GINA SMITH SHORT v. JAMES KEITH SHORT (2025)

In this divorce proceeding, the trial court signed an amended judgment on November 3, 2023, finding appellant, James “Keith” Short, in contempt of court for multiple violations of two stipulated judgments and a permanent injunction. The trial court also found that Keith's responses to discovery propounded by appellee, Gina Short, failed to comply with the rules of discovery. The trial court ordered Keith to pay the following amounts to Gina: $160,763.54 (the amount of community funds Keith withheld from Gina); $18,284.86 ² (the amount of rental income Keith withheld from Gina), and $148,666.60 (reimbursement for all attorney fees and costs incurred as a result of Keith's contempts of court, including his discovery violations). Keith was also ordered to pay $16,500.00 to the trial court in fines for his willful and intentional refusal to adhere to the court's orders. Thus, the total amount owed by Keith was $344,215.00.

Keith filed this appeal, seeking reversal of portions of the November 3, 2023 amended judgment, a reduction of fees awarded to Gina, and reversal of the $18,284.86 award to Gina representing unpaid rental income.

After review, we reverse in part, vacate in part, and affirm in part as amended. Specifically, we reverse the findings of contempt of court on contempt no. 10, no. 11, no. 15, and no. 34 and vacate the punishments imposed for each. We also reverse and vacate the order directing Keith to pay $18,284.86 to Gina for non-payment of rental income imposed for contempt no. 7. As a result, we amend the judgment to reduce the amount owed by Keith to Gina and to the court. We affirm the judgment, as amended, in all other respects. Finally, we deny Keith's motion to strike and deny Gina's answer to the appeal.

FACTUAL AND PROCEDURAL HISTORY

Gina filed a petition for divorce from Keith on August 12, 2020.³ A temporary restraining order was issued the same day, prohibiting Keith from alienating, encumbering, mortgaging, or otherwise disposing of the community and/or jointly owned property existing between the parties. Keith, a former bank executive with over twenty years in the banking industry, controlled the community accounts, which were solely in his name.

On November 17, 2020, the parties entered a stipulated judgment and permanent injunction, which included the following pertinent provisions:

III.

COMMUNITY PROPERTY

A. RENTAL PROPERTY INCOME

IT IS FURTHER ORDERED, [ADJUDGED] AND DECREED that any rental income received from the property [referred to as “the LSU condo”] shall be placed into the Fidelity Real Estate account from which the expenses of the properties shall be paid. After payment of the monthly mortgage note and other necessary expenses of the properties, the parties shall divide any net proceeds each month. The parties shall likewise be liable for any deficiencies/bills owed for the properties pending partition.

* * * * *

D. PRELIMINARY INJUNCTIONS:

IT IS FURTHER ORDERED, ADJUDGED AND DECREED that mutual and reciprocal permanent injunctions are hereby issued prohibiting either party, or anyone acting on their behalf, from alienating, encumbering, mortgaging or otherwise disposing of any community property existing between the parties unless by written agreement or further order of the court.

IV.

ADVANCE ON COMMUNITY INTEREST

IT IS FURTHER ORDERED, ADJUDGED AND DECREED that the parties shall receive an advance on the community by receiving one-half (1/2) of the opening balance on November 2, 2020 in the following accounts:

a) Fidelity Portfolio Advisory Services Account in the name of James Keith Short; Account No. [omitted]; and

b) Fidelity Bank Stock Trading Account in the name of James Keith Short; Account No. [omitted] excluding the proceeds received by the parties from the U.S. Government PPP Loan Program/Emergency Funds which proceeds shall remain in the possession of JAMES KEITH SHORT.

IT IS FURTHER ORDERED, ADJUDGED AND DECREED that James Keith Short shall cooperate in executing any and all necessary documents to make said advance.

IT IS FURTHER ORDERED, ADJUDGED AND DECREED that GINA SHORT SMITH shall receive her 1/212 interest in the above accounts less the $7,500.00 already advanced to her.

On August 10, 2021, the parties entered a second stipulated judgment, which required, among other things, that Keith make Gina a co-owner of several Fidelity accounts and provide her with monthly account statements until she became a co-owner on the accounts.⁴ Pursuant to the second stipulated judgment, the parties’ accounts, including the Fidelity real estate account, were frozen and the funds in the accounts could not be transferred without the signatures of both Keith and Gina, or a court order.

From September 2022 to April 2023, Gina filed three rules for contempt against Keith. In the first and third rules for contempt, Gina alleged a total of 19 contempt violations, some with multiple occurrences, committed by Keith in violation of the stipulated judgments and the permanent injunction.⁵ We address only the contempt findings at issue in this appeal.⁶ In her second rule for contempt, Gina alleged that Keith provided bad faith, false discovery responses.

First and Third Rules for Contempt

A trial on the first and third rules for contempt was held on April 21, 2023. The trial court received substantial documentary evidence and heard testimony from Keith, Gina, and Gina's expert forensic accountant, Gus Levy.⁷ At the conclusion of evidence, the trial court found Keith in contempt of court. In the November 3, 2023 amended judgment, the trial court ordered Keith to pay fines to the court and all attorney fees and costs incurred by Gina as a result of his contempt.⁸ The trial court found that Keith committed the following pertinent violations, identified as section II, paragraphs A through P in the November 3, 2023 amended judgment:

B. Contempt No. 2: alienating $644,585.97 of community funds in violation of the permanent injunction.

C. Contempt No. 3: alienating and disposing of $14,679.88 of community funds in violation of the permanent injunction. Specifically, the court concluded that Keith alienated and disposed of $7,000.00 on February 18, 2021, and $7,679.88 on March 12, 2021. As additional punishment for this violation, Keith was ordered to return $14,679.88 of community funds to the community.

D. Contempt No. 5: distributing to himself $52,917.53 more than the court ordered advance and distributing to Gina less than the court ordered advance in violation of the first stipulated judgment. As additional punishment for this violation, Keith was ordered to return $38,555.66 to the community, which should have remained in the accounts after the authorized distributions.

E. Contempt No. 6: refusing to deposit $7,528.52 of rental property income into the real estate account in violation of the first stipulated judgment. As additional punishment for this violation, Keith was ordered to deposit $7,528.52 into the real estate account.

F. Contempt No. 7: refusing to distribute to Gina her 50% share of the rental property net proceeds in violation of the first stipulated judgment. As additional punishment for this violation, Keith was ordered to pay Gina $18,284.86, the amount of rental property net proceeds due to her pursuant to the court's order (the first stipulated judgment.)

H. Contempt No. 9: refusing to pay the LSU condo Homeowners’ Association (HOA) special assessment in violation of the first stipulated judgment.

I. Contempt No. 10: refusing to make Gina a co-owner of the community accounts in violation of the second stipulated judgment. As additional punishment for this violation, Keith was ordered to make Gina a co-owner on the identified accounts. The trial court did not impose a fine for this contempt finding.

J. Contempt No. 11: refusing to provide statements to Gina for the identified Fidelity account in violation of the second stipulated judgment.

M. Contempt No. 15: refusing to repay the Paycheck Protection Program (PPP) Loan in violation of the first stipulated judgment.

N. Contempt No. 32: selling community stock in the Baton Rouge Country Club in violation of the permanent injunction.

P. Contempt No. 34: twice changing the locks on the LSU condo to prevent Gina from accessing the property.

The trial court issued detailed written reasons explaining each finding of contempt.

Second Rule for Contempt

A trial on the second rule for contempt was held on May 19 and 22, 2023. After receiving documentary evidence and testimony from Keith, Gina, and Mr. Levy, the trial court found Keith in contempt of court for violating the rules of discovery.⁹ The court concluded that Keith failed to answer each interrogatory served upon him with all information available to him and failed to produce all documents in his possession, custody, and control. For this contempt, Keith was ordered to pay a fine to the court for each deficient discovery response and to pay all attorney fees and costs incurred by Gina as a result of his contempt.

