Opinion
No. 02-1066.
March 5, 2003.
APPEAL FROM THE FIFTEENTH JUDICIAL DISTRICT PARISH OF LAFAYETTE NUMBER 975531 HONORABLE RONALD D. COX.
David Sterling Fitzgerald Jr., Lafayette, LA, COUNSEL FOR PLAINTIFF/APPELLANT William Lee Lawrence.
Martha Josephine Bush Chandler, Lafayette, LA, COUNSEL FOR DEFENDANT/APPELLEE Judith Menard Lawrence.
Dan K. Kennison, Lafayette, LA, COUNSEL FOR DEFENDANT/APPELLEE Judith Menard Lawrence.
Judith Menard Lawrence, In Proper Person, Milton, LA,
Court composed of Sylvia R. Cooks, Jimmie C. Peters, Marc. T. Amy, Glenn B. Gremillion, and Elizabeth A. Pickett, Judges.
The plaintiff, William Lee Lawrence, appeals the judgment of the trial court granting a permanent injunction prohibiting him from coming within five hundred feet of the defendant, Judith Menard Lawrence. For the following reasons, we reverse.
FACTUAL AND PROCEDURAL BACKGROUND
William and Judith were married on December 24, 1994. William filed for divorce from Judith on November 13, 1997. On November 19, 1997, Judith was served with a temporary restraining order prohibiting her from harassing or contacting William. On November 26, 1997, a temporary restraining order was granted prohibiting William from harassing or contacting Judith. On July 6, 1998, William and Judith were granted a divorce pursuant to La.Civ. Code art. 106. The divorce judgment was silent as to any injunction under La.R.S. 9:372. On December 6, 2001, Judith filed a rule for contempt, and permanent injunction. On January 18, 2002, William filed a rule to show cause for contempt, sanctions, attorney's fees, court costs, and for injunctive relief. After a hearing on February 7, 2002, the trial court denied William's rule for contempt, and granted Judith's, finding that William had harassed her in violation of the court's orders. Subsequently, on April 16, 2002, the trial court executed a judgment ordering that a permanent injunction be issued under La.R.S. 9:372. William timely appealed to this court.
ISSUES
William argues it was an error of law for the trial court to grant a permanent injunction pursuant to La.R.S. 9:372, because the parties had been divorced for over three years at the time it was issued.
Appellate review of a question of law is simply a decision as to whether the trial court's decision is legally correct or incorrect. Jim Walter Homes, Inc. v. Jessen, 98-1685 (La.App. 3 Cir. 3/31/99), 732 So.2d 699. If the trial court's decision was based on its erroneous application of law, its decision is not entitled to deference by the reviewing court. Kem Search, Inc. v. Sheffield, 434 So.2d 1067 (La. 1983). When an appellate court finds that a reversible error of law was made in the lower court, it must redetermine the facts de novo from the entire record and render a judgment on the merits. Lasha v. Olin Corp., 625 So.2d 1002 (La. 1993).
La.R.S. 9:372(A) states (emphasis added):
In a proceeding for divorce, a court may grant an injunction prohibiting a spouse from harassing or physically or sexually abusing the other spouse or a child of either of the parties.
In Steele v. Steele, 591 So.2d 810 (La.App. 3 Cir. 1991), the plaintiff appealed the trial court's denial of her rule for contempt against the defendant for violating injunctions issued prior to the divorce decree. Neither the judgment of separation nor judgment of divorce, rendered in March 1989, mentioned the injunction. In December 1989, the plaintiff filed a complaint requesting that the defendant be held in contempt. The trial court dismissed the plaintiff's rule, based upon Walters v. Walters, 540 So.2d 1026 (La.App. 2 Cir. 1989). We affirmed, quoting with approval Walters, stating:
Unlike the provisions in Title 46, LRS 9:306 does not specify or limit the duration of the injunction prohibiting physical or sexual abuse of a "petitioning spouse." This statute, however, clearly treats such an injunction as incidental to the filing of the separation or divorce action by a petitioning spouse.
The former La.R.S. 9:306 is now La.R.S. 9:372.
Being incidental to the separation action, an injunction derived from LRS 9:306 which is ordered in a separation judgment must be held ineffective and unenforceable where it is not expressly continued or ordered in the later divorce judgment. Thornton v. Floyd, 229 La. 237, 85 So.2d 499 (La. 1956).
Steele, 591 So.2d at 812, quoting, Walters, 540 So.2d at 1029. We went on to hold that, because the injunction was not mentioned in either the separation or divorce judgment, it was extinguished by law.
Furthermore, by the clear wording of the this statute, the legislature intended that a spouse, who is being physically or sexually abused during the pendency of the divorce proceeding, be able to obtain injunctive relief. Numerous other statutes dealing with divorce proceedings clearly refer to the time within which the parties can act and state: "In a proceeding for divorce or thereafter," thus indicating a time period beyond the rendering of the judgment of divorce. We, therefore, can only conclude that the legislature intended that the injunctive relief provided for in La.R.S. 9:372 must be instituted by the victim-spouse during the pendency of the divorce proceedings. Thus, the trial court erred in granting Judith a permanent injunction under this article, some three years following the completion of the proceeding for divorce when the divorce decree was silent as to any injunctions.
