Opinion
2018 CA 0804
01-28-2019
LAMELL GERARD JULIEN v. CATRINA JULIEN
Dele A. Adebamiji Felicia E. Adebamiji Baton Rouge, Louisiana Attorneys for Defendant/Appellant, Catrina Julien Veronica "Vicky" Jones Danielle G. Davis Baton Rouge, Louisiana Attorneys for Plaintiff/Appellee, Lamell Gerard Julien
NOT DESIGNATED FOR PUBLICATION On Appeal from the Twenty-Third Judicial District Court In and for the Parish of Ascension State of Louisiana
Trial Court No. 109,968 The Honorable Jessie M. LeBlanc, Judge Presiding Dele A. Adebamiji
Felicia E. Adebamiji
Baton Rouge, Louisiana Attorneys for Defendant/Appellant,
Catrina Julien Veronica "Vicky" Jones
Danielle G. Davis
Baton Rouge, Louisiana Attorneys for Plaintiff/Appellee,
Lamell Gerard Julien BEFORE: GUIDRY, THERIOT, AND PENZATO, JJ. PENZATO, J.
This is an appeal from a ruling of the trial court granting Lamell Gerard Julien's motion for contempt and immediate possession of the community residence against Catrina Julien. For the reasons that follow, we dismiss the appeal.
FACTS AND PROCEDURAL HISTORY
On May 9, 2014, Lamell filed a petition for divorce against Catrina after having been married for over seventeen years. In his petition, Lamell stated that he had moved out of the family home on June 29, 2012. Based upon the pleadings, the divorce was granted on August 7, 2014. Catrina subsequently filed a petition for spousal support and partition of the community property. Following a hearing on September 19, 2014, an interim order was issued on November 21, 2014 (First Judgment), granting Catrina use of the community residence on the condition that she timely pay the mortgage, with the exclusive use of the residence defaulting to Lamell should Catrina become delinquent in the payments. The interim order further ordered that the parties list the community residence on the market within ten days.
A hearing was held on January 23, 2015, on a motion for contempt filed by Lamell against Catrina for failing to list the community residence on the market for sale, per the First Judgment, at which the parties entered into a stipulated judgment that the community residence was to be placed on the market within ten days of the hearing date. The trial court deferred ruling on the motion for contempt. The judgment was not signed until August 24, 2015 (Second Judgment).
This motion for contempt is referenced in the minutes of the trial court and the judgment but does not appear in the record.
On September 3, 2015, Lamell filed a petition for partition of community property, claiming that the parties had been unable to amicably partition the property owned indivision between them. On October 23, 2015, the trial court held another hearing and the parties entered into a written stipulation that the community residence would be listed for sale by October 30, 2015. The written stipulation, signed by the trial court on December 16, 2015 (Third Judgment), also provided that if Catrina was out of the country or away from the community residence, she would provide access and/or authorization to Lamell to list and/or show the home.
On May 25, 2016, the trial court held a hearing on Catrina's petition for spousal support and partition of community property. In a June 17, 2016 judgment (Fourth Judgment), the trial court denied spousal support and found Catrina in contempt for failing to list the community residence for sale. She was sentenced to thirty days in the Ascension Parish Prison (Parish Prison), which was suspended on the condition that Catrina provide proof of refinancing by May 27, 2016. The Fourth Judgment also stated that if the community residence was not listed for sale by June 3, 2016, Lamell could select a realtor, and that if Catrina did not comply with the trial court's orders, she would begin serving thirty days in the Parish Prison on June 17, 2016.
On June 17, 2016, the trial court held a status conference and, following the trial court's recommendation, the parties entered into a stipulation. Thereafter, the trial court signed a judgment in accordance with the parties' agreement on July 13, 2016 (Fifth Judgment), ordering: that Lamell execute the necessary documents to allow Catrina to refinance the community residence; that Lamell retain all rights, claims, and reimbursements in the community residence; that the execution of the documents was for the sole purpose of facilitating the refinancing of the property, with no intent to gratuitously donate his community interest in the community residence; and that if Catrina was unable to refinance the community residence, the Act of Donation would be null and void.
On August 29, 2016, another hearing was held, and the trial court entered a judgment ordering: Lamell to execute the refinancing papers within seven days; Lamell to obtain the cost of an appraisal of the community residence within seven days; that the parties split the cost of the appraisal; that Catrina pay her portion of the appraisal within seven days; that Lamell sign any documents necessary to refinance the community residence; and that the appraisal be completed. The judgment in accordance therewith was signed on October 11, 2016 (Sixth Judgment).
On February 17, 2017, another hearing was held regarding Catrina's failure to list the community residence for sale. The trial court noted that Catrina was found in contempt in May 2016 and sentenced to thirty days in the Parish Prison, but she was given the opportunity to list the home for sale. There was argument at this hearing that Catrina was paying the mortgage late, which was harming Lamell's credit rating. Catrina offered evidence that she had recently made two mortgage payments. Despite this evidence, the trial court imposed the thirty-day sentence and remanded Catrina to the sheriff. The trial court did permit Catrina to purge herself of the contempt by either refinancing the home or listing the home for sale. Catrina listed the home for sale in February 2017 and was released from the Parish Prison.
The orders of the trial court were oral, as there appears no judgment in the record following the February 17, 2017 hearing.
On August 21, 2017, Lamell filed a rule to set status conference for immediate possession of the community residence and for contempt, alleging that Catrina violated numerous trial court orders. On October 20, 2017, the trial court held a hearing, ordered Catrina to vacate the community residence, and made findings of contempt against Catrina in connection with the following actions or inactions: failing to pay the mortgage note timely; failing to maintain insurance on the 2004 BMW; failing to pay her half of the cost of the appraisal of the community residence; and failing to refinance the community residence in her own name. The judgment also vacated the then-current listing agreement for the community residence, set aside the Act of Donation for Catrina's failure to comply with the terms and stated purpose of the Act of Donation, and cast Catrina with court costs associated with the motion for contempt. The judgment further set a hearing for the reasonableness of attorney's fees if an agreement was not reached prior to the given date after the submission of an affidavit. The judgment was signed November 27, 2017 (Seventh Judgment). It is from this judgment that Catrina suspensively appeals.
Mover specifically requested the enforcement of the September 19, 2014 order resulting in the First Judgment, which provided that the failure to pay the mortgage note in a timely fashion would result in the default of the community residence to Lamell, and the July 13, 2016 order resulting in the Fifth Judgment, which provided for the nullity of the Act of Donation in the event Catrina was unable to refinance the community residence.
SUBJECT MATTER JURISDICTION
Appellate courts have the 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." La. C.C.P. art. 2083. A final judgment is one that determines the merits of a controversy, in whole or in part. In contrast, an interlocutory judgment does not determine the merits, but only preliminary matters in the course of an action. La. C.C.P. art. 1841.
A valid judgment must be "precise, definite, and certain." Laird v. St. Tammany Parish Safe Harbor, 2002-0045 (La. App. 1 Cir. 12/20/02), 836 So. 2d 364, 365. Moreover, a final appealable judgment must contain decretal language, and it must name the party in favor of whom the ruling is ordered, the party against whom the ruling is ordered, and the relief that is granted or denied. See Carter v. Williamson Eye Center, 2001-2016 (La. App. 1 Cir. 11/27/02), 837 So. 2d 43, 44. These determinations should be evident from the language of the judgment without reference to other documents in the record. Laird, 836 So. 2d at 366. The specific nature and amount of damages should be determinable from a judgment so that a third person is able to determine from a judgment the amount owed without reference to an extrinsic source. Vanderbrook v. Coachmen Industries, Inc., 2001-0809 (La. App. 1 Cir. 5/10/02), 818 So. 2d 906, 913-14.
Vacate the community residence
The court has authority under La. C.C. art. 105 and La. R.S. 9:374 to award the use and occupancy of a family home pending the finality of the partition proceeding. Moody v. Moody, 622 So. 2d 1376, 1379 (La. App. 1 Cir.), writs denied, 629 So. 2d 1168 (La. 1993). While the Seventh Judgment orders Catrina to vacate the community residence and vacates the listing agreement for the community residence ancillary thereto, it contains no decretal language granting Lamell immediate possession or the use and occupancy of the community residence pursuant to La. R.S. 9:374. Nonetheless, a judgment that merely allocates certain community assets but does not make an accounting or valuation of the community, nor divides the community assets and liabilities between the parties is not an appealable judgment. Major v. Major, 2017-1077 (La. App. 1 Cir. 2/27/18), 244 So. 3d 1, 3 (citing Politz v. Politz, 2005-2568 (La. App. 1 Cir. 8/1/07), 2007 WL 2193547, at *3 (unpublished), writ denied, 2007-2137 (La. 1/7/08), 973 So. 2d 728). To permit an appeal of such a judgment would encourage multiple appeals and piecemeal litigation and prohibit expeditious disposition of community property cases. Major, 244 So. 3d at 3. Therefore, this portion of the Seventh Judgment is an interlocutory ruling and not immediately appealable.
