Kenneth Levatino VS Michelle Levatino
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NOT DESIGNATED FOR PUBLICATION STATE OF LOUISIANA COURT OF APPEAL FIRST CIRCUIT 2008 CA 1468 KENNETH LEVATINO @ VERSUS MICHELLE LEVATINO 1 10 Judgment 9 Rendered MAY 8 2009 Appeal from The Family Court In and For the Parish of East Baton Rouge On Trial Court No 157 850 Division Honorable Annette Lasalle Dana A Bolton Baton Rouge LA Brian J Prendergast Wendy L Edwards Baton Rouge LA BEFORE 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 contests harassing stalking surveilling following reasons we or a family court injunction prohibiting F or the monitoring of his former wife affirm FACTUAL AND PROCEDURAL HISTORY Kenneth and Michelle Levatino had two children in 2002 information long a Levatino is Ms Department technology out of state married in March 1992 were Nathan born in 2000 and Levatino is Mr occasional a son I time project daughter Leanna born Rouge Fire of the Baton employee employed by a Inc SRA International working from manager a petition former matrimonial domicile for divorce on March 29 2006 Each of the fair sought Ms Levatino also a and temporary restraining order against Mr Levatino restraining and enjoining use Ms Levatino asked that alternatively market rental value for the home be fixed a with home party sought custody of the children child support and exclusive granted as an travel Mr Levatino filed was They prohibiting him harassment of Ms Levatino at his agents or her residence assigns from any form of anywhere she may be or located On to May 2 2006 the parties agreed writing and signed by the trial joint custody of the children the children provided I The note that a week to that the children caption Levantino on to court week basis s was nanny stipulated judgment June 12 2006 The to be 2 reduced which awarded physical custody of stipulated judgment also allowed body of the original petition incorrectly identified clearly establishes that the proper spelling is Joannie Michelle Levatino name is legal The record s on a the parents and alternated and the Michelle to the to resume parties Levatino last the name as We further children May s 25 home school curriculum The 2006 regarding the parties further ordered parties continue to they had each paid since August 2005 exclusive trial use any asset of the was rule for contempt certain the budget Levatino granted was the pending encumbering or pendency of the proceedings a rule for contempt alleging to stipulated judgment by refusing schooling of monthly obligations the former matrimonial domicile and on home s the Mr Levatino filed Levatino had violated the the children Mr per their as enjoined from alienating disposing community during Subsequently note to pay status quo and occupancy of the former matrimonial domicile Each party mortgage maintain the to community obligations of the parties with the August 2005 were May 3 2006 and continue it until on and visitation similarly asserting that that Ms pay the by interfering with Ms Levatino also filed plan a Mr Levatino had failed to pay community obligations and had failed to maintain the children s home school curriculum A trial rendered 31 conducted Ms Levatino Levatino emphasizing that its that she intended to court was ordered the s to on was predicated was dismissed reasons on On for Ms Levatino s August judgment assurances judgment memorializing the family dismissing a court Rouge and that her work related travel the 2006 counseling with child support calculation and family of the children written supplemental November 30 attend The domiciliary parent and granting visitation rule for contempt issued and 4 and 28 2006 parties joint custody A final written signed parties the reside in Baton custody decision contempt August 2 the judgment would be nominal s as Each party 2006 the family court on judgment awarding designating to Mr was parties respective In addition Dr Alan the judgment Taylor and submit Custody Implementation Plan 3 rules for within a ten Mr Levatino days The judgment devolutively appealed Levatino v Meanwhile 2007 1238 on others statements to February Following on against a within 500 pendency or 14 2007 hearing July Mr Levatino unpublished 1 Cir 11 2 07 Rule for a alleging that he was place of March 27 2007 enjoining and at any or time permanent injunction a surveilling home by or or or The or at any any other judgment motion for devolutive judgment currently was acting anyone deliberate any Michelle Levatino location was or via going during the means until further orders of the of the children This is the workers prohibiting him stalking employment her a co judgment of divorce was signed proceedings Mr Levatino filed 2 2007 children and her of the activities of yards of her reputation through demean her attempting to harassing prearranged exchange 2007 a on monitoring of these as including the Mr Levatino at her telephone well as his behalf from observation App an demeaning