Laura Ann Salvaggio Miremont VS John Lynn Miremont
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NOT DESIGNATED FOR PUBLICATION STATE OF LOUISIANA COURT OF APPEAL FIRST CIRCUIT 2006 CA 2075 LAURIE ANN SALVAGGIO MIREMONT VERSUS JOHN LYNN MIREMONT Appeal from The Family Court Parish of East Baton Rouge Louisiana On Docket No 96034 Division Honorable Toni M C Higginbotham Judge Presiding Marcus T Foote Attorney for Baton Plaintiff Rouge LA Appellant Laurie Ann Salvaggio Miremont for Brian J Attorney Baton Defendant Appellee John Lynn Miremont Prendergast Rouge LA Terri F Love Judge Ad Hoc BEFORE BAGNERIS LOVE AND LOMBARD JJ Judgment rendered 1 AUG 2 9 2007 Sr Judge the Honorable Terri F Love Judge and the The Honorable Judge Dennis R Bagneris Court of Appeal are serving as Honorable Edward A Lombard Judge all members of the Fourth Circuit Court ad hoc by special appointment ofthe Louisiana Supreme 1 judges This April new 1 J fi LZ appeal arises from 12 2000 Petition to a Modify child support amount and 3 and Laurie Ann Salvaggio ofthe judgment Child Family Support had denying Miremont For Court 1 ruling that not been abandoned all contempt motions filed reasons stated herein by 2 John Miremont implementing s a both John Miremont we reverse in part affIrm in part and remand FACTUAL BACKGROUND AND PROCEDURAL mSTORY In Divorce April John 1991 Laurie Ann Lynn Miremont Miremont Mr Miremont also ordered Mr Miremont to pay child judgment This ruling was incorporated Mr Miremont filed a into the Judgment to alternate custody a material child ofthe minor child Mr Miremont later filed minor child due to an filed a Petition for Answer to Petition for Divorce and a support in the for Divorce that Rule for Modification of granted joint custody and equal custody of the parties filed Salvaggio marriage and granting Mr Miremont specific This the Ms Judgment was rendered granting Ms Salvaggio provisional custody Reconventional Demand ofthe minor child ofthe Salvaggio was In on an in circumstances 2 sum a of 750 00 per month subsequently rendered Custody requesting that the Stipulated Judgment alternating weekly Rule for Modification of Custody change and reasonable visitation parties be the Court ordered basis seeking sole and termination of child custody of the support Mr Miremont also 2000 September relocation child objected a was not The request reserve the Rouge trial in relocation of the minor child with his mother to Mississippi to the was good held The court found that the the issue of relocation on In proposed faith and that the relocation was not in the best interest of the minor custody was not addressed to modify place the matter back However the court did at that time the docket should Ms not return to Baton Salvaggio Louisiana right to Salvaggio In October 2000 Ms alleging that Mr Miremont was on filed support in the Miremont had not paid child support In was never on January 2001 the grounds failing to comply amount of 4 500 00 since March 2000 Ms No with the Court order of Ms hearing s that Ms hearing on Salvaggio the relocation issue failed to Salvaggio alleged that Mr was held on this motion and On February 11 2004 Ms s Fees Salvaggio filed request a support since March 2000 and was in arrearages for Miremont should be in held in Motion for Mr Miremont Attorney Fees in sought attorney s for attorney s fees to Substitute Counsel Motion for Past Due Child Salvaggio alleged that Ms s him written notice ofthe intent to relocate give Salvaggio filed a Motion On April 12 2001 Ms Contempt and Attorney Miremont Salvaggio opposed Mr with the minor child however the court denied his alleged that Mr Support Arrearages and Contempt reset connection with the Court fees Rule for Child condemned for November 1991 to pay child the matter a a Support Mr Miremont had failed to pay child total of 34 875 00 Ms Salvaggio also contempt for disobeying the judgment of child support payments In June 2004 Mr Miremont filed Enforcement of Visitation and Rule contended that Ms the Court order Salvaggio ofCourt Contempt Child Attorney Fees In this Rule Mr Miremont Support had not returned to Baton Rouge and that she Miremont Mr Miremont also was in violation of sought attorney fees in allegations The record reflects that nothing the Substitution of Counsel for Ms Due Child Rule for to Reduce allowing visitation to Mr connection with these a was filed Salvaggio Support Contempt and Attorney by either party and before the Fees filed by Ms 3 after the February April 2001 Motion for 2004 Motion for Past Salvaggio At the trial of this matter the trial court concluded that the action custody court and child filed support Mr Miremont by also calculated child support for the time on April 2000 had period from April were a in change not been abandoned The 20 2000 the date ofjudicial agreed demand for modification to October 3 2005 the date Mr Miremont The calculations seeking made in accordance with La Rev Stat 9 315 8 to joint Finally dismissed both parties motions for contempt It concluded that both parties custody the trial court came to court with therefore neither party will be held in contempt of court unclean hands STANDARD OF REVIEW The issue on the trial court has