ANGELO CORCEONE NUMBER 136,741 DIVISION “B”Petitioner

THE FAMILY COURTVERSUS

PARISH OF EAST BATON ROUGE

KIMBERLY CORCEONE STATE OF LOUISIANADefendant

DEFENDANTS MEMORANDUM OF LAW IN SUPPORT OF DILATORY EXCEPTION OF VAGUENESS AND AMBIGUITY, OR IN THE ALTERNATIVE MOTION TO

STRIKE, PEREMPTORY EXCEPTION OF NO RIGHT OF ACTION, AND PEREMPTORYEXCEPTION OF NO CAUSE OF

ACTION

COMES NOW, Angelo A. Corceone, made Defendant herein, appearing herein in

propria persona, who files herein his memorandum of law in support of his exceptions.

MAY IT PLEASE THE COURT:

FACTS OF THE CASE:

Petitioner, Kimberly Corceone and Defendant Angelo Corceone were married in the State

of Florida on February 23RD, 1998, of the marriage two minor children were born. The parties

moved to Baton Rouge Louisiana in approximately August of 1999. The initial Petition for

divorce was filed by the Defendant in this matter on or about June 29TH, 2000. Litigation has

been ongoing throughout the years regarding numerous aspects of the marriage and ancillary

matters thereto.

On June 20TH, of 2011 the parties in open Court entered into a Consent Judgment which

gave Defendant, Angelo Corceone, joint custody and made him domiciliary parent of the minor

children. The parties were divorced December 6TH, 2011. Defendant, Angelo Corceone requested

and after full hearing on March 6TH, 2012 was granted support on behalf of the minor children

from Petitioner Kimberly Corceone. On the day of hearing for support on behalf of the minor

children Petitioner served Defendant in open Court with a Petition entitled “Petition to amend

Custody, Child Support, Spousal Support, Sanctions and Attorney’s Fees. Specifically for this

memorandum the following hearings and orders of this Court are of specific importance and

filings are of importance.

1. Initial Petition for divorce filed by Defendant, Angelo Corceone, June 29TH, 2000.

2. Answer to the Petition for Divorce by the Petitioner Kimberly Corceone, July 24TH, 2000.

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3. Hearing of December 6Th, 2011, Public Defender appointed by this Honorable Court to represent Petitioner Kimberly Corceone on a motion for contempt filed by Defendant, Angelo Corceone.

LAW & ARGUMENT

DILATORY EXCEPTION OF VAGUENESS ANDAMBIGUITY OF THE PETITION.

Article 891 of the Louisiana Code of Civil Procedure requires that a Petition “contain a

short, clear, and concise statement of all causes of action arising out of, and of the material facts

of, the transaction or occurrence that is the subject matter of the litigation.” La. Code Civ. Proc.

art. 891. In the case at bar Petitioner makes numerous allegations throughout her Petition which

amount to nothing more than factual conclusions and fails to state sufficient material facts of

transactions or even relevant dates and times the Petitioner complains of. To cite one example,

in Paragraph #5 of her Petition, Petitioner states as follows:

Petitioner further avers that on several occasions respondent has refused to meet her in the designated place to exchange the children.

It is evident that this allegation by the Petitioner is nothing more than a factual

conclusion, is very vague and ambiguous, and clearly fails to state sufficient material facts which

would allow the Defendant to properly prepare a defense much less know what if any dates of

visitation the Petitioner complains of.

This is merely one example, Defendant submits that the Petition filed herein is on its face

vague and ambiguous with no substantiating facts. Petitioner should be ordered to amend her

Petition to identify with specificity as to the material facts of and transactions or occurrence(s)

that is the subject matter of this litigation. Open ended allegations must be set forth particularly,

not generally. See: Snoddy vs. City of Marksville, 97-27 (La. App. 3 Cir. 10/8/97) 702 So.2d 890.

