Opinion
2018 CU 1140 2018 CU 1141
02-28-2019
LEROY GRIFFIN, JR. v. TA-LISHA TANNER C/W TA-LISHA TANNER v. LEROY GRIFFIN
Mark D. Plaisance Marcus J. Plaisance Prairieville, Louisiana Attorneys for Appellant, Ta-Lisha Tanner Frank E. Brown, III Baton Rouge, Louisiana Attorney for Appellee, Leroy Griffin, Jr.
NOT DESIGNATED FOR PUBLICATION On Appeal from the Family Court In and for the Parish of East Baton Rouge State of Louisiana
No. 201102 c/w 201255 Honorable Pamela J. Baker, Judge Presiding Mark D. Plaisance
Marcus J. Plaisance
Prairieville, Louisiana Attorneys for Appellant,
Ta-Lisha Tanner Frank E. Brown, III
Baton Rouge, Louisiana Attorney for Appellee,
Leroy Griffin, Jr. BEFORE: GUIDRY, THERIOT, AND PENZATO, JJ. PENZATO, J.
Ta-Lisha Tanner appeals from a trial court judgment designating Leroy Griffin, Jr. as the domiciliary parent, ordering her to pay child support based upon a monthly gross income of $6,392.10, and finding her in contempt of court. For the following reasons, we dismiss this appeal.
FACTS AND PROCEDURAL HISTORY
Ms. Tanner and Mr. Griffin are the unmarried parents of T.G., born August 25, 2008. The parties maintained an amicable relationship and no court orders were in place for custody or support until Mr. Griffin filed a petition to establish custody on August 21, 2015. A stipulated judgment was signed January 4, 2016, awarding the parties joint custody of T.G., with Ms. Tanner designated as the domiciliary parent, and ordering Mr. Griffin to pay monthly child support of $750.00. On May 9, 2017, the custody of T.G. was modified by agreement of the parties, with Mr. Griffin being designated as the domiciliary parent. A judgment in accordance therewith was signed on July 5, 2017, which also terminated Mr. Griffin's child support obligation, decreed that an overpayment of child support in the amount of $3,591.31 was due to Mr. Griffin from Ms. Tanner, and ordered that the overpayment be made executory.
Thereafter, on August 3, 2017, Mr. Griffin filed a rule for contempt and for child support. In addition to seeking child support, Mr. Griffin alleged that Ms. Tanner was in contempt for failing and/or refusing to pay the $3,591.31 overpayment of child support made executory in the July 5, 2017 judgment. He further sought court costs and attorney's fees associated with the filing of the rule. The trial court conducted a hearing on Mr. Griffin's rule on September 12, 2017, and issued a judgment on October 10, 2017, that ordered Ms. Tanner to pay interim child support in the amount of $600.00 per month and set child support for review on November 7, 2017. The judgment further decreed that the court would defer its ruling on the issue of contempt until November 7, 2017, to allow Ms. Tanner the opportunity to make substantial payments (defined as one-half the total amount) towards the total amount due for overpayment of child support. The matter did not proceed on November 7, 2017.
On January 11, 2018, Ms. Tanner filed a motion to modify the May 9, 2017 order relating to custody, seeking to share equal time with T.G. and to be designated as the domiciliary parent. She alleged as a material change of circumstances that she had relocated from New Orleans, Louisiana back to Baton Rouge, Louisiana and had obtained better employment with more financial stability.
The motion to modify custody filed by Ms. Tanner and the rule for contempt and child support filed by Mr. Griffin came for hearing on February 28, 2018. The trial court heard testimony from Ms. Tanner and Mr. Griffin and reviewed evidence submitted by the parties. At the conclusion of the hearing, the trial court rendered judgment regarding custody, child support, and contempt, and signed a judgment on April 10, 2018, in accordance with its oral rulings. The April 10, 2018 judgment ordered that the parties have joint custody of T.G., with Mr. Griffin designated as the domiciliary parent. It further ordered Ms. Tanner to pay child support in the amount of $1,268.00 per month for the period of August 3, 2017, to September 30, 2017; $875.00 per month for the period of October 1, 2017, to December 31, 2017; $797.00 per month for the period of January 1, 2018, to March 1, 2018; and $550.00 per month commencing on March 1, 2018. The child support calculations were supported by worksheets attached to the judgment and were based upon a monthly gross income for Ms. Tanner of $6,392.10. The judgment decreed that Ms. Tanner was in contempt of court for failing to repay the overpayment of child support in a timely manner. Sentencing for the contempt was deferred on the condition that all future payments were paid timely. The judgment further ordered Ms. Tanner to pay court costs in the amount of $160.00 and attorney's fees in the amount of $1,000.00. Ms. Tanner appeals the judgment alleging that the trial court erred in finding she was voluntarily underemployed and therefore also erred in attributing to her the incorrect income; in finding her in contempt of court for failure to timely repay Mr. Griffin for an overpayment of support when she actually paid the sum in full; and in not naming her domiciliary parent based upon her stable employment, family structure, and geographical location.
