Opinion
NUMBER 2013 CA 0754
2013-09-13
ROBERT V. ALLMON v. SHAWANDA D. ALLMON
Michael Betts Denham Springs, LA Counsel for Defendant/Appellant, Shaw anda D. Allmon Earl Marcelle, III Baton Rouge, LA Counsel for Plaintiff/Appellee, Robert V. Allmon
NOT DESIGNATED FOR PUBLICATION
Appealed from the
Twenty-First Judicial District Court
In and for the Parish of Livingston
State of Louisiana
Docket Number 135360
The Honorable Zorraine M. Waguespack, Judge Presiding
Michael Betts
Denham Springs, LA
Counsel for Defendant/Appellant,
Shaw anda D. Allmon
Earl Marcelle, III
Baton Rouge, LA
Counsel for Plaintiff/Appellee,
Robert V. Allmon
BEFORE: WHIPPLE, C.J., WELCH, AND CRAIN, JJ.
WHIPPLE, C.J.
This matter is before us on appeal by defendant/plaintiff in reconvention, Shawanda D. Allmon, from an order of the trial court denying her request for an extension of time to pay appeal costs and subsequently dismissing her appeal. For the reasons that follow, the trial court's dismissal of her appeal is reversed and set aside, the appeal is reinstated, the October 9, 2012 judgment of the trial court is vacated, and this matter is remanded for further proceedings.
FACTS AND PROCEDURAL HISTORY
Robert and Shawanda Allmon entered into a covenant marriage on April 22, 2006. On January 29, 2011, one child, K.A., was born of the marriage. On December 9, 2011, Mr. Allmon filed a petition for divorce and to determine custody and visitation. In response, Mrs. Allmon filed an answer and reconventional demand seeking a divorce and sole custody of K.A.
See LSA-R.S. 9:307.
The matters were initially set for hearing on February 13, 2012, and counsel for both parties appeared on that date. However, because the delays for answering the reconventional demand had not run, counsel agreed to have the matter reset. Counsel for Mr. Allmon subsequently filed a motion to reset the hearing, which the trial court granted, resetting the matter for April 30, 2012. According to the minute entry, counsel for both parties appeared on April 30, 2012, at which time the court ordered both parties to furnish their income tax records and pay stubs to each other. The trial court then ordered the matter continued to July 16, 2012. The minutes show that on that date, Mr. Allmon and his attorney appeared in court, but that Mrs. Allmon and her attorney were not present due to a medical emergency. Counsel for Mr. Allmon then filed another motion to reset the hearing, which the trial court granted, resetting the matter to August 6, 2012. According to the minute entry of August 6, 2012, Mr. Allmon and his counsel appeared before the court, along with counsel for Mrs. Allmon. After a bench conference held with the attorneys, the court ordered the parties to exchange "needed information of [sic] the court approved list" within ten days.
Considering the procedural irregularities alleged herein, a detailed recitation of the procedural history of the case is warranted.
Thereafter, on October 9, 2012, the trial court signed a judgment submitted by Mr. Allmon's counsel, setting forth that on September 4, 2012, the matter came before the court for hearing on Mr. Allmon's petition and Mrs. Allmon's reconventional demand, with counsel for Mr. Allmon present and counsel for Mrs. Allmon not present, after which the court ordered: (1) that Mr. Allmon bear 100% financial responsibility for the child; (2) that the parties share joint custody of the child with Mr. Allmon designated as the domiciliary parent and Mrs. Allmon to have liberal visitation with "visitation details to be determined at a later date"; (3) that while Mr. Allmon was not seeking child support, his right to do so was reserved; (4) that the marital residence is the separate property of Mr. Allmon; (5) that Mrs. Allmon vacate the marital residence; (6) that Mrs. Allmon vacate the marital residence without delay; (7) that Mrs. Allmon is prohibited from making negative comments about Mr. Allmon in the presence of the minor child; and (8) that Mrs. Allmon refrain from making negative and/or threatening comments to plaintiff. The trial court further ordered that each party bear their respective costs of the proceedings. Notably, however, the record contains no minute entry dated September 4, 2012, nor any transcript reflecting a trial or hearing in these matters on that date or the scope thereof.
After learning that the judgment had been rendered, on November 9, 2012, Mrs. Allmon filed a motion: (1) to recall, vacate, and/or annul the October 9, 2012 judgment for fraud and ill practices; (2) for sanctions; (3) for an ex parte custody order and/or change in custody; (4) for visitation; (5) to compel production of documents; and (6) for attorney's fees and costs. Mrs. Allmon sets forth in her motion that although the court had stated that September 4, 2013 was its next available court date, no motion or order resetting the case for that date had issued or been filed of record and no notice of a September 4, 2012 hearing had issued or been served on Mrs. Allmon or her counsel.