…Open ended allegations must be set forth particularly, not generally. See: Snoddy vs. City of Marksville, 97-27 (La. App. 3 Cir. 10/8/97) 702 So.2d 890. Although a defendant is not entitled to demand exactitude, a Petitioner must place the defendant on notice of the nature of the facts sought to be proved in order to enable the defendant to identify the cause of action and, thus, prevent the matter’s future relitigation after a judgment is obtained in the current suit. Bustamente v. Vezina, 95-556 (La. App. 5 Cir. 1/30/96), 668 So.2d 1286. Specifically, open-ended allegations fail to adequately inform a defendant of the nature of the facts, which preclude a defendant from forming a defense, thereby warranting an exception of vagueness. Sikes v. McLean Trucking Co., 383 So.2d 111, 114 (La. App. 3 Cir. 1980).Open-ended language, such as “[a]ny and all other acts ofnegligence and/or fault which will be proven at trial of this matter” are vague andambiguous and should be stricken from the pleadings. Snoddy v. City of Marksville, 97-327 (La. App. 3 Cir. 10/8/97), 702 So.2d 890, 899. Additionally, phrases such as“including but not limited to” are not appropriate in describing injuries. See Sikes, 383So.2d at 114. When a petitioner, like the plaintiff in the

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instant case, includes suchopen-ended language, the requirements of Article 891 have not been met and the court should sustain an exception of vagueness and ambiguity. Snoddy, 702 So.2d at 899.

It is clear that the requirements of Article 891 have not been met and the Court should

sustain an exception of vagueness and ambiguity, Petitioner in the instant matter should be

ordered by this Court to amend her Petition to cure the defect(s) of her Petition within a specified

timeframe as this Honorable Court deems reasonable or in the event of default, Petitioner’s

Petition should be dismissed with prejudice.

MOTION TO STRIKE

LSA-C.C.P. art. 964 provides as follows:

The Court on motion of a party or on its own motion may at any time and after a hearing order stricken from any pleading any insufficient demand or defense or any redundant, immaterial, impertinent, or scandalous matter…

In the instant matter Petitioner seek spousal support and/or final support, Defendant

would submit that this demand is insufficient on its face. On July 24TH, 2000 Petitioner filed with

this Court an answer to the initial divorce proceeding filed on or about June 29TH, 2000 in which

she admitted to contributing to and being at fault in the breakup of the parties’ marriage.

Defendants submit that Petitioner’s admissions in her answer are a judicial confession in that she

signed the document and filed same within the record hereinabove.

Defendant submits that the admissions of the Petitioner in her response to Defendants

Petition for Divorce as to fault within her answer remove any action which she may have for

spousal support and/or final support as demanded and now before the Court. Her actions of

admitting to fault in the demise of the marriage effectually removes her from the class of persons

to whom the law grants the cause of action as asserted in her Petition.

This Court is well aware that an individual that signs and instrument is deemed to be

aware of what they are signing and cannot subsequently avoid the obligations signed therein

merely because it becomes convenient or detrimental to any cause of action which they may

subsequently assert before a Court or tribunal.

Signatures are not mere ornaments. Tweedel v. Brasseaux, 433 So.2d 133 (La.1983). A person who signs a written instrument is presumed to know its contents and cannot avoid its obligations by contending that he did not read it, or that it was not explained or that he did not understand it. First South Farm Credit, ACA v. Gailliard Farms, Inc., 38,731 (La.App.2d Cir.08/18/04), 880 So.2d 223. It is not within the province of the Courts to relieve parties of what they perceive to be bad bargains. Shepard v. Phycor of Ruston, Inc., 29,181 (La.App.2d Cir.05/07/97), 711 So.2d 288, citing, Kenny v. Oak Builders, Inc., 256

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La. 85, 235 So.2d 386 (1970).Defendant would submit that the Petitioners demand for spousal support and/or final

support demand is without merit and precluded as Defendant fails state a cause of action. See;

Gobin v. Kogel,388 So.2d 486, 487 (La.App. 4th Cir.1980);

The purpose of a motion to strike under art. 964 is to purge pleadings of redundant, immaterial, impertinent, or scandalous matter, See; Gobin v. Kogel,388 So.2d 486, 487 (La.App. 4th Cir.1980). A motion to strike is a means of clearing up the pleadings, not a means of eliminating causes of action or substantive allegations. Hazelwood Farm, Inc. v. Liberty Oil and Gas Corp., 01-0345 (La.App. 3d Cir.6/20/01), 790 So.2d 93.

Furthermore Petitioner through her actions of admitting to fault in the demise of the

marriage has removed herself from the class of persons to whom the law grants the cause of

action and right of action for support and/or final support and as such her claim should therefore

be stricken and or alternatively dismissed with prejudice herein.

