CourtListener opinion 11079132

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SHANNON WILLIAMS * NO. 2023-CA-0566
JOHNSON
 *
VERSUS COURT OF APPEAL
 *
FRANK MOLINE JOHNSON, FOURTH CIRCUIT
SR. *
 STATE OF LOUISIANA
 *******

 APPEAL FROM
 CIVIL DISTRICT COURT, ORLEANS PARISH
 NO. 2020-09656, DIVISION "B"
 Honorable Marissa Hutabarat
 ******
 Judge Sandra Cabrina Jenkins
 ******
(Court composed of Judge Daniel L. Dysart, Judge Sandra Cabrina Jenkins, Judge
Dale N. Atkins)

James A. Graham, Jr.
Elizabeth Anne Williams
Elizabeth M. Crocker
THE LAW OFFICE OF JAMES A. GRAHAM
701 Loyola Avenue
Suite 403
New Orleans, LA 70113
 COUNSEL FOR PLAINTIFF/APPELLEE

Michael J. Hall
Law Office of Michael J. Hall, L.L.C.
2401 Westbend Pkwy.
Ste. 2102
New Orleans, LA 70114
 COUNSEL FOR DEFENDANT/APPELLANT

 AFFIRMED
 MAY 7, 2024
 SCJ
DLD
DNA

 The defendant, Frank Johnson, appeals the trial court's judgment of April

25, 2023, finding him in contempt of court and awarding the plaintiff, Shannon

Johnson, $39,544.99 as the balance due from Mr. Johnson's retirement account as

provided for the parties' community property settlement. For the following

reasons, we affirm.

 The parties were married on July 10, 1993, and subsequently divorced in

November 2020. They executed a community property settlement agreement

before a notary public on December 20, 2020. On December 30, 2020, the parties

jointly filed a Petition to Partition Community Property and Joint Motion to

Homologate Community Property Partition Settlement Agreement. The settlement

agreement stipulated that Ms. Johnson would receive $198,000.00 from Mr.

Johnson's 401K plan with Bayer US Corporation.

 In November 2022, Ms. Johnson sought to withdraw her portion from the

401K. She received a payment on November 7, 2022, in the amount of

$158,445.01, an amount which is $39,544.99 less than to which the parties agreed.

Ms. Johnson subsequently filed a rule for contempt on September 7, 2022.

 The trial court conducted a contempt hearing on March 20, 2023, and after

taking the matter under advisement, issued a judgment on April 13, 2023, finding

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 Mr. Johnson in contempt and ordering Mr. Johnson to pay Ms. Johnson

$39,544.99, $250.00 in court costs and $500.00 in attorney fees.

 On appeal, Mr. Johnson contends that the trial court erred in finding him in

contempt of court for failing to abide by the December 30, 2020 settlement

agreement and homologation judgment and awarding Ms. Johnson $39,544.99 as

reimbursement for payment of 401K funds due to her. He argues that there was no

evidence presented that he acted in a manner that rose to the level of contempt.

 Contempt of court is "any act or omission tending to obstruct or interfere

with the orderly administration of justice, or to impair the dignity of the court or

respect for its authority." La. C.C.P. art. 221. Direct contempt of court is either a

contempt committed in the presence of the court or a party's failure to comply with

a subpoena or summons. La. C.C.P. art. 222. Constructive contempt is "any

contempt other than a direct one." La. C.C.P. art. 224. Constructive contempt

includes a party's willful disobedience of a lawful judgment. La. C.C.P. art.

224(2). In order to hold a party in constructive contempt, the trial court must find

that the party committed the violation "intentionally, purposely, and without

justifiable excuse." State through Dep't of Child. & Fam. Servs. Child Support

Enf't v. Knapp, 2016-0979, p. 13 (La. App. 4 Cir. 4/12/17), 216 So.3d 130, 140

(quoting Burst v. Schmolke, 2010-1036, p. 6 (La. App. 4 Cir. 4/6/11), 62 So.3d

829, 833). We review a trial court's finding of contempt under a manifest

erroneous standard of review. Knapp, 2016-0979, p. 11, 216 So.3d at 139. A trial

court's judgment on the issue of contempt will not be reversed unless there is an

abuse of discretion. Marullo v. Extreme Motor Sports of New Orleans, LLC, 2023-

0157, p. 4 (La. App. 4 Cir. 10/25/23), 376 So.3d 964, 968.

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 Both Ms. Johnson and Mr. Johnson testified at the contempt hearing. Ms.

Johnson testified that the December 30, 2020 settlement agreement provided that

she would receive $198,000.00 from Mr. Johnson's 401k, IRA, or retirement plan

at Bayer US. The agreement specifically stated that "Shannon Johnson will

receive $198,000.00 from Frank Johnson's 401K, IRA or retirement account at

Bayer US. Frank Johnson will execute all documents and waivers necessary to

effectuate the payout."