threatening and physically and verbally abusive in behavior toward her issued La March 2 2007 February 13 2007 Ms Levatino filed Restraining Order and Injunction against On on 966 So 2d 1247 table unpublished engaging judgment this court in subsequently affirmed by was See Levatino decision this court except the signed June 18 appeal of this judgment on before this court in the instant appeal We further note that on June 25 2007 the family court notified the parties of its decision fixing child support to be paid by Mr Levatino notice stated that the matter came 3 4 and 28 2006 at which time the parties were Levatino August The court child support submitted a s obligation worksheet within worksheet on May 30 ten 2007 4 days and while Mr to Ms before the court ordered submit to on a that Ms Levatino Levatino had not submitted worksheet a family court issued by the the on court rulings 7 August court on taken submitted at Mr Levatino by decisions the as 7 2007 August to were fixing the a 2006 trial date Medical dental the judgment signed by judgment was also fair market rental value of month as Devolutive which judgments under Levatino also addressed in this 1 700 00 per at both of these this support A separate written domicile rendered also determined that Mr included in were 2007 August former matrimonial appraisal court and school tuition issues insurance coverage These family 751 53 per month in child owed Ms Levatino judgment The numbers appeals we the per were address in 2008CA 1478 and respectively 2008CW 1469 DISCUSSION In this against him Mr Levatino contends that the appeal declared null and should be void injunction urging the issued following assignments of error subject matter jurisdiction to render the June 18 2007 U udgment while it was divested of subject matter jurisdiction by o rder of a ppeal signed The trial I court lacked March 2 2007 II The June 18 2007 III The June 18 U udgment 2007 is null and void U udgment granting the permanent injunction as to allegations s of harassment prior trial held August 2 4 and 29 2006 is res judicata Mr the family 2006 trial Levatino argues court was on not have that when the appeal November 30 2006 appealed on March 2 jurisdiction pursuant to did on following 2007 the judgment the family was LSA C C P art 2088 and therefore the jurisdiction to render the June 2007 further contends that since the November 2006 5 injunction judgment rendered by 2 4 and 28 August court to the divested of family court Mr Levatino was silent as to the the claimed relief and the by that silence constituted requested permanent injunction the June 2007 appealed appeal or an answer therefore judgment prior to barred was 2006 trial August of action cause not arising points any out amended that the 2007 judgment that Ms Levatino did appeal of the November claim Ms Levatino had complained of by the doctrine of res of the transaction out substantively by the doctrine of events so be asserts his March 2007 to that all of the reasons the Mr Levatino he contends permanent injunction Levatino could judgment therefore he is null and void file judgment rejection of a or res 2006 for a Mr judicata Ms Levatino not arose judicata precludes any previously occurrence litigated After presented a on thorough note and the appeal Mr Levatino has consideration presented that the doctrine of res of this which case of these arguments legal principles implicated no basis for relief in this res judicata is set conclude that appeal Initially judicata is inapplicable under The doctrine of we the record the circumstances 13 4231 forth in LSA R S provides otherwise provided bv law a valid and final is conclusive between the same parties except on Except as judgment appeal or other direct review 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 transaction or occurrence that is the subject matter of the litigation are extinguished and the judgment bars a subsequent litigation are action those on 3 A causes judgment of action in favor of either the defendant is conclusive them with respect to plaintiff or the in any subsequent action between any issue actually litigated and determined if its determination was Emphasis added 6 essential to we that judgment Comment that the LSA R S to c general principal in R S 13 4232 and substantive law to any for as of is judicata res other in cases This makes it clear provides subject of matters is to the that may be exceptions example for divorce actions and related which 13 4231 family exceptions forth set provided for in the An exception matters found in LSA R S 13 4232 B provides In action for divorce under Civil Code Article 102 an 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 added Emphasis The Comments Subsection B is added related causes actions that judgment were Although as a prior Thus we judicata So 2d 7 the find to Accord 1283 the 6 22 01 August actions will not of addressed injunctive merit in appellant Stelly v Richardson Stelly v was issued