PEREMPTORY EXCEPTION OF NO RIGHT OF ACTION, AND PEREMPTORYEXCEPTION OF NO CAUSE OF ACTION

SPOUSAL SUPPORT

As Defendant raised hereinabove the matter of spousal support in the instant matter is

precluded by the actions of the Petitioner in her admission to fault in the demise of the marriage.

It is evident that the issue of spousal support and/or final support should be for all the reasons

stated hereinabove be dismissed with prejudice as the Petitioner cannot amend her pleading so as

to bring before this Court a valid action for same.

Petitioner has neither a cause of action nor a right to the action for spousal support and/or

final support and Defendant’s exceptions of No Cause of Action and No Right of Action should

be sustained and judgment be rendered herein ordering that Petitioner Kimberly Corceone’s

demand for spousal support and/or final support should be dismissed with prejudice.

AMENDMENT OF STIPULATED JUDGMENT

As raised herein Petitioner’s Petition is vague and ambiguous such that is impossible to

discern what Petitioner is requesting of the Court. Defendant in order to merely attempt to

address the Petition has been forced to address numerous theories not only in Defendants motion

before the Court but also in this memorandum.

It seems that the Petitioner wishes to amend only the custody and domiciliary portion of

the judgment. Louisiana Code of Civil Procedure Article 1951 provides that a final judgment

may be amended to alter the phraseology of the judgment, as long as the substance is not

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affected, or to correct errors in calculation. A judgment, therefore, may be amended by the trial

Court when the amendment takes nothing from or adds nothing to the original judgment.

Defendant would submit that once a Consent Judgment has been entered into and is

judicially confessed to the only means by which a court can change same is by its own motion

and by agreement of the parties. Defendant would state that since there is no agreement between

the parties and this Honorable Court has not motioned to amend the Consent Judgment, if this is

what the Petition is asking of this Court to accomplish, this Court could not act upon the

Petitioners request to amend custody and domiciliary status of the minor children as this Court is

without authority to do so; see McGee v. Wilkinson, 878 So. 2d 552 - La: Court of Appeals, 1st

Circuit 2004.

Louisiana Code of Civil Procedure article 1951 provides that a final Judgment may be amended by the trial Court at any time, with or without notice, on its own motion or on motion of any party to alter the phraseology of the Judgment, but not the substance; or to correct errors of calculation. A Judgment may be amended by the Court where the Judgment takes nothing from or adds nothing to the original Judgment. However, an amendment to a Judgment which adds to, subtracts from, or in any way affects the substance of the Judgment, is considered a substantive amendment. To alter the substance of a Judgment, the proper recourse is a timely application for new trial, an action for nullity, or a timely appeal. The Louisiana Supreme Court has also recognized that, on its own motion, and with the consent of the parties, the trial Court may amend a Judgment substantively. Frisard v. Autin, 98-2637, p. 7 (La.App. 1 Cir. 12/28/99), 747 So.2d 813, 818, writ denied, 00-0126 (La.3/17/00), 756 So.2d 1145.

See also:

Bourgeios v. Kost, 02-2785 (La. 5/20/03), 846 So.2d 692; Villaume v. Villaume, 363 So.2d 448 (La.1978); Perrodin v. S. Siding Co., Inc., 524 So.2d 885 (La.App. 3 Cir.1988). In order to substantively change a judgment, the proper procedure is to file a motion for new trial, submit a timely application for appeal, or by consent of the parties. Villaume, 363 So.2d 448; In re State ex rel D.T., 03-166 (La.App. 3 Cir. 6/4/03), 847 So.2d 799. Substantive changes made without granting a new trial are invalid.

If it is the intent of the Petitioner for this Court to amend the Consent Judgment between

the parties, then the Court should dismiss Petitioner motion to amend the custody of the minor

children as stated and require that they bring a separate motion before the Court specifically for

that specific purpose and that they not cumulate their request of the amendment along with the

other requests for relief as stated in the instant Petition before the Court.

Defendant would submit that Petitioner has neither a stated a cause of action and/or a

right of action to amend the Consent Judgment between the parties and that this Court should

dismiss Petitioners request for the reasons stated herein above and Petitioner should be ordered

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by this Court to bring said action to amend the Consent Judgment before this Court within a

specified timeframe as this Honorable Court deems reasonable or in the event of default, same

should be dismissed with prejudice.

