Opinion
No. 2001-CA-1877
May 15, 2002.
APPEAL FROM CIVIL DISTRICT COURT, ORLEANS PARISH NO. 96-12911, DIVISION "M-DRS-3" HONORABLE LLOYD J. MEDLEY, JUDGE.
James A. Gray II, GRAY GRAY, New Orleans, LA, COUNSEL FOR PLAINTIFF/APPELLANT.
Frank P. Tranchina, Jr., DUTCH TRANCHINA, Metairie, LA, and Jerome J. Pellerin, New Orleans, LA, COUNSEL FOR DEFENDANT/APPELLEE.
(Court composed of Judge Joan Bernard Armstrong, Judge Steven R. Plotkin, Judge Max N. Tobias, Jr.)
Plaintiff, Frankie Faulkner Pellerin, appeals a trial court judgment dismissing her rule for contempt for failure to comply with a child support judgment against defendant, Jerome Joseph Pellerin, as barred by the doctrines of res judicata and modification of a judgment by operation of law. We reverse and remand for further proceedings.
Facts
The parties to this appeal were divorced by judgment of August 15, 1997. During their marriage, the Pellerins had two sons. On October 28, 1996, the Pellerins entered into an interim order of support, requiring Mr. Pellerin to pay $1,000 per month for support of the two minor children, as part of a consent judgment. The consent order required Mr. Pellerin to pay the mortgage on the family home, then forward the difference between the mortgage payment and the interim child support amount to Ms. Pellerin.
This document is not included in the record. Information about the October 28, 1996, consent judgment was contained in this court's opinion in Pellerin v. Pellerin , 97-2085 (La.App. 4 Cir. 6/17/98), 715 So.2d 617, writ denied , 98-1940 (La. 10/30/98), 727 So.2d 1167.
Thereafter, on March 21, 1997, the trial court issued a judgment awarding Ms. Pellerin child support of $1,879.35 per month retroactive to August 8, 1996, the date Ms. Pellerin had filed for divorce. Mr. Pellerin appealed the March 21, 1997, judgment to this court. On June 17, 1998, this court affirmed the monthly child support award of $1,879.35, but modified the judgment, making it retroactive only to March 21, 1997. Pellerin v. Pellerin, 97-2085 (La.App. 4 Cir. 6/17/98), 715 So.2d 617. The Louisiana Supreme Court denied Mr. Pellerin's writ application on October 30, 1998. Pellerin v. Pellerin, 98-1940 (La. 10/30/98), 727 So.2d 1167.
Despite the fact that La.C.C.P. art. 3943 prohibits suspensive appeals of judgments awarding child support, Mr. Pellerin failed to comply with the trial court's March 21, 1997, child support award during the pendency of his appeal to this court. Nevertheless, Mr. Pellerin continued to pay the mortgage on the family home, as indicated by the fact that the record in this case contains a July 7, 1997, consent judgment, ordering Mr. Pellerin to pay the mortgage for February, March, and April of 1997 and to pay Ms. Pellerin's attorney fees and court costs. Thereafter, Ms. Pellerin filed a number of rules for contempt, each of which resulted in a trial court judgment holding Mr. Pellerin in contempt and ordering him to pay certain amounts in order to purge himself of contempt, as further detailed below.
On August 4, 1997, Ms. Pellerin filed a motion for expedited hearing, citing the October 28, 1996 consent judgment, requesting the trial court to order Mr. Pellerin to pay the mortgage that had again become delinquent, to show why full payment of child support should not be tendered to her, and/or to find Mr. Pellerin in contempt for not complying with the October 28, 1996 consent judgment and the March 21, 1997 judgment.
The trial court rendered judgment on October 1, 1997, finding Mr. Pellerin "guilty of contempt for failure to comply with court order, child support and mortgage payment." The trial court allowed Mr. Pellerin seven days "to purge himself of contempt by payment of all arrearages thru [sic] October 1, 1997." At this time, the trial court also denied Mr. Pellerin's motion to reduce child support based on issues concerning the children's private school attendance.
