Kathy Bridges Suazo VS Herminio Suazo
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STATE OF LOUISIANA COURT OF APPEAL FIRST CIRCUIT 2010 CU 0111 KATHY BRIDGES SUAZO VERSUS HERMINIO SUAZO Judgment rendered On Appeal from the 32 JUN 1 1 20 Judicial District Court Parish of Terrebonne State of Louisiana Number 102 Division D 038 The Honorable David W Arceneaux Judge Presiding Keith M Whipple Bourg Louisiana Counsel for PlaintiffAppellant Frank R Rathle Counsel for DefendantAppellee Thibodaux Louisiana Herminio Suazo Kathy Bridges Suazo BEFORE DOWNING GAIDRY AND McCLENDON JJ DOWNING J Kathy Bridges Suazo appeals a judgment decreeing that she is in contempt but deferring sentence until she appears before the court and ordering that her former husband Dr Herminio Suazo be granted temporary custody of their minor child pending a hearing on Ms Suazo arrest for contempt For the following s reasons we conclude that the judgment appealed is not final and appealable under La C art 2083 We therefore dismiss Ms Suazo appeal P s Pertinent Facts and Procedural History Ms Suazo and Dr Suazo have a long contentious history before the trial court regarding the physical custody of their one child The present matter arises from a contempt rule filed by Dr Suazo in which he asserted that Ms Suazo failed to comply with the trial court order to allow him scheduled exercise of physical s custody The record reflects that Ms Suazo was personally served through her attorney of record and ordered to appear for a hearing on June 6 2008 She did not appear It is unclear from the record whether her attorney was present for this hearing The trial court continued the matter and sent notice to Ms Suazo through her attorney that the matter had been reassigned for July 11 2008 This notice ordered Ms Suazo to produce the minor child at the hearing Ms Suazo did not appear on July 11 2008 Her attorney was present however and he offered an affidavit from Ms Suazo explaining why she did not appear The trial court denied her attorney request for further continuance The s contempt hearing proceeded without objection to the hearing from Ms Suazo s attorney After the hearing the trial court entered judgment decreeing that Ms Suazo be found in contempt but deferring sentence until such time as she is brought before this court ordering that Dr Suazo be granted temporary physical custody of his daughter contempt pending a hearing upon Ms Suazo arrest for s ordering a writ of attachment for Ms Suazo ordering a civil warrant 2 directing law enforcement to secure physical custody of the child to her father s custody pending further order of the court and ordering Ms Suazo to pay all costs Ms Suazo now appeals lz asserting as error that the trial judge was clearly wrong in holding Kathy Bridges Suazo in contempt of court and was clearly wrong in issuing a court order and judgment which exceeded defendant sprayer for relief as the trial court clearly made rulings affecting the freedom and welfare of Kathy Bridges Suazo and their child without notice and without affording respondent Kathy Bridges Suazo an opportunity to present a defense Discussion An interlocutory judgment is appealable only when expressly provided by law La C art 2083C Here all of the decrees in the judgment at issue are P interlocutory and we know of no law that expressly provides for their appealability Nor does Ms Suazo provide any such authority Contempt Finding While the trial court made a contempt finding against Ms Suazo the judgment imposes no sanction and makes no disposition of the charges The judgment does not speak to the merits of the case and is therefore an interlocutory judgment As we stated in Succession of Bell 06 1710 p 6 La 1 Cir App 07 8 6 964 So 1067 2d 1072 a judgment of contempt of court is an interlocutory judgment since it does not determine the substantive merits of the case See also La C art 1841 A judgment that does not determine the P merits but only preliminary matters in the course of the action is an interlocutory judgment A judgment that determines the merits in whole or in part is a final Ms Suazo also filed a writ application No 3008 CW 1977 in September 2008 substantially raising the same issues as she raises here This count denied writs in November 2008 Counsel for Dr Swim filed correspondence into the record wherein he recites that pursuant to his client swishes he does not respond in any fashion to this appeal 3 judgment Additionally under La C art 2083C an interlocutory judgment P is appealable only when expressly provided by law Ms Suazo will be entitled to seek review of all adverse interlocutory judgments prejudicial to her in addition to the review of the final