Wanda Carol Johnson Barton VS John Vernon Barton

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STATE OF LOUISIANA COURT OF APPEAL FIRST CIRCUIT NO 2006 CA 2032 WANDA CAROL JOHNSON BARTON VERSUS JOHN VERNON BARTON Judgment Rendered Appealed AUG 0 8 2007 from the 21st Judicial District Court In and for the Parish of Tangipahoa Louisiana Case No 9901125 The Honorable Bruce C Bennett Judge Presiding Appellee Thomas B Waterman Counsel for Plaintiff Ponchatoula Louisiana Wanda Carol Johnson Barton Cassandra Butler Independence Louisiana Counsel for Defendant BEFORE Appellant John Vernon Barton KUHN GAIDRY AND WELCH JJ GAIDRY J John Vernon Barton the appeals Court for the Parish of Tangipahoa order reduction of child suppOli following reasons and remand the judgment the vacate we case to set aside its For the grounds of abandonment prior order reverse the prior rule for entirety including his original the on of the 21st Judicial District denying his motion in its dismissing this action judgment subsequent for fmiher proceedings FACTUAL AND PROCEDURAL HISTORY John Vernon Balion and Wanda Carol Johnson Balion of 16 a minor incidental answer born On 1995 son April on March 1 12 1999 Ms Barton filed and reconventional demand On July 12 1999 monthly a child Dr support the of June 10 was July 30 Ms Balion interim ordered same judgment of date the trial divorce comi By judgment signed comi suppOli on for failure dental insurance for his minor judgment awarding the designated as provisional Barton interim following submission in the amount on petition February 28 2000 2 On the to reduce 1 355 39 2001 Dr Balion child support and son of monthly child support prior child suppOli judgment to an signed another October 12 to pay Dr Barton filed 1999 the trial comi rendered amended its the amount of monthly child contempt of was July for divorce and to pay Ms 1 724 00 retroactive to the date of filing of her A on 1999 amount to be determined On petition suppOli with Ms Balion Barton child suppOli worksheet judgment awarding and a the trial comi rendered paliies provisional joint custody domiciliary custodian on the parents They subsequently married 1994 including child custody matters are to was found in maintain health and July On He support emergency been 31 2002 Bmion filed that his alleged Dr employer physician room child support retroactive on the rule was contract s to that date fixed for or August Ms Barton were the 22 2003 alleging 16 September Dr Barton filed that she had failed to addition to seeking also to set sought to son 25 2003 According 2003 s On the date of the continued without date motion for produce contempt against certain documents that A notation of the continuance to the with Dr Barton trial court s s Dr Barton hearing for past due child support The alleging that hearing subsequently continued on on written on the October 17 2003 Dr continued to November 10 continued without date combined rule for contempt and Dr Barton the rule twice before was was a was to contempt motion minute entries rule for reduction of child suppOli suppOli set for In rule for reduction of child suppOli On June 13 2005 Ms Bmion filed 21 was The the trial comi ordered the continuance of the On the latter date however the rule for child 2002 have the contempt motion unsigned order submitted 2003 filing of his rule his rule for reduction of child suppOli for hearing August October 17 s a sought reduction of An order was submitted with the motion motion for contempt and Dr Bmion Barton provide hospital subject of an earlier order and that she had refused him reasonable visitation with their minor On and the date of hearing neither party appeared and the hearing On to services had been terminated and that he had not since December 20 2001 gainfully employed hearing rule for reduction of child a was set was for 24 months in July 21 arrears 2005 but being assigned for hearing on was October 2005 On October 13 2005 Dr Barton filed a rule for contempt that Ms Bmion had denied him visitation with their minor 3 son alleging The rule set was filed trial a for hearing motion comi to signed on continue the order an On October 21 hearing on an appearance Dr Balion in 90 days in The trial parish prison child suppOli of s contempt rule and the November 21 2005 to the trial court heard Ms 2005 comi contempt The trial the Dr Balion continuing that hearing contempt and past due child suppOli made On October 24 2005 Ms Balion October 21 2005 Balion Neither Dr Barton rule for s his counsel nor ruled in favor of Ms Barton and found comi s sentenced Dr Barton to judgment for contempt and found him liable