Opinion
2018 CA 0923
02-25-2019
VELVINER CARPENTER DEAMER v. ALVIN GILBERT DEAMER
Lila Tritico Hogan Hammond, Louisiana Counsel for Plaintiff-Appellee Velviner Carpenter Deamer Peggy G. Vallejo Covington, Louisiana Counsel for Defendant-Appellant Alvin Gilbert Deamer
NOT DESIGNATED FOR PUBLICATION ON APPEAL FROM THE TWENTY-FIRST JUDICIAL DISTRICT COURT
NUMBER 2013-0001151, DIVISION J, PARISH OF TANGIPAHOA
STATE OF LOUISIANA HONORABLE JEFFREY C. CASHE, JUDGE Lila Tritico Hogan
Hammond, Louisiana Counsel for Plaintiff-Appellee
Velviner Carpenter Deamer Peggy G. Vallejo
Covington, Louisiana Counsel for Defendant-Appellant
Alvin Gilbert Deamer BEFORE: WELCH, CHUTZ, AND LANIER, JJ.
Disposition: APPEAL DISMISSED.
CHUTZ, J.
Defendant-appellant, Alvin Deamer, appeals the family court's judgment denying a peremptory exception of res judicata based on conclusions that a Texas state court lacked sufficient minimum contacts with plaintiff-appellee, Velviner Carpenter Deamer, to exercise personal jurisdiction as to the partition of the former spouses' marital assets and, therefore, the Texas court judgment was not entitled to the preclusive effect of full faith and credit. For the following reasons, we dismiss the appeal.
In Deamer v. Deamer , 2016-1138 (La. App. 1st Cir. 4/12/17), 2017 WL 1376579, *1, another panel of this court set forth the salient facts giving rise to this litigation, stating:
The parties, Alvin and Velviner Deamer, were married in Louisiana on December 29, 2001, and domiciled in Louisiana. In 2009, Alvin ... began working in Texas. There are indications Alvin ... used community funds to purchase a domicile in Texas, which Velviner may or may not have been aware. On April 4, 2013, Alvin ... filed an Original Petition for Divorce in Harris County, Texas. Although served, Velviner ... did not respond or appear in the Texas proceedings. On April 15, 2013, Velviner ... filed her own Petition for Divorce under [La.] C.C. art. 102 and Incidental Matters, in the 21st Judicial District Court, Tangipahoa Parish (docket No. 2013-0001151).Thereafter, the family court issued a judgment finding that because Velviner had not made an appearance in the Texas court proceeding, she was free to challenge the Texas court default judgment on jurisdictional grounds in this collateral proceeding in Louisiana. Alvin appealed.
On July 2, 2013, the Texas court entered a Final Decree of Divorce and partition of community property by default. The judgment stated it had personal jurisdiction over Velviner....
On September 27, 2013, Alvin ... filed a peremptory exception raising the objection of res judicata in the instant matter. Although all matters were set for hearing on January 27, 2014, the parties entered into a stipulation recognizing the divorce decree in Texas and holding all other issues "in abeyance." It appears the hearing was continued without date pending the parties' efforts to reach an agreement without the aid of the court.
Because the appealed judgment was the subject of a show-cause order issued by this court questioning its finality, the family court signed an amended judgment, concluding that its decrees were final and subject to immediate appeal. Deamer , 2017 WL 1376579 at *1-2. --------
Noting that the record did not contain minute entries and, therefore, did not establish what precipitated the family court's judgment decreeing that the Texas court was not entitled to full faith and credit, this court vacated the judgment and remanded so that a full hearing could be conducted on the issues raised in Alvin's peremptory exception raising the objection of res judicata. Id., 2017 WL 1376579 at *3.
Appellate courts have the duty to determine sua sponte whether their subject matter jurisdiction exists, even when the parties do not raise the issue. Motorola , Inc. v. Associated Indemnity Corp., 02-1351 (La. App. 1st Cir. 10/22/03), 867 So.2d 723, 725 (en banc). Here, the family court held a hearing pursuant to the remand order on July 17, 2017, at which testimonial and documentary evidence was admitted. The family court signed a judgment on November 14, 2017, which decreed that Velviner had not made an appearance in the Texas court proceeding; the Texas court was without personal jurisdiction; and, therefore, the Texas court judgment was not entitled to full faith and credit. Thus, the family court denied Alvin's peremptory exception raising the objection of res judicata, certifying that the judgment was final for purposes of appeal. Alvin lodged this appeal.
The record establishes that the sole matter before the family court on July 17, 2017 was Alvin's exception of res judicata. While the November 14, 2017 judgment clearly decreed that the Texas court lacked personal jurisdiction over Velviner when it rendered a default judgment in favor of Alvin and, therefore, was not entitled to full faith and credit, it failed to expressly grant relief either overruling or sustaining the res judicata exception. A final appealable judgment must contain, among other things, decretal language setting forth the relief that is granted or denied. See Carter v. Williamson Eye Center , 2001-2016 (La. App. 1st Cir. 11/27/02), 837 So.2d 43, 44. This determination should be evident from the language of the judgment without reference to other documents in the record. Advanced Leveling & Concrete Solutions. v. Lathan Co., Inc., 2017-1250 (La. App. 1st Cir. 12/20/18), 2018 WL 6716997, *2. Thus, the family court's written judgment is defective.
Mindful that the denial of Alvin's peremptory exception raising the objection of res judicata is a necessary conclusion of the judgment before us, we also point out that the denial of the exception raising the objection of res judicata is interlocutory. Louisiana Local Government Environmental Facilities v. All Taxpayers , 2011-0027 (La. App. 1st Cir. 2/2/11), 56 So.3d 1194, 1200, writ denied, 2011-0467 (La. 4/25/11), 62 So.3d 93. A party may appeal from an interlocutory judgment only when expressly provided by law. La. C.C.P. art. 2083. And La. C.C.P. art. 1915 does not authorize a family court to designate a judgment denying an exception of res judicata as final. Louisiana Local Government Environmental Facilities , 56 So.3d at 1200; Deamer , 2017 WL 1376579 at *2.
Although the court of appeal has discretion to convert an appeal from an order denying an exception of res judicata to an application for supervisory writ, see La. Const. art. V, Sect. 10(A); La. C.C.P. arts. 2081 & 2201, the motion and order for appeal must be filed within the 30-day delay for seeking supervisory writs from the family court's interlocutory ruling. See La. U.R.C.A., Rule 4-3; Deamer , 2017 WL 1376579 at *2. While this court has discretion to convert an appeal to an application for supervisory writs, we may only do so if the appeal would have been timely had it been filed as a writ application. Lake Villas No. II Homeowners' Ass'n , Inc. v. LaMartina , 2015-0244 (La. App. 1st Cir. 12/23/15), 2015 WL 9435193, *3, writ denied, 2016-0149 (La. 3/14/16), 189 So.3d 1070. Because Alvin did not file his motion for appeal until after the expiration of the 30-day delay set forth in La. U.R.C.A. Rule 4.3, the appeal is not properly before us.
DECREE
For these reasons, the appeal is dismissed. Costs are assessed against defendant-appellant, Alvin Deamer.
APPEAL DISMISSED.