Then, in December 1997 and February 1998, Ms. Pellerin filed two rules to show cause and for expedited hearing. In her motions, Ms. Pellerin requested the trial court to require Mr. Pellerin to bring the mortgage payments up to date, to hold Mr. Pellerin in contempt for not complying with the October 28, 1996 consent judgment, and to order Mr. Pellerin to pay all unpaid child support up to the date of the hearing on the matter. In response to the first of those motions, the trial court issued a judgment on December 22, 1997, finding Mr. Pellerin in contempt, but suspending his sentence if he paid the amount owed to the mortgage company by a set time.
The rule to show cause filed by Ms. Pellerin in February 1998 contained the same requests she made in December 1997, except that she added a request for a contempt finding based upon Mr. Pellerin's failure to comply with the December 22, 1997 judgment. On February 26, 1998, the trial court issued a judgment, again finding Mr. Pellerin in contempt for his failure to comply with the October 28, 1996 consent judgment and ordering him to make mortgage payments for January and February of 1998.
Thereafter, this court rendered its decision in Pellerin v. Pellerin, supra, affirming the increase in Mr. Pellerin's child support obligation. On the same day this court's judgment was issued, Ms. Pellerin filed yet another rule to show cause and for expedited hearing. Again, she asked that Mr. Pellerin be held in contempt for not complying with the terms of the October 1996 consent judgment and that he be ordered to pay all child support payments due as of the date of the hearing. The record contains no resolution of this rule; however, in his reasons for judgment in the matter before us, the trial judge stated that at the August 19, 1998 hearing, "[Ms.] Pellerin's counsel informed the Court that following the hearing [Mr.] Pellerin would satisfy the support payment at the rate of $1,000.00 per month then due and payable. The Rule was voluntarily dismissed with prejudice."
Although the record contains all of the rules for contempt filed by Ms. Pellerin, as well as the trial court judgments on those rules, the record does not contain any transcripts of the hearings on those motions. Moreover, the record contains no reasons for judgment relative to any of the judgments entered. Accordingly, this court is unable to determine the trial court's intent in entering those judgments.
On January 20, 1999, Ms. Pellerin's new counsel filed the rule for contempt which resulted in the judgment that is the subject of this appeal. In this rule, Ms. Pellerin asked the trial court to find Mr. Pellerin in contempt for failing to comply with the court's March 21, 1997 judgment, as modified by this court on June 17, 1998. Essentially, Ms. Pellerin asked the trial court to assess child support payments against Mr. Pellerin at $1,897 per month from March 1997, with a credit for amounts he had paid.
In response to this rule, Mr. Pellerin filed a pleading entitled "Exception of No Cause of Action and No Right of Action," asserting various theories regarding the effect of the March 21, 1997, judgment as well as the effect of the several subsequent trial court judgments mentioned above ("the interim judgments"). Among other things, Mr. Pellerin argued that the trial court's interim judgments on Ms. Pellerin's contempt motions had a res judicata effect that prevented the court from awarding the relief requested by Ms. Pellerin.
The trial court held a hearing on November 10, 1999, but did not issue a judgment on the exception until November 6, 2000. The trial judge that heard and decided this last judgment was a different judge than the one that entered the interim judgments. The trial court granted the judgment, providing the following reasons for judgment:
[Ms.] Pellerin's causes of action for arrearages, the same cause asserted herein, was heard and adjudicated on four separate occasions, with Judgments rendered pursuant to La.C.C.P. art. 3946, setting forth the amount of the arrearages and the collection of those arrearages made executory. When the judgment is in favor of the plaintiff, all causes of action that had been and/or could have been asserted are both extinguished and merged in the Judgment. [Ms.] Pellerin's cause of action for a determination of and payment of past due support for any period arising on or after March 21, 1997 up through and including August 19, 1998 has already been adjudicated and resolved by the prior Judgments.
Further, the Judgment [of March 21, 1997] has been modified by operation of law. The Judgment was effective the date it was signed and terminated the Interim Order of Support as of that date. Each of the foregoing final Judgments individually and collectively modified the monthly rate of support as set forth in the Judgment. Each of the foregoing final Judgments represent[s] a determination of the rights of the parties and have [sic] acquired the authority of the thing adjudged. . . .
