Kenneth Levatino VS Michelle Levatino
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NOT DESIGNATED FOR PUBLICATION STATE OF LOUISIANA COURT OF APPEAL FIRST CIRCUIT 2008 CA 1478 KENNETH LEVATINO VERSUS MICHELLE LEVATINO Judgment On Appeal from The Rendered Family Trial Court No 157 850 Division Dana A Bolton Baton Rouge LA Brian J Prendergast Wendy L Edwards Baton Rouge LA BEFORE 8 2009 Court In and For the Parish of East Baton Honorable Annette Lasalle MAY Rouge D Judge Presiding Counsel for Plaintiff Appellant Kenneth Levatino Defendant Appellee Michelle Levatino PETTIGREW McDONALD AND HUGHES JJ HUGHES J In this appeal a husband amount of child support reasons we contests payable a family court judgment his former wife to setting F or the the following affirm FACTUAL AND PROCEDURAL HISTORY Kenneth and Michelle Levatino had two children a son technology information occasional Mr of out state time long a Ms Levatino is Department married in March 1992 were Nathan born in 2000 and Mr Levatino is in 2002 I daughter Leanna born of the Baton employee Rouge Fire Inc SRA International employed by project a working manager from a petition for divorce former matrimonial domicile with on March 29 2006 use Each of the Ms Levatino asked that alternatively market rental value for the home be fixed fair sought Ms Levatino also a and temporary restraining order against Mr Levatino restraining a and enjoining an travel Levatino filed granted as home party sought custody of the children child support and exclusive was They him prohibiting harassment of Ms Levatino at his agents assigns or her residence or from any form of anywhere she may be located On to May writing 2 2006 the and signed by parties agreed the trial court to on a stipulated judgment reduced June 12 2006 which awarded joint custody of the children to the parents and alternated physical custody of the children provided I The caption on that a the week to children week basis s was nanny Levantino that Michelle s to stipulated judgment be allowed body of the original petition incorrectly identified clearly establishes that the proper spelling is name is Joannie Michelle Levatino legal and the The record note The 2 the to resume parties Levatino last also the name as We further children May s 25 The 2006 regarding August home school curriculum the parties were with the parties 2005 any asset of the was enjoined s parties Mr the home Levatino was granted the pending encumbering or pendency of the proceedings a rule for contempt alleging that Ms to pay stipulated judgment by refusing schooling of budget monthly obligations the former matrimonial domicile and on rule for contempt similarly asserting that the by interfering with Ms Levatino also filed and visitation plan a Mr Levatino had failed to pay community obligations and had failed certain the to pay status quo per their as alienating disposing Mr Levatino filed Levatino had violated the note from community during Subsequently the children maintain the to and occupancy of the former matrimonial domicile use Each party mortgage of the continue to they had each paid since August trial 2006 and continue it until 3 May further ordered community obligations 2005 exclusive on to maintain the children s home school curriculum A trial rendered Ms Levatino Levatino to Mr conducted on August 2006 the as Each party family court the s domiciliary parent rule for contempt issued predicated its judgment that she intended to reside in Baton family court was ordered the signed parties to on the November 30 2006 attend counseling with child support calculation and a granting visitation dismissed for reasons Ms Levatino August judgment s assurances that her work related travel parties respective In addition Dr Alan Taylor Custody Implementation 3 On judgment memorializing the family custody decision and dismissing contempt on Rouge and A final written would be nominal s was was and written supplemental emphasizing that court The 2 4 and 28 2006 judgment awarding the parties joint custody of the children designating 31 was the rules for judgment and submit Plan a within ten Mr Levatino days The judgment decision devolutively appealed this judgment affirmed by this subsequently was See Levatino Levatino v 2007 1238 in court La March 2 2007 on an unpublished 1 Cir 11 2 07 App 966 So 2d 1247 table unpublished Meanwhile on 13 February 2007 Ms Levatino filed Rule for a Restraining Order and Injunction against Mr Levatino alleging that he engaging demeaning threatening and physically and verbally abusive in behavior toward her statements to On February against a observation 14 2007 hearing at telephone within 500 a co reputation through workers and a permanent injunction prohibiting him surveilling stalking or or was acting anyone deliberate any monitoring of the activities of Michelle Levatino her place yards of employment her home of her 2007 which time at any or we a or by or at any any other location means until further orders of the of the children Mr Levatino filed 2 March 27 2007 harassing prearranged exchange July demean her children and her enjoining pendency of these proceedings 2007 to judgment of divorce was signed on Mr Levatino or attempting as including the his behalf from on well as others Following issued was The judgment motion for devolutive address in