Award of Fees and Costs

A contradictory hearing was held on September 25, 2023, to determine the amount of fees and costs to be awarded to Gina as a result of Keith's contempts of court.¹⁰ The parties jointly introduced Mr. Levy's deposition, offered in lieu of his live testimony at the September 25, 2023 hearing. Gina also introduced the affidavit of her attorney, Lisa Prater Bailey, along with an attachment (the “fee itemization”) setting forth a list of expenses paid by Gina from November 2020 through September 2023. For each expense, the fee itemization states the date the charge was incurred, the amount, a brief description of the work performed, and an identification of the contempt violation or rule for which the charge was incurred. Relying on this affidavit and fee itemization, Gina represented to the court that she paid $148,666.60 in legal fees and costs as a result of Keith's contempts of court.

The November 3, 2023 amended judgment awarded $148,666.60 to Gina, stating, in pertinent part:

[This sum]․represents a reimbursement to [Gina] for all attorney's fees and costs she incurred as a sole result of [Keith's] contempts, as evidenced by the testimony and documents presented at the September 25, 2023 contradictory hearing on the issue of [Gina's] attorney's fees and costs.

The evidence establishes that Mr. Levy's fees, totaling $62,377.00,¹¹ were included in the award of $148,666.60. The fee itemization contains entries identified as fees for “Gus Levy” or “forensic accounting” and are easily identified as expert fees. The total award also included $8,941.90 ¹² in court fees, with the remaining $77,347.70 ¹³ as an award of attorney fees.

ISSUES ON APPEAL

Keith raises seven assignments of error challenging the trial court's contempt findings and seeking to reverse and/or reduce the amounts awarded to Gina.

I. CONTEMPT FINDINGS

We begin by addressing the assignments of error that concern the trial court's contempt findings.

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 and may be direct or constructive. La. C.C.P. art. 221. A constructive civil contempt of court includes the willful disobedience of any lawful judgment, order, mandate, writ, or process of the court. La. C.C.P. art. 224(2). 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, purposefully, and without justifiable excuse. Zaorski v. Usner, 2022-1326 (La. App. 1st Cir. 10/31/23), 382 So.3d 959, 964, writ denied, 2024-00119 (La. 3/12/24), 381 So.3d 50, cert. denied, No. 23-1295, 145 S.Ct. 164 (U.S. 10/7/24). Constructive contempt also includes acts or omissions “intended 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. 224(10). Proceedings for contempt must be strictly construed, and the policy of our law does not favor extending their scope. Zaorski, 382 So.3d at 964.

The moving party bears the burden of proving, by a preponderance of the evidence, the accused violated the court order intentionally, knowingly, purposely, and without justiciable excuse. Zaorski, 382 So.3d at 964. 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 trial court's decision should be reversed only when the appellate court finds an abuse of that discretion. However, the trial court's predicate factual determinations are reviewed under the manifest error standard of review. Zaorski, 382 So.3d at 964.

Under the manifest error standard, we consider the entire record to determine whether a reasonable factual basis exists for the trial court's factual finding. When there are two views of the evidence, the trial court's choice between them cannot be manifestly erroneous. Marshall v. Marshall, 2019-0879 (La. App. 1st Cir. 7/14/20), 308 So.3d 1178, 1182, writ denied, 2020-01009 (La. 11/4/20), 303 So.3d 652. Further, when findings are based on determinations regarding witness credibility, the manifest error standard demands great deference to the factfinder's determinations and are virtually never manifestly erroneous or clearly wrong. Moore v. Germania Select Ins. Co., 2023-0946 (La. App. 1st Cir. 5/31/24), 391 So.3d 59, 63; State in Interest of A.S., 2019-0248 (La. App. 1st Cir. 9/4/19), 285 So.3d 1129, 1140. Only the factfinder can be aware of the variations in demeanor and tone of voice that bear so heavily on the listener's understanding and belief in what is said. Moore, 391 So.3d at 63. Reasonable evaluations of credibility and reasonable inferences of fact should not be disturbed upon review where conflict exists in the testimony. State in Interest of A.S., 285 So.3d at 1140.

The trial court's credibility determinations here were unmistakable. At the conclusion of the first contempt trial, the trial court found that Keith was “manipulative,” “controlling,” and “dishonest with the court” and expressed the belief that Keith's testimony was not truthful. These sentiments were echoed during the hearing on attorney fees, when the trial court stated that, in forty-three years as a family court judge, there has “never been a case like this. Never been a person dishonest with the court like this,” referring to Keith. The trial court made no express finding as to Gina's credibility, but relied heavily on Mr. Levy's testimony and opinions, expressing gratitude for Mr. Levy's work, considering the “level of [Keith's] deception.” Therefore, we adhere to the trial court's credibility determinations as we consider the issues on appeal.

First Assignment of Error – the trial court erred by finding Keith in contempt for actions that were not contained in an order.

Contempt No. 15: Keith asserts that contempt no. 15, finding he violated the first stipulated judgment by failing to repay the PPP loan, should be reversed, because there is no order in this judgment directing Keith to repay the loan. In response, Gina asserts it was the intent and understanding of both parties that Keith would repay the PPP loan with the loan proceeds. Gina also contends that Keith admitted twice, in writing and under oath, that the first stipulated judgment obligated him to pay the PPP loan because he held the funds. Keith maintains this was nothing more than the acknowledgment of a community debt to be settled at the partition trial.

In its reasons for judgment, the trial court found the first stipulated judgment required Keith alone to repay the PPP loan, which Keith admitted. However, Keith failed to pay the PPP loan when it became due, forcing Gina to repay the loan while Keith enjoyed its full benefits. The trial court concluded Keith was in contempt of court for willfully disobeying his obligation to repay the PPP loan with loan funds in his possession.

After review, we reverse the finding of contempt on no. 15 (paragraph II.M.) and vacate the punishment imposed for this contempt. While the first stipulated judgment stated that Keith retained the PPP loan funds, it did not order him to repay the PPP loan. A litigant should not be held in contempt of court unless he has been given a direct order by the court and has willfully disobeyed or refused to honor it, even if the litigant's acts tend to frustrate the opposing litigant. Greene v. Greene, 19-37 (La. App. 5th Cir. 12/11/19), 286 So.3d 1103, 1122. Keith's acknowledgement of the debt does not provide grounds for a finding of contempt pursuant to La. C.C.P. art. 224.

Contempt No. 34: Keith asserts the trial court erred by finding him in contempt for changing the locks on the parties’ LSU condo and failing to provide Gina with a key. Keith points out that no order prevented him from changing the locks; thus, while he may have violated La. C.C. art. 802 ¹⁴ applicable to co-owners, this is not a ground for contempt of court pursuant to La. C.C.P. art. 224. Conversely, Gina maintains that Keith violated the permanent injunction by alienating her from the community property and was also in contempt for intentionally obstructing or interfering with the orderly administration of justice by preventing Gina from using co-owned property. See La. C.C.P. art. 224(2) and (10).

In her rule for contempt, Gina alleged that Keith prevented her from accessing the parties’ co-owned property in “violation of the law,” citing La. C.C. art. 802. Gina did not cite a specific judgment that Keith allegedly violated nor did she pray that Keith be held in contempt pursuant to La. C.C.P. art. 224(10) for intentionally obstructing or interfering with the orderly administration of justice.

In its written reasons, the trial court stated that Keith produced the key during the contempt trial, after repeated attempts by Gina to obtain a key or passcode to the door. Without further comment and without identifying the specific order at issue, the trial court found Keith in contempt for “disobeying this Court's Order[.]”

Neither of the stipulated judgments nor the permanent injunction expressly prohibited Keith from changing the locks on the community rental property. Contrary to Gina's assertion, changing the locks does not amount to alienation of the community property. “Alienate” pertinently means “[t]o transfer or convey (property or a property right) to another.” Black's Law Dictionary, (12th ed. 2024). This did not occur. While Keith's actions may have frustrated Gina and limited her ability to access the property, we do not find his conduct warrants a contempt finding pursuant to La. C.C.P. art. 224(10), and we note the trial court likewise did not rely on this provision. See Greene, 286 So.3d at 1122. Thus, we reverse contempt finding no. 34 (paragraph ILP.) and vacate the associated punishment imposed.