The record reflects that as of this date, [Mr.] Pellerin continues to pay $1,000.00 per month for the care and maintenance of his two minor children. The whole of this support has been tendered in payment of the mortgage on the community family home. The record also reflects that both of the minor children are enrolled in private school. It would appear that modification of the trial court's Judgment has not interrupted the children's maintenance or upbringing or otherwise worked to their detriment.
It is this Court's position that any cause for a determination of and payment of past due support for any period arising on or after March 21, 1997 up through and including August 19, 1998 is extinguished and merged into each of the final judgments rendered during that period.
The trial court's judgment has been modified by operation of law. [Mr.] Pellerin's monthly child support obligation remains at $1,000.00 per month unless and/or until otherwise modified.
At issue in this appeal is whether the trial court correctly determined that the doctrines of res judicata and modification of a judgment by operation of law prevented Ms. Pellerin from seeking additional support from Mr. Pellerin for the period covered by the interim judgments. Although Mr. Pellerin styled his pleading as an "Exception of No Cause of Action and No Right of Action," it actually raised a number of issues. Under well-established Louisiana law, it is the substance rather than the caption of a pleading that determines its effect. Brown v. Harrel, 98-2931, p. 4 (La.App. 4 Cir. 8/23/00), 774 So.2d 225, 228. Thus, this court is not bound by the rules that prohibit the consideration of anything except the petition itself in deciding an exception of no cause of action. Accordingly, this court will consider the doctrines upon which the trial court relied in reaching its decision — res judicata and modification of a judgment by operation of law.
Res judicata
The general principles governing res judicata are contained in LSA-R.S. 13:4231:
Except as otherwise provided by law, a valid and final judgment is conclusive between the same parties, except on appeal or other direct review, to the following extent:
(1) If the judgment is in favor of the plaintiff, all causes of action existing at the time of final judgment arising out of the transaction or occurrence that is the subject matter of the litigation are extinguished and merged in the judgment.
(2) If the judgment is in favor of the defendant, all causes of action existing at the time of final judgment arising out of the transaction or occurrence that is the subject matter of the litigation are extinguished and the judgment bars a subsequent action on those causes of action.
(3) A judgment in favor of either the plaintiff or the defendant is conclusive, in any subsequent action between them, with respect to any issue actually litigated and determined if its determination was essential to that judgment.
However, LSA-R.S. 13:4232(B) establishes an exception to theres judicata doctrine, stating as follows:
In an action for divorce under Civil Code Article 102 or 103, in an action for determination of incidental matters under Civil Code Article 105 , in an action for contribution to a spouse's education or training under Civil Code Article 121, and in an action for partition of community property and settlement of claims between spouses under R.S. 9:2801, the judgment has the effect of res judicata only as to causes of action actually adjudicated.
Mr. Pellerin argues, however, that the exception does not impact our decision in this case because the issue Ms. Pellerin wants adjudicated is precisely the matter actually litigated and finally adjudicated in the interim judgments. See Ebey v. Harvill, 26-373 (La.App. 2 Cir. 12/7/94), 647 So.2d 461, 463. In support of this argument, Mr. Pellerin points to the fact that Ms. Pellerin prayed for a judgment for "all past due support" in each of her rules. On the other hand, Ms. Pellerin argues that the interim judgments did not determine the rights of the parties because the trial court did not calculate the total child support due in any of these judgments.
Discussing the res judicata doctrine, this court in Berrigan v. Deutsch, Kerrigan Stiles, LLP, 2001-0612 (La.App. 4 Cir. 1/2/02), 2000 WL 15596 noted as follows:
[T]he formula derived in Louisiana jurisprudence states there must be identity in the two suits as to the thing demanded, the demand must be founded on the same cause of action, and the demand must be between the same parties. . . . A party urging an exception of res judicata carries the burden of proving the necessary elements listed above by a preponderance of the evidence. In fact, res judicata cannot be invoked unless all its essential elements are present and each necessary element has been established beyond all question. The res judicata doctrine must be strictly construed, and any doubt concerning its applicability is to be resolved against the mover.Id. at p. 5.
