
    Lori Ann HARDY v. Gary John HARDY.
    No. 99-CA-0283.
    Court of Appeal of Louisiana, Fourth Circuit.
    Sept. 22, 1999.
    Rehearing Denied Nov. 17, 1999.
    Theon A. Wilson, New Orleans, Louisiana, Counsel for PlaintiffiAppellee.
    Carole A. Breithoff, Metairie, Louisiana, Counsel for Defendant/Appellant.
    Court composed of Judge JOAN BERNARD ARMSTRONG, Judge MOON LANDRIEU, Judge MICHAEL E. KIRBY.
   hLANDRIEU, Judge.

Gary J. Hardy appeals the trial court’s dismissal of his rule for contempt against his former wife, Lori A. Hardy. The rule for contempt was based upon allegations that Ms. Hardy had violated the parties’ custody judgment regarding their son, Kerry. Ms. Hardy argued that no enforceable consent judgment existed, and therefore she could not be held in contempt. The trial judge agreed.

On appeal, Mr. Hardy contends that the trial court erred in finding that the consent agreement read in open court did not constitute an enforceable transaction or compromise under Louisiana Civil Code article 3071. We find no merit in this argument.

When the parties were divorced in 1992, Ms. Hardy was awarded sole custody of their then four-year-old son, Kerry. In March of 1997, Mr. Hardy filed a rule for change of custody, seeking joint custody and to have himself designated as the domiciliary parent. A custody evaluation was conducted by the Department of Family Service, which issued a report September 19,1997.

On November 7, 1997, counsel for both parties appeared in court. Mr. Hardy’s attorney stated, “This is a stipulation for a consent judgment between counsel.” Ms. Hardy’s attorney then said: ‘We have a consent judgment. | ^Basically, what we’re going to do is follow the recommendation of the family counsel Family Service [sic] custody evaluation report, which is as follows.” Counsel for Ms. Hardy then read the specific terms of the agreement into the record of the court, concluding with:

As far as the other holidays are concerned, she shall share the birthday. He gets Father’s Day, and she gets Mother’s Day. Because my client is getting the boy for the Christmas holiday, her client is going to have Thanksgiving Day. If there is going to be any deviation to this consent judgment, it has to be done in writing forty-eight hours, [sic]
Mrs. Breithoff [counsel for Mr. Hardy] will draw up the consent judgment, and forward it to me for my approval. The attorneys and the parties are to sign the consent judgment before it’s actually file [sic] in the Court.

The trial judge dismissed the rule for contempt, reasoning:

The terms, as read into the record, required both parties to agree on a version of the stipulations, sign off on it and submit it to the Court for its signature. A compromise is only valid when there is a meeting of the minds between the parties. The parties have to exactly know what they intended when the compromise was reached. [Citations omitted]. The Court finds that at the time the stipulations were read on the record there was no meeting of the minds between the parties. This is supported by the fact that the judgment was to be approved and signed by both parties before it was submitted to the Court. This never happened.

After reviewing the record, we conclude that the trial judge correctly applied the law in this case. A compromise is valid only if there is a meeting of the minds between the parties as to exactly what they intended when the compromise was reached. Grace v. Zapata Off-Shore Co., 95-0112 at p. 3 (La.App. 4 Cir. 3/29/95), 653 So.2d 704 at 706. Therefore, proof that such a meeting of the minds has | .¡occurred is a prerequisite to the application of La. Civ.Code art. 3071 referring to a transaction or compromise.

In the instant case, we agree with the trial judge that the concluding language of the agreement indicates the parties had not come to a final meeting of the minds, but rather contemplated that changes could be made, which each party would have to approve before presenting the compromise to the judge for his signature.

Moreover, we believe it would be improper to base a contempt citation on the violation of this particular agreement without any affirmative evidence of the judge’s participation in or approval of the process. Although the transcript reflects that the agreement was read in open court before Judge Medley, the judge made no comments on the record. Indeed, counsel for appellee, Ms. Hardy, asserts in his brief that Judge Medley was not actually present.

Appellant nevertheless argues that a contempt citation would be proper under La. Civ.Code art. 3071, which reads, in pertinent part:

A transaction or compromise is an agreement between two or more persons, who, for preventing or putting an end to a lawsuit, adjust their differences by mutual consent, in the manner which they agree on.... This contract must be either reduced into writing or recited in open court and capable of being transcribed from the record of the proceeding. The agreement recited in open court confers upon each of them the right of judicially enforcing its performance, although its substance may thereafter be written in a more convenient form.