Contempt No. 32: Keith contends the trial court erred by finding him in contempt for selling the community stock in the Baton Rouge Country Club in violation of the permanent injunction. On appeal, Keith asserts he did not intentionally sell the stock. Instead, he simply stopped paying the Club's dues, $1,000.00 per month, when he moved to Houston, because he was the only spouse using the Club. According to Keith, when he stopped paying the dues, the Club stopped the membership and refunded the stock value. Keith alternatively argues on appeal that, if this court finds he intentionally sold the stock, his decision to sell was justified because the monthly costs were more than the value of the membership. He asserts a person is not guilty of contempt if he had a justifiable excuse for his actions, citing Berthelot v. Berthelot, 2017-1331 (La. App. 1st Cir. 7/18/18), 254 So.3d 730, 733.

The trial court did not provide detailed reasons for its ruling on this particular contempt. However, the record reveals that Keith admitted he intentionally and voluntarily sold the stock. Keith explained at trial that he paid the Club dues until the sale - not the other way around, as Keith asserts on appeal. Keith admitted he resigned from the Club so he could stop paying dues. He made “a business decision to stop the bleeding.”

After reviewing the record, we find no manifest error in the trial court's implicit factual finding that Keith's action was not justified. Keith testified that selling the stock was beneficial to the community, because the cost of the monthly dues was more than the stock value. However, Keith unilaterally made this decision, without notifying Gina of his intent to sell the stock, forfeiting the community membership. Gina only discovered the sale, and that Keith received $7,500.00 for the stock, after issuing a document subpoena to the Club. For these reasons, Keith's reliance on Berthelot, 254 So.3d 730, is unpersuasive. In Berthelot, the husband alienated the community's truck without the wife's consent. Although there was a “technical contempt” by the husband, the trial court, in its discretion, chose not to hold him in contempt, because the wife previously testified she did not want the truck. Berthelot, 254 So.3d at 733-34. Here, Keith admittedly violated the permanent injunction against alienating community property, and the court, in its discretion, elected to hold him in contempt for his actions. We find no abuse of this discretion.

Contempt No. 9: Keith asserts he is not guilty of contempt no. 9 because he was not court ordered to pay the $32,593.16 HOA special assessment on the LSU condo. According to Keith, the first stipulated judgment “specifically states that the monthly expenses” will be paid out of the Fidelity real estate account, but the assessment was not a monthly expense. He further argues the real estate account never had sufficient funds to pay the assessment, and he was not required to pay with his separate funds. Finally, Keith maintains the real estate account was frozen in August 2021, but the letter notifying him of the assessment was dated September 27, 2021. In this letter sent to Keith's attorney, Ms. Prater Bailey discussed the past due assessment and the imminent imposition of fines, penalties, and a lien against the property if the assessment was not paid.

The record supports the trial court's determination that the assessment was one of the “other necessary expenses of the property” contemplated by the first stipulated judgment.¹⁵ Additionally, there is no testimony from Keith establishing when he first received notice of the assessment. The evidence reflects that Gina was aware of the assessment and paid half of the amount owed in February 2021, months before the account was frozen. Gina testified that she and Keith received the same communications from the HOA concerning the assessment. When they were notified of the assessment, they were given approximately six months to pay the amount due in monthly installments. This meant there was sufficient monthly rental income to pay the assessment. Although Keith collected the rental income, he failed to pay the assessment, eventually causing Gina to pay the entire amount owed. Considering this evidence, the trial court did not abuse its discretion by concluding that Keith willfully disobeyed the first stipulated judgment by his “direct and deliberate” refusal to pay the assessment.

Second Rule for Contempt: Keith argues it was error to find him in contempt for failure to respond to Gina's discovery requests, because there was no order compelling discovery.¹⁶ After reviewing the record, it is clear Keith was not found in contempt for violating a discovery order issued pursuant to La. C.C.P. art. 1469.¹⁷ Instead, Keith was found guilty of violating La. C.C.P. arts. 1457(A), 1461, and 1420 and found in contempt pursuant to La. C.C.P. arts. 221 and 224(10).

Louisiana Code of Civil Procedure Article 1457(A) provides that a party served with written interrogatories “shall furnish such information as is available to the party.” Similarly, pursuant to La. C.C.P. art. 1461, any party may serve upon another a request to produce or permit inspection of documents or electronically stored information in his possession, custody, or control. Finally, La. C.C.P. art. 1420 allows the court to impose an appropriate sanction upon the attorney, the represented party, or both when discovery responses are certified in violation of the representations in Article 1420(B). To determine the existence of an Article 1420 violation, the trial court should avoid the use of hindsight and should test the signer's conduct by asking what was reasonable to believe at the time the discovery request was signed.¹⁸ Red Stick Studio Development, L.L.C. v. State ex rel. Department of Economic Development, 2009-1349 (La. App. 1st Cir. 4/8/10), 37 So.3d 1029, 1036, writ denied, 2010-1501 (La. 10/1/10), 45 So.3d 1102.

The trial court factually determined that Keith's responses and objections to 14 identified discovery requests were not consistent with the rules of discovery, were not warranted by law, and were interposed for an improper purpose. See La. C.C.P. art. 1420(B)(1) and (2); Red Stick Studio Development, L.L.C., 37 So.3d at 1036. See Maxie v. McCormick, 95-1105 (La. App. 1st Cir. 2/23/96), 669 So.2d 562, 565 (a trial court's factual determination that Article 1420 was violated is reviewed pursuant to the manifest error standard.)

For instance, Keith's response to interrogatory no. 7 was among those found to be contrary to the rules of discovery. Gina testified that, during the marriage, she had no access to the community accounts, and Keith controlled all aspects of the family's finances. Thus, Gina had very limited information concerning the parties’ accounts and assets for purposes of partitioning the community property. In interrogatory no. 7, Gina asked Keith to identify all financial accounts in his name or that he had access to and to provide specific information for each identified account. In response, Keith identified four accounts.

During his forensic accounting investigation, Mr. Levy identified 18 financial accounts in Keith's name, which were active prior to the date Keith responded to Gina's discovery requests. Keith testified at the contempt trial that he only identified the accounts that he (unilaterally) deemed to be material, those with “larger balances.” He testified that he forgot about another. After hearing testimony, the trial court first noted Mr. Levy's statement that Keith's discovery responses were imperative to his ability to complete his forensic accounting report, considering how little information Gina had about the family's finances. By failing to disclose all community accounts, Keith put the burden on Gina to issue subpoenas to locate community funds.

Keith's response to interrogatory no. 9 was also problematic. There, Keith was asked to provide his complete employment history from 2010 to present by providing specific information, including his wage or salary. Keith identified three employers and stated that he made $250,000.00 annually from 2000-2013; $200,000.00 from 2013-2017, and $150,000.00 from 2018-2019. However, after obtaining Keith's tax returns, Mr. Levy found a “significant income greatly over [$250,000.00].” According to Mr. Levy, Keith's gross income exceeded one million dollars in 2010 and 2011. Although Keith's annual salary dropped in the following years, it remained significantly above $250,000.00. Keith testified that he “was probably reporting just [his] salary,” not additional types of compensation. However, Keith did not deny that, in one year, he made $900,000.00 in reportable income.

After reviewing the record, we find no manifest error in the trial court's factual determination that Keith's discovery responses violated La. C.C.P. art. 1420. The trial court also found that, through these discovery responses, Keith obstructed and interfered with the orderly administration of justice and was in contempt pursuant to La. C.C.P. arts. 221 and 224(10). The factual considerations that support the trial court's finding that Keith violated Article 1420 also support a finding of contempt for acts “intended to obstruct or interfere with the orderly administration of justice[.]” La. C.C.P. art. 224(10). Thus, we also find no abuse of discretion in the trial court's decision to hold Keith in contempt pursuant to Article 224(10).