judgment when and if she takes an unrestricted appeal from the final judgment Griffin Crane See Dean v Steel Inc 05 1226 p 4 n 3 La 1 Cir 5 935 So App 06 2d 186 189 n 3 Further specification of the sanction imposed is essential before we can review a contempt finding because the sanction determines whether the contempt is civil or criminal and which burden of proof applies See Rogers v Dickens 06 0898 p 10 La 1 Cir 2959 So 940 947 A contempt proceeding App 07 9 2d incidental to a civil action is considered to be a civil matter if its purpose is to force compliance with a court order but is treated as a criminal matter if its purpose is to punish disobedience of a court order Accordingly a contempt finding without imposition of sanctions may not be ripe for review on writ application either Temporary Custody The trial court judgment grants Dr Suazo temporary physical custody only s until Ms Suazo appears for a hearing This ruling is an interlocutory judgment because it does not determine substantive merits of the case La C art 1841 P Provisional custody orders are not appealable 2d So 551 552 La 1 Cir 1988 App McCarstle v McCarstle 521 See also Coutee v Hill 43 p 5 292 App La 2 Cir 3978 So 1252 1255 in dismissing the appeal the court 08 26 2d explained that a custody judgment that does not determine the merits but only preliminary matters in the course of the action is an interlocutory judgment While La C art 3943 provides that an appeal front a judgutent awarding custody can be taken only within P the delay provided in Article 3941 art 3943 does not expressly provide that interlocutoryjudgments of custody are appealable Rather it expressly provides for a shortened delay for appeal Without an express provision of law that an interlocutory judgment of custody is appealable such judgment is not independently appealable La C art P 2083C See Coutee 43 at p 5 521 So at 1255 where the court instructs that appeals of interim interlocutory 292 2d El In Coutee the court held that the trial court was correct in overruling the motion to set aside the temporary custody arrangement and in referring them to the proper procedural vehicle for the determination of custody Id The court instructed that the proper procedural vehicle for the party who objects to such interim order is to seek an immediate trial of his rule for custody Id 43 at 292 pp 5 6 521 So at 1255 Here Ms Suazo immediate remedy would be to 2d s appear before the trial court so that the trial court could promptly consider the matter Further La C art 3945 affords the special remedy for injunctive relief P on a showing of the existence of immediate and irreparable injury to a child Id 292 43 at p 5 n 521 So at 1255 n Ms Suazo has not sought such injunctive 4 2d 4 relief Of course this court could also grant supervisory writs if circumstances warranted immediate review No such circumstances were shown in the application for supervisory writs Ms Suazo filed in connection with the judgment now on appeal Additionally the record suggests that the minor child may have reached the age of majority and may have sought emancipation in California If so custody issues may be moot Other Decrees The trial court other decrees regarding the writ of attachment for Ms s Suazo and the civil warrant to allow Dr Suazo to take the child into custody are not final appealable judgments either They do not dispose of any issues on the merits and appear designed to assist the trial court in its exercise of its jurisdiction over this matter Decree orders regarding temporary custody are governed by art 2083 See also Trettin v Trettin 37 p 8 La 2 260 App Cir 3 1703 839 So 1273 1276 to the same effect 2d 5 For the foregoing reasons we dismiss the appeal of Kathy Bridges Suazo Costs of this appeal are assessed to Kathy Bridges Suazo APPEAL DISMISSED STATE OF LOUISIANA COURT OF APPEAL FIRST CIRCUIT 2010 CA 0111 KATHY BRIDGES SUAZO VERSUS HERMINIO SUAZO McCLENDON I concurs and assigns reasons I concur with the result reached by the majority However I note that appellate courts have plenary power to exercise supervisory jurisdiction and may do so at any time according to the discretion of the court Price v Roy O Martin Lumber Co 04 0227 p 16 La 1 Cir 4 915 So 816 App 05 27 2d 826 writ denied 051390 La 1 922 So 543 06 27 2d To the extent that some of the statements in the majority opinion could be construed to conflict with the holding in Price I believe them to be misguided Further although there may be some notice problems with regard to the contempt ruling because sanctions have not yet been imposed I believe the result reached by the majority to be correct
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