for past due with 36 595 53 interest legal and attorney fees of 2 500 00 2005 Dr Barton filed On November 2 seeking to set aside the continued 21 hearing The motion for reconsideration grounds on the that his counsel October 21 was set for 2005 had been hearing on November 2005 On November 21 2005 Dr Balion outstanding instanter attachment issued and his rule scheduled for 2006 was The trial Dr Balion comi s s at was as hearing that date was continued to on hearing January set an for 19 hearing rule for reduction of child suppOli rather than his motion contempt judgment abandoned on the defense had been taken since however custody the time of the contempt On December 5 2005 Ms Barton filed suit taken in minute entry reflected that the rule for reconsideration of the the motion for reconsideration on contempt judgment believed all matters scheduled for a grounds that July 31 2002 an ex no A characterized the abandoned action reduction of child suppOli filed on July 4 31 2002 parte motion to dismiss step in its prosecution or supporting memorandum as Dr Barton s rule for On December 8 2005 the joint motion of the the trial comi signed the paliies resolving a consent judgment judgment on of contempt and for past due child suppOli and releasing Dr Barton fi om the custody of the sheriff Dr Balion filed parte motion trial comi July 31 a signed On Balion s ex On December 12 2005 the December 9 2005 on to Ms parte order dismissing the suit as 2006 an ex 19 January to s abandoned as of the of Dr Barton hearing compel discovery filed by rule for reduction Ms Barton were continued to 21 2006 21 February oral motion 2005 opposition sic motion February an dismiss 2002 On and to memorandum in a by 2006 by Dr Balion to set aside the On the same per curiam an comment order an amending motion original lule for in order to amend his reduction to seek reduction retroactive to signed trial court heard parte order of December 13 date Dr Barton filed for reduction of child suppOli the trial court ex parties the the trial comi luled that it would counsel Following argument of deny the motion consent of the May 2003 On February permitting such amendment that Dr Barton s 24 2006 but noted in a retroactive reduction request may have been abandoned On March 13 2006 Dr Balion filed That motion suppOli On Barton s May 2006 10 oral motion abandonment This I was fixed for hearing the trial comi to set aside the on art 56l A 2 its judgment denying Dr parte order of dismissal for appeal followed The effective date of abandonment stated in the order is C CP 15 2006 May signed ex motion to reduce child a new unequivocally ofthe date of its abandonment obviously incon ect in that La states that the dismissal of the action is effective rather than retroactively 5 to the date ofits filing as ASSIGNMENT OF ERROR the trial court erred Barton contends Dr 31 dismissing his July abandoned as action was 2002 rule for taken in the in reduction rendering judgment of child of the lule prosecution suppOli on August as 25 2003 DISCUSSION A rIse to cause the defendant of action has been defined plaintiff s right Everything So 2d 1234 1238 La on judicially the the action are set fOlih in La C C Louisiana Civil Code atiicle 142 against the a cause 142 and La R S art that provides of the patiies a material between the time of the motion for modification of the award circumstances must have needs of the child Comment or 2001 a suppOli awards are except for good cause Cir 5 22 02 2 the real z To be Pursuant to La R S generally retroactive 819 So 2d 1108 v one and the time of the material the change in great consequences for the 9 315 21 to the Casey of either in circumstances of of either patiy to pay Casey or or the the party previous award impOliance ability shown change award of a n seeking Under La R S 9 3 11 A modification must demonstrate 616 of action for child suppOli may be modified if the circumstances of the child parent materially change give Subaru South Inc v The basic elements of 1993 facts which operative assert Wheels Subaru Inc modification of child suppOli 9 311 A to as La R S 9 311 modifications of child date of judicial demand 02 0246 p 4 La App 4th 1111 conceptual standpoint a parent s cause of action to modify an award of child existence is support can only come into existence after the time of that award since its dependent upon changed circumstances between the time of the previous award and the From a time of the motion for modification of the award 6 La R S 9 311 A The question arises child support filed in a motion or civil action of divorce is abandonment under La C C P A a mi 56l A