Second Assignment of Error – the trial court erred by finding Keith in contempt for violations that had already been adjudicated.

Contempt Nos. 10 and 11: Keith asserts he was found guilty of these two contempt allegations in a judgment signed on March 13, 2023. Keith maintains these contempt allegations were not before the court during the April 2023 trial and no testimony was offered to establish these violations. After reviewing the record, we agree. A trial on contempt no. 10, Keith's failure to make Gina a co-owner on the community Fidelity accounts, and contempt no. 11, Keith's failure to provide Gina with statements for a particular Fidelity account, took place on February 7, 2023. The March 13, 2023 judgment found Keith guilty of these violations and, for contempt nos. 10, 11, and 12, ordered Keith to pay $8,000.00 to Gina in attorney fees and costs. Therefore, it was error for the trial court to include a finding of contempt for no. 10 and no. 11 in the November 3, 2023 amended judgment. Similarly, the trial court erred by ordering Keith to pay a fine, attorney fees, and costs to Gina as a result of these violations and further erred by ordering Keith to make Gina a co-owner of the identified accounts. We reverse paragraphs II.I and II.J. of the November 3, 2023 amended judgment and vacate the corresponding punishments imposed.

Third Assignment of Error – the trial court erred by finding Keith in contempt for violations that were remedied 1.5 years before the rule for contempt were filed.

Contempt No. 2: It is undisputed that Keith transferred $644,5 85.97 from the community IRA in violation of the permanent injunction against the alienation of community property. It is also undisputed that, before Gina's first rule for contempt was filed, Keith returned the funds to the community. For this reason, Keith maintains it was error for the trial court to find him in contempt of court for removing the funds. Keith cites Greene, 286 So.3d 1103, to support his assertion that contempt should not be found where the violation has been remedied.

In Greene, 286 So.3d at 1109, a consent judgment stated that the wife “shall immediately receive full ownership and possession” of tax refunds and ordered the husband to “promptly endorse” tax refund checks he received. Thereafter, the wife asserted the husband was in contempt for failing to immediately take affirmative action to assist in retrieving a tax credit applied to the husband by the IRS or in having it reassigned to her. Greene, 286 So.3d at 1119. After reviewing the record de novo, the court of appeal affirmed the denial of the wife's motion for contempt, not because the husband remedied the violation as Keith suggests, but because the record did not support the wife's contention that the husband waited months to perform any act calculated to reassign the credit.¹⁹ Greene, 286 So.3d at 1119, 1124. The court noted the husband did not receive the credit due to any act on his part. He made no attempt to claim the credit when his tax return was filed, acted promptly once he received the refund from the IRS, and never questioned the wife's ownership of the funds. Greene, 286 So.3d at 1119. Although her possession was delayed, it was never denied. The court of appeal declined to interpret “immediately” as used in the consent judgment so literally as to characterize a few weeks delay as an intentional, knowing, and purposeful violation of the court order at issue. Greene, 286 So.3d at 1124.

Unlike the husband in Greene, Keith acted intentionally by removing funds from the community IRA, which Gina discovered only after issuing a document subpoena to Fidelity. Additionally, as noted by the trial court, Mr. Levy revealed “the lengths” taken by Keith after removing the funds. In his August 2022 forensic accounting report and at trial, Mr. Levy explained that Keith transferred the funds into a new Fidelity rollover IRA in his name. Then, on the same day, Keith transferred the funds out of the new Fidelity IRA and into another new rollover IRA at TD Ameritrade, again in his name alone. There is no evidence in the record that Keith attempted to or intended to return the funds to the community before being confronted with evidence of the removal independently obtained by Gina. Neither do we find support for Keith's implied assertion that Gina was required to prove the violation was on-going before he could be held in contempt for his intentional conduct in direct contravention of the first stipulated judgment. The trial court's finding on contempt no. 2 is affirmed.

Contempt No. 3: Keith asserts that contempt no. 3 involved the same “movement of money” as contempt no. 2. Gina, on the other hand, asserts this contempt does not involve the same money as contempt no. 2; additionally, no evidence was presented at trial to establish the $14,679.88 at issue in contempt no. 2 was returned to the community. The trial court again relied on Mr. Levy's testimony and August 2022 forensic accounting report, which confirmed that, one day after Keith returned $644,585.87 to the original Fidelity IRA (at issue in contempt no. 2), he removed an additional $7,000.00 from the IRA and transferred it to a new Fidelity account in his name. Then, on March 12, 2021, Keith removed an additional $7,679.88 from the original Fidelity IRA and transferred it to a different, new Fidelity account in his name. The court found it was clear that Keith willfully disobeyed the permanent injunction; we find no abuse of discretion.

Contempt No. 5: Keith asserts that, contrary to the trial court's finding, he split the community account as ordered in the first stipulated judgment and did not give more to himself and less to Gina than what the first stipulated judgment required. Pursuant to the first stipulated judgment, the parties were to receive an advance on the community in the amount of one-half of the opening balance of two identified accounts as of November 2, 2020, less specified amounts. Keith asserts on appeal that Gina is actually seeking a distribution of the gains and losses in the account after the November 2, 2020 balance transfer.

The trial court's written reasons once again reflect Mr. Levy's calculations. According to Mr. Levy, pursuant to the first stipulated judgment, Gina's advance was to be $110,407.67 and Keith's was to be $133,107.67. The court found that, through document subpoenas to Fidelity and Mr. Levy's “extensive forensic accounting,” Gina established that Keith took $186,025.20 from the two specified accounts ($52,917.53 more than he was authorized to take), and he distributed $93,407.00 to Gina ($17,000.67 less than she was authorized to receive). Keith cites no evidence to contradict Mr. Levy's conclusion, relied on by the trial court, and no evidence to support his assertion that the numbers at issue are actually gains and losses from the account. We find no abuse of discretion in the trial court's finding of contempt on no. 5.

Fourth Assignment of Error – the trial court erred by finding Keith in contempt for not depositing funds into an account that Gina had frozen.

Contempt No. 6: The first stipulated judgment required that all rental income be deposited into the community real estate account. On appeal, Keith asserts that Gina had her attorney freeze the account in August 2021; thus, he was unable to deposit funds into the account and should not have been held in contempt for the resulting failure. This argument lacks merit.

First, Keith's assertion that Gina froze the account is contrary to the evidence. On August 3, 2021, Keith's then attorney emailed Gina's counsel, expressly asking her to add language, which he provided, freezing the account. The language provided by Keith's attorney appears in the second stipulated judgment, signed by both parties and their counsel.

Next, Gina's rule for contempt alleged that, from November 2020, the month the first stipulated judgment was rendered, through August 2021, the month the real estate account was frozen, Keith collected and failed to deposit $7,528.52 into the account. The trial court's written reasons finding Keith in contempt for failing to deposit funds reflect the same timeline - November 2020 through August 2021. The trial court also noted the amount of rental income was proven through document subpoenas and Mr. Levy's “extensive forensic accounting.” Mr. Levy testified that he determined that Keith collected $7,528.52 of rental income after “a bit of digging” and examining documents produced by Fidelity, VRBO, Airbnb, Paypal, and Venmo in response to subpoenas issued by Gina. After reviewing the record, we find no abuse of discretion in the trial court's finding of contempt on no. 6.

Seventh Assignment of Error – the trial court erred by awarding damages for net rental income in a summary proceeding when the same claim was made and awarded in the property partition.

Contempt No. 7. Keith does not appeal the court's finding of contempt on no. 7. Instead, he seeks reversal of the trial court's order that he pay $18,284.86 to Gina for non-payment of rental income, which he characterizes as damages. Gina contends that, according to Keith's argument, the court had no authority to order compliance once it found him in contempt.

