Deidre Sanderford VS Rodney D. Mason (Neely)

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TE ST OF LOUISIANA URT COF APPEAL F1RST CIRCLTI7 N 2012 CA 1881 DEIDRE SANDERFORD VERSUS RODNEY D MASON NEELY 7udgment Rendered NOV 0 1 2013 Q On Appeal from the Familg Court N In and for the Parish of East Baton Rouge State of I ouisiana Trial Court No F 115288 A The Honorable Pamela Baker Judge Presiding Jeffery S Wittenbrink Baton Rouge Louisiana Attorney far Plaintiff Appellee Jack M Attorneys for Defendant Appellant Rodney D Mason Neely Dampf L Edwards Wendy Baton Rouge Louisiana BEFORE WHIPPLE Deidre Sanderford D J C WELCH AN CRAIN JJ CRAIN J The defendant in thIlS paterli ynd Ihild suppc uit fiied a petition to annul t judgments previously rendered ir the pr After a trial on the merits the ceeding trial court dismisse the petition e affi rm FACTS A PRHISTORY TI CE 1 4 T Di Deidra Sanderford fi1K te r kana petitic s to establish R D Mason dsxey Neely as the father of her son C and reqaaesting that Neely be ordered to pay S child support According to the servi return Neely was served with the petition e by domiciliary service at a residence on Governinent Street in Baton Rouge Neely failed to file responsive pleadings and Sanderford btained a default judgment on July 6 1995 that decreed Neeiv ta be the atlaer of C awarded Sanderford S permanent custody and ordered Neely to pay child support in the amount of 00 150 per month Evidence subsequently established that the residence at the service address belonged to Neely mother and sister s On October 20 1995 Sanderford tabmitted ar Amended JudgmenY that repeated all of the provisions c in t Qrigir judgmant but added two d n onxa al new decrees dzreeting that arY ir assz ard issuE upon Neely m t e mef r s employer and caGtin l ely T wlttp all sts c trsP prcaceeding The a mended judgment vvas 5i on I 49 ardd w a ser on Neely d n ea te 26 a sc r rY1y ed An income assignment ard rwas ssued and accordin io e presented at nce rid the trial of the riullity actton Ne vva er garrished beginrsng in s l es December of 1995 through at l Septe of 1996 stop only when his ast cnber ing employment ended Approximately 15 years after the wage garnishment Neely filed a petition seeking to annul the original judgment alleging he was never served with the The defendant is identified in the petition as D Mason Neely however he ey Rod identifies lumsel as Rodney Neely ia the pleacLings he file3 in this maYter The plaintiff fixst s name is spelled Deidra in her pefitzon and Deidre in the notice f appeal 2 petition because he did not live at his mother residenc when the petition was s served there in 1995 At the c of the rrial the trial court found that nelusion Neely did not resida at his rxiother residence a the tim of the service however s s Sanderford cauns contendeci that 1 as barred from pursuing a nullity ly Te action by Louisiana Gode of Ci Procedure articl 2UO3 be he was present il 2 usz in the parish when the lgment ju as Executed and did not attempt Lo enjoin its enforcement After taking that issue under advisement the trial court found that Article 2003 barred Neely from pursuing the nullity action and rendered judgment accordingly Neely appealed and presents three assignments of errors that focus primarily on the following assertions 1 the trial court erred in applying Article 2003 to the amended judgment 2 the trial court erred in finding that the seizure of funds pursuant to an invalid income assignment order could bar his suit for nullity and 3 the trial court erred in alloiving the income assignment order to relate back to the original judgment LAW AND AN 4LYSIS Before addressing the m of Neely claims we must first determine erits s which judgments are the subject of this nullity action Neely petition sought s annulment of only the original judginent and made no mention of the amended judgment however his counsel argued at length at the trial that the amended judgment was also null because it was an improper amendment of a final judgment Although Sanderford counsel staied on the record that this was a s new argument he did not object tthe new clainn and orily requested that he be allowed to file a post memorandum addressing it Under these circumstances trial 2 Mason initially sued the State of Louisiana through the Department c Health and Hospital f s Support Enforcement Services but later amended to name Sanderford as a defendant 3 Following the issuance of a rule to show cause issued by this court the record was supplemented with a subsequent judgment signed by the trial court that expressly dismissed the nullity action with prejudice 3 we find the pleadings vvere xpanded by consei aaf th parties to in a elaim C lude that the amended judgmen was aiso null 5ee La C of Civ Pro art 1154 de Accordingly we will revie the trial court ruling con the n of the s ing ers llity amended judgrrzent In Neely first assignment of error he asserts that the trial court erred in s applying Article 2003 to the amended judgmenY because it was deemed null under Article 1951 In reviewing a decision of the trial court on a petition for nullity the issue for the reviewing court is not whether the trial court was right or wrong but whether the trial court conclusions were reasonable Belle Pass Terminal Inc v s Iolin Inc 01 La 10 00 So 2d 762 766 0149 O1 16 Louisiana Code of Civil Procedure article 2003 provides A defendant who voluntarily acquiesced in the judgment or who was present in the parish at the time of its execution and did not attempt to enjoin its enforcement may not annul the judgment on any of the grounds entunerated in Article 2002 The grounds enumerated in Article 2002 include a judgment rendered 1 against an incompetent person not represented as required by law 2 against a defendant who has not been served with process as required by law and who has not waived objection to jurisdiction or against whorr a valid judgment by default has not been taken and 3 by a court which does r have jurisdiction over the subject matter ot of the suit La Code of Civ Pro art 2002A In support of his claim challenging the nende judgment Neely argues that Articie 2003 does ot bar him frorn annulling that judgment because the alleged grounds for the nullity the improper mendment of final judgment are not included in the grounds enumerated in Article 2002 as required by Article 2003 A review of the law and jurisprudence addressing improper amendments of judgments does not support that position 4 The amendment of a judgment is govemed by Louisiana Code of Civil Procedure article 1951 which prcavides that a final judgment may be amended by the trial couz at any time with or without notice nn its c motion or on motion t wn of any party to alter the phrasec rof the jlbut nc tne szzbstan or to log ent t t zd e correct rror c c4 za he amei bN Lhe court w the f lcuiatien nenY g 4a ded here resulting judgment takes acathing frorr r a ra xo ch cvigin judgment lds hang al Villaume v Villaume 363 So 2d 44 45Q I 1978 However an amendment a to a judgment which adds to subtracts from or in any way affects the substance of the judgment is considered a substantive amendtnent Suprun v Louisiana Farm Bureau Mutual Insurance Co 09 La App 1 Cir 4 40 So 3d 261 1555 10 30 268 Substantive amendments to judgments can be made only by consent of the parties or after a party has successfully litigated a timely application far new trial an action for nullity or a timely appeal Villaume 363 So 2d at 451 Suprun 40 So 3d at 268 Otherwise a trial court lacks authority to make any modifications of substance to a final judgment Bourgeois v Kast 02 La 5 846 So 2785 03 20 2d 692 696 When the substance ofa judgmerit has been improperly amended the amending judgment is annalled and set aside and the original judgment is reinstated See McGