Opinion
NO. 2016 CU 0757
09-16-2016
BRANDON M. DONAHUE v. SARAH ANN DONAHUE
Richard Ducote Covington, Louisiana Counsel for Defendant/Appellant Sarah Ann Donahue Frank P. Tranchina, Jr. Tracy E. Gold Covington, Louisiana Counsel for Plaintiff/Appellee Brandon M. Donahue
NOT DESIGNATED FOR PUBLICATION Appealed from the 22nd Judicial District Court In and for the Parish of St. Tammany State of Louisiana
Case No. 2013-13390 The Honorable Mary C. Devereux, Judge Presiding Richard Ducote
Covington, Louisiana Counsel for Defendant/Appellant
Sarah Ann Donahue Frank P. Tranchina, Jr.
Tracy E. Gold
Covington, Louisiana Counsel for Plaintiff/Appellee
Brandon M. Donahue BEFORE: HIGGINBOTHAM, THERIOT, AND CHUTZ, JJ. THERIOT, J.
In this domestic custody case, the appellant, Sarah Donahue, appeals the re-allotment of her case and the judgment of the Twenty-Second Judicial District Court granting sole custody of the appellant's minor child to the father/appellee, Brandon Donahue. For the following reasons, we vacate the judgment of the trial court and remand for further proceedings.
FACTS AND PROCEDURAL BACKGROUND
Brandon Donahue filed a petition for divorce pursuant to La. C.C. art. 102 on July 24, 2013 against his wife, Sarah Donahue. One child was born of the marriage. In the petition, Mr. Donahue requested that he be granted provisional custody of their infant son and that he and Mrs. Donahue ultimately be granted joint custody with him being designated the domiciliary parent. Mr. Donahue alleged that on July 7, 2013, Mrs. Donahue became violent and destructive in his presence while she was holding their son. Mr. Donahue also alleges that Mrs. Donahue has a history of irrational and aggressive behavior, possibly due to her diagnosed borderline personality disorder.
The record consists of several consent judgments addressing child custody, child support, and spousal support. Ms. Donahue's mental health has remained one of the primary issues. Motions for sole custody were filed by both Mr. and Mrs. Donahue. Hearings on the motions were held on September 28, October 21, October 28, and November 2, 2015, with Judge Amacker presiding. Extensive testimony was taken during those proceedings. In her oral reasons that were dictated into the record, Judge Amacker stated that there had been a material change in circumstances regarding Mrs. Donahue's mental health and her ability to care for the child. Based on the evidence and testimony presented at the hearings, Judge Amacker ruled that sole custody would be granted to Mr. Donahue, with supervised visitation granted to Mrs. Donahue.
A judgment was prepared for signing, reflecting Judge Amacker's findings. The judgment was filed on November 17, 2015; however, prior to it being signed, Mr. Richard Ducote enrolled as counsel for Mrs. Donahue to replace her prior counsel who had withdrawn. On November 23, 2015, Judge Amacker filed a voluntary order recusing herself from the case. Judge Amacker's order of recusal states, in pertinent part:
Richard Ducote has chosen to engage in public conduct that personally and professionally attacks Judge Amacker. The Court does not agree that Mr. Ducote's conduct has caused Judge Amacker by design or effect to be biased or prejudiced against him to such an extent that his clients may not receive fair and impartial treatment. Furthermore, the Court does not agree that recusal is required based on Brandon Donahue's alleged status as a deputy or upon Sarah Donahue's intentions to sue the Sheriff's Office.
The Court does find that voluntary recusal is appropriate, to avoid even an appearance of impropriety, in any case in which Richard Ducote is enrolled as counsel of record for one of the parties and therefore voluntarily recuses in the above captioned matter.
Judge Amacker never signed the prepared judgment. She ordered the case to be re-allotted to Division "K," presided over by Judge Devereux. Both Judge Devereux's division and Judge Amacker's division, Division "L," have jurisdiction limited to family and juvenile matters, pursuant to La. R.S. 13:621.22(B).
La. R.S. 13:621.22(B) states, in pertinent part: There are hereby created two additional district judgeships for the Twenty-Second Judicial District for the parishes of St. Tammany and Washington.
(1) The first additional judge provided for in this Subsection and his successors shall preside over Division K, which is hereby created for purposes of nomination, election, and subject matter only. The subject matter jurisdiction of Division K is limited, under the provisions of Article V, Section 15(A) of the Constitution of Louisiana, to family and juvenile matters as provided by law.