Louisiana Revised Statutes 13:4611 sets forth the punishments that may be imposed against a person found guilty of contempt. Pertinently, a person guilty of contempt may be ordered to pay a fine of not more than five hundred dollars and may be required to pay the prevailing party's attorney fees. La. R.S. 13:4611(1)(d)(i), and (g).²⁰ There is no provision in La. R.S. 13:4611 that allows the trial court to award additional sums against a party guilty of contempt. See Macquet v. Macquet, 2019-1097 (La. App. 4th Cir. 10/7/20), 306 So.3d 498, 500 (finding no authority in La. R.S. 13:4611 for the trial court to award amounts owed under a consent judgment after finding one party in contempt for failing to pay in accordance with the consent judgment; instead, enforcement of the consent judgment could be accomplished through an ordinary or summary proceeding.) Thus, we vacate that portion of paragraph ILF. (contempt no. 7) of the November 3, 2023 amended judgment awarding $18,284.86 to Gina for non-payment of rental Income.²¹

II. AWARD OF ATTORNEY AND EXPERT FEES

Next, we address Keith's remaining assignments of error challenging the amount of attorney and expert fees awarded to Gina.

Louisiana Revised Statutes 13:4611(g) authorizes an award of attorney fees in a contempt proceeding as an additional punishment against a person adjudged guilty of a contempt of court. Luv N’ Care, Ltd. v. Jacket International Ltd., 2019-0749 (La. 1/29/20), 347 So.3d 572, 579. Pursuant to La. C.C.P. art. 1920, La. R.S. 13:4533, and La. R.S. 13:3666, the trial court has great discretion in awarding costs, including expert witness fees. Dakmak v. Baton Rouge City Police Department, 2012-1850 (La. App. 1st Cir. 9/4/14), 153 So.3d 511, 513.²² Finally, if a discovery violation occurs pursuant to La. C.C.P. art. 1420, the court may award sanctions against the person who made the certification or the represented party, or both, and such sanction may include an order to pay to the other party the amount of reasonable expenses incurred because of the filing of the request, response, or objection, including a reasonable attorney fee. La. C.C.P. art. 1420(D). The list set forth in Article 1420(D) is illustrative only. Moffett v. Moffett, 2010-1364 (La. App. 3d Cir. 6/22/11), 67 So.3d 1287, 1292.

The trial court's assessment of an award of fees and costs and the sanction imposed will not be disturbed absent an abuse of discretion. Hutchinson v. Westport Ins. Corp., 2004-1592 (La. 11/8/04), 886 So.2d 438, 440; Falgout v. American Alternative Ins. Corp., 2023-1261 (La. App. 1st Cir. 6/27/24), 392 So.3d 674, 678; Action Oilfield Services, Inc. v. Energy Management Co., 2018-1146 (La. App. 1st Cir. 4/17/19), 276 So.3d 538, 544. Nevertheless, we are mindful that, as penalty provisions, La. R.S. 13:4611(g) and La. C.C.P. art. 1420(D) must be strictly construed. Maxie, 669 So.2d at 566. A penalty should be tailored not only to punish the violator but also to accomplish some useful end. The goal in imposing sanctions is to correct litigation abuse. See Moffett, 67 So.3d at 1292.

Fifth Assignment of Error – the trial court erred by awarding excessive and unnecessary expert fees and did not follow the mandates of La. R.S. 13:3666.

As noted, the total amount of attorney fees and costs awarded to Gina ($148,666.60) is supported by Ms. Prater Bailey's affidavit and fee itemization, which evidences that $62,377.00 of the total represents expenses paid by and awarded to Gina for Mr. Levy's services. Keith complains that the trial court “completely ignored” La. R.S. 13:3666 and awarded “every submitted fee” included in the fee itemization without “any analysis or justification.”

Expert witnesses called to testify in court “shall receive additional compensation, to be fixed by the court, with reference to the value of time employed and the degree of learning or skill required.” La. R.S. 13:3666(A). The court shall determine the amount of expert witness fees, which is to be taxed as costs to be paid by the party cast in judgment, either from the testimony of the expert relative to his time rendered and the cost of his services related to the matter or by rule to show cause. La. R.S. 13:3666(B). Expert witnesses are entitled to reasonable compensation for their time in court and for preparatory work done. Although a party can tax the reasonable cost of time spent by the expert in gathering facts necessary for his testimony, he may not include the time spent in consultation that only assists the attorney in preparation for the litigation. Falgout, 392 So.3d at 679. Fees for time spent in consultation and other matters that simply benefit the attorney are not properly taxed as costs. Board of Supervisors of Louisiana State University and Agricultural and Mechanical College v. 1732 Canal St., L.L.C., 2013-0976 (La. App. 4th Cir. 1/15/14), 133 So.3d 109, 127.

The assessment of expert fees is based upon the unique findings and observations of the trier of fact. Rauch-Milliken International, Inc. v. Halprin, 09-723 (La. App. 5th Cir. 12/29/09), 30 So.3d 879, 884. A trial court may fix expert witness fees based upon its own observations and evidence presented at trial. Falgout, 392 So.3d at 679. Factors to be considered by the trial court in setting an expert witness fee include: (1) time spent testifying, (2) time spent in preparatory work for trial, (3) time spent away from regular duties while waiting to testify, (4) the extent and nature of the work performed, and (5) the knowledge, attainments and skill of the expert. Additional considerations include the helpfulness of the expert's report and testimony to the trial court, the amount in controversy, the complexity of the problem addressed by the expert, and awards to experts in similar cases. Falgout, 392 So.3d at 679. Although a trial judge is not required to set an expert witness fee at the amount charged by the expert witness, the court may award the full amount charged by an expert witness if the amount is reasonable in light of the factors. Hanover Ins. Co. v. Riceland Aviation, Inc., 2020-153 (La. App. 3d Cir. 12/9/20), 309 So.3d 785, 788.

Mr. Levy was accepted by the trial court as an expert in forensic accounting.²³ Mr. Levy testified at the April 21 and May 19, 2023 contempt trials and prepared two forensic accounting reports concerning the issues before the court. Mr. Levy's testimony and reports reflect the work he performed to successfully locate and trace community funds and accounts, which Keith failed to disclose, moved, and/or kept from Gina.²⁴ Mr. Levy's role was not to consult with Ms. Prater Bailey to assist her in preparing for the litigation. See Falgout, 392 So.3d at 679. Nor did he simply “weed through discovery responses,” as Keith asserts. Instead, Mr. Levy undertook the arduous, time-consuming task of examining 28,000 documents, including complicated financial statements, to “discover the accounts and the movement of money.” Some of Mr. Levy's work included tracking Keith's unauthorized transfers of $644,585.97 and $14,679.88 of community funds (contempt no. 2 and no. 3), determining that Keith distributed to himself $52,917.53 more than he should have pursuant to the first stipulated judgment (contempt no. 5), and discovering that Keith underreported his salary by millions of dollars (second rule for contempt). Thus, the amount in controversy was substantial.

Concerning the second rule for contempt related to discovery, the trial court concluded that Keith put the burden on Gina to subpoena information to find community funds and should bear all of Gina's out-of-pocket expenses required to obtain the information sought through discovery. See La. C.C.P. art. 1420(D). This includes Mr. Levy's fees. As an example, Gina's discovery requests asked Keith to identify the current location of $100,000.00 that he removed from the community IRA.²⁵ In response, Keith produced documents and a lengthy summary spreadsheet purportedly providing this information and establishing that he spent $83,369.21 of the $100,000.00 on community obligations. Mr. Levy put substantial work into reviewing the documents and spreadsheet produced by Keith, and even met with Keith's attorney, and ultimately determined the information provided by Keith did not trace the $100,000.00 removed from the IRA or establish the funds were used to benefit the community. Additionally, Mr. Levy's efforts uncovering accounts and determining Keith's actual salary were necessary due to Keith's discovery responses. Thus, we find no merit in Keith's argument that “it is absurd to award expert fees for forensic accounting” when Gina's second rule for contempt only concerned discovery.

