Opinion
2018 CU 1639
04-12-2019
JOSEPH AIAVOLASITI KOTT v. ASHLEY KOTT
Zara Zeringue Covington, Louisiana Attorney for Plaintiff/Appellant Joseph Aiavolasiti Kott David R. Paddison Covington, Louisiana Attorney for Defendant/Appellee Ashley Kott
NOT DESIGNATED FOR PUBLICATION On Appeal from the Twenty-Second Judicial District Court In and for the Parish of St. Tammany State of Louisiana
No. 2014-10050, Div. "B" The Honorable August Hand, Judge Presiding Zara Zeringue
Covington, Louisiana Attorney for Plaintiff/Appellant
Joseph Aiavolasiti Kott David R. Paddison
Covington, Louisiana Attorney for Defendant/Appellee
Ashley Kott BEFORE: McDONALD, CRAIN, AND HOLDRIDGE, JJ. HOLDRIDGE, J.
The Honorable Mary C. Devereux signed the judgment that is on appeal but subsequently recused herself from the proceeding.
Appellant, Joseph Aiavolasiti Kott, appeals a contempt judgment against him in a custody proceeding based on his refusal to produce certain medical records that were required pursuant to a consent judgment and a protective order. Finding error, we reverse.
FACTS AND PROCEDURAL HISTORY
Joseph and Ashley Kott were married on March 16, 2011. Of the marriage, one child was born on April 2, 2011. The parties were divorced on January 4, 2016.
The record does not contain a custody judgment.
On January 19, 2018, Ashley filed a petition for protection from abuse against Joseph. In the petition, she stated that at 4:00 a.m. that morning, Joseph attempted to see her and their child while they were at a friend's home, where they were spending the night due to road conditions. When he allegedly refused to leave, the police were called. According to Ashley, when the police officers intervened, Joseph assaulted an officer and was arrested. The trial court initially issued a temporary restraining order, and then, on February 5, 2018, the trial court issued a protective order that was effective through August 7, 2018. The order was issued pursuant to a court-approved consent agreement and provided, among other orders, that Joseph was to seek professional counseling and/or complete a court-monitored domestic abuse intervention program and to continue to receive psychiatric or medical treatment as recommended. The order also stated that Joseph "shall provide medical records to [Ashley] upon request and shall be subject to further evaluation if requested by [Ashley]."
Ashley also alleged in the petition that Joseph had two previous DWIs and that he had assaulted a police officer in jail in 2014. Additionally, she stated that when they were married, Joseph attempted to leave their home with their child against her will, and she had called the police.
On the same date that the protective order was issued, February 5, 2018, the parties entered into a consent judgment that provided, among other provisions, that Ashley was awarded sole custody of the child and that no visitation was awarded to Joseph. The judgment provided that visitation could be awarded to Joseph at a later time on his motion if he met certain conditions deemed appropriate by the court or if the parties agreed to visitation. The judgment also required Joseph to produce medical records sufficient to determine his mental status prior to the commencement of any visitation.
On May 9, 2018, Joseph filed a petition to nullify and set aside the custody judgment and the protective order, both of which were signed on February 5, 2018. He alleged that he lacked the capacity to enter into these consent judgments, that he entered into them under duress and based on error and misrepresentations, and that they should be annulled for vices of form or substance. He also filed a rule to reestablish visitation, to modify the protective order, and to modify physical and legal custody.
Joseph's rule that was purportedly filed on May 9, 2018 to reestablish visitation and to modify custody and the protective order is not in the appellate record, but is referred to in Ashley's pleading and memorandum in support of her contempt rule filed in response.
In response to Joseph's rule, Ashley filed the rule for contempt that is the subject of this appeal. She filed the contempt rule along with exceptions of prematurity and lis pendens, among other matters. In her rule for contempt, Ashley alleged that the February 5, 2018 consent judgment and protective order required Joseph to produce medical records to determine his mental fitness for visitation. According to Ashley, Joseph as an attorney received treatment pursuant to the Judges and Lawyers Assistance Program (JLAP) in Chicago. She alleged that Joseph had not produced and refused "to produce any medical records, psychiatric records, records from his treatment in Chicago, or ... any records whatsoever reflecting on his current condition."
The other pleadings filed by Ashley include a motion to vacate an illegal ex parte order, an exception of failure to state a cause of action, and a rule to increase child support. Ashley also listed "motion to compel" in the title of her pleading, but she only made two specific statements in the pleading pertaining to a motion to compel. She stated that the court should award attorney's fees and costs associated with the necessity of bringing "this rule, to simply procure records that should have been voluntarily produced," and that the court must order the medical records. Moreover, as noted by the trial court at the hearing, the order setting the rules for hearing, which listed the other exceptions, the contempt motion, and the child support rule to be set for hearing, did not include a motion to compel.
The trial court held a hearing on Ashley's contempt rule and her other motion and exceptions. The trial court initially heard argument on the exceptions of lis pendens and prematurity, and granted the exception of prematurity and denied the exception of lis pendens. The trial court then heard argument and testimony on the contempt rule. The trial court orally ruled that Joseph was in contempt for refusing to provide the medical records to Ashley and ordered him to pay $1,000.00 in attorney's fees and the costs of the proceedings. Ashley's counsel was ordered to prepare a judgment.
Joseph challenged the trial court's ruling in a writ application. This court granted the writ application, reversed that part of the trial court's ruling sustaining Ashley's prematurity exception, and denied the prematurity exception, stating that the trial court legally erred in finding Joseph's rule to reestablish visitation and to modify the protective order and custody was premature, citing Babcock v. Martin, 2016-0073 (La. App. 1 Cir. 9/16/16), 2016 WL 4973229, *7-8 (unpublished). Kott v. Kott, 2018-0856 (La. App. 1 Cir. 7/24/18), 2018 WL 3559930 (unpublished). This court then ruled that the portion of the trial court order finding Joseph in contempt of court was a final and appealable judgment once reduced to writing. Id; see also La. C.C.P. art. 1915(A)(6), Stevens v. St. Tammany Parish Government, 2016-0534 (La. App. 1 Cir. 1/18/17), 212 So.3d 568, 575. This court granted the writ application for the limited purpose of remanding the matter to the trial court with instructions to grant Joseph an appeal pursuant to his notice of intention to apply for supervisory writs pursuant to In Re Howard, 541 So.2d 195 (La. 1988) (per curiam), provided the trial court's oral ruling finding Joseph in contempt and imposing the sanctions of costs and attorney's fees was reduced to writing. Kott, 2018 WL 3559930 at *1.
On remand, the trial court signed a written judgment on August 6, 2018 that stated, among other rulings, that Joseph was found in contempt for his failure to provide medical records to Ashley pursuant to the consent judgment and the protective order, both dated February 5, 2018, and that he was ordered to pay attorney's fees of $1,000.00 and costs of the proceedings. The trial court also appointed Dr. Richard Richoux to conduct an independent medical examination on Joseph, and ordered that Joseph or his representative was to provide all medical records requested by Ashley. Joseph appeals from this judgment.
The August 8, 2018 judgment also stated that the exception of prematurity was granted and the exception of lis pendens was denied.
In brief, Ashley contends that this court has no subject matter jurisdiction over this appeal because Joseph took an appeal from oral reasons for judgment and filed his motion for appeal before the written judgment was signed. In this court's July 24, 2018 writ action, this court stated that once the oral ruling was reduced to writing, the trial court's oral ruling was a final appealable judgment. The writ application was granted for the limited purpose of remanding the matter to the trial court with instructions to grant Joseph an appeal pursuant to the June 25, 2018 notice of intent to apply for supervisory writs. Joseph was to submit an order for appeal to the trial court within fourteen days of this court's order, or on or before August 7, 2018. Joseph filed the motion and order for appeal from the trial court's June 13, 2018 oral ruling on August 1, 2018. The trial court signed the judgment reflecting its June 13, 2018 oral ruling on August 6, 2018.
To the extent that the motion for appeal may seem premature, any defect arising from a premature motion for appeal is cured once a final judgment has been signed. See Overmier v. Traylor, 475 So.2d 1094, 10941095 (La. 1985) (per curiam); Cole v. Cole, 20180523 (La. App. 1 Cir. 9/21/18), ___ So.3d ___, ___; Chauvin v. Chauvin, 20101055 (La. App. 1 Cir. 10/29/10), 49 So.3d 565, 568 n.1. Therefore, Ashley's contention has no merit.