appeal applied whether the trial court La 2d So 375 than on a court a question the law is Therefore this court must determine whether of law The scope of appellate review is properly interpretation s legally correct Cangelosi v simply to determine Allstate Ins Co 680 So 2d 1358 1360 writ denied 96 2586 La 12 13 96 1 Cir 9 27 96 App is Where the trial court s decision is based on an erroneous application oflaw valid exercise ofdiscretion the decision is not entitled to deference Kern Search Inc International v Companies 277 280 Faust v Sheffield 434 So 2d 1067 1071 72 La 1983 Consulting Greater Lakeside Inc Corp 2005 0265 03 0808 La La App App by the 96 0159 692 rather reviewing Voisin v 1 Cir 2 10 06 4 Cir 11 26 03 924 So 2d 861 So 2d 716 718 DISCUSSION Abandonment The statutory law which on abandonment is found in La Code of Civil Procedure Art 561 provides in pertinent part A parties fail to take any step in its prosecution a period ofthree years unless it is a succession 1 An action is abandoned when the or defense in the trial court for proceeding Which has been l 2 In which 3 In which an opened administrator a testament or executor has been has been appointed or probated shall be operative without formal order but on ex parte motion of any party or other interested person by affidavit which provides that no has been taken for a period ofthree years in the prosecution or defense ofthe 2 This provision step action the trial court shall enter a abandonment 4 formal order of dismissal as ofthe date of its La Code of Civil Procedure Art 421 defines action an right It is commenced by of competent jurisdiction demand for the enforcement of a legal a pleading presenting the demand to The a expressed that Article Court has Supreme claim from dismissed based being 15 5 00 3010 La 01 defense ofthe action A step Second formal on step a party or Inc Inc judgment party dismiss period cases the 561 imposes taking taking must take a three some of a deposition with requirements step in the of a to prevent prosecution or without formal notice or step in the trial court and with the Third a party exception of step within three years of must take the Clark 785 So 2d at 748 interpreted and any action App 10 2 1 Cir Voisin 06 step taken to move or International v that he does not intend to abandon his lawsuit or The article to dismiss was court on mere However Article 561 is intended to dismiss a case Companies 924 So 2d 277 280 Breaux plaintiffhad clearly demonstrated before the Breaux 787 So 2d at 322 filing any formal action before the court intended 1 Cir 12 15 00 787 So 2d 322 324 App in which party should be considered 05 0265 La 00 1534 La as a must take that Article 561 is to be liberally Consulting First the record ofthe suit taken by either forward towards a court the abandonment Clark v State Farm Mut Auto Ins Co is defmed judgment La CCP 561 B discovery on 785 So 2d 779 to hasten the suit toward the last as v Auto Zone not intended to during the prescribed technicalities cases that have in fact been abandoned Salvaggio waived her right to assert In this marter the trial court found that Ms abandonment when she filed the Motion for Past Due Child on the second exception Judgment rendered on to the abandonment rule September 8 2000 to bring his actions of custody and child The improperly abandoned April Appellant in this case Salvaggio s April contends that requires no motion precedent or on by not set Salvaggio no step either was asserting abandonment formal action February 11 2004 based The trial court also found that the intent of the a time limit on allowing Mr Miremont Miremont argues that the trial court 20 2000 Rule to 12 2000 action within three years thus The law and on support Laurie Ann ruled that Mr Miremont Ms was to Support are party 5 taken by the the action clear or Modify as Child Support Appellant to prosecute his abandoned Abandonment is self the court was not operative and In examining the sequence of events ofthis 12 2001 and it is apparent that neither party filed case February However the not constitute ofLA a 11 2004 filing in the step 01 2056 La 4 on This time v 12 2001 April 02 3 a step in the right to plead abandonment Since the April filed by either prosecution or defense 95 0607 La 119 95 12 2001 motion Callnot be considered within the v The next filing step is a legislatively prescribed three the court Phelps a citing waiver of prosecution or defense January 23 2001 The time Because three years over Id a 665 So 2d 30 35 step in the date is Corp holding that s of an action in Jones Similarly 1 Cir App date and the date of the next party James v Formosa Plastics motion to enroll counsel did not constitute a of an action this date must be eliminated period between this of an action 436 So 2d 530 La 1983 Traigle stated that the fact that Defendant filed his Motion to Substitute Counsel which does In James the court reiterated it 813 So 2d 335 April is less than three years was a prosecution or defense motion to substitute counsel is not Chevron Oil Co period into the record between anything nothing was years the action of Mr Miremont is abandoned Jurisprudential Exceptions to Abandonment Abandonment is self without a