It is evident the trial court relied heavily on Mr. Levy's work, noting that Mr. Levy followed everything Keith did with the community assets and “every contemptuous act or failure to act.” The trial court also cited Mr. Levy's reports and testimony numerous times in its written reasons for judgment. At the conclusion of the September 2023 hearing on fees and costs, the trial court stated that he “should give [Mr. Levy] the fees and a star.” We can reach no other conclusion than that the trial court determined Mr. Levy's services were worth every penny. Similarly, we find the trial court awarded full reimbursement to Gina of Mr. Levy's fees as a penalty to punish Keith for what the trial court undoubtedly found was litigation abuse. See La. C.C.P. art. 1420; Moffett, 67 So.3d at 1292.

Although expert fee awards in similar cases are considered when determining the reasonableness of a particular award, Keith and Gina do not cite and we have not found any cases that are sufficiently similar for comparison. Here, it is particularly true that the determination of the reasonableness of the expert fee award turns on the particular facts and circumstances of this case. See Board of Supervisors, 133 So.3d at 119-20.

Sixth Assignment of Error – the trial court erred by awarding excessive attorney fees dating back nearly two years before the rule for contempt was filed.

The fee itemization shows that Gina paid $77,347.70 in attorney fees in connection with Keith's contempt violations, which the trial court awarded to Gina as reimbursement.

Keith asserts the award was excessive because it included attorney fees incurred by Gina years before the first rule for contempt was filed. He further asserts the fee was excessive, considering it should be limited to three full days of trial, appearance at the September 2023 hearing, drafting three rules for contempt, and research and preparation for the contempt trials. Keith cites Anny v. Johnson, 2021-0568 (La. App. 1st Cir. 8/16/22), 348 So.3d 747, 762, writ granted in part and remanded, 2022-01410 (La. 12/6/22), 350 So.3d 866,²⁶ affirming an attorney fee award of $19,959.54 where the attorney made eight court appearances, attended two full days of trial, participated in numerous status conferences, prepared seven rules for contempt and a motion to compel, conducted research, prepared for court appearances, and received and responded to phone calls and correspondence from opposing counsel.²⁷

Factors to be taken into consideration in determining the reasonableness of attorney 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; Anny, 348 So.3d at 762. The trial court is also allowed to call upon its own experience and expertise in the valuation of legal services rendered by an attorney. Action Oilfield Services, Inc., 276 So.3d at 544. Notably, Keith does not cite any cases, and we have found none, that limit an attorney fee award under La. R.S. 13:4611(g) to fees incurred after a contempt petition is filed.

Ms. Prater Bailey successfully proved that Keith committed numerous, unique contempt violations, with several of those violations being repeat offenses or ongoing violations. She also successfully proved that Keith violated the rules of discovery, for which he was also held in contempt. It is evident from the record that, but for Ms. Prater Bailey's relentless efforts, Gina would have been significantly disadvantaged and unable to adequately represent her interests in the community property partition due to Keith's contemptuous actions and exclusive control over the family's finances.²⁸

The fee itemization reflects that substantial fees were incurred issuing subpoenas to third parties, particularly to financial institutions, communicating with these entities, and reviewing responsive documents. These costs would not have been incurred but for Keith's actions – his refusal to identify all financial accounts, his unauthorized movement of money, and his failure to accurately disclose and deposit the parties’ rental income, to name a few.²⁹ Otherwise, the more substantial charges reflected on the fee itemization are for counsel's preparation for and appearance at the contempt trials. Additionally, some component of the attorney fee award was imposed as a sanction pursuant to La. C.C.P. art. 1420(D).

Keith also takes issue with the accuracy of the fee itemization, citing Gina's testimony that she retroactively connected the contempt violation or rule with each fee after Keith was found in contempt. After considering the evidence and issues presented in the rules of contempt, we find no issue with this approach. As fees were incurred, Gina was unaware that Keith was violating the stipulated judgments and permanent injunction; thus, the fees could not be contemporaneously assigned to a particular contempt. Although suspected, Keith's contemptuous actions were only confirmed after the fees were incurred, after Mr. Levy and Ms. Prater Bailey painstakingly uncovered the missing money, the undisclosed accounts, the cancelled membership, the grossly underreported salary and rental income, etc.³⁰

Although we acknowledge the amount awarded for attorney fees is high, it is not so high that we find the trial court abused its vast discretion, considering the unique facts of this case, the trial court's familiarity with the proceeding and the parties, and the court's findings concerning Keith's pattern of willful contempt and discovery violations over several years.³¹

In Bourne v. Bourne, 2013-2170 (La. App. 1st Cir. 6/18/14), 2014 WL 3702486, *8 (unpublished), writ denied, 2014-1791 (La. 9/12/14), 148 So.3d 936, this court upheld an award of $7,825.00 in attorney fees for 31.3 hours related to single contempt motion. The trial court noted the plaintiff, the party in contempt, continued a pattern of patronizing and controlling the defendant, the party who filed the rule for contempt, and unilaterally placed limitations and conditions on court orders. Within 10 days of the consent judgment, the plaintiff again placed his own conditions and restrictions on the parties’ visitation schedule. Bourne, 2014 WL 3 702486, at *6. The trial court found the plaintiff was not credible and noted its experience with the case and knowledge that the plaintiff's patterns continued. Bourne, 2014 WL 3 702486 at *6.

In Hagen v. Hagen, 2023-0242 (La. App. 1st Cir. 9/15/23), 376 So.3d 159, 167, this court refused to increase an award of attorney fees, noting the trial court was “well-aware of the parties, the issues involved in the litigation, and the time spent” by counsel on the litigation, in preparation of trial, and at trial, and it determined that an award of $1,500.00 was warranted. See D’ Amico v. Burnthorne, 23-80 (La. App. 5th Cir. 12/6/23), 378 So.3d 174, 189, writ denied, 2024-00034 (La. 2/27/24), 379 So.3d 1268 (finding no abuse of discretion in the trial court's award of $45,000.00 in attorney fees to the prevailing party in a “contentious contempt proceeding” that was pending for several years.)

Similarly, here, we cannot substitute our discretion for that of the trial court, who was familiar with the parties, the issues, and the history of the case, particularly where the trial court articulated a definitive credibility finding against Keith and noted his history of “deceit.” See Hagan, 376 So.3d at 167. Exercising its vast discretion, the trial court elected to award Gina a dollar-for-dollar reimbursement of all expenses she incurred due to Keith's contempt and discovery violations.

Reduction of Fines and Fees for Contempt Findings Reversed on Appeal

Because we reverse the trial court's findings of contempt on nos. 10, 11, 15, and 34, we consider whether the amount of attorney fees and expert fees awarded to Gina must be reduced and, if so, by how much. We must also reduce the amount of fines imposed upon Keith, to be paid to the court, for these contempts.

Contempt no. 7: First, we note that, although we reversed the amended judgment to the extent it ordered Keith to pay $18,284.86 to Gina for non-payment of rental income, Keith did not appeal the finding of contempt on no. 7. Therefore, we do not reduce the amount of fees awarded to Gina or the $500 fine imposed against Keith as a result of his contempt.

Contempt No. 10 and No. 11: These contempt allegations concern the community Fidelity account, stem from Keith's failure to comply with the second stipulated judgment, and were raised in Gina's first rule for contempt. As stated, no evidence or testimony on these two contempt allegations was presented during the April 2023 contempt trial. Thus, Ms. Prater Bailey's attorney fees for preparing for and attending the trial will not be reduced. Mr. Levy testified during his September 2023 deposition that he did not perform work related to these concepts; therefore, his fees will not be reduced.