to raise result in the by the family 2006 trial of other matters not was 859 So 2d 81 03 9 specified temporary injunction to make it clear that failure state the actions in question propriety no to 13 4232 further urged being barred by the subsequent judgment if that not permanent injunction therefore this Section of action in any of the is silent this matter to LSA R S to s was Richardson See also Patin v La 2006 adjudicated not arguments based 2007 640 the issue of during the August relief on App La a trial in 2006 the doctrine of 3 Cir 2002 2415 court in res 7 11 07 969 1 Cir App Patin 2000 0969 La App 1 Cir 808 So 2d 673 Mr Levatino further relies after the March 2007 appeal was on LSA C C P art 2088 in asserting that taken from the November 2006 7 judgment the trial 2088 court was divested of jurisdiction over the injunction Article matter provides A The iurisdiction of the trial court over all matters in the case reviewable under the appeal is divested and that of appellate court attaches on the granting of the order of appeal and the timely filing of the appeal bond in the case of a suspensive appeal or on the granting of the order of appeal in the case of a devolutive appeal Thereafter the trial court has the jurisdiction in the case only over those under the appeal including the right to 1 Allow the of taking matters not reviewable deposition a as provided in provided in Article 1433 2 Extend the return day of the appeal as Article 2125 3 the facts of the 4 permit the making of a written case as provided in Article 2131 Make or Correct any misstatement omission of the trial record narrative of irregularity informality or provided in Article 2132 5 Test the solvency of the surety on the appeal bond as of the date of its filing or subsequently consider objections to the form substance and sufficiency of the appeal bond and permit the curing thereof as provided in Articles 5123 5124 as and 5126 6 Grant an appeal to another party judgment when its execution or appeal suspended by the deposit of sums of money 8 Enter orders permitting within the meaning of Article 4658 of this Code 9 Impose the penalties provided by Article 2126 or 7 Execute or give effect to effect is not dismiss the estimated when the appeal appellant costs of the appeal to timely pay the costs or expert witness fees Set and tax costs and 10 fails the difference between the estimated costs or and the actual the the 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 suspensive appeal to of a a suspensive appeal devolutive appeal except in an eviction case Emphasis added Under the plain language of jurisdiction is divested case on the reviewable under the C C P over art 2088 those art taking of an appeal only appeal clearly provides matters not LSA C C P that After the a trial court reviewable under the 8 taking 2088 as of to an a trial court matters in the appeal LSA has jurisdiction in the appeal s case In the the were prior appeal of the instant case the only reviewable matters custody judgment designating the mother as the domiciliary parent of the minor children and awarding Mr Levatino less than equal and physical custody Levatino the trial a rule for contempt See Levatino s court was not as no judgment had We further 2006 2007 judgment reject C C P an the issue of not Since set for obviously our and was not heard on 2 Even though provides that 3 a no not was court thereon 2 that because the November Levatino judgment prohibited by LSA litigated during revealed that case the August 2006 relief The issue of relief injunctive the court in was merit in the temporary not court until March 27 was conjunction with an Thus the 2007 the March 2007 amendment of the prior assignments of error presented hearing 2006 judgment in this appeal injunction was issued early in the litigation LSA C C P art 36l2 A no appeal from an order relating to a temporary restraining order There shall be Lousiana Code of Civil Procedure article 1951 provides A final judgment may be amended by the trial court without notice on its own motion or on motion of any party I prior judgment arising from those hearing dates by the family June 18 2007 We find rule for separate hearing from the issues heard in August 2006 judgment rendered by signed s Mr Thus reviewable under the review of the record in this 2006 injunctive a hear Ms Levatino by the family appeal on amended relief injunctive address to permanent injunction against Mr a hearing dates the November did Levatino 2007 1238 matter a been rendered impermissible 3 judgment dismissing grant injunctive relief the subsequently rendered did not 1951 art not was the argument judgment issuing constituted v divested of jurisdiction permanent injunction which appeal of the provision the To alter the 2 To correct phraseology of the judgment errors of calculation 9 at any time with but not the substance or or 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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