step being 2d at 748 Any step taken by either taken by a are two exceptions plaintiff oriented This exception beyond his applicable is based judgment on the concept activity by on can non grounds case exception suffice to constitute a for the exception to be exception ofthree years has The first exception is circumstances is defendant oriented taking actions Id applied the second to the abandonment rule waiver of the applicable Clark 6 Clark 785 So of abandonment However to assert abandonment by abandoned of three years Clark 785 So 2d at 784 85 right to the defendant would have to be sufficient to constitute acknowledgment court order plaintiff is prevented by Id The second right case as valentem that the trial court incorrectly Under the second activity ofdismissal of contra prosecuting the Appellant argues abandonment a passing legislatively prescribed period in situations where the inconsistent with the intent to treat the abandonment rule and is effective without after the when the defendant waives the The after the automatically to the abandonment rule set forth in La CCP 561 applicable control from a occurs party party accrued is ineffective to prevent there it executing a a exception defendant s to the post assert abandonment waiver Any or 785 So 2d at 789 The Supreme Court in Clark further stated that it is the quality ofthe steps taken which constitute Extrinsic evidence of a defendant s waiver is admissible to establish acknowledgment establishes a far Areo Chern Co of an more obligation to the plaintiff In Theriot v State ofthe year or an a 06 defendant s the court stated that 25 09 1 Cir is a v participating example of a waiver of an answer after the three filing 809 01 an 2d279 So InPorterv in status conferences an answer and reconventional demand after waiver ofabandonment 99 2542 La App filing in Clark pertinent language prescription than before Slaughter acknowledgment App Id waiver 931 So 2d 387 Dev the court noted that Co schedule and actions that constitute 26 4 Dept of Transp 01 1420 La expiration period management 4 Cir App right to plead abandonment Progressive Specialty Ins case standard of waiver after stringent 05 0657 La Id However the a a signing period 1 Cir 118 00 a are 771 So 2d 293 In the 2000 As the appellee points agreement but also motion the same out the action not to terminate child seeking past due regarding appellee filed a Rule at hand the case child support issue ofchild not primarily the issue of child on a support The support for Modification of Custody for only sought a the main issue of modifying the child appellant 12 custody filed a contends that both parties filed actions However the focus ofthe 12 2000 April Rather the termination of child support April revision in the child On February 11 2004 the appellee on support filing was was dependant The issue ofchild support custody agreement was but consequence of ajudgment Thus the action does not relate appellant s of Mr Miremont The motion past due child exception support was acknowledge to enforce the and did not mention Mr Miremont to the abandonment rule does not Giventhe facts of the we by the appellant or case find the trial court erred in and apply more ruling that in this s claim has not been abandoned 7 on January April 12 2000 action 12 1998 judgment for Therefore the second case particularly the the action the April sequence of events in this matter 12 2000 made by Mr Miremont Child As a Support result ofthe determination that the trial court erred in its of abandonment the issue of child support ruling regarding the issue is remanded to the trial court Contempt The trial court is vested with discretion in matters of contempt The trial court is great discretion in order Leger decision v on an determining whether 00 0505 Leger La Id party citing De should be held in 1 Cir App issue of contempt should abuse ofthat discretion a 11 5 contempt 808 So 2d 632 01 for v Bartels 97 1384 La App a court disobeying The trial court only be reversed when the appellate Nunez given s court detects 1 Cir 9 9 98 an 727 So 2d 463 469 70 In this in case Ms contempt of court support Salvaggio in April violated and Mr Miremont both filed motions to hold the other The trial court noted that both of the the orders of the Court child Salvaggio Ms 2000 a court Salvaggio alleged order by moving have that Mr Miremont to a Court order contradictory parties ignored and party disobeyed intentionally stopped paying Mr Miremont alleged that out ofthe state with the minor child and Ms disobeying visitation orders This court has found that the trial court has not abused its discretion in determination that the slate should be wiped clean finding both parties not in contempt That malting the We cannot say that the trial court erred in portion ofthe judgment is affirmed DECREE For the above mentioned 12 2000 was not abandoned payments is remanded contempt As For the reasons a the trial court erred in its ruling that the filing result of the reversal in judgment the issue of child stated above the ruling ofthe trial court on April support the issue of is affirmed reasons on AFFIRMED IN PART REVERSED IN PART AND REMANDED 8
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