See La.Civ. Code arts. 111, 131, and 121.
CONCLUSION
The ruling of the trial court is reversed. Costs of this appeal are assessed equally between the plaintiff, William Lee Lawrence, and the defendant, Judith Menard Lawrence. REVERSED.
Cooks, J., Dissents, with written reasons.
The majority cites Steele v. Steele, 591 So.2d 810 (La.App. 3 Cir. 1991) which affirmed the trial court's denial of the plaintiff's rule for contempt against her former husband for violating injunctions issued prior to the divorce decree. In Steele, neither the judgment of separation nor judgment of divorce mentioned the injunction. I agree with the decision in Steele. However, the holding of Steele does not apply to the facts of this case. For that reason, I must disagree with the majority opinion.
Judith and William Lawrence were divorced on July 6, 1998 and it is true the judgment of divorce does not mention an injunction. However, on May 8, 2001 Judith filed a Petition for Possession of Community Immovable alleging among other things "Defendant has in the past physically accosted and harmed her. She is therefore entitled to an injunction without bond prohibiting the Defendant from any contact with the Plaintiff." On July 5, 2001, the district judge signed a Rule to Show Cause why an injunction should not issue prohibiting William from going near Judith.
On July 16, 2001 Stipulated Judgment was signed by both parties which stated: "IT IS FURTHER ORDERED, ADJUDGED AND DECREED that William Lee Lawrence and Judith Menard Lawrence shall be enjoined from abuse and harassment of each other." William did not appeal this judgment and it, therefore, became final. On December 6, 2001, Judith filed a Rule for Contempt and for Permanent Injunction alleging William violated the Stipulated Judgment of July 16, 2000. On January 18, 2002, William followed suit with his own Rule to Show Cause for Contempt, Sanctions, Attorney's Fees, Court Costs and for Injunctive Relief. He alleged in his petition Judith violated the "Stipulated Judgment rendered on June 19, 2001 and signed by the Court on July 16, 2001" by contacting "his employer both by mail and by telephone in an effort to jeopardize his employment which constitutes abject harassment on her part. . . ." A hearing was held on both petitions on February 7, 2002. The trial court held:
The Court has — what we have is two rules for contempt, one filed by Mr. Lawrence, which the Court denies, since there was no proof of contempt of the Court by her. As to Ms. Lawrence's rule for contempt, the Court finds in her favor and finds that Mr. Lawrence, based on the testimony of the witnesses here today, has violated the previous order of this Court, several orders of the Court, but that basically being July 16, 2001, where he was enjoined from abuse and harassment of her. The Court finds, based on the testimony of these people, all of the witnesses, that he has conducted a system of harassment of her, therefore, the Court finds him in contempt of Court and orders him to serve 60 days in the parish jail.
(Emphasis added)
Judgment based on the hearing was signed April 16, 2001, which judgment William now appeals. While it is true the April 16, 2001 judgment cites La.R.S. 9:372 as the basis for issuing the injunction, it is clear from the record the judgment which was actually enforced is the Stipulated Judgment of July 16, 2001, not the Judgment of Divorce. William neither appealed nor filed to annul the Stipulated Judgment of July 16, 2001. It became a final judgment and, in fact, he sought to enforce it. While the April 16, 2001 judgment cites the incorrect article as the basis for the decision, it is clear, from the record, the decision of the trial court is correct and should be affirmed.
In other words, William, through this appeal, is attempting to nullify the July 16, 2001 judgment he stipulated to and which he is now barred from attacking in any proceeding. The present appeal is nothing more than a disguised attempt to prevent enforcement of the Stipulated Judgment of July 16, 2001. I concede William has done a pretty good job of keeping us focused on the April 16, 2002 judgment and trying to convince us that judgment is somehow a "new" judgment which provides him opportunity to rely on the holding in Steele to prevent its enforcement.
The July 16, 2001 judgment may have been improvidently issued in this proceeding subsequent to the divorce, however, it is well settled law that a judgment which is final may be premised on "bad jurisprudence" or "rendered without codal or statutory mandate" but once it becomes final only those "defects" found in the nullity provisions will bar its enforcement. Here, William had full opportunity to protest the signing of the judgment he actually stipulated to by filing an appeal with this Court. He failed to do so and therefore failed to urge, when he should have, that the holding in Steele bars enforcement of the July 16, 2001 judgment. As a consequence of his own failure, the law presumes he waived this right and his belated attempt to voice objection to the judge's authority under La.R.S. 9:372 to enforce his previous judgment comes too late. Although the April 16, 2002 judgment cites 9:372, the judge's oral reasons makes clear it is nothing more than an order enforcing the July 16, 2001 judgment which is final and non-appealable. It is also well settled law if there exists any basis in law to uphold a judgment, though the judge may articulate insufficient grounds for its maintenance, we may take liberty only to remark "for different reasons . . . we affirm." Ample basis exists in this case to affirm the order which merely seeks to enforce a final judgment.