Our review of the record evidence in the instant case convinces us that the trial court improperly applied the res judicata doctrine to dismiss Ms. Pellerin's rule. As noted above, any doubt concerning the applicability of the res judicata doctrine is to be resolved against the mover. Id. In the instant case, doubt concerning the applicability of the doctrine exists because the record is devoid of evidence indicating that the interim judgments were intended to foreclose further consideration of child support due and owing during the period in question. As noted above, Ms. Pellerin included certain prayers in her various rules for contempt that resulted in the interim judgment. However, because the record contains no transcripts or reasons for judgment, neither this court, nor the trial judge who granted Mr. Pellerin's exception, is able to determine the intent of the trial judge who entered the interim judgments.
This court has previously expressed its concern regarding the procedure applied by trial court in matters ancillary to divorce proceedings, including child support matters, stating, in pertinent part, as follows:
Even interim and temporary orders in domestic matters should be substantiated with as complete a foundational record as possible.
We find that the intent of our legislature is the cautious, thorough, and expeditious handling of all decisions, at both the trial and appellate levels, regarding matters of alimony (both spousal and child), as well as custody and visitation. Undeniably, the best interests of children and families are served by so acting.
Therefore, in order to expedite and facilitate the prompt disposition of domestic relations matters, we mandate that the trial courts shall do the following when entering interim and temporary orders in domestic relations matters.
First, the trial court shall have a court reporter present during discussions leading up to the interim or temporary order. If a court reporter is unavailable, a recording capable of transcription shall be made of the discussions by the judge. If recording equipment is unavailable, the judge shall specify the factual information upon which each part of the interim or temporary order is based in sufficient detail that a reviewing court may ascertain the nature and extent of the information relied upon. If the court has relied upon the representation of a party, the record must reflect what information the party offered in support of the representation. In issues of support, the information shall include verified income statements and supporting documentation or stipulations made of record in open court. An opposing party may state his or her specific objection to an order and the reasons therefor. The information must likewise be made a part of the trial court's record.
Ventura v. Rubio, 2000-0682, pp. 16-17 (La.App. 4 Cir. 3/16/01), 785 So.2d 880, 892. The effect of the failure to follow these guidelines is aptly demonstrated by the instant case, where it is impossible to determine the basis of the trial judge's interim decisions. Accordingly, we find that the trial court improperly applied the res judicata doctrine in the instant case.
Modification of judgment by operation of law
In his reasons for judgment, the trial judge determined that the interim judgments had also been modified by operation of law when the interim judgments were entered. The Louisiana Supreme Court has stated that a child support decree may be modified by "operation of law."Halcomb v. Halcomb, 352 So.2d 1013, 1016 (La. 1977). However, the caselaw indicates that the only time such a judgment may be modified "by operation of law" is when the youngest child reaches the age of majority. LSA-R.S. 9:309(B); Gomez v. Gomez, 609 So.2d 263, 265 (La.App. 3 Cir. 1992). No express rule, statutory or jurisprudential, supports the trial court's finding that a child support award may be modified by operation of law when a contempt judgment is entered. Thus, the trial court improperly held that the child support award had been modified by operation of law.
Nothing in the record of this case indicates that Ms. Pellerin agreed to alter Mr. Pellerin's child support obligation. Moreover, under the circumstances of this case, we cannot find that Ms. Pellerin acquiesced to a change in child support. The record indicates that it was Mr. Pellerin who failed to comply with the trial court's support order, and that his failure to comply with that order repeatedly threatened the couple's ownership of the family home, as the monthly child support award was considerably more than the monthly mortgage payment. One cannot escape the impression arising from a review of Ms. Pellerin's rules for contempt that her primary concern during the time the child support order was pending in this court was maintaining ownership of the family home. That impression is supported by the fact that the trial court consistently required Mr. Pellerin to simply pay the mortgage payments in order to purge himself from contempt, without entering any specific judgments regarding past due child support.
Conclusion
Accordingly, the trial court judgment dismissing Ms. Pellerin's rule for contempt filed January 20, 1999, is reversed, and the case is remanded to the trial court for trial on the rule for contempt, including possible calculation of child support arrearages at the rate of $1,897 per month, retroactive to March 21, 1997. Cost of these proceedings are assessed to Mr. Pellerin.
REVERSED AND REMANDED.
ARMSTRONG, J., CONCURS IN THE RESULT.