On November 12, 2012, Mrs. Allmon's motion to vacate and recall the judgment was heard in open court, after which the trial court signed an order: (1) denying Mrs. Allmon's request for ex parte provisional custody of K.A.; (2) denying her request to recall, vacate, or annul the court's October 9, 2012 judgment; (3) setting her request for sanctions, motion to compel, answer and reconventional demand and request for attorney's fees for January 28, 2013; and (4) setting forth a visitation schedule for Mrs. Allmon until the next hearing date. Also, another written judgment, purporting to further outline and set forth the "visitation details" as rendered at the November 12, 2012 hearing was also signed on November 13, 2012, albeit by another judge.
Another judgment was apparently prepared and submitted to the trial court purportedly conforming to the court's rulings at the November 12, 2012 hearing. The presiding judge, Zorraine M. Waguespack, struck through the text of this judgment, wrote "Moot [-] Court has prepared and signed a judgment in this matter," and signed it on November 13, 2012.
This particular judgment was signed by Judge Elizabeth Wolfe with the phrase, "As per presiding Judge" written beneath the Judge's signature line.
After the trial court refused to set aside the October 9, 2012 judgment, on November 15, 2012, Mrs. Allmon filed a motion for suspensive appeal, which the trial court granted on November 20, 2012. Mrs. Allmon subsequently filed a motion for extension of time in which to pay appeal fees, which was denied by the trial court on December 20, 2012. When the full appeal costs were not timely paid, the Livingston Parish Clerk of Court filed a motion to dismiss her pending appeal, which was granted by the trial court on January 7, 2013, without a hearing.
In response, on January 18, 2013, she filed the instant appeal, challenging: (1) the November 13, 2012 judgment setting forth a visitation schedule; (2) the December 20, 2012 denial of her request for an extension of time to pay appeal costs; and (3) the January 7, 2013 order dismissing her pending appeal of the October 9, 2012 judgment for failure to pay appeal costs and filing fees.
To determine whether we have jurisdiction and which matters are properly before us on appeal, in the instant appeal, we first resolve whether or not the trial court erred in denying Mrs. Allmon's request for an extension of time to pay costs and in ordering the dismissal of her pending suspensive appeal of the October 9, 2012 judgment. The propriety of the November 13, 2012 judgment outlining a visitation schedule is addressed in the companion case to this appeal, Allmon v. Allmon, 2013-0753 (La. App. 1st Cir. ___)(unpublished appeal) also handed down on this date.
The denial of a motion for new trial, as well as the denial of a request for an extension of time to pay appeal costs, are interlocutory judgments, which are generally not appealable. See LSA-C.C.P. arts. 1841 and 2083. However, when an unrestricted appeal is taken from a final judgment, the appellant is entitled to seek review of all adverse interlocutory judgments prejudicial to him, in addition to the review of the final judgment. Judson v. Davis, 2004-1699 (La. App. 1st Cir. 6/29/05), 916 So. 2d 1106, 1112, writ denied, 2005-1998 (La. 2/10/06), 924 So. 2d 167. As such, we will review the propriety of the trial court's denial of the extension to pay costs in connection with our review of the final judgment dismissing the appeal.
DISCUSSION
To the extent that Mrs. Allmon's fifth assignment of error herein also concerns the trial court's judgment of November 13, 2012, we note that the merits of that judgment are reviewed in the companion case to this appeal referenced above.
Assignments of Error Numbers One and Two
In Mrs. Allmon's first and second assignments of error, she contends that the trial court erred in denying her request for an extension of time within which to pay appeal costs, and in dismissing her previously granted suspensive appeal of the October 9, 2012 judgment.
Louisiana Code of Civil Procedure article 2126(E), which governs the payment of costs, provides as follows:
E. If the appellant fails to pay the estimated costs, or the difference between the estimated costs and the actual costs, within the time specified, the trial judge, on his own motion or upon motion by the clerk or by any party, and after a hearing, shall:
(1) Enter a formal order of dismissal on the grounds of abandonment; or
(2) Grant a ten day period within which costs must be paid in full, in default of which the appeal is dismissed as abandoned.
The primary purpose of LSA-C.C.P. art. 2126's authorization to dismiss appeals for non-payment of costs is to dismiss an appeal as abandoned, in those cases in which the appellant files a timely appeal and thereafter decides not to pursue it. A secondary purpose is to ensure prompt payment of costs of appeal by dilatory appellants. Schmolke v. Clary, 2003-2107 (La. App. 1st Cir. 9/17/04), 884 So. 2d 675, 676, writ denied, 2004-3089 (La. 2/18/05), 896 So. 2d 41 (quoting Pray v. First National Bank of Jefferson Parish, 93-3027 (La. 2/11/94), 634 So. 2d 1163).