Change of Custody and Domiciliary Status of the Minor Children

Defendant in the instant matter would submit that should the Petitioner rather seek a

Motion To change Custody and Domiciliary status of the minor children than Defendant’s

Peremptory Exception as to no cause and/or right of action should be granted forthwith as

Petitioner has failed to posit before this Court within her Petition that there has been a material

change in circumstances which has occurred such that it warrants disturbing, upsetting, or

changing the lives of the minor children. Further the Petitioner fails in any respect to even allege

or state to this Court how or that any proposed modification is in any manner in the best interests

of the minor children.

The matter before the Court is almost analogous as in Pylant v. Pylant, 41 So. 3d 1282 -

La: Court of Appeals, 2nd Circuit 2010. In the instant matter the Petitioner has brought her

action as a Petition to amend custody rather than a petition for divorce as in Pylant, however as

in Pylant, Petitioner, Kimberly D. Corceone makes only statements which are factual

conclusions rather than properly stating a cause of actions and also fails to further state in any

manner whatsoever that the proposed modification would be in the best interests of the children.

The Court stated in Pylant as follows;

The 1990 changes in the statutory law regarding custody do not, as Mr. Pylant suggests, abrogate the Louisiana Supreme Court's holding in Lewis, supra, that a judgment awarding support for a child has a legally independent basis. See La. Act No. 1009; comment (e); Trettin, supra. Accordingly, the February 2006 consent judgment between the parties signed by Mr. and Ms. Pylant is a legally independent, valid and enforceable judgment, which survived the abandonment of Ms. Pylant's 2005 divorce action. As a result, Mr. Pylant was required in his divorce petition to allege that a material change in 1286*1286 circumstances had occurred warranting a modification of custody. Since Mr. Pylant did not do so, the trial Court did not err in sustaining Ms. Pylant's exception of no cause of action.In Mr. Pylant's second assignment of error, he contends that the trial Court committed manifest error in ordering him to amend his divorce petition to allege that a material change in circumstances had occurred warranting a modification of custody. Again, we disagree.As previously stated herein, the original consent judgment signed by the parties in February 2006 remained valid and enforceable when Mr. Pylant filed his petition for divorce in 2009 in which he made claims for custody and support of the minor children. Where the original custody decree is a stipulated judgment such as the one in this case, the party seeking modification must prove: (1) that there has been a material change of circumstances since the original custody decree was entered, and (2) that the proposed

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modification is in the best interest of the child. See Evans v. Lungrin, 97-0541 (La.2/6/98), 708 So.2d 731.In his petition for divorce, Mr. Pylant failed to allege that a material change in circumstances had occurred warranting a modification of custody from the 2006 consent judgment. Mr. Pylant also failed to allege that a modification of custody would serve the best interests of the children. Accordingly, the trial judge did not err when he ordered Mr. Pylant to amend his petition to cure the defect.Mr. Pylant argues in the alternative that he did allege a material change in circumstances in his divorce petition because he stated that Ms. Pylant had not "properly supervised the minor children." This statement, however, is nothing more than a factual conclusion. In order for Mr. Pylant to state a cause of action that he was entitled to a modification of the previous child custody and support judgment, he was required to allege facts that established a material change in circumstances and, further, that the proposed modification would be in the best interests of the children. See Young v. Knapp, 05-0269 (La.4/29/05), 900 So.2d 839; Baker v. LSU Health Sciences Center Institute of Professional Educ., 39,200 (La.App.2d Cir.12/15/04), 889 So.2d 1178; Evans, supra. Mr. Pylant's petition does not make allegations sufficient to meet this burden. Young, supra; Baker, supra; Evans, supra.

It is evident on the face of the Petition that the Petitioner has failed to set fort sufficient

facts showing that a material change in circumstances has occurred warranting a modification of

custody. Further the Petition is hopelessly defective as the Petitioner has failed to set forth

anything within her petition that the proposed modification is in the best interest of the children.

Defendant would submit that Defendant’s Peremptory Exception as to no cause and/or no

right of action should be sustained and Judgment be rendered herein ordering that Petitioner

Kimberly Corceone amend her Petition to cure the defect(s) of her Petition and state therein

sufficient facts as to what if any material change in circumstances have occurred warranting a

modification of custody and domiciliary status of the minor children. Petitioner should further be

ordered to state sufficient facts as how the proposed modification is in the best interest of the

children. Further ordering that Petitioner cure her defect(s) within a specified timeframe as this

Honorable Court deems reasonable and in the event of default, Petitioner’s Petition should be

dismissed with prejudice.