which rule for modification of an prosecution action provides An action is abandoned when the 1 take any step in its period whether to as to pertinent pmi in pmiies fail defense in the trial or subject comi to for a of three years 2 This shall provision be formal operative without parte motion of any party or other interested person by affidavit which provides that no step has been taken order for a but on ex of three years in the period action the trial shall court enter prosecution or defense of the formal order of dismissal a as of the date of its abandomnent 3 within A motion to set aside dismissal may be made only of the date of the sheriffs service of the order thirty days a timely motion to set aside shall give notice of the order of of dismissal If the trial comi denies the dismissal the clerk of court a denial pursuant to AIiicle 1913 A pursuant to AIiicle 19l3 D and shall file a celiificate 4 An appeal of an order of dismissal may be taken only within sixty days of the date of the sheriffs service of the order of dismissal An appeal of an order of denial may be taken only within sixty days of the date of the clerk s mailing of the order of denial A civil action is is of commenced demand for the enforcement of See La C C P 561 instead of actions as well as 01 2056 p 4 La held that the term to mi b pleading presenting a La C CP 852 principal 1960 3 4 02 v used in La the entire lawsuit or lawsuit C C P 7 or CC P art to comi a incidental 561 mi the supreme judicial proceeding same applies Formosa Plastics 338 a and is used in La C C P action See La In James legal right the demand to clear that it action a A motion is considered 421 The term 813 So 2d 335 action therefore be present in the mi to make it demand to the Revision Comment limited of by the filing competent jurisdiction pleading mi a Corp of La comi 561 is not Several judicial proceeding Official squarely necessarily actions may James 01 2056 at p 5 1st Cir 7 26 06 App Upon to 813 So 2d at 339 make material in circumstances change motion a rule to or appear to constitute certainly 370 561 ali Griffin applies Campbell v And this 372 to an See So 2d 701 e g 00 00468 comi Bates p 3 La has treated jurisdiction v Bates and Richardson 859 So 2d 81 7 9 03 we have seeking he to have his agreed on on October 17 2003 s analysis that 11 2 00 as final judgments subject La 22 25 step 2003 02 2415 re 2003 to continue its La are final required albeit the sole step 3 to review 923 1 st Cir App our on appellate judgments that 3 original lule for The record suppOlis s an order fixed for hearing although hearing from that date to his submission of the order as we are lules for or Dr Balion submitted reduction See 1st Cir 9 23 05 App La 772 So 2d judgments denying motions abandoned is incorrect August abandomnent increase in child suppOli decision that Dr Barton Interpreting a support award to See La C C P art 1841 was of maintenance of the action action constituted an App 3rd Cir 04 1930 original rule for August child a subject implicitly recognized that they suppOli the conclusion that La child suppOli a By reviewing such judgments under the trial court reduction for child modify Richardson v detennine the merits of actions Here 7 p parent has the legal right without detailed seeking action modification of child suppOli awards appeal a action an Prior jurisprudence has in fact assumed C C P 05 0010 Byais 943 So 2d 390 396 Accordingly would v judicial demand for appropriate modification of a award a Satterthwaite to do we in the liberally in favor conclude that such prosecution of Dr expressly determine the nature of a judgment interlocutory final and appealable or paliially final for purposes of appeal as the trial comi s judgment inadvertently but expressly dismissed the entire suit As worded the judgment at issue is indisputably final and appealable It is Ulli1ecessary for us in this case to denying modifIcation of child support as 8 Barton original action for reduction of his child suppOli s rule was not abandoned under the See Thibaut Oil Co 07 14 2 Holly on 2 Ms Barton child support the trial court aside the s s prior ex s The order also proceedings rather judgment comi La we than must vacate of May 10 2006 561 1st Cir order of an to La that his mi App entry of parte motion pursuant ex Accordingly of La C C P pp 5 6 06 0313 therefore incorrect was provisions The trial for the dismissal of all set v So 2d dismissal 56l A Inc obligation and C CP art inadveliently provided only the rule for reduction the order of dismissal denying Dr Barton parte dismissal and remand this s of reverse motion to matter for further