After the trial court refused, on November 15, 2012, to vacate and set aside the October 9, 2012 judgment, Mrs. Allmon filed for and was granted a suspensive appeal of that judgment, which she contends was null, obtained by fraud and ill practices and rendered without notice. The Livingston Parish Clerk of Court then issued a notice of estimated appeal costs in the amount of $487.50 on November 28, 2012, which were to be paid within 20 days or by December 18, 2012, pursuant to LSA-C.C.P. art. 2126. Prior to the expiration of the delays for payment of costs, on December 17, 2012, Mrs. Allmon filed a motion requesting an extension of 45 days within which to pay the appeal costs. The trial court denied the request for extension of time on December 20, 2012. The Livingston Parish Clerk of Court then filed a motion to dismiss Mrs. Allmon's appeal of the October 9, 2012 judgment "for non payment of costs." The trial court granted the clerk's motion on January 7, 2013 and dismissed the appeal.
Pursuant to LSA-C.C.P. art. 2126(E), if the appellant fails to pay costs within the time specified, the trial court is empowered to dismiss the appeal or grant a ten-day period within which to pay costs in full "after a hearing." (Emphasis added.) Mrs. Allmon contends that the trial court erred as a matter of law in dismissing her appeal on the clerk's motion, without first conducting a hearing on the motion. We agree.
In the instant case, the record contains no evidence, transcript or minute entry reflecting that the trial court conducted the requisite hearing prior to entering a formal order of dismissal. Instead, it appears from the record that the trial court simply denied the request for an extension without conducting a hearing as specifically required by the statute. See LSA-C.C.P. art. 2126(E). As this court (and others) have previously noted, a trial court errs when it fails to conduct a hearing in accordance with the requirements set forth in LSA-C.C.P. art. 2126. Williams v. Williams, 2012-0281 (La. App. 1st Cir. 11/14/12) (unpublished opinion); Strouse v. M & M Properties, 32,792 (La. App. 2nd Cir. 3/3/00), 753 So. 2d 434, 438-439; Reed v. Columbia/HCA Information Service, Inc., 99-1315 (La. App. 5th Cir. 4/25/00), 761 So. 2d 625, 628; see also Bezet v. Original Library Joe's, Inc., 2001-1586 (La. App. 1st Cir. 11/8/02), 838 So. 2d 796, 799; Nash v. State, Department of Corrections, 2009-0544 (La. App. 1st Cir. 12/23/09) (unpublished opinion).
Moreover, the focus of district courts in deciding motions to dismiss under LSA-C.C.P. art. 2126 should be on securing payment of costs in order to move appeals forward rather than dismissing appeals, which are obviously not abandoned. Pray v. First National Bank of Jefferson Parish, 634 So. 2d at 1163. We further note that appeals are favored in the law, and should not be dismissed unless the reason for dismissal is free from doubt. Shapiro v. L & L Fetter, Inc., 2002-0933 (La. App. 1st Cir. 2/14/03), 845 So. 2d 406, 410. After careful review of the record herein, it is abundantly clear that Mrs. Allmon had not abandoned pursuit of her appeal.
Pretermitting Mrs. Allmon's claim that the trial court should have found good cause for her failure to timely pay costs and should have granted her an extension to do so, it is clear that the trial court erred in denying the request and ordering dismissal of the appeal without conducting a hearing as required by LSA-C.C.P. art. 2126(E). Accordingly, we now reverse and set aside the trial court's order dismissing Mrs. Allmon's appeal of the October 9, 2012 judgment of the trial court for non-payment of costs, reinstate the appeal, and will consider the merits of the assignments of error urged by Mrs. Allmon. See Williams v. Williams, 2012-0281 (La. App. 1st Cir. 11/14/12) (unpublished opinion); Headrick v. Lee, 471 So. 2d 904, 907 (La. App. 2nd Cir. 1985).
Although not determinative (nor documented in the record before us), Mrs. Allmon's counsel argued that her delay was primarily attributable to confusion over the status of her request for pauper status.
Assignments of Error Three and Four
In Mrs. Allmon's third and fourth assignments of error, she contends that the trial court erred in rendering and signing the October 9, 2012 judgment, which the court rendered without conducting a trial, receiving any evidence, and without service or notice of the trial date to the defendant. Alternatively, Mrs. Allmon contends that if the trial court did receive evidence, the evidence was insufficient to support any judgment, including the judgment rendered.
The judgment of October 9, 2012, which purports, inter alia to award custody of the minor child and to partition the marital home, states that the matter came for hearing before the trial court on September 4, 2012, on a petition for divorce/incidental matters and reconventional demand. The minute entries in the record, however, do not show that the matter was docketed, taken up, or otherwise heard before the trial court on September 4, 2012, and the record contains no docket sheet, evidence, or transcript of any proceedings held on September 4, 2012.