SANCTIONS FOR FRIVOLOUS FILING OF CONTEMPT OF COURT MOTION

Petitioner in the instant matter seeks sanctions and attorneys Fee’s against the Defendant

for bringing an action before this Court for contempt and a motion for a civil warrant. As this

Court is keenly aware, in order to impose sanctions pursuant to LSA-C.C.P. art. 863, a trial Court

must find that one of the affirmative duties imposed by LSA-C.C.P. art. 863 have been violated.

Article 863 provides, in pertinent part:

B. Pleadings need not be verified or accompanied by affidavit or certificate, except as otherwise provided by law, but the signature of an attorney or party shall constitute a

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certification by him that he has read the pleading; that to the best of his knowledge, information, and belief formed after reasonable inquiry it is well grounded in fact; that it is warranted by existing law or a good faith argument for the extension, modification, or reversal of existing law; and that it is not interposed for any improper purpose, such as to harass or to cause unnecessary delay or needless increase in the cost of litigation.. . . .D. If, upon motion of any party or upon its own motion, the Court determines that a certification has been made in violation of the provisions of this Article, the Court shall impose upon the person who made the certification or the represented party, or both, an appropriate sanction which may include an order to pay to the other party or parties the amount of the reasonable expenses incurred because of the filing of the pleading, including a reasonable attorney's fee.

Once again Petitioner makes nothing more than factual conclusion(s) of fact, within her

Petition for sanctions, Defendant would submit that said allegations are not accurate allegations

of fact sufficient to meet a burden for sanctions or even a cursory showing of facts or

circumstances which rise to the level for sanctioning of the Defendant, See;

Article 863 imposes an obligation on litigants and their attorneys to make an objectively reasonable inquiry into the facts and law; subjective good faith will not satisfy this duty of reasonable inquiry. Connelly v. Lee, 96-1213, p. 4 (La.App. 1st Cir.5/9/97), 699 So.2d 411, 414, writ denied, 97-2825 (La.1/30/98), 709 So.2d 710. The article does not empower a trial Court to impose sanctions simply because a particular argument or ground for relief is subsequently found to be unjustified; failure to prevail does not trigger an award of sanctions. Article 863 is intended to be used only in exceptional circumstances; where there is even the slightest justification for the assertion of a legal right, sanctions are not warranted. Tubbs v. Tubbs, 96-2095, p. 7 (La.App. 1st Cir.9/19/97), 700 So.2d 941, 945.

Petitioner within her pleading attempts to put before the Court that Defendant merely

filed the motion for contempt due to Petitioner refusing to Pay Defendant $50.00 dollars for gas

to pick up the minor children. Defendant would submit that when one looks at the totality of the

circumstances as set forth in Defendants motion for contempt this is furthest from fact.

Assuming arguendo that this position by the Petitioner would be accurate this in of itself

would not constitute a frivolous action or a contemptuous misuse of this Courts time as this

Court is the proper tribunal and the manner of contempt was the proper vehicle for the Defendant

with which enforce a right or to redress an injury for monetary loss. Defendant would direct this

Court to Hamilton v. Hamilton, 716 So. 2d 412 - La: Court of Appeals, 4th Circuit 1998 in which

the lower Court among other issues considered the argument of the parties over $16.00 dollars in

childcare expenses per week to be paid. Defendant would submit that the contention of the

Petitioner even when looked at as if fully accurate and factual would not be sufficient basis to

hold the Defendant in contempt or to sanction the Defendant.

Defendant would submit that the real issue before this Court is whether or not your

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Defendant has a showing of "good cause" for bringing the contempt rule against Defendant. As

can be seen from the lengthy motion which was filed before the Court, Defendant submitted not

only facts but also numerous exhibits which went to prove the factual allegations asserted within

Defendants motion. Defendant would argue that he brought this rule for contempt in good faith,

and that he filed this rule after exhausting all other means prior to filing his motion for contempt

and civil warrant. Nothing that the Petitioner Kimberly D. Corceone states within her Petition

comes close to a showing that the Defendant’s rule was brought in bad faith or as an attempt to

harass Petitioner.