DISCUSSION
We first address the trial court's finding of contempt against Ms. Tanner. While the trial court found Ms. Tanner in contempt of court, it did not impose sanctions but instead deferred sentencing "on the condition that all future payments are paid timely."
A contempt of court is any act or omission tending to obstruct or interfere with the orderly administration of justice, or to impair the dignity of the court or respect for its authority. La. C.C.P. art. 221. A contempt proceeding incidental to a civil action is considered to be a civil matter if its purpose is to force compliance with a court order but is treated as a criminal matter if its purpose is to punish disobedience of a court order. Rogers v. Dickens, 2006-0898 (La. App. 1 Cir. 2/9/07), 959 So. 2d 940, 947. Specification of the sanction imposed is essential before a contempt finding can be reviewed on appeal because the sanction determines whether the contempt is civil or criminal and which burden of proof applies. Suazo v. Suazo, 2010-0111 (La. App. 1 Cir. 6/11/10), 39 So. 3d 830, 832. Moreover, an adjudication of contempt without the imposition of sanctions is meaningless. Lemoine v. Lemoine, 303 So. 2d 520, 523 (La. App. 1 Cir. 1974); see also Nesbitt v. Nesbitt, 40,442 (La. App. 2 Cir. 1/13/06), 920 So. 2d 326, 330, writ denied, 2006-0720 (La. 6/2/06), 929 So. 2d 1255 (Court held that finding of contempt without imposition of sanctions is not ripe for review, because it is only a finding of fact. The contempt matter was remanded for further proceedings, and the trial court was instructed to either leave the finding of fact as a warning or to complete the adjudication of contempt.)
Appellate courts have a duty to examine subject matter jurisdiction sua sponte, even when the parties do not raise the issue. Advanced Leveling & Concrete Solutions v. Lathan Co., Inc., 2017-1250 (La. App. 1 Cir. 12/20/18), So. 3d. ___, ___ (en banc). Our appellate jurisdiction extends to final judgments. See La. C.C.P. art. 2083. Without a valid final judgment, this court lacks jurisdiction and the appeal should be dismissed. Advanced Leveling, ___ So. 3d. at ___.
Because the trial court deferred sentencing in connection with its contempt ruling, this finding is not a final judgment and is not properly before us on appeal. See Suazo, 39 So. 3d at 832; Nesbitt, 920 So. 2d at 330. We lack appellate jurisdiction where, as here, a portion of the judgment is indefinite. See Advanced Leveling, ___ So. 3d. at ___.
While this court is authorized to treat an appeal as an application for supervisory writs and to rule on the merits of the application, there are limitations on this grant of authority. Best Fishing, Inc. v. Rancatore, 96-2254 (La. App. 1 Cir. 12/29/97), 706 So. 2d 161, 166. In Herlitz Construction Company, Inc. v. Hotel Investors of New Iberia, Inc., 396 So. 2d 878 (La. 1981), the Louisiana Supreme Court directed appellate courts to consider an application for supervisory writs under their supervisory jurisdiction, even though relief may be ultimately available to the applicant on appeal, when the trial court judgment was arguably incorrect, a reversal would terminate the litigation (in whole or in part), and there was no dispute of fact to be resolved. We find that the criteria set forth in Herlitz are not met, and therefore decline to exercise our supervisory jurisdiction.
CONCLUSION
For the foregoing reasons, we dismiss Ta-Lisha Tanner's appeal of the April 10, 2018 judgment. Costs of this appeal are assessed against Ta-Lisha Tanner.
APPEAL DISMISSED.