Itzel Harriott Talbot VS Adrian Talbot
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NOT DESIGNATED FOR PUBLICATION STATE OF LOUISIANA COURT OF APPEAL FIRST CIRCUIT 2008 CA 0227 ITZEL HARRIOTT TALBOT VERSUS ADRIAN TALBOT j ftW On Appeal from the 22nd Judicial District Court Parish of St Tammany State of Louisiana Docket No 2005 13303 Division Honorable Steven M Raymond S Childress A Judge Presiding Attorneys Spiegel for Madisonville LA Plaintiff and Theon A Wilson Itzel Harriott Talbot Appellee New Orleans LA for Gregory S Marsiglia Attorneys David M Prados Defendant Lowe Stein Hoffman Adrian D Talbot Appellant Allweiss 8 Hauver LL P New Orleans LA BEFORE PARRO McCLENDON AND WELCH JJ Judgment rendered 1Y 2C J J J December 23 2008 PARRO J The defendant Adrian D Talbot defendants the the Compel Itzel Talbot Motion to judgment the trial case to the For the reasons set forth below for further to Attend court ordered that the proceeds awarded pursuant Home appeals the trial judgment Road Home dismiss this the Closing In of Home Road on receive 50 parties shall each Louisiana we court s Grant Road appeal and remand the in the trial court proceedings FACTS AND PROCEDURAL HISTORY Itzel Harriott Talbot married March 31 on transmission a for divorce Ms support On Talbot as the Mr and Talbot from rendered on April parties there relief entry are no sought by the 2 seeking Closing I Ms were 2 filed a by a or at Talbot contends vehicle an on an injunction seeking a later filed another joint custody and a 5 R 9 2801 a judgment of divorce appeal was was designated by the custody support and or other Mr a Motion Talbot such time and were Mr Compel Itzel Talbot Talbot on June 25 closing they to to Attend Road place sought an order requiring Ms 2007 at First American Title in Slidell as married in Slidell might be designated by Louisiana the Road while Mr Talbot contends they married in the state of Virginia However and and and a spousal parties Talbot to appear at Louisiana He divorce reflects that in the record as to rulings The record contains Home a to LSA Because the record interim Talbot answered Mr petition children of the family home and community property in the record 2006 4 minor were by facsimile In the 103 community property abusing her to the as of Talbot Talbot filed to LSA C C art partition of the community property pursuant A minute Ms 2005 of the use reconventional demand a 15 Mr primary domiciliary parent granting her the reciprocal injunction answer July sought joint custody of the injunction prohibiting the disposal preventing and Adrian D Talbot petition for divorce pursuant order an Talbot 1 1997 designating her marriage Ms a minute entry dated September 11 of divorce was granted 2006 judgment 2 shows that evidence was heard that date Home and to then and there execute program obtain to necessary Alternatively if the any Talbot the parties could be deposited AND bearing a rule to show account titled Talbot closing of their hearing On that Mr the to registry of the both of their that the court parties parte basis grant awarded in a or to interest joint pending partition of the names support of his Ms so 150 000 Road Home grant judge denied the held was open court documents motion Talbot failed on June 15 to 2007 Mr Talbot that she would not appear advising The trial The agreed alleged that despite her agreement to do appear for the without in the in He cause In his memorandum to the court in community property Mr awarded grants all deliver court declined to execute such an order on an ex Mr sought Home Road and on ex parte order but set the matter for a August 28 2007 and the judge rendered September 10 2007 the trial judge signed Talbot should application tendered immediately provide to the Road Home Ms by ruling a in judgment ordering a Talbot with program hearing copy of the a The him judgment continues IT IS FURTHER ORDERED that after of review the Talbot s concurrence that the application application and upon Itzel is accurate both parties shall appear at the closing on Friday August 31 2007 to complete the closing IT IS FURTHER ORDERED that the 50 parties shall each receive of the The proceeds awarded in the Louisiana Road Home Grant granting authority shall provide each party with a check in the amount of issued 75 000 00 In the event the check the check shall be cannot be so deposited into the trust account of by counsel directly to the parties in counsel and shall be disbursed the amount of Notice of the filed Motion to a 1915 B and for certified the 75 000 00 each judgment was sent on same day Thereafter Certify Judgment for Immediate Appeal Under On Suspensive Appeal judgment entered appealable and granted Mr Talbot the on Mr Talbot a October 9 September 10 2007 2007 La Mr cc P the trial as Talbot Art judge immediately suspensive appeal only appeals that portion of the judgment that orders that each party shall receive 50 of the proceeds of 3 the Road Home grant Mr Talbot contends that the trial court the s failure to require registry of the court effected deposit of the grant proceeds prohibited piecemeal partition of a into the Talbots property APPELLATE