Further when one looks at the record and the history of litigation between the parties one

can see that the record substantiates Defendant’s "good cause" for filing the action for protection

of his visitation rights and return of the minor children. Accordingly, to hold the Defendant liable

for sanction and attorneys' fees in this case would clearly be erroneous. See: Midyett v. Midyett,

744 So. 2d 669 - La: Court of Appeals, 2nd Circuit 1999 where the Court stated as follows;

…On the other hand, in this case, since the trial Court found that Susan was not in contempt of its ruling, the proper inquiry becomes whether or not Dan had "good cause" to institute the rule for contempt for the protection of his visitation rights. As such, "good cause" under the statute requires a different analysis depending upon which party (i.e., the mover or non-mover) becomes the "prevailing party." We therefore believe that the 676*676 "good cause" that must be shown under these circumstances is parallel to the proof that evidences a party's good faith in bringing a valid, non-frivolous suit that is not meant to harass or cause unnecessary expense to the other party. Compare, La. C.C.P. art. 863; La. R.S. 9:398.1; La. R.S. 11:264.7(C); La. R.S. 11:3363.1(H)(3); La. R.S. 22:1247(C); La. R.S. 23:1172.2(E)(3); La. R.S. 23:1200.2(C)(3); La. R.S. 37:1287(C) and (F); La. R.S. 37:2666(B); La. R.S. 40:2010.9; La. R.S. 42:11(C); Joyner v. Wear, 27,631 (La.App.2d Cir.12/6/95), 665 So.2d 634, writ denied, 96-0040 and 96-0042 (La. 02/28/96), 668 So.2d 370; and Rauch. v. Rauch, 98,730 (La.App. 5th Cir. 12/16/98), 725 So.2d 558.

Under the circumstances of this case, Dan and Susan had a history of problems with visitation...…It also appears from the record that there were serious breakdowns in communication between these parties relating to the facilitation of the father's visitation right

Therefore, the issue before this Court is whether or not the trial Court erred in finding that Dan failed to show "good cause" for bringing the contempt rule against Susan. Appellant argues that he brought this rule for contempt in good faith, and that he filed this rule after exhausting all other means (counseling, negotiation, obtaining specific time and dates for access). Nothing in the record leads us to believe that appellant's rule was brought in bad faith or as an attempt to harass the appellee. In fact, the evidence presented regarding the missed visits on February 6, 1998 and May 29-31, 1998 substantiates Dan's "good cause" for filing the action for protection of his visitation rights. Accordingly, to hold Dan liable for attorneys' fees in this case was in error and is hereby reversed.

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ATTORNEY’S FEES

Defendant now addresses the issue that the Petitioner raises within her petition that she

has been forced to hire legal counsel in order to defend the action brought forth by the Defendant

for a frivolous filing of contempt in August of 20111. This is factually inaccurate, Defendant

never filed any Motion for Contempt in August of 2011, further as to the Contempt that was filed

with this Court against the Petitioner this Court is keenly aware and as evidenced in a minute

entry of December 6Th, 2011, Petitioner in open Court was provided and appointed with pro-

bono counsel to act on her behalf and represent her for the specific action of contempt filed with

this Court by the Defendant.

Defendant would submit that Petitioner of her own volition chose to hire private counsel

to represent her subsequent to said pro-bono appointment, the Defendant should not be forced to

bear the burden and cost of the Petitioner choosing of her own volition to terminate Court

appointed counsel on her behalf and subsequently hiring private counsel.

NO JUDGMENT TO BASE THE CONTEMPT UPON

The last issue that the Defendant will address is that the Petitioner states within her

petition that there is no judgment with which to base the contempt upon. Defendant through

previous counsel filed a hand written motion in open Court which was never served upon

Defendant and now even present counsel has adopted the position this same position. Defendant

would submit to this Court that this position by the Petitioner is clearly without merit. This Court

is well aware that the orders of the Court whether orally rendered or written must be followed by

the parties before it, for the Petitioner to simply state that an oral rendering of judgment by this

Court has no legal force or efficacy and must not be followed because it has not been reduced to

writing is clearly erroneous, See; Smith v. Smith, 796 So. 2d 726 - La: Court of Appeals, 2nd

Circuit 2001 where the Court stated as follows:

…There were two bases for the trial Court's finding Ms. Smith Schooler in contempt: (1) denial of Easter visitation and (2) denial of visitation during mediation. We will address each basis independently and in turn.