The fee itemization contains numerous entries related to Fidelity, primarily concerning document subpoenas, but none are identified as charges related to contempt no. 10 or no. 11.³² The entries identified as being related to Fidelity and the first rule for contempt, with no additional information provided, and incurred between the entry of the second stipulated judgment (August 10, 2021) and the March 13, 2023 judgment total $1,112.52.³³ Additionally, the fee itemization contains expenses totaling $3,589.86 for drafting the first rule for contempt. The trial court ruled in Gina's favor on nine contempt violations concerning the Fidelity accounts raised in the first rule for contempt.³⁴ Thus, Gina incurred $522.49 per Fidelity-related violation.³⁵ We reduce Gina's total award by $1,044.98 to account for our reversal of the trial court's award of fees and costs related to contempt no. 10 and no. 11.³⁶ We further vacate the $500 fine imposed upon Keith, payable to the trial court, in connection with contempt no. 11.

Contempt No. 15: Mr. Levy, Gina, Keith, and the Shorts’ son testified at the April 2023 contempt trial concerning this contempt related to the PPP loan. Mr. Levy's testimony and his August 2022 report simply confirmed that Gina paid the loan in foil. No analysis or calculations were performed, and Mr. Levy explained that his role for this contempt was “[j]ust to verify that it wasn't paid” by Keith. He explained this contempt “wasn't really a big part of what [he] did.” Therefore, a minimal reduction of Mr. Levy's fees in the amount of $265.00, his hourly rate, is appropriate.

The fee itemization includes three charges expressly related to the PPP loan totaling $312.50.³⁷ We cannot determine whether any other fees or expenses, such as those for preparing or reviewing subpoenas or communicating with opposing counsel, are directly or solely related to this contempt. However, Ms. Prater Bailey spent some amount of time preparing to present contempt no. 15 to the trial court, and time was likewise spent during the contempt trial questioning witnesses about this issue. The fee itemization includes attorney fees totaling $15,918.00 for preparation and attendance at the April 2023 contempt trial, during which Gina successfully prosecuted 14 contempt violations. If Ms. Prater Bailey's fee of $15,918.00 is divided among the 14 contempts, it results in $1,137.00 per violation. Thus, the total reduction for contempt no. 15 is $l,714.50.³⁸ We further vacate the $500 fine imposed upon Keith, payable to the trial court, in connection with contempt no. 15.

Contempt No. 34: Mr. Levy did not offer opinions, either live or in his reports, concerning contempt no. 34 related to the locks on the LSU condo. This contempt was established through Gina and Keith's testimony at the April 2023 trial. The fee itemization does not contain expenses obviously related to contempt no. 34; thus, we reduce the attorney fee award for this contempt by $1,137.00, pursuant to the per violation calculation set forth above. We further vacate the $500 fine imposed upon Keith, payable to the trial court, in connection with contempt no. 34.

Recalculation of Fees and Costs: We reduce the award of attorney fees and expert fees owed by Keith to Gina by $3,896.48 ³⁹ and amend the judgment to award a total of $144,770.12 ⁴⁰ to Gina as reimbursement for all fees and costs she incurred as a sole result of Keith's contempts of court. We further reduce the amount of fines imposed against Keith by the trial court by $1,500.00, bringing the total amount of fees owed by Keith, payable to the trial court, to $15,000.00.

KEITH'S MOTION TO STRIKE

Keith filed a motion with this court, seeking to strike the trial court's order granting Gina's motion to supplement the appellate record. Specifically, the order directed the clerk of court for the trial court to supplement the appellate record with transcript pages from the parties’ July 2023 partition trial. There is no procedural mechanism for this court to “strike” an order of the trial court when the order is not before this court in an application for supervisory writ or a properly filed appeal.⁴¹ The motion to strike is denied.

Nevertheless, this court may not consider testimony elicited after the contempt trials. The trial court did not consider the testimony provided at the July 31, 2023 partition trial when it made its contempt findings and rendered the November 3, 2023 amended judgment, and neither can we. Therefore, our review of the record is limited to the testimony and evidence presented to the trial court at the April and May 2023 contempt trials and at the September 2023 contradictory hearing to determine fees and costs.⁴²

GINA'S ANSWER TO APPEAL

In her answer to Keith's appeal, Gina requested to recover all attorney fees and costs incurred answering and defending the appeal and also requested damages for Keith's purported frivolous appeal. See La. C.C.P. arts. 2133 and 2164, Uniform Rules of Louisiana Courts of Appeal, Rule 2-19. Because Keith successfully appealed some of the trial court's rulings and award, we deny the answer to the appeal.

CONCLUSION

We reverse the contempt findings in paragraph ILL (contempt no. 10), paragraph II.J. (contempt no. 11), paragraph II.M. (contempt no. 15), and section II.P. (contempt no. 34) of the November 3, 2023 amended judgment and vacate the punishments imposed in these paragraphs. We reverse and vacate the portion of paragraph ILF. (contempt no. 7) of the November 3, 2023 amended judgment that orders James Keith Short to pay Gina Short the amount of $18,284.86 for nonpayment of rental income. Finally, we reverse and vacate the imposition of $1,500.00 in fines against Keith Short, payable to the court.

We amend section IV of the November 3, 2023 amended judgment and award $144,770.12 in favor of Gina Short and against James Keith Short, as reimbursement for all fees and costs incurred by Gina as a sole result of Keith's contempts of court, and order Keith to pay a fine in the total amount of $15,000.00 to the trial court for his willful and intentional refusal to adhere to the court's orders. Accordingly, we amend section V of the November 3, 2023 amended judgment to state that James Keith Short owes a total of $320,533.66.⁴³ The November 3, 2023 amended judgment is affirmed in all other respects.

James Keith Short's motion to strike is denied. Gina Short's answer to the appeal is denied. All costs of this appeal are assessed against James Keith Short.

MOTION TO STRIKE DENIED. ANSWER TO APPEAL DENIED. JUDGMENT REVERSED IN PART, VACATED IN PART, AND AFFIRMED IN PART AS AMENDED.

FOOTNOTES

2.   There is a discrepancy in the judgment as to this amount. Paragraph ILF. states the amount of rental income owed to Gina is $18,264.86; however, paragraph IV states the rental payment is $18,284.86. The total amount owed by Keith includes $18,284.86; therefore, we rely on this number.

3.   A judgment of divorce was entered on August 12, 2021.

4.   The second stipulated judgment stated that all previous orders and judgments remain in effect unless specifically modified. No pertinent modifications were made to the previous judgments.

5.   A stipulated or consent judgment is a judgment of the court punishable by contempt. Greene v. Greene, 2019-37 (La. App. 5th Cir. 12/11/19), 286 So.3d 1103, 1121. Additionally, disobedience of or resistance to a temporary restraining order or preliminary or final injunction is punishable as a contempt of court. La. C.C.P. art. 3611.

6.   Keith does not appeal several contempt findings.

7.   One of the parties’ sons also testified concerning contempt no. 15.

8.   The trial court ordered that Keith be sentenced to six months in jail suspended until October 24, 2023. The sentence was deferred provided that Keith pay all amounts owed.

9.   Keith's parents also testified.

10.   In its original judgment, signed on September 25, 2023, the trial court ordered Keith to pay $142,778.85 to Gina as reimbursement for attorney fees, costs, and expert fees. Keith filed a motion for new trial, pertinently asserting that attorney fees and court costs were awarded ex parte, contrary to law and the court's previous statement that a hearing would be held on the issue of attorney fees. The trial court granted Keith's motion for new trial in part and conducted a hearing to determine the amount of attorney fees and costs to be awarded to Gina and to correct any mathematical errors. Thereafter, the trial court signed the November 3, 2023 amended judgment, ordering Keith to pay $148,666.60 to Gina as reimbursement for all attorney fees and costs incurred as a sole result of Keith's contempts.

11.   The fee itemization includes the following entries identified as Mr. Levy's fees: $62.50 (October 29, 2021); $3,047.50 (August 2022); $1,775.00 (February 2023); $3,325.75 (April 2023); $3,246.25 (May 2023); $27,467.25(2021-2023); and $23,452.75 (2021-2022).