was or via going during the court except the signed June 18 of this judgment appeal on decision also rendered this date under a number 2008CA1468 Thereafter on June 25 2007 the its decision fixing child support The notice stated that the 4 court s and 28 2006 at to be matter came which time the a worksheet on May court notified the paid by Mr Levatino to parties support obligation worksheet within submitted family 30 ten 2007 4 before the were days and to that of Ms Levatino court ordered parties on August submit Ms a 3 child Levatino while Mr Levatino had not submitted owed Ms respective were worksheet a The family 751 53 Levatino per month in child judgment judgment signed by the family this devolutively appealed court in the court on the The support parties court instant a court on rulings August and it is this 7 included in were 2007 a Mr Levatino judgment that is currently appeal separate written judgment was also issued by August 7 2007 fixing the fair market rental value of the former matrimonial domicile at These judgment We further note that the Levatino shares of medical dental insurance and school related expenses also fixed in this before this court determined that Mr August 2006 Levatino from this at 1 700 00 per month A devolutive trial judgment which we as per the appeal address in appraisal was a submitted also taken by Mr decision rendered this date under number 2008CW 1469 DISCUSSION In this Levatino contends that the Mr appeal August 7 2007 judgment assessing child support against him should be declared null and void urging the following assignments of error subject matter jurisdiction to render the August 7 2007 UJudgment while it was divested of subject matter jurisdiction by 0 rder of a ppeal signed I The trial court lacked March 2 2007 II The August III The August 7 2007 7 OJudgment 2007 U udgment ordering Kenny Michelle child support is Mr Levatino argues the family 2006 trial court was on not have res appeal appealed on to pay judicata that when the November 30 2006 jurisdiction pursuant to did on is null and void following March 2 2007 the judgment rendered by the family August court was LSA C C P art 2088 and therefore the jurisdiction to render the 5 August 2007 child 2 4 and 28 divested of family court support judgment Mr Levatino further contends that since the November 2006 silent basic child support to as claimed relief and the the that silence constituted judgment could not be August 7 2007 judgment therefore he appealed appeal is null and void or file an answer Mr Levatino his March 2007 to support was transaction or occurrence After presented on which case cause Levatino had for child Mr Levatino of action legal principles implicated and the appeal reasons arising presented no basis for relief in this judicata The doctrine of of the out res is inapplicable judicata is set we the record conclude that appeal Initially forth in LSA R S 13 4231 otherwise provided hv law a valid and final is conclusive between the same parties except on judgment appeal as other direct review or to the following extent 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 1 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 litigation are transaction or litigation are action those on 3 A defendant them occurrence extinguished causes of action judgment in favor of either the is conclusive with respect to in any was added 6 plaintiff subsequent actually issue any determined if its determination Emphasis subject matter of the judgment bars a subsequent that is the and the essential we under the circumstances provides Except that previously litigated that the doctrine of res of this any not of the November 2006 thorough consideration of these arguments a Mr Levatino has note judicata precludes res by judgment that Ms Levatino did appeal by the doctrine of res judicata barred the doctrine of out any claim Ms judgment therefore he contends amended that the 2007 was of the rejection substantively asserts points a judgment to or the action between litigated and that judgment Comment that the LSA R S to c general principal in R S and 4232 13 substantive law as of res judicata is other to any for cases This makes it clear provides of matters is the to subject exceptions that example in for divorce actions and related which 13 4231 may be family exceptions set forth provided for in the An exception matters found in LSA R S 13 4232 B provides In an action for divorce under Civil Code Article 102 or 103 in action for determination of incidental matters under Civil Code Article 105 in an action for contributions to a spouse s an training under Civil Code Article 121 and in an action for partition of community property and settlement of education or claims between spouses under R S 9 2801 the judgment has the effect of res judicata onlv as to causes of action actuallv adiudicated Emphasis The Comments added Subsection B is added related causes actions that judgment this Section to of action in any of the is silent as the Although urged being not were to to make it clear that failure to information parties at in its calculation including and family court to November 2006 received evidence court adjudication judgment the cost of any health and the minor children the matter Custody Implementation of the minor children raise result in the by the subsequent