Ms. Smith Schooler challenges the judgment of contempt for denial of Easter visitation arguing that there was no "order of the Court" in effect at the time of her alleged disobedience of such order. Simply put, she states that, because the written judgment reflecting the oral stipulation of the parties was not signed until

1 Defendant surmises that the Petitioner is seeking attorney fees despite not specifically stating same within her petition rather only in the title and out of an abundance of caution addresses the issue as same.

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after she denied Mr. Smith Easter visitation, there was no "order" to provide the basis of the contempt judgment. We find no merit in this argument.

Constructive contempt of Court is defined as "willful disobedience of any lawful judgment, order, mandate, writ or process of the Court." La. C.C.P. art. 224(2). A compromise read in open Court with no evidence of the judge's acceptance, approval, participation or even hearing should not be the basis of a contempt citation, particularly in child custody matters. Hardy v. Hardy, 99-0283 (La.App. 4th Cir.9/22/99), 743 So.2d 810, writ denied, 99-3558 (La.2/11/00), 754 So.2d 945. Where, however, there is evidence of the judge's participation and approval of the process or stipulation and the statement of the judge that he would sign a judgment reflecting the stipulation once prepared, we find that such stipulation is valid and judicially enforceable. See Alagdon v. Guertin, 97-0235 (La.App. 4th Cir.10/1/97), 701 So.2d 480, writ denied, 97-2400 (La.12/12/97), 704 So.2d 1201. We conclude, therefore, that the stipulation entered in open Court on March 13, 2000, could supply the basis for a finding of contempt. After close examination of the circumstances precipitating Ms. Smith Schooler's alleged violation of the stipulation, however, we find that the trial Court erred in finding her in contempt for denial of Easter visitation.(Bold Emphasis added by Defendant not appellate Court)

This Court has heard the argument of numerous times by Defendant with regard to said

matter. Further Defendant at all times has posited to this Court that he is without means with

which to pay for the cost of a transcript and that as a pauper he has requested that the transcript

be produced, to date same has not been produced. Further stating to the Court that upon the

transcript being produced Defendant will proceed forward with the contempt so as to show and

prove that the orders of the Court were as presented in the Defendants motion for Contempt and

Civil Warrant for the return of the minor children.

CONCLUSION

Defendant would submit to this Honorable Court that it is clear from the memorandum

submitted herein, applicable law submitted to this Honorable Court, and for all the forgoing

argument that the petition of the Petitioner, Kimberly D. Corceone in her Petition to amend

Custody, Child Support, Spousal Support, Sanctions and Attorney’s Fees fails to disclose a cause

of action and/or a right of action or any claims and facts for which it asserts and should be

dismissed.

Petitioner has failed to state a sufficient cause and/or right of action and judgment should

be rendered herein ordering that Petitioner Kimberly Corceone amend her Petition to cure the

defect(s) of her Petition and upon failure to do same within a specified time as granted by this

Court that her actions for Custody, Child Support, Spousal Support, Sanctions and Attorney’s

Fees should be dismissed with Prejudice.

Further Defendant submits to this Honorable Court that the Petitioner has no right of

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action and also no cause of action for a claim for spousal support and Defendant’s exceptions of

No Cause of Action and No Right of Action should be sustained and judgment be rendered

herein ordering that Petitioner Kimberly Corceone demand for spousal support and/or final

support should be dismissed with prejudice.

WHEREFORE, exceptor prays that this memorandum be deemed good and sufficient

and that the Petition of Petitioner Kimberly D. Corceone be dismissed at Petitioner’s cost.

Defendant further prays for any and all equitable relief which this Court may be inclined to

grant.

RESPECTFULLY SUBMITTED,

________________________Angelo A. Corceone –Pro Se4161 SouthparkBaton Rouge, Louisiana 70816Telephone: 225-907-5534Facsimile: 805-669-3235Email: acorceone@yahoo.com

CERTIFICATE OF SERVICE

I HEREBY CERTIFY that I have served a copy of the foregoing pleading on all

counsel to this proceeding by facsimile transmission, hand delivery, or by placing same in the

United States mail, first class, postage prepaid, this _____day of May, 2012.

____________________________Angelo A. Corceone-Pro Se

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