JURISDICTION This court appears to be on its own a non motion noting that the judgment appealed from appealable ruling previously issued why the appeal should or should not be dismissed to be ruled on at the same time as the panel a This rule petition for rule to show referred to this was an cause appeal being was considered Louisiana Code of Civil Procedure article 1841 A judgment is the determination of the an action and may award any relief interlocutory or final It may be provides rights of the parties in to which the parties are entitled A judgment that does not determine the preliminary matters in the course of the action is judgment A a judgment that determines the final judgment The allocation of 3 Therefore community regarding the allocation of therefore address the final jurisdictional a partial judgment requirements of LSA C C P 1915 8 more 1 is a issue of whether the appealable 1915 art provides that when is partial on one are grant partial a court We must partial judgment is a action a court that judgment shall as a final Counsel for the pending renders a joint denotes that the appeal proceeds of by examining partial judgment issues court after Motion to the earlier of the resoiution of the The motion a the or 4 one or presented in judgment unless it is express determination that Deposit Funds in the Registry of the Court partition of the parties community property the Road property an as to theories or not constitute a final judgment by the parties signed is determined Louisiana Code of Civil Procedure article but less than all of the claims demands designated 3 Road Home is judgment rendered by the trial community property some part judgment for the purposes of the appeal Whether an of the it appears the trial court ruled Thus the assets an only interlocutory merits in whole or in parties concede that the proceeds community property merits but Home grant program are community there is just no for reason This delay provision attempts between the undesirability of piecemeal appeals and available at time that best v a Rosenblum 04 1664 The Louisiana the explicit that has been court has without the summarily dismiss an appeal of as a court to reasons RJ make a judgment Messinger here the trial is no de just reason to I delay the appeal determination of whether novo the Id proper delay as a delay final under LSA C C P art 1915 B as why there for reason final under LSA CC P art 1915 B partial judgment court should for reason court s failure to state just Although the overriding inquiry for the trial just 1122 no giving express was 894 SO 2d 1113 RJ Messinaer Inc Instead the supreme court held that when designated designation parties review making for its determination that there is designated appellate the needs of the La 3 2 05 appellate 894 So 2d at 1122 the need for Supreme Court has held that the trial reasons does not allow the serves to strike a balance courts of appeal matters where the trial court fails to consider the same criteria following when give explicit novo review conducting de reasons for the designation in can exclusive list of factors non by the trial court is whether there is no used court These criteria include the The relationship between the adjudicated and unadjudicated 2 The not be 3 The 1 claims possibility that the need for review might or might mooted by future developments in the trial court possibility that the reviewing consider the same issue 4 shortening claims expense Messinger might be obliged to second time and Miscellaneous factors such considerations RJ a court as delay economic and solvency frivolity of competing the time of trial and the Ie Ik 894 So 2d at 1122 Mr Talbot requested in the court below an order compelling Ms Talbot to attend the Road Home grant closing and for deposit of the grant proceeds the pending partition of registry of the appeal Mr court Talbot is asserting error the by the trial 5 community property court in ordering an into In this immediate to the equal distribution of the grant money the community assets and Iabil l lties and claims in accordance with LSA Talbot Mr judgment adjusting the parties reimbursement s R 9 2801 In response to this court of this parties without first partitioning all s show order cause prOVides information before this court He states that the former residence which sustained extensive Their damage during Hurricane in the amount of entitlement to an at least one of the parties residing He adds that he is in was in the home upon which the Road Home a conditioned upon grant was corporeal possession of the residence and would grant proceeds for its repair thus additionally argues that there proceeds allocated Katrina 150 000 the maximum award under the He further contends that the Road Home grant program in the record not contained parties community property included their community property therefore included compensation grant concerning the appealability flunlfgil the is a risk that to her and then Talbot upon the final use the Mr Talbot residency requirement Ms based might spend the grant partition of the community be unable to pay any reimbursement claims for work done to the property