 Ms. Johnson referenced the three Qualified Domestic Relations Orders

("QDRO") which had been issued by the trial court in connection with the

settlement agreement. The first QDRO issued on November 12, 2021, established

that $198,000.00 was to be paid to Ms. Johnson. The QDRO provided, in pertinent

part:

 9. The Alternate Payee's interest in the Plan shall be $198,000.00 of the
 Participant's total vested account balance under the Plan as of the Valuation
 Date. . .

 10. The Alternate Payee's award is entitled to earnings (defined as gains,
 losses, dividends and interest) from the Valuation Date to the date the award
 is segregated from the Participant's account. From and after the Date of
 Segregation, the Alternate Payee's award shall be in an account under the
 Plan and shall be entitled to all earnings attributable to the investment
 therein.
 * * *
 15. Neither party shall accept any benefits from the Plan which are the
 property of the other Party. In the event the Plan Administrator
 inadvertently pays to the Participant any benefits that are assigned to the
 Alternate Payee pursuant to the terms of this order, the Participant shall
 forthwith return such benefits to the Plan.

 Due to Mr. Johnson withdrawing funds from the 401K, a second QDRO was

signed on July 13, 2022, providing that

 9. The Alternate Payee's interest in the Plan shall be $198,000.00 of
 the Participant's total vested account balance under the Plan as of the
 Valuation Date. Currently, the plan value has fallen below

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 [$]198,000.00, so the alternate payee shall be entitled to and receive a
 disbursement of the remaining balance of the plan. Since, the balance
 of the plan is below the alternate payees interest of [$]198,000.00 due
 to withdrawals of the participant, the participant shall reimburse the
 plan in accordance with the rules set forth in paragraph 15 below.

 A third QDRO was executed on August 8, 2022, containing the same

language of the second QDRO concerning the alternate payee's entitlement to

$198,000.00, and the participant's obligation to reimburse the plan if the balance of

the account falls below $198,000.00.

 Mr. Johnson stated that he withdrew approximately $214,000.00 from his

401k because he believed that the portion belonged to him. He testified that he

removed $33,000.00 from the 401k subsequent to Hurricane Ida. Mr. Johnson

testified that 401K account had a balance of $188,049.29, in the beginning of 2022.

He stated that due to market volatility, the balance dropped to $158,455.01, in

August 2022, when Ms. Johnson withdrew the money. Mr. Johnson stated that he

did not remove any funds from the account in 2022. He argued that if he owed Ms.

Johnson, it would be the difference between $198,000.00 and balance of the

account in January 2022, which was $9,950.71. Mr. Johnson asserted that because

the 401K plan was based on market volatility, he should not be held in contempt

because Ms. Johnson chose to wait until the value of the account dropped due to

the fluctuations of the stock market.

 However, as Ms. Johnson countered, the settlement agreement did not

provide that the fluctuation of the stock market would be taken into consideration

for her payout. The agreement explicitly provided the amount owed, thus, had Mr.

Johnson refrained from withdrawing from the plan prior to the disbursement of

funds to Ms. Johnson, there would have been sufficient funds for the disbursement.

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 Ms. Johnson, as the mover in the contempt hearing, had the burden of

proving that Mr. Johnson's actions, withdrawing funds from the 401K account,

leaving a balance below her share constituted constructive contempt. La. C.C.P.

art. 224(2) provides that the "[w]ilful disobedience of any lawful judgment, order,

mandate, writ, or process of the court" constitutes a "constructive contempt of

court." Ms. Johnson has met her burden. The community property settlement

agreement, in which the parties stipulated that Ms. Johnson would receive

$198,000.00 from Mr. Johnson's 401K plan with Bayer US Corporation, was made

a judgment of the court on December 30, 2020. The trial court subsequently issued

three Qualified Domestic Relations Orders regarding the disbursement of the funds

owed to Ms. Johnson from Mr. Johnson's 401K account with Bayer. Each of these

orders acknowledged that Ms. Johnson was entitled to $198,000.00 from the

account and specifically stated that "[n]either party shall accept any benefits from

the Plan which are the property of the other Party. In the event the Plan

Administrator inadvertently pays to the Participant any benefits that are assigned to

the Alternate Payee pursuant to the terms of this Order, the Participant shall

forthwith return such benefits to the Plan."

 Mr. Johnson was well aware from the settlement agreement and the QDROs

issued that he was required to leave $198,000.00 in the account as the amount

owed to Ms. Johnson. His argument that he only withdrew his share is without

merit. Under the agreement and the QDROs issued, his share was whatever was in

the account after leaving $198,000.00 in the account for the benefit of Ms.

Johnson. Mr. Johnson's withdrawals were in violation of the settlement agreement

and the QDROs, and as such, constitute constructive contempt of court. The trial

court did not abuse its discretion in finding Mr. Johnson in contempt of court and

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 awarding Ms. Johnson the remaining balance of the money owed to her,

$39,544.99, and court costs and attorney fees.

 AFFIRMED

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