judgment if that barred Rather required prior a not to the actions in question that time was actions will specified support during the August 2006 trial the adjudicated 13 4232 further state LSA R S recognized open until the information was not submit to Plan adjudicated 7 the a within not that additional child ten 10 days any other expenses of Therefore in 2006 but rather court support insurance for the benefit of child support requested by was of that issue and ordered the daycare aftercare tuition and calculation of child support the issue of child of child support hospitalization for calculation on was was the left received in 2007 and rendered judgment appellant s arguments based 2007 640 Stelly that time thereon at La Richardson 2002 2415 Patin v the doctrine of res on 3 Cir App Patin 2000 0969 La the trial court Article 2088 appeal was divested of was we 969 So 2d 1283 LSA C C P no Accord v Richardson v 2088 in art over See also 808 So 2d 673 asserting taken from the November 2006 jurisdiction merit in Stelly 859 So 2d 81 1 Cir 6 22 01 on find judicata 1 Cir 7 9 03 App Mr Levatino further relies after the March 2007 7 11 07 App La Thus the child judgment support matter provides A of the trial court over all matters in reviewable under the appeal is divested and that of The iurisdiction the case the appellate attaches court on the granting appeal bond of the order of in the case of a appeal and the timely filing of the suspensive appeal or on the granting of the order of appeal in the case of a devolutive appeal Thereafter the trial court has iurisdiction in the case only over those matters not reviewable under the appeal including the right to I taking provided in of return provided in permit the making of a written narrative case as provided in Article 2131 of Allow the day a deposition as Article 1433 2 Extend the of the appeal as Article 2125 Make 3 the facts of the or 4 Correct any misstatement irregularity informality omission of the trial record as provided in Article 2132 Test the 5 of the date of its solvency filing the form substance permit the curing or and thereof of the surety on the appeal bond or as subsequently consider objections to sufficiency of the appeal bond and 5124 as provided in Articles 5123 and 5126 appeal to another party 7 Execute or give effect to the judgment 6 Grant execution or 8 an effect is not Enter orders when its suspended by the appeal permitting the deposit of sums of money meaning of Article 4658 of this Code 9 Impose the penalties provided by Article 2126 or dismiss the appeal when the appellant fails to timely pay the within the estimated costs and the actual l0 or costs the difference between the estimated of the appeal Set and tax costs and costs or expert witness fees suspensive appeal when the appeal bond is not timely filed and the suspensive appeal is thereby not perfected the trial court maintains jurisdiction to convert the B In the case of a 8 that suspensive appeal to a devolutive appeal except in eviction an case added Emphasis Under the is divested jurisdiction case on the reviewable under the C CP over In the a trial prior appeal of the instant trial a court s matters to as taking of court has in the appeal LSA an in the jurisdiction case appeal case the only the mother custody judgment designating the were After the appeal reviewable under the matters not 2088 art taking of an appeal only clearly provides that art 2088 those of LSA C C P plain language matters as the reviewable domiciliary parent of the minor children and awarding Mr Levatino less than equal and physical custody Levatino the trial s the rule for contempt court was See Levatino divested of not support owed by Mr Levatino reviewable under the family court thereon We further 2006 judgment following evidence the as case not set directed 2 2006 CP hearing I appeal judgment on its a matter by the that because the November subsequently an z 1951 art own To alter the 2 To correct rendered 2007 impermissible Since our amended review of the was left open dates for the submission of additional the November 2006 court hearing dates did Lousiana Code of Civil Procedure article 1951 without notice on child support the by the family those A final not had been rendered revealed that the issue of child support August signed following was that time judgment prohibited by LSA C record in this hear the issue of child which judgment child support constituted judgment fixing to Mr Thus Levatino 2007 1238 v Levatino as no reject the argument did judgment dismissing jurisdiction to Ms prior appeal at of the provision not judgment adjudicate the child support provides may be amended by the trial court at any time with motion or on motion ofany party but not the substance or of the phraseology errors judgment of calculation 9 or Issue The issue of child support and reserved for later decision rendered by the court and signed was clearly severed from the other issues by the family on August court 7 2007 Thus the was not an judgment amendment of the prior 2006 judgment We find no merit in the assignments of error presented in this appeal CONCLUSION F or the all costs reasons of this appeal assigned are to the judgment of the be borne family by the appellant AFFIRMED 10 court is affirmed Kenneth Levatino
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