Opinion
No. 7480.
January 8, 1976. Rehearing Denied February 10, 1976. Writ Refused March 19, 1976.
APPEAL FROM TWENTY-FOURTH JUDICIAL DISTRICT COURT, PARISH OF JEFFERSON, STATE OF LOUISIANA, HONORABLE GORDON L. BYNUM, J.
Michael E. Soileau, New Orleans, for John McRay Mollish, plaintiff-appellant.
Clyde A. Ramirez, New Orleans, for defendant-appellee.
Before LEMMON, GULOTTA and SCHOTT, JJ.
Before LEMMON, GULOTTA and SCHOTT, JJ.
This appeal was from a judgment dismissing appellant's petition for a writ of habeas corpus. The judgment was signed on February 25, 1975, the motion for appeal was filed on April 3, and the appeal bond was filed on June 2. Because the bond was not filed within the thirty day period prescribed by LSA-C.C.P. Art. 3831, a rule was directed to appellant on our own motion to show cause why his appeal should not be dismissed for lack of jurisdiction.
The basis for appellant's petition for habeas corpus was a judgment of a Tennessee court awarding him custody of his child and amending a previous judgment of the same court which had awarded custody to appellee, his divorced wife. The trial court gave full faith and credit to the earlier judgment but declined to give full faith and credit to the amending judgment because of jurisdictional deficiencies in the proceedings leading up to the amending judgment. Accordingly, the trial court awarded custody of the child to the mother.
Appellant contends that the real issue in this case is the trial court's failure to give full faith and credit to a judgment of a sister state and that the delays for appeal provided by Art. 3831 do not apply under these circumstances.
We see no merit in appellant's argument. His suit was simply a petition for writ of habeas corpus brought pursuant to C.C.P. Art. 3821, et seq. Art. 3831 by its terms applies when a judgment orders the release of a person from custody or places him in the custody of another person. The fact that his claim is based upon a judgment of another state cannot affect our jurisdiction over his appeal from this judgment, since our jurisdiction is controlled by Art. 3831. This court has no power or authority to modify a judgment which has become definitive by the passage of the time fixed by law for taking an appeal. C.C. Art. 3556(31); C.C.P. Art. 1842.
Accordingly, the appeal is dismissed at appellant's cost.
Appeal dismissed.
ON REHEARING
In his application for rehearing, appellant argues that LSA-C.C.P. Art. 3831 applies only to orders releasing a person from custody or placing the person "in the custody of another person," whereas in the instant case when the petition for habeas corpus was dismissed, the child was not released from appellee's custody, since she already had custody and she could not be considered "another person" as provided for in the statutes.
In Malone v. Malone, 282 So.2d 119 (La. 1973), C.C.P. Art. 3943, providing for a 30-day appeal time "from a judgment awarding custody of a person or alimony" was construed:
"Noting that some courts have found that judgments which either terminate or deny alimony or custody are not governed by the article, the Court held that this has created confusion which was not intended by the legislature and that the article would apply to all judgments awarding, denying, modifying, terminating alimony or custody."
The same reasoning applies to our construction of Art. 3831.
The application for rehearing is denied.