(2) The second additional judge provided for in this Subsection and his successors shall preside over Division L, which is hereby created for purposes of nomination, election, and subject matter only. The subject matter jurisdiction of Division L is limited, under the provisions of Article V, Section 15(A) of the Constitution of Louisiana, to family and juvenile matters as provided by law.
(3) For purposes of this Subsection, "family and juvenile matters" shall include all actions arising under Titles IV, V, and VII of Book I and Title VI of Book III of the Civil Code and related provisions of the Civil Code Ancillaries, all actions arising under the Children's Code, adoptions arising under the Civil Code, actions involving protection from family violence pursuant to R.S. 46:2131 et seq., and actions for enforcement, collection of support, and paternity pursuant to R.S. 46:236.1.1 et seq.
Mrs. Donahue filed an objection to the re-allotment on December 1, 2015, arguing that the case should have been randomly allotted among all the court divisions, since those divisions have general jurisdiction and could hear the case. That objection was denied on December 7, 2015 by Judge Devereux. Mrs. Donahue then filed a motion for new trial on December 23, 2015, which was denied by Judge Devereux. On February 12, 2016, Judge Devereux signed the previously prepared judgment filed on November 17, 2015.
In her written reasons for judgment, Judge Devereux stated that she reviewed the 800-page transcript of the entire hearing, including the exhibits and the pleadings, and found that no additional evidence was needed to render judgment. She also analogized Judge Amacker's factual findings to hearing officer's recommendations, as it would be "illogical and disrespectful" not to do so. Based on this judgment and the re-allotment, Mrs. Donahue appeals.
ASSIGNMENTS OF ERROR
Mrs. Donahue alleges three assignments of error:
1. Judge Amacker erred as a matter of law by, simultaneously with her order recusing herself, directly re-allotting the case to Judge Devereux. Thereafter, Judge Devereux erred as a matter of law in refusing to order the random re-allotment of the case pursuant to La. C.C.P. art. 253.1.
2. Judge Devereux erred as a matter of law and manifestly abused her discretion in denying Mrs. Donahue's December 23, 2015 motion for new trial.
3. Judge Deveraux erred as a matter of law in entering a final judgment in violation of La. R.S. 13:4209 based solely on evidence heard by the recused Judge Amacker, by improperly deeming herself as a successor judge to Judge Amacker, and by deferring to Judge Amacker's oral reasons for judgment based on judicial efficiency, an analogy to hearing officer recommendations under La. R.S. 46:236.5, and concerns about being illogical and disrespectful to Judge Amacker.
DISCUSSION
A threshold issue in any case is whether this Court's appellate jurisdiction is properly invoked by a valid final judgment. See La. C.C.P. art. 2083; Rush v. Rush, 2012-1502 (La. App. 1 Cir. 3/25/13), 115 So.3d 508, 511, writ denied, 2013-0911 (La. 5/31/13), 118 So. 3d 398. Except as otherwise provided by law, every final judgment shall be signed by the judge before whom the case was tried and who rendered the decision. See La. C.C.P. art. 1911; Employers Nat. Ins. Co. v. Workers' Compensation Second Injury Bd., 95-1756 (La. App. 1 Cir. 4/4/96), 672 So. 2d 309, 311.
Louisiana Code of Civil Procedure art. 1911 has been interpreted to mean that the judge before whom the case was tried must sign the judgment. Acker v. Bailiff, 47,160 (La. App. 2 Cir. 6/27/12), 94 So.3d 1011, 1014; See also Darensbourg v. Great Atlantic and Pacific Tea Co., Inc., 94-0761 (La. App. 1 Cir. 11/9/95), 665 So.2d 35, 37. A judgment signed by another judge is considered invalid. Acker, 94 So.3d at 1014. A judgment signed by a judge who did not preside over the trial is fatally defective and does not constitute a final judgment over which this court can exercise appellate jurisdiction. See Employers Nat. Ins. Co., 672 So.2d at 312; see also Acker, 94 So.3d at 1014.
In the instant case, Judge Amacker recused herself after reciting her findings into the record but before signing the final judgment. The case was re-allotted to Judge Devereux. Louisiana Revised Statutes 13:4209 provides:
B. (1) In cases which are heard and in which judgment is rendered, but not signed, whether the case was taken under advisement or not, if the judge who rendered the judgment dies, resigns, or is removed from office, or if his term expires before signing judgment in the case, his successor in office shall have the authority to sign a judgment which conforms with the judgment rendered.
(2) If a prior judge has stated an affirmative intent to sign a judgment and failed to do so for whatever reason, the successor judge is empowered to sign the judgment.
