempt motions on July 22, 2020. At the end of the hearing, the trial court denied John's October 11, 2018 motion, granted Melissa's January 22, 2019 motion, and granted John's January 7, 2020 motion. On December 29, 2020, the trial court signed a judgment memorializing its oral ruling. Melissa appeals the adverse judgment.
After the appeal was lodged, John's counsel sent a letter informing this court that John had decided not to respond to the appeal.
DISCUSSION
In her first assignment of error, Melissa contends the trial court abused its discretion in imposing an arbitrary time limit on the presentation of evidence at the contempt hearing, which prevented her from presenting a defense to John's January 7, 2020 motion.
Although constitutional due process guarantees litigants a right to a fair hearing, the trial court is vested with great discretion in controlling the presentation of evidence under La. C.C.P. art. 1631. Due process does not mean litigants are entitled to an unlimited amount of the court's time. Pittman v. Flanagan, 19-0038 (La.App. 1 Cir. 9/27/19), 287 So.3d 721, 724-25. Appellate courts intervene only if the trial court grossly abuses its discretion in conducting a trial. Pittman, 287 So.3d at 724.
After a thorough review of the record, we find the trial court did not grossly abuse its discretion in limiting the time for presentation of evidence on the parties' contempt motions. The same trial judge has presided over this highly contentious family law case since its inception, which at the time of the subject contempt hearing, had been over two years. The trial court was familiar with the case, had held numerous hearings, and had issued multiple judgments regarding issues in the case, including custody, child support, motions to compel, property partition, sanctions, an emergency petition for change of custody, and at least three previous motions for contempt. At the subject hearing, the trial court noted that she had heard "much of the same testimony" at prior contempt hearings, she was "not hearing very many new things," and thought the issues had "thoroughly been covered." Notably, at a December 19, 2019 hearing, the trial court had already found Melissa in contempt of court for arbitrarily violating its July 8, 2019 judgment granting John authority over educational and medical decisions concerning the children. See Favaloro I, 2022 WL 177694 at *3. And, at the subject contempt hearing, the trial court noted and found it "absolutely unbelievable" that Melissa's contemptuous behavior at issue (failing to take JFII to therapy on December 23 and 26, 2019) occurred less than one week after that December 19th hearing at which the trial court had just found Melissa violated the July 8, 2019 judgment. The trial court did not grossly abuse its discretion in refusing to allow Melissa extra time to defend her second violation of the July 8, 2019 judgment. This assignment of error is without merit.
This court recently affirmed the prior contempt judgment in Favaloro I, 2022 WL 177694, at *3.
In her second assignment of error, Melissa argues the trial court erred by denying her January 22, 2019 contempt motion and failing to find John violated their February 2, 2017 stipulations by seeking medical treatment for JFII between April and July 2018 without her knowledge. In her appellate brief, Melissa contends the stipulations required that she and John "share information with each other about the children in a timely and cooperative manner ... [including] ... medical, educational, social, psychological, and religious aspects of the children's lives."
We note that Melissa's motion relates to actions taken by John between April and July 2018 - these acts occurred before the trial court's July 8, 2019 judgment granting John legal authority over both children for educational decisions and medical decisions.
The appellate record contains no judgment, order, or transcript specifically setting forth the above stipulation Melissa claims John violated. Although Melissa references a February 2, 2017 hearing, an April 4, 2017 consent judgment, and a May 22, 2017 judgment wherein the alleged stipulation was made or set forth, no such transcript or judgments are contained in the appellate record. Further, assertions made in appellate briefs are not part of the record on appeal, and this court does not consider such assertions as evidence. Tessier v. Pratt, 08-1268 (La.App. 1 Cir. 2/13/09), 7 So.3d 768, 774, n.2. Thus, we do not consider Melissa's assertion in brief as evidence of what the alleged /stipulation required, and therefore conclude she has failed to carry her burden of proof. And, even if we were to assume Melissa accurately states the stipulation, after our review of the record, we conclude the trial court did not abuse its discretion in finding John did not violate it intentionally, knowingly, and purposefully, without justifiable excuse, such as to constitute contempt of court. See La. C.C.P. arts. 221, 224(2), and 3611; Marshall v. Marshall, 19-0879 (La.App. 1 Cir. 7/14/20), 308 So.3d 1178, 1182, writ denied, 20-01009 (La. 11/4/20), 303 So.3d 652. This assignment of error is without merit.
CONCLUSION
We affirm the trial court's December 29, 2020 judgment. We issue this memorandum opinion in compliance with Uniform Rules - Courts of Appeal, Rule 2-16. IB. We assess costs of the appeal to Melissa L. Favaloro.
AFFIRMED.
WOLFE, J., DISSENTS AND ASSIGNS ADDITIONAL REASONS.
I respectfully disagree with the majority opinion, because I find merit in the defendant's argument that the trial court abused its discretion in imposing an arbitrary time limit on the presentation of evidence at the contempt hearing. While the imposition of time limits on litigants is tolerated unless grossly abused, litigants still have a constitutional right to present all of their relevant, non-cumulative evidence, provided the probative value is not outweighed by undue delay and wasting of the court's time. See Goodwin v. Goodwin, 618 So.2d 579, 583-584 (La.App. 2d Cir.), writ denied, 623 So.2d 1340 (La. 1993). The trial court's time limits prevented the defendant from presenting a full defense at the contempt hearing, which may have resulted in a different outcome if all of the evidence had been allowed. Therefore, I dissent.