12.   The fee itemization reflects the following totals for “Court Fees Filing” and “Court Fees” incurred by Gina: $549.94 (2020); $2,608.82 (2021); $1,775.44 (2022); and $4,007.70 (2023). Louisiana Code of Civil Procedure Article 1920 and La. R.S. 13:4533 provide for an award of court costs and identify what may be taxed as costs, respectfully. Keith does not appeal the trial court's award of costs.

13.   The attorney fee award was calculated by subtracting $62,377.00 (Mr. Levy's fees) and $8,941.90 (court fees) from $148,666.60 (total awarded to Gina).

14.   Louisiana Civil Code Article 802 states, “Except as otherwise provided in Article 801, a co-owner is entitled to use the thing held in indivision according to its destination, but he cannot prevent another co-owner from making such use of it. As against third persons, a co-owner has the right to use and enjoy the thing as if he were the sole owner.”

15.   Contrary to Keith's argument, the word “monthly” in this paragraph of the first stipulated judgment refers to payment of the “monthly mortgage,” not expenses.

16.   Keith does not challenge the trial court's contempt finding as to the individual discovery responses found to be in violation of La. C.C.P. arts. 1457(A), 1461, and 1420. Tellingly, he does not assert on appeal that his discovery responses complied with these procedure articles.

17.   Louisiana Code of Civil Procedure Article 1469 allows a party to apply for an order from the court compelling discovery in certain, specified circumstances.

18.   To make this determination, the trial court is required to hold a contradictory, evidentiary hearing at which any party or his counsel may present any evidence or argument relevant to the issue of imposition of the sanction. La. C.C.P. art. 1420(E).

19.   In the text cited by Keith, the Greene court found no support for the contention that the wife was forced to file a motion for contempt before the husband took any steps to resolve the problem. While a solution to the problem was reached within days of the filing the expedited motion for contempt, the husband attempted to resolve the situation before he received notice that the contempt motion had been filed. Greene, 286 So.3d at 1124. The court did not hold or otherwise suggest that the violation must be on-going for a party, who undisputedly violated a court order, to be held in contempt. In fact, the court noted, hypothetically, the husband would have been in contempt if he had possession of a check from the IRS for the tax credit at the time the motion for contempt was filed or if he had attempted in any way to negotiate the funds from the IRS with the intent of keeping them for himself. Greene, 286 So.3d at 1123.

20.   A fine of not more than one thousand dollars may be imposed against a person found guilty of violating or disobeying or resisting a preliminary or permanent injunction. La. R.S. 13:4611(1)(b).

21.   In brief, Gina asserts this issue is moot because she has been paid. However, there is no evidence in the record of such payment, and we find the issue is not moot. See Bankers Ins. Co. v. Donelon, 2023-0871 (La. App. 1st Cir. 3/22/24), 388 So.3d 411, 418 (“An issue is ‘moot’ when a judgment or decree on that issue has been ‘deprived of practical significance’ or ‘made abstract or purely academic’.”)

22.   Louisiana Revised Statutes 13:4533 gives the trial court discretion to set costs other than those specifically enumerated, as equitable. Barre-Williams v. Ware, 2020-0665 (La. App. 4th Cir. 4/28/21), 365 So.3d 760, 769.

23.   Mr. Levy has nearly forty years of experience as a certified public accountant. Part of his accounting practice includes advising individuals related to transactional issues arising from divorce.

24.   For this reason, we find no merit in Keith's assertion that Mr. Levy's work was for purposes of the partition trial, not contempt. While Mr. Levy may have performed work for Gina in connection with the partition, such as the September 2021 and October 2021 letters referenced by Keith, these fees were not included on the fee itemization.

25.   This is the subject of contempt no. 1, which is not at issue in this appeal.

26.   The Louisiana Supreme Court granted writs and remanded the matter solely to reconsider the time period of imprisonment imposed pursuant to La. R.S. 13:4611. Anny, 350 So.3d 866 (per curiam).

27.   Keith also cites the testimony of Jeffrey Wittenbrink, an attorney and board-certified family law specialist, called by Keith to testify during the September 2023 hearing. Mr. Wittenbrink offered testimony related to his experience handling family law cases and what “usually” occurs. After review, we find no error to the extent the trial court chose to give minimal weight to Mr. Wittenbrink's testimony, particularly considering the unique facts of this case.

28.   The judgment from the partition trial is the subject of appeal 2025-0046.

29.   For instance, Keith failed to disclose a life insurance policy issued to his parents, which named him as the sole beneficiary with a policy payout of $1.8 million. After substantial expense, Gina learned about the policy and that Keith invested $67,870.00 of community funds into the policy.

30.   Gina also testified that she looked at every entry on Ms. Prater Bailey's invoices and cross-referenced her emails to determine the subject matter and took great care to ensure she included only those expenses attributed to the contempts before the court.

31.   For instance, the trial court considered that Keith first removed $100,000.00 from the community IRA (contempt no. 1), then removed an additional $644,585.97 (contempt no. 2). Shortly after returning the $644,585.97 to the community, Keith removed a total of $14,679.88 from the community IRA.

32.   Gina asserts on appeal that the amended judgment does not award attorney fees or expert fees related to contempt no. 10 and no. 11. However, the amended judgment orders Keith to pay attorney fees and costs to Gina for each of these contempts and also orders Keith to pay a fine for contempt no. 10. To the extent Gina contends the fee itemization does not contain fees related to these contempt violations, this is not apparent from the evidence.

33.   The fee itemization contains the following expenses, which are expressly related to Fidelity, but are not identified as being related to a specific contempt violation: $62.50 (August 25, 2021); $17.50 (November 8, 2021); $68.75 (December 9, 2021); $17.50 (December 16, 2021); $68.75 (December 21, 2021); $17.50, 137.50, $17.50 (December 29, 2021); $62.50 (February 4, 2022); $62.50 (March 29, 2022); $17.50 (March 31, 2022); $70.00, $68.75 (April 7, 2022); $68.75 (April 8, 2022); $17.50 (August 18, 2022); $17.50 (August 26, 2022); $62.50, $35.00, $17.50 (March 1, 2023); $125.02 (March 2023); $17.50, $62.50 (March 10, 2023).

34.   The contempts, which involved the Fidelity accounts and required Gina to incur expenses to obtain account statements, locate funds, etc., are nos. 1 through 7, 10, and 11.

35.   To arrive at this figure, the total Fidelity expenses related to the first rule for contempt ($1,112.52) were added to the total cost to draft the first rule for contempt ($3,589.86) then divided by nine contempt violations related to Fidelity.

36.   This figure represents the per violation amount ($522.49) multiplied by two. Although Keith recognized that a reduction of the fee award would be appropriate if we reversed the trial court's judgment on any contempt findings, he did not offer any suggestion as to how the reduction should be calculated. Gina likewise did not offer guidance. After reviewing the evidence, we find this is the most equitable way to calculate the appropriate reduction in fees.

37.   The fee itemization includes the following charges expressly related to the PPP loan: $62.50,

38.   This is the sum of $265.00 (Mr. Levy's hourly rate), $312.50 (fees/expenses), and $1,137.00 (Ms. Prater-Bailey's fee).

39.   This is the total amount of fee reduction as a result of the reversal of contempt no. 10 and no. 11 ($1,044.98), contempt no. 15 ($1,714.50), and contempt no. 34 ($1,137.00), pursuant to the calculations set forth above.

40.   This figure represents the total award of attorney fees and costs ($148,666.60) less $1,044.98 (reduction for contempt no. 10 and no. 11), less $1,714.50 (reduction for contempt no. 15), and less $1,137.00 (reduction for contempt no. 34)

41.   See La. C.C.P. arts. 1841, 1914, 1915, and 2083.

42.   The record on appeal also contains documentary evidence from the July 31, 2023 partition trial, which we likewise do not consider for purposes of this appeal.

43.   This figure represents: $160,763.54 (the amount Keith was ordered to return to the community); $144,770.12 (the amended amount owed to Gina as reimbursement for fees and costs); and $15,000.00 (fines owed to the court).

PENZATO, J.