Opinion
2018 CA 0857
02-22-2019
DIAMONE' L. CARROLL v. DARRON D. CARROLL
Sherman Q. Mack C. Glenn Westmoreland Emily Guidry Jones Albany, Louisiana Attorneys for Plaintiff/Appellant, Diamone' L. Carroll Charlotte A. Pugh Baton Rouge, Louisiana Attorney for Defendant/Appellee, Darron D. Carroll
NOT DESIGNATED FOR PUBLICATION On Appeal from the 21st Judicial District Court In and for the Parish of Livingston State of Louisiana
No. 146496 Honorable Jeffrey C. Cashe, Judge Presiding Sherman Q. Mack
C. Glenn Westmoreland
Emily Guidry Jones
Albany, Louisiana Attorneys for Plaintiff/Appellant,
Diamone' L. Carroll Charlotte A. Pugh
Baton Rouge, Louisiana Attorney for Defendant/Appellee,
Darron D. Carroll BEFORE: GUIDRY, THERIOT, AND PENZATO, JJ. PENZATO, J.
This is an appeal of a trial court judgment sustaining a peremptory exception raising the objection of res judicata. For the following reasons, we dismiss this appeal.
FACTS AND PROCEDURAL HISTORY
Diamone' and Darron Carroll were married on September 23, 1983. Four children were born during the marriage, one of whom, D.C., was a minor at the time Ms. Carroll filed a petition for divorce on September 30, 2014. Mr. Carroll filed an answer and reconventional demand. The parties entered into a consent judgment signed January 7, 2015. Pursuant to the January 7, 2015 judgment, the parties were awarded joint custody of D.C., equally sharing physical custody on a week-to-week basis. Neither party was designated as the domiciliary parent. It was decreed that Mr. Carroll's proportionate percentage of the total gross monthly income was 84% and Ms. Carroll's proportionate percentage of the total gross monthly income was 16%. Mr. Carroll was ordered to pay child support in the amount of $684.80 per month, as well as 100% of D.C.'s health insurance premiums, uncovered medical, vision and dental expenses, school related expenses, uniforms and other clothing necessities, with Mr. Carroll paying Ms. Carroll's 16% proportionate share as interim periodic spousal support. Mr. Carroll was further ordered to pay to Ms. Carroll $1,250.00 per month as interim periodic spousal support.
On June 5, 2015, Ms. Carroll filed a rule for contempt and for modification of custody and child support, wherein she alleged that Mr. Carroll consistently failed to make child support and interim spousal support payments timely. Ms. Carroll requested that the January 7, 2015 custody order be modified in order to designate her as the domiciliary custodian and that the existing order of child support be modified. The rule for contempt and modification of custody and child support was set for September 2, 2015, but the matter was removed from the docket on that date by the trial court.
On August 11, 2015, Mr. Carroll filed an amended and supplemental reconventional demand seeking a divorce pursuant to La. C.C. art 103(1) based upon the parties having lived separate and apart for more than three hundred sixty-five days. A judgment of divorce was rendered on September 16, 2015. Prior to the judgment of divorce, Ms. Carroll filed a motion for final periodic support. On October 26, 2015, the trial court issued a scheduling order following a status conference setting the matter for a bench trial on February 2, 2016.
Mr. Carroll had previously filed an amended reconventional demand seeking a divorce based upon his allegations that Ms. Carroll had committed adultery. A trial set for June 17, 2015, was reset for September 2, 2015, as an "in-person status". The trial court removed the matter from the docket on that date.
On the scheduled trial date, the parties entered into a stipulation. A judgment in accordance with the stipulation was signed on September 30, 2016. Ms. Carroll waived any and all claims for interim and permanent spousal support in consideration of a payment by Mr. Carroll of $30,000.00. In addition, Ms. Carroll was ordered to pay her 16% proportionate share of D.C.'s uncovered medical and dental expenses, necessary school related expenses, and all mutually agreeable extracurricular activities and other expenses. The stipulated judgment also allocated certain community movables to each of the parties and provided that both parties waived any claim of reimbursement concerning the divided property. The stipulated judgment further ordered that any community property issues not dispensed with or satisfied in the judgment remained outstanding and that all previous judgments except as changed in the September 30, 2016 judgment remained in full force and effect.
Thereafter, the matter came before the trial court on July 14, 2017, for a partition of the community property existing between the parties. The parties entered into a stipulation, and a stipulated judgment in accordance with the agreement reached between the parties was signed on August 7, 2017.
On July 26, 2017, Ms. Carroll filed a pleading entitled "Motion to Reset All Pending Matters", wherein she asserted that the rule for contempt and modification of custody and child support filed on June 5, 2015, and set for hearing on September 2, 2015, was never heard. In response to the motion to reset, Mr. Carroll filed an exception raising the objection of res judicata. Mr. Carroll argued that Ms. Carroll's rules for contempt and modification of custody and child support and final periodic support were pending at the time of the February 2, 2016, trial and the stipulated judgment signed September 30, 2016, addressed all issues in the pending rules. He further argued that a final community property partition trial took place, and a judgment was rendered in that matter as well; therefore, there were no matters pending before the trial court, the motion to reset was res judicata, and it should be dismissed.
On December 11, 2017, Mr. Carroll filed a rule to terminate child support and terminate custody. Mr. Carroll requested that his child support obligation to Ms. Carroll and the custody agreement be terminated because D.C. was seventeen years old and no longer resided with either parent.
Following a hearing on February 1, 2018, the trial court sustained the exception of res judicata and dismissed the "Motion to Reset All Pending Matters". In addition, the rule to terminate child support and custody was continued. A judgment was signed on March 7, 2018. It is from this judgment that Ms. Carroll appeals.
The judgment did not dismiss the underlying claim for contempt and modification of custody and child support filed on June 5, 2015. --------
JURISDICTION
On June 29, 2018, this court, ex proprio motu, issued a rule to show cause order noting that the March 7, 2018 judgment did not appear to be a final, appealable ruling. Ms. Carroll responded, arguing that the judgment sustained an exception and therefore should not be dismissed. On September 17, 2018, the rule to show cause was referred to this panel as the panel to which the appeal is assigned.
Appellate courts have a duty to examine subject matter jurisdiction sua sponte, even when the parties do not raise the issue. Texas Gas Exploration Corp. v. Lafourche Realty Co., Inc., 2011-0520 (La. App. 1 Cir. 11/9/11), 79 So. 3d 1054, 1059, writ denied, 2012-0360 (La. 4/9/12), 85 So. 3d 698. This court's appellate jurisdiction extends to "final judgments," which are those that determine the merits in whole or in part. La. C.C.P. arts. 1841 and 2083; State by and through Caldwell v. Teva Pharmaceuticals Industries, Ltd., 2017-0448 (La. App. 1 Cir. 2/8/18), 242 So. 3d 597, 602. A judgment that "grants" a peremptory exception, but fails to dismiss a party and further fails to set forth decretal language disposing of or dismissing the plaintiff's claims against the defendant is defective and cannot be considered a final judgment for the purposes of an immediate appeal. Id. at 603.
The trial court's ruling in this case sustained a peremptory exception and dismissed Ms. Carroll's motion to reset for hearing a rule for contempt and modification of custody and child support. It did not dispose of or dismiss her claims, and is therefore not a final judgment for the purpose of an immediate appeal.
CONCLUSION
For the foregoing reasons, we dismiss the appeal filed by Diamone' Carroll. Costs of this appeal are assessed against Diamone' Carroll.
APPEAL DISMISSED.