Set Aside Act of Donation
The Seventh Judgment further set aside the Act of Donation, which was the penalty outlined in the Fifth Judgment for failing to comply therewith. Prior to a judgment of partition, the parties agreed by way of consent judgment that Lamell would execute the Act of Donation for the sole purpose of facilitating the refinancing of the property in Catrina's name. The parties further agreed that if Catrina was unable to refinance the home, the Act of Donation would be null and void. Thus, Lamell sought enforcement of the prior consent judgment. In Vicari Contractors, Inc. v. Parish of Jefferson, 1997-168 (La. App. 5 Cir. 10/15/97), 701 So. 2d 250, writ denied, 1997-3141 (La. 2/20/98), 709 So. 2d 776, cert. denied, 525 U.S. 815, 119 S.Ct. 51, 142 L.Ed.2d 40 (1998), the court held that a trial court could enforce a previous consent judgment which stated that if Vicari failed to comply with the terms thereof, the Parish could demolish Vicari's buildings without further notice.
The record does not reflect that the community property has been partitioned as of the date of the lodging of the appellate record.
However, the setting aside of the Act of Donation did not determine the merits of the Petition for Partition of Community Property. A judgment that does not determine the merits but only preliminary matters in the course of the action is an interlocutory judgment. La. C.C.P. art. 1841. An interlocutory judgment is appealable only when expressly provided by law. La. C.C.P. art. 2083. Therefore, the portion of the Seventh Judgment setting aside the Act of Donation is interlocutory and is not immediately appealable.
Contempt Findings
The trial court made the following contempt findings against Catrina: (1) failing to pay the mortgage timely; (2) failing to maintain insurance on the BMW; (3) failing to pay her portion of the appraisal; and (4) failing to refinance the community residence in her name. Contempt of court is defined in La. C.C.P. art. 221 as "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." There are two types of contempt. A direct contempt includes one committed in the immediate view and presence of the court and of which it has personal knowledge. La. C.C.P. art. 222. A constructive contempt of court is any contempt other than a direct one, including willful disobedience of any lawful judgment, order, mandate, writ, or process of the court. La. C.C.P. art. 224(2).
In the present case, the Seventh Judgment imposes the sanction of court costs and states that a "hearing regarding the reasonableness of attorney's fees is set for November 27, 2017, ... if an agreement is not reached prior to such date after the submission of an affidavit." However, the judgment does not award attorney's fees in any respect.
The sanctions available for contempt of court are as follows: (1) imprisonment until the offender performs an act, La. R.S. 13:4611(1)(c); (2) a fine up to $500.00, imprisonment for not more than three months, or both, La. R.S. 13:4611(1)(d)(i); and (3) in addition or in lieu of the above penalties, the court may order litter abatement work or community service, not to exceed the time limits above, La. R.S. 13:4611(1)(d)(ii). To the extent the remaining sanctions imposed by the trial court (vacating the community residence, vacating the listing agreement, and setting aside the Act of Donation) could be considered to have been imposed in response to the motion for contempt, the sanctions would constitute inappropriate punishment for constructive contempt of court. See Boudreaux v. Vankerkhove, 2007-2555 (La. App. 1 Cir. 8/11/08), 993 So. 2d 725, 734. --------
The portion of the judgment finding Catrina in contempt of court and ordering her to pay costs is an otherwise final appealable judgment. See La. C.C.P. art. 1915(A)(6); Rodock v. Pommier, 2016-809 (La. App. 3 Cir. 2/1/17), 225 So. 3d 512, 515 n.2, writ denied, 2017-0631 (La. 5/1/17), 221 So. 3d 70; see also Allen v. Allen, 2013-0996 (La. App. 1 Cir. 12/29/14), 2014 WL 7368574, at * 3 (unpublished opinion), writ denied, 2015-214 (La. 5/22/15), 171 So. 3d 922. However, we find that the portions of the judgment which are interlocutory for the purpose of an immediate appeal render the entire judgment fatally defective, and without a valid, final judgment, this court lacks appellate jurisdiction. See La. C.C.P. arts. 1918 and 2083; Rosewood Enterprises, Inc. v. Rosewood Development, LLC, 2016-0352 (La. App. 1 Cir. 3/6/17), 2017 WL 900041 (unpublished); Duet v. Landry, 2016-0575 (La. App. 1 Cir. 3/6/17), 2017 WL 900066 (unpublished); Gaten v. Tangipahoa Parish School System, 2011-1133 (La. App. 1 Cir. 3/23/12), 91 So. 3d 1073, 1074.
We note that this court has the discretion to convert an appeal to an application for supervisory writs and rule on the merits of the application. Stelluto v. Stelluto, 2005-0074 (La. 6/29/05), 914 So. 2d 34, 39. However, there are limitations on this grant of authority. 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. See Best Fishing, Inc. v. Rancatore, 1996-2254 (La. App. 1 Cir. 12/29/97), 706 So. 2d 161, 166-67. Finding that the aforementioned criteria are not met, we decline to exercise our supervisory jurisdiction. See Best Fishing, 706 So. 2d at 167.
CONCLUSION
For the above and foregoing reasons, we dismiss the appeal of Catrina Julien. Costs of this appeal are assessed against Catrina Julien.
APPEAL DISMISSED.