Opinion
No. 82-308.
August 13, 1982. On Rehearing October 25, 1982.
APPEAL FROM 9TH JUDICIAL DISTRICT COURT, PARISH OF RAPIDES, STATE OF LOUISIANA, HONORABLE ALFRED A. MANSOUR, J.
MacAllynn J. Achee, Baton Rouge, for plaintiff-appellant.
Downs Downs, James C. Downs, J. Marc Lampert, Alexandria, for defendant-appellee.
Before DOMENGEAUX, FORET and STOKER, JJ.
MOTION TO DISMISS
The defendant-appellee, Richard E. Chaudoir, moves to dismiss the appeal of the plaintiff-appellant, Nora Jean Hamilton Chaudoir, on the grounds that the appellant's appeal was not timely taken. We dismiss the appeal.
The facts succinctly stated are as follows:
Nora Jean Hamilton Chaudoir, plaintiff-appellant, filed a rule against Richard E. Chaudoir, defendant-appellee, for past due alimony and child support and for an increase in amount of child support fixed by a previous judgment signed July 2, 1975. A rule was filed by Richard E. Chaudoir against Nora Jean Hamilton Chaudoir to terminate alimony fixed by the July 2, 1975 judgment and to fix certain visitation rights with the minor child, Elizabeth Jean Chaudoir. Both rules were tried together and a joint judgment was rendered on August 7, 1981; the judgment was signed November 30, 1981 and notice of judgment mailed the same day. The plaintiff-appellant filed a motion and order for appeal on January 29, 1982.
Applicable here are LSA-C.C.P. arts. 3942- 3943, as follows:
Art. 3942. Appeal from judgment granting or refusing annulment, separation, or divorce
An appeal from a judgment granting or refusing an annulment of marriage, a separation from bed and board, or a divorce can be taken only within thirty days from the applicable date provided in Article 2087(1)-(3).
Such an appeal shall suspend the execution of the judgment in so far as the judgment relates to the annulment, separation, or divorce.
Art. 3943. Appeal from judgment awarding custody or alimony
An appeal from a judgment awarding custody of a person or alimony can be taken only within the delay provided in Article 3942. Such an appeal shall not suspend the execution of the judgment in so far as the judgment relates to custody or alimony.
It is clear from a reading of the above articles that plaintiff-appellant's appeal was not timely perfected. The judgment was signed November 30, 1981 and no notice of judgment was required or requested. Therefore, the delays for filing a motion for a new trial began to run on the next day, November 31, 1981, and expired on the seventh day thereafter, exclusive of legal holidays, or on December 9, 1981. The plaintiff-appellant did not apply for a new trial, therefore the appeal delays began to run on December 10, 1981. The last day on which plaintiff-appellant could have timely appealed was January 8, 1982. The appeal is therefore dismissed at defendant-appellant's costs.
APPEAL DISMISSED.
ON REHEARING
This matter came up on appeal from a judgment on rule granting the appellant an award of $9,300.00 as unpaid alimony and child support, increasing child support to $350.00 per month, terminating alimony, and granting the appellee visitation rights. The judgment was signed on 30 November 1981. The appellant filed a motion and order for appeal on 29 January 1982, 59 days following the notice of the signing of the judgment by the trial court.
The appellee moved to dismiss the appeal on the grounds that the appeal was not perfected within the delays enumerated by Code of Civil Procedure Articles 3942 and 3943. The court, finding the appeal was filed more than 30 days after the delay for requesting a new trial, dismissed the appeal.
The appellant subsequently submitted a petition for rehearing alleging that the court erred in the dismissal of the appeal. The appellant alleges that an appeal from a judgment granting past due alimony and child support is not governed by the provisions of C.C.P. Articles 3942 and 3943. We agree.
In our initial review of this appeal, we failed to recognize that one of the issues on appeal was the trial court's failure to grant legal interest on the award of past due alimony and child support.
"A rule to fix past due alimony is not a `judgment awarding . . . alimony' within the contemplation of LSA-C.C.P. Art. 3943." Mertens v. Mertens, 308 So.2d 506 (La.App. 3rd Cir. 1975).
The appellant timely filed the appeal under the provisions of C.C.P. Art. 2087 which provides a sixty day limitation. Therefore, the appeal from that portion of the judgment not awarding legal interest on the past due alimony and child support is hereby reinstated. The dismissal as to all other elements of the appeal is affirmed at appellant's cost.
APPEAL DISMISSED IN PART, MAINTAINED IN PART.