APPLICABLE LAW
Joseph argues that the trial court erred when it held him in contempt for not producing his JLAP medical records, contending that they are confidential pursuant to La. R.S. 37:221(B)(1). JLAP was created for the purpose of providing counseling and intervention services for judges, lawyers, law students, and other members of the legal profession who may suffer from mental health or drug or alcohol abuse issues. La. R.S. 37:221. Any information generated, received, gathered, or maintained by JLAP or the Committee on Alcohol and Drug Abuse of the Louisiana State Bar Association, or employees or agents of either, is confidential and privileged. La. R.S. 37:221(B)(1). Joseph also contends that the trial court erred in ordering him to pay $1,000.00 in attorney's fees plus costs, because La. R.S. 13:4611(1)(d)(i) limits the amount of a fine for contempt to $500.00.
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. La. C.C.P. art. 221. According to La. C.C.P. art. 224(2), a person may be found in constructive contempt of court for willfully disobeying any "lawful judgment, order, mandate, writ, or process of the court." A finding that a person willfully disobeyed a court order in violation of article 224(2) must be based on a finding that the person violated an order of the court intentionally, knowingly, and purposefully, without justifiable excuse. Carollo v. Carollo, 2013-0010 (La. App. 1 Cir. 5/31/13), 118 So.3d 53, 64.
The burden of proving that the accused violated the court order intentionally, knowingly, and purposely without justiciable excuse is on the moving party. See Rogers v. Dickens, 2006-0898 (La. App. 1 Cir. 2/9/07), 959 So.2d 940, 947. The burden of proof in a civil contempt case is by a preponderance of the evidence. Bents v. Bents, 2015-1306 (La. App. 1 Cir. 9/9/16) 2016 WL 4719795, *3 (unpublished opinion), writ denied, 2016-1822 (La. 11/29/16), 211 So.3d 389; Meek v. Meek, 36,467 (La. App. 2 Cir. 9/18/02), 827 So.2d 1191, 1194. Proceedings for contempt must be strictly construed, and the policy of our law does not favor extending their scope. Rogers, 959 So.2d at 946. The trial court is vested with great discretion in determining whether a party should be held in contempt for disobeying a court order, and the court's decision should be reversed only when the appellate court discerns an abuse of that discretion. In re Succession of LeBouef, 2013-0209 (La. App. 1 Cir. 9/9/14), 153 So.3d 527, 536 (en banc). However, the trial court's predicate factual determinations are reviewed under the manifest error standard of review. Schmidt v. Schmidt, 2018-0202 (La. App. 1/3/19), ___ So.3d. ___, ___.
The February 5, 2018 consent judgment contains two provisions that are relevant to the contempt rule. The judgment states, in pertinent part:
No visitation is awarded or afforded to Joseph Aiavolasiti Kott at this time. Visitation may be awarded to Joseph Aiavolasiti Kott at a later time, if and when so ordered by this Court upon motion of Joseph Aiavolasiti Kott, upon such conditions as this Court shall deem appropriate or necessary, or by agreement of the parties hereto.The February 5, 2018 protective order also stated that Joseph "shall provide medical records to [Ashley] upon request and shall be subject to further evaluation if requested by [Ashley]."
***
IT IS FURTHER ORDERED, ADJUDGED AND DECREED that prior to the commencement of any visitation being ordered by this Court or being agreed to by the parties, Joseph Aiavolasiti Kott shall produce medical records sufficient to determine his mental status, demonstrating that he is mentally fit to exercise visitation, whether supervised or unsupervised, as the case may be, with the minor child. Should Ashley Kott disagree that the medical records produced by Joseph Aiavolasiti Kott as required hereunder demonstrate his fitness to exercise visitation with the minor child, then Ashley Kott may request an independent evaluation by a court-appointed mental health professional to be selected by the parties or by this Court, on motion of either party. Joseph Aiavolasiti Kott shall be responsible for all costs of the independent mental health evaluation, if necessary, and such independent mental health evaluation shall be solely related to Joseph Aiavolasiti Kott and/or the minor child .... (emphasis added).
At the hearing on the exception and contempt rule, the trial court initially stated that if Joseph did not give the medical records to Ashley, there would be no visitation. The court added that Joseph would make the choice. Counsel for both parties discussed which of Joseph's medical records Ashley had. While Joseph's counsel stated that discovery as to the medical records had already been requested, the record does not contain those discovery requests. Joseph's counsel indicated that Joseph would assert his privilege under La. R.S. 37:221 for any records pertaining to treatment through JLAP. The court commented that any privilege on any mental health records was waived in child custody agreements because the protection of children trumped any privilege in La. R.S. 37:221.