Although the trial court is generally afforded broad discretion in child custody, support, and community property determinations, Olivier v. Olivier, 2011-0579 (La. App. 1st Cir. 11/9/11), 81 So. 3d 22, 26, the record establishes that the trial court did not conduct an evidentiary hearing at which evidence relating to the necessary relevant factors and information was presented. See LSA-C.C. arts. 131, 134 and LSA-R.S. 9:315, et seq., and LSA-R.S. 9:374. As such, it is impossible for this Court, on review, to determine whether the October 9, 2012 judgment was an appropriate exercise or an abuse of its discretion. Thus, the October 9, 2012 judgment of the trial court must be vacated and this matter remanded for a full hearing on the issues.
Although counsel for Mr. Allmon states in his brief that he will "supplement his brief to address these record deficiencies, including "a copy of Court transcripts from . . . [September] 4, 2012," no supplements have been furnished.
Moreover, despite the record containing entries regarding notice and settings on other dates, the record contains no evidence that notice of the purported September 4, 2012 hearing was ever provided to Mrs. Allmon or her counsel. Adequate notice is one of the most elementary requirements of procedural due process; it is fundamental to our system of laws that there be notice prior to trial. Smith v. LeBlanc, 2006-0041 (La. App. 1st Cir. 8/15/07), 966 So. 2d 66, 76. A litigant is entitled to his day in court. Edwards v. Edwards, 614 So. 2d 725, 727 (La. App. 5th Cir.), writ denied, 617 So. 2d 1186 (La. 1993). Louisiana Code of Civil Procedure article 1571(A)(1)(a) requires that the district courts of this state establish a procedure for assigning cases for trial, which shall require adequate notice of trial to all parties of record.
Although Mr. Allmon contends that the trial court "advised the parties at the previous hearing that its next available hearing date was September 4, 2012 " the record contains nothing to show that the court ordered the parties to appear on that date or that the parties agreed to waive notice when the case was being continued. Moreover, there is nothing before us to show that Mrs. Allmon or her counsel were served with any notice of the September 4, 2012 hearing, or that a hearing was even held on that date. Thus, even if we were to accept as true that the parties were "advised" of the trial court's next available hearing date, this alone does not constitute proper notice. See and compare Miccol Enterprises. Inc. v. City of New Orleans, 2012-0864 (La. App. 4th Cir. 12/19/12), 106 So. 3d 746, 750-751. Procedural due process requires an opportunity to be heard, in addition to notice of the pendency of an action, and in conjunction therewith, adequate notice of the hearing is fundamental. Macaluso v. Macaluso, 99-0935 (La. App. 1st Cir. 5/12/00), 762 So. 2d 180, 183; Zachary Taylor Post No. 3784 v. Riley, 481 So. 2d 699, 701 (La. App. 1st Cir. 1985). It is a basic principle of our legal system that a final judgment cannot be rendered against a party who has not been provided with proper notice. City of Baton Rouge v. American Home Assurance Company, 2007-1755 (La. App. 1st Cir. 5/2/08), 991 So. 2d 48, 53.
Accordingly, after considering Mrs. Allmon's reinstated appeal, the October 9, 2012 judgment must be vacated and set aside. It is clear from the record that the trial court failed to conduct an evidentiary hearing, which resulted in the October 9, 2012 final judgment that, among other things, awarded custody of the minor child. Moreover, to the extent that Mr. Allmon contends that a hearing was conducted, judgment was rendered without proper notice to Mrs. Allmon or her counsel of the September 4, 2012 hearing. Thus, this matter is remanded to the trial court to conduct further proceedings, including a full trial of these matters after providing notice to all parties, and for further proceedings consistent with the views expressed herein.
DECREE
For the above and foregoing reasons, the trial court's December 20, 2012 order, denying Mrs. Allmon's request for an extension of time to pay appeal costs, and the trial court's January 7, 2013 order, dismissing Mrs. Allmon's suspensive appeal, are hereby reversed and set aside, and the appeal of the October 9, 2012 judgment is reinstated and maintained. On consideration of the merits of Mrs. Allmon's appeal, the October 9, 2012 judgment of the trial court is hereby vacated and this matter is remanded to the trial court for further proceedings consistent with the views expressed herein.
All costs are assessed to plaintiff/appellee, Robert V. Allmon.
ORDERS DENYING EXTENSION AND DISMISSING APPEAL REVERSED AND SET ASIDE; APPEAL REINSTATED AND MAINTAINED; OCTOBER 9, 2012 JUDGMENT VACATED; REMANDED FOR TRIAL.