house We There claims motion to were note however was no compel and Mr filed the Talbots testimony no contained the court covenants court s was presented as the cause brief Exhibit B s u as hearing Exhibit a copy of Department of However record do appeal on with us these nor we A on the indeed Disaster and Urban these documents have a motion There also is no indication documents copy of a the Housing Road Home program supplement the record pending before trial does not support these descriptive lists concerning the community property promulgated by in us evidence adduced at the Road Home covenants and Development detailing the not or Talbot attaches to his show Recovery Initiative are that the record before the to that the Road Home comprise part of the closing documents which occurred atterthe trial hearing 6 The record court and appellate if instructions designated 9 17 04 not in the record is sent pleadings An appellate appeal and on Accordingly 1026 we are cannot other not transcripts unless rulings 03 2034 La jury otherwise 1st Cir App court cannot review evidence that is receive App 1st Cir La court to the by the trial court minutes and judgments 37 581 SO 2d 1023 1991 the which Twin Brothers Marine Corooration v 897 So 2d 35 Hebert La includes applicable Lee is that appeal on permitted evidence new writ denied Tranum v 584 SO 2d 1169 to consider the exhibits attached to Mr Talbot s show cause brief Mr Talbot also asserts that he did not file motion a formally respond right was denied due process in that Ms Talbot requesting the affirmative relief she obtained to his motion to notice and of a Accordingly he contends he immediate distribution of the grant The proceeds record does not reveal that Mr Talbot raised this In her brief in this 2007 judgment contains suggests the parties they are judgment emanated no relieved of the 4 We note objection were duty presided over a descriptive list the a four were we pleaded either v Talbot had Thereafter they or issues answer disregard the trial was normally required in a obliges one only to show 694 the husband s support La App 4th Or claims in reconvention to the wife Talbots memorandum in before the trial is not s because they rule Moreover of his motion indicates taken the position that she wanted to spiit the proceeds unable to resolve the issue and Mr Talbot filed a motion to compel so it previously were should not have come the grant grant proceeds proceedings Cookmever 354 So 2d 686 affirmative defenses note that in the instant case Mr that Ms split See Cookmever as that day relocation and The instant action An a The fourth circuit in Cookmever declined to not or Thus she contends that summary proceeding See LSA C C P art 2S93 A rule to show cause 1978 4 hearing from which this in these property nevertheless that this argument lacks merit summary proceeding and not to plead cause in the trial court to account for the presented by both parties ample information regarding court on a rule to show cause in the regarding the parties community assets and who although neither party has filed court had issue of language that partitions the grant proceeds the trial court controlled those assets on the appeal Ms Talbot contends that the September 10 where facts custody trial denied the transcript contained She further contends that prior to the receive was to be heard meaningful opportunity did she nor as a surprise to him at the proceeds 7 hearing that she would assert her position to Although by Talbot Ms no specific written request for believe the trial court we use of monetary assets appeal of such an a on the record before for Mr Talbots claim that he may not have delayed pending Accordingly was we a are s R s us effective we 5 9 374 E do not find remedy parties To if his support appeal is community property designation of the judgment appeal and remand this proceedings consistent with this opinion 6 as case final to the Costs of this assessed to Adrian Talbot APPEAL DISMISSED 5 an of the dismiss Mr Talbot s we trial court for further appeal complete partition find that the trial court improper and See LSA judgment would encourage multiple appeals and Moreover piecemeal litigation filed judgment merely allocated community s property pending the partition of the community permit was Louisiana Revised Statute 9 374 E REMANDED 1 provides a proceeding for divorce or thereafter upon request of either party community property regime existed a summary proceeding may be undertaken by the trial court within sixty days of filing allocating the use of community property including monetary assets bank accounts savings plans and other divisible movable property pending formal partition proceeding In where a pursuant G The proper appealable supervisory applicable is to 5 R 9 2801 procedural vehicle to contest an application for supervisory writs was filed nor was an interlocutory judgment writs the motion However for appeal to supervisory writs contained in the Uniform Rules 43 8 that is not in this matter immediately application for 30 day period of Appeal Rule no filed within the Louisiana Courts
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