In Starkey v. Starkey, 2013-0166 (La. App. 1 Cir. 8/6/13), 122 So.3d 579, 583, "[t]he authority granted under the provisions of La. R.S. 13:4209 clearly applies only when one judge succeeds to the office or seat of another judge and not when a judge simply inherits a case from a judge." Judge Amacker recused herself and did not leave her office under any of the circumstances mentioned in La. R.S. 13:4209(B). Judge Devereux was therefore not a successor judge pursuant to La. R.S. 13:4209.
We also find Judge Devereux's hearing officer analogy based on La. R.S. 46:236.5 to be misplaced, since La. R.S. 13:4209 specifically applies to judges. Due to Judge Devereux not being a successor judge and not having the authority to sign for Judge Amacker, there is no valid final judgment before us, and this Court lacks appellate jurisdiction to consider the merits of the arguments presented. See La. C.C.P. art. 2083.
Having vacated the judgment based on Judge Devereux's lack of authority to sign the judgment rendered, we pretermit the remaining assignments of error.
DECREE
The February 12, 2016 judgment of the Twenty-Second Judicial District Court is vacated, and the instant case is remanded for further proceedings. All costs of this appeal are assessed to the appellee, Brandon M. Donahue.
VACATED AND REMANDED. CHUTZ, J., concurring.
As noted by Judge Theriot in his opinion, Judge Amacker's order of recusal states that despite Ducote's public conduct personally and professionally attacking her, she disagreed that "by design or effect" she is biased or prejudiced against him to such an extent that his clients may not receive fair and impartial treatment. Nevertheless, she voluntarily recused "to avoid even an appearance of impropriety ... in any case in which ... Ducote is enrolled as counsel of record" for a party.
A judge is presumed to be impartial. The grounds for recusal enumerated in La. C.C.P. art. 151 are exclusive and do not include a "substantial appearance of the possibility of bias" or even a "mere appearance of impropriety" as causes for removing a judge from presiding over a given action. Article 151 requires a finding of actual bias or prejudice, which must be of a substantial nature and based on more than conclusory allegations. Slaughter v. Bd. of Sup'rs of S. Univ. & Agr. & Mech. Coll., 2010-1114 (La. App. 1st Cir. 8/2/11), 76 So.3d 465, 471, writ denied, 2011-2112 (La. 1/13/12), 77 So.3d 970. Thus, while I question the propriety of her recusal, I agree that because the issue has not been raised by the parties, it is not before us in this appeal.
In this appeal, Mrs. Donahue has challenged the re-allotment of this matter to Division "K." Judge Theriot has concluded that Division "K" Judge Devereux was neither the judge who presided over the trial nor a successor judge. Thus, the judgment she signed - which was filed into the record after the trial in the matter and in conformity with Judge Amacker's findings and rulings - was fatally defective. As such, because this court lacks jurisdiction to review the judgment, Judge Theriot's opinion pretermits a discussion of the issue of proper allotment of the matter. Without guidance from this court, on remand, the matter will be tried again in Division "K." If Mrs. Donahue receives another unfavorable outcome, it is foreseeable that she will once again raise the issue of allotment of the matter to Division "K," which is hardly judicially efficient.
See La. C.C.P. art. 253.1 (all pleadings filed shall be randomly assigned to a particular division of the court either by drawing indiscriminately from a pool containing designations of all divisions of court or by use of a properly programmed electronic device or computer programmed to randomly assign cases to any one of the divisions of court) and La. R.S. 13:621.22 (the Twenty-Second Judicial District Court shall have twelve judges). --------
I write separately to point out that under the provisions of La. R.S. 13:621.22B(1) and (2), the legislature has provided that the subject matter jurisdiction of Divisions "K" and "L" is limited to family and juvenile matters as provided by law. Subsection B(3) mandates that "family and juvenile matters" include, among other things, all actions arising under Titles IV, V, and VII of Book I of the Civil Code (and the related provisions of the Civil Code Ancillaries). Because this is an action for child custody, arising out of Book I, Title V of the Civil Code, it is properly allotted to either Division "K" or "L" under La. R.S. 13:621.22.
A statute must be interpreted in a manner that is consistent with logic and the presumed fair purpose and intention of the legislature in passing it. See Allen v. Allen , 2013-2778 (La. 5/7/14), 145 So.3d 341, 348. To hold as Mrs. Donahue insists is required under the law clearly defeats the purpose of the legislature's creation of divisions of limited jurisdiction in the Twenty Second Judicial District. See State v. Cooper , 2010-2344 (La. 11/16/2010), 50 So.3d 115 (district court rule that provided for the non-random allotment of non-felony criminal case is proper). Accordingly, I believe that on remand, this matter is correctly retried in Division "K." HIGGINBOTHAM, J. concurring in part.