proceedings We a finding that the above conclusion does not emphasize however that otherwise exists under La R S 9 315 21 to limit good cause the retroactive effect of any judgment In Lloyd v mother first filed The the 94 0421 Lloyd a La reducing 1st Cir App motion to increase child original hearing that motion on request of the father was a second motion increase child support the last s new suppOli not take was continued on September to October 18 place year after the second motion a on 1991 1991 at that later date The second motion several occasions third motion The trial on 10 the Over six months later the mother the withdrawal of the mother counsel filed suppOli 649 So 2d 32 12 22 94 increase child suppOli to being prompted by The mother the amount of child continued counsel but did s due to the withdrawal of that counsel filed preclude court s to by both parties original counsel to increase child suppOli a ultimately rendered judgment increasing child suppOli but effective only from the date of filing of the third motion In doing in effect abandoned so the trial court determined that the first motion and that the mother had consented 9 to the was multiple continuances of the motion This hearing noted that court the retroactive scope of at p on a 4 6 649 So 2d at 35 oUlis have Based upon the found we cOUli to determine to be the date of suppOli c discretion some numerous good cause the third filing modification of a suppOli order the first and second motions the trial the second motion before to limit relating to existed in the record for the effective date for the increase filing bar 94 0421 Lloyd continuances or of the third motion in child 94 0421 at p 6 Lloyd 649 So 2d at 36 Not only was Dr Balion twice held in contempt and ordered to pay past due child suppOli after the filing of his original rule but he failed any relief based upon the actively seek those were not expressly 4 The hearings judgments of child support anearages and implicitly or consented to the This subject judgments following in peliinent part support A modifying is addressed by contempt continuances of scheduled 9 310 addressed the La R S now multiple La R S 9 of child retroactivity 21 315 which provides Except for good cause shown a judgment awarding or revoking an interim child suppOli allowance shall be retroactive to the date of judicial demand but in no case prior to the date of judicial demand B 1 A judgment that awards initially support is effective as of the date the judgment is interim child suppOli allowance as of that date or signed denies final child and terminates an interim child suppOli allowance award is not in effect on the date of the judgment awarding final child suppOli the judgment shall 2 If an exceptfor good be retroactive to the date ofjudicial demand but in no case c prior to the revoking a final judicial demand E a on date cause shown a judgment modifying or shall be retroactive to the date of In the event that the courtfinds which the award shall prior shown child suppOli judgment but in no case prior to the date of judicial demand award retroactive to the date date cause date of judicial demand Except for good ofjudicial commence to the date of judicial demand 10 good to Dr Balion also appealed and thus became final and executory Prior to its amendment in 1993 the grounds of his original rule prior to cause for not making the demand the court may fix the but in no case shall this date be Emphasis supplied hearings on his original course That filing circumstances 9 315 21 E of or child s we under La C C P sufficient including conduct and over inaction comi to absent cause extenuating under La R S be retroactive not to the date demand simply art three years after its conclude in its discretion that any decrease support obligation should original judicial Again period of a explanation might constitute good for the trial in Dr Balion of his rule within hold that Dr Barton 561 to oppOliunity and that the trial be heard on s rule court must the issues was abandoned not afford Dr Barton presented by the issue of the effective date of any reduction in child a his rule support DECREE The trial court these proceedings May 10 fmiher 2006 ex in their is reversed proceedings assessed to the s dismissing parte order of December 13 2005 entirety is and this vacated matter is consistent with this plaintiff appellee The trial court remanded opinion s judgment of to the trial court for All costs of this appeal are Wanda Carol Johnson Barton ORDER OF DECEMBER 12 2005 VACATED JUDGMENT OF MAY 10 2006 REVERSED AND CASE REMANDED 11

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