In connection with the motion, Joseph was called to testify. When asked which facility he was a patient of in Chicago and if he was there for treatment, he refused to answer and asserted a privilege under La. R.S. 37:221. When asked if he voluntarily left "that program," Joseph replied "No." Ashley's counsel requested that the trial court order Joseph to tell the court where he was in Chicago, whereupon Joseph's counsel objected. The trial court denied the objection, and Joseph again asserted a privilege under La. R.S. 37:221.
When Joseph was asked if, after he left the Chicago facility, he returned (to Louisiana) and assaulted a police officer, Joseph replied that he was involved in an altercation with a police officer. At that point, Joseph's counsel objected on the basis that the hearing was regarding medical records. The trial court agreed that the question was beyond the scope of Ashley's records request and stated that Joseph had denied that he would produce the medical records.
The trial court then stated that it could not make Joseph produce the pertinent medical records, but it could "enforce the no contact order [with the child] until such time as such documents are produced." The trial court indicated that it was Joseph's choice as to whether to produce the relevant medical records, but that he was subject to the consequences of that choice. The trial court then ruled that Joseph was in contempt for the refusing to provide the medical records.
On appeal Joseph contends that the JLAP records are privileged and protected from disclosure under La. R.S. 37:221. However, we need not reach the privilege issue because, as noted initially by the trial court, based on the consent judgment, the remedy for Joseph's failure to produce the medical records is the denial of visitation. The February 5, 2018 consent judgment clearly states:
IT IS FURTHER ORDERED, ADJUDGED AND DECREED that prior to the commencement of any visitation being ordered by this Court or being agreed to by the parties, Joseph Aiavolasiti Kott shall produce medical records sufficient to determine his mental status, demonstrating that he is mentally fit to exercise visitation, whether supervised or unsupervised, as the case may be, with the minor child.
A consent judgment is a bilateral contract; therefore, its provisions are subject to the general rules of contractual interpretation. Burns v. Burns, 2017-0343 (La. App. 1 Cir. 11/3/17), 236 So.3d 571, 575. Each provision must be interpreted in light of other provisions so each is given meaning suggested by the contract as a whole, and when the words of the contract are clear and explicit and lead to no absurd consequences, the intent of the parties is to be determined by the words of the contract. Id.; see also La. C.C. arts. 2045 and 2046. Such intent is determined in accordance with the plain, ordinary, and popular sense of the language used, and by construing the entirety of the document on a practical, reasonable, and fair basis. Burns, 236 So.3d at 575.
By its plain language, the parties' agreement as embodied in the consent judgment requires Joseph to "produce medical records sufficient to determine his mental status, demonstrating that he is mentally fit to exercise visitation" before visitation can be ordered by the court or agreed to by the parties. When Joseph failed to produce the medical records, the remedy under the judgment is not contempt but the denial of visitation. Under the consent judgment, it was in Joseph's interest to produce the medical records in order to demonstrate that he was mentally fit to exercise visitation and it was in the child's best interest for the medical records to be produced in order to determine that Joseph's mental health posed no threat. When Joseph failed to produce his medical records, according to the consent judgment, he was to be denied visitation. A contempt order was unnecessary since Joseph only had to produce his medical records before he could be awarded visitation. Since he was not awarded visitation, he did not violate the court order. Therefore, we find that the trial court abused its discretion in finding Joseph in contempt of court for his failure to produce his medical records. Accordingly, we reverse the trial court's finding of contempt and the award of $1,000.00 in attorney's fees.
CONCLUSION
We reverse that part of the August 6, 2018 judgment finding Joseph Aiavolasiti Kott in contempt of court and ordering him to pay $1,000.00 in attorney's fees and costs of the proceedings. Costs of this appeal to be paid by Ashley E. Kott.
REVERSED. McDONALD, J., concurring.
I agree with the majority's reversal of the contempt judgment against Mr. Kott. I write separately to express my belief that Mr. Kott waived any JLAP privilege he had by agreeing, in the February 5, 2018 consent judgment, to produce medical records sufficient to determine if he was mentally fit to exercise visitation with his daughter. A person upon whom the law confers a privilege against disclosure waives the privilege if he consents to disclosure of any significant part of the privileged matter. LSA-C.E. art. 502A.