I respectfully concur with the decision of Judge Theriot to vacate the judgment signed by Judge Devereux; however, I would remand the matter to the trial court in order to have Judge Amacker sign a judgment in conformance with her November 2, 2015, oral rendering with reasons. See Louisiana Paving Co. v. St. Charles Parish Public Schools, 593 So.2d 892 (La. App. 5th Cir. 1992), and Brett v. Brett, 2000-0436 (La. App. 1st Cir. 2001), 794 So.2d 912, 914 writ denied, 2001-2283 (La.11/16/01), 802 So.2d 611. Additionally, I join with Judge Chutz's concurrence regarding the reallotment of the case to Division K.
Judge Amacker presided over a six day trial, listening to all testimony and reviewing all exhibits presented by both parties, before orally rendering reasons for a considered decree on November 2, 2015. On November 10, 2015, before Judge Amacker could sign the judgment, Mr. Ducote filed his motion to enroll and a motion to recuse Judge Amacker.
Judge Amacker voluntarily recused herself on November 23, 2015, to avoid even the "appearance of impropriety in any case which Richard Ducote is enrolled as counsel of record." In her recusal, Judge Amacker stated:
Richard Ducote has chosen to engage in public conduct that personally and professionally attacks Judge Amacker. The Court does not agree that Mr. Ducote's conduct has caused Judge Amacker by
design or effect to be biased or prejudiced against him to such an extent that his clients may not receive fair and impartial treatment. Furthermore, the Court does not agree that recusal is required based on Brandon Donahue's alleged status as a deputy or upon Sarah Donahue's intentions to sue the Sherriff's Office.Although Mr. Ducote alleged other grounds for recusal in his motion to recuse, the record is abundantly clear that Judge Amacker's only reason for recusing was based on Mr. Ducote's enrollment as counsel of record—a reason that did not exist until after Judge Amacker completed the trial and orally ruled on all the issues presented to her.
I acknowledge the long line of jurisprudence holding that once a judge is recused, or a motion for her recusal has been filed, she has no power to act (except to appoint the proper person to sit ad hoc when the law provides for such an appointment), and any action taken by a recused judge is an absolute nullity. See Revere v. Strain, 2002-0254 (La. App. 1st Cir. 12/31/02) 837 So.2d 137, 138. However, under the unique circumstances presented in this case, and the policy regarding recusation, it is my opinion that this case presents an obvious procedural distinction that merits an exception to the general rule. Judge Amacker should be allowed to sign the judgment.
The theory of recusation is based upon public policy and is applied not only for the protection of the litigants but generally to see that justice is done by an impartial court. (Emphasis added.) It is, therefore, for the sake of appearance to the general public as well as protection against the acts themselves that a judge be prohibited from any activity in a case in which he has been recused. State v. Price, 274 So.2d 194, 197 (La. 1973).
In this case, any appearance of partiality on the part of Judge Amacker did not exist until after Mr. Ducote enrolled. Judge Amacker heard all the issues before her, considered the evidence and made a decision regarding the custody of the minor child and all other matters raised in Mr. and Mrs. Donahue's rules before any question occurred regarding her ability to be impartial.
Extensive reasons by the supreme court in Bergeron v. Bergeron, 492 So.2d 1193 (La. 1986) stated that in custody cases, there should be a heavy burden which protects the child and families from "the vexation and expense attending multiple unjustified lawsuits, conserves judicial resources, and fosters reliance on judicial actions by minimizing the possibility of inconsistent decisions." Id. Therefore, requiring this matter to be retried would undermine the considerations laid out by the supreme court in Bergeron, as well as violate the guarantee of procedural fairness to all litigants.
The most equitable and judicially efficient outcome in this case is to vacate the judgment on appeal and remand the matter to the trial court in order to enable Judge Amacker to render and sign a proper judgment nun pro tunc. See La. Code Civ. P. art. 2164 and Louisiana Paving Co., 593 So.2d at 895. To rule otherwise would allow any litigant who does not agree with the outcome in Judge Amacker's court have Mr. Ducote enroll prior to the judgement being signed thereby getting a "second bite at the apple." Requiring the matter to be retried would be patently unfair to Mr. Donahue and any opposing litigant in a similar situation.
For these reasons, I respectfully concur with the portion of the opinion vacating the judgment signed by Judge Devereux, but would remand the matter to the trial court with specific instructions for Judge Amacker to sign a judgment in conformance with her oral rendering with reasons on November 2, 2015. The matter should then be reallotted to Division "K."