In support of this argument, appellant relies on Alagdon v. Guertin, 97-0235 (La.App. 4 Cir. 10/1/97), 701 So.2d 480, writ denied, 97-2400 (La.2/12/97), 704 So.2d 1201, in which this court held that under article 3071, compromise agreements entered into between parties to a controversy and recited in open court Rare valid, and the parties have the right to judicially enforce them. The Alagdon court specifically held that such an agreement could not be considered invalid solely because it had not been reduced to writing. 701 So.2d at 482.

However, we find that the absence of any evidence of the judge’s involvement in the instant case distinguishes it from Alagdon v. Guertin, in which the court recited the facts as follows:

The Alagdons orally agreed to all the stipulations in the agreement and stated that they knew the agreement was a judgment. At the end of the hearing, the trial judge said that if a judgment was prepared, he would “sign same.”

701 So.2d at 481.

Constructive contempt of court is defined as “willful disobedience of any lawful judgment, order, mandate, writ or process of the court.” La.Code Civ. Pro. art. 224(2) (emphasis added). 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, despite the language of article 3071 giving each party to such a compromise “the right of judicially enforcing its performance.” The object and purpose of a contempt proceeding is to vindicate the authority and dignity of the court; it is not designed for the benefit of litigants. Lambert v. Adams, 347 So.2d 883, 884 (La.App. 3rd Cir.1977). Accordingly, proceedings for contempt must be strictly construed, and should not be resorted to where other remedies are provided by law. Id. at 885 (citations omitted).

In view of these principles, we do not believe contempt is an appropriate remedy in the instant case; although, if a valid compromise had been confected, each party would presumably have had the right to seek an order of the court | ^compelling the other party’s performance. We therefore find no error in the judgment of the trial court.

Accordingly, for the reasons, given, we affirm that judgment.

AFFIRMED.

KIRBY, J., DISSENTS WITH REASONS.

h KIRBY, J.,

dissenting with reasons.

I dissent because the transcript strongly suggests that both parties fully intended to enter into a binding consent judgment. Ms. Breithoff on behalf of Mr. Hardy says in the transcript: “This is a stipulation for a consent judgment-” Mr. Borstell, on behalf of Ms. Hardy said: “We have a consent judgment.” Nothing could be more clear. C.C. art. 1853 makes this a judicial confession and is full proof against those who make it. The trial court’s reasons for finding that there was no meeting of the minds were not focused as much on the intent of the parties as upon his mistaken belief that the agreement had to be transcribed into a judgment to become enforceable.

The transcript shows the attorneys described the provisions of this consent judgment in detail. It is quite clear that the parties were adopting the recommendations contained in the Family Service custody evaluation report. The majority misconstrues the sentence “If there is going to be any deviation to this consent judgment, it has to be done in writing forty-eight hours [sic.]” [Italics added.] However, the genesis of this language is paragraph 4 of the Family Service evaluation report, to wit:

|q4. The parents should share school holidays equally. Special occasions such as birthdays and graduations should be shared by both parents. They can choose to split the day or have both families participate together.
Any deviations in this schedule should be discussed by the adults and put in writing prior to the visits taking place. Both parents should be in agreement about changes in the visiting schedule prior to these changes being implemented.

It is clear that the provision dictated by Ms. Hardy’s former counsel was meant to incorporate the italicized language from recommendation 4 into the stipulation. It did not apply to the entirety of the stipulation.

The record reflects that the parties implemented the very visitation schedule at issue. It is clear they understood what it meant. . A literal application of the phrase “deviation to this consent judgment” is thus of no avail because not only did the parties not deviate in writing within forty-eight hours, they actually lived by the agreement for some time.

The fact that a formal writing was contemplated is of no moment. In virtually every domestic case the stipulation provides that it will be followed by a written formal judgment. This is for the convenience of the parties and the court. It is not meant to be a condition precedent (suspensive condition) to enforcement of the agreement. The written judgment merely serves as a neat, ready reference of the agreement facilitating its enforcement. Civil Code article 3071 makes the “recitation in open court that is capable of transcription” sacramental, not the reduction to writing in a subsequent judgment. If the signing of a subsequent consent judgment were to be a prerequisite to enforcement of the agreement, not only would we ignore the unambiguous import of the legislation but we would be facilitating chaos at the courthouse. The whole idea of compromise is that everyone gives a little in order to get a little. In these extremely emotionally | ^charged proceedings, where people are frequently vindictive and sometimes irrational, they often second guess their decision after leaving the courthouse. By making it easy for them to renege on their solemn agreement we only foment more needless litigation.

Further, the majority err when they accept a statement from counsel in an appellate brief over the face of the record. The transcript, which says the recitation occurred in open court should prevail. If the majority presumes the judge was not present, they should remand the case for a determination of that issue, for it is clear that if the judge was not present, there is no valid transaction and compromise. Sul livan v. Sullivan, 95-2122 (La.4/8/96), 671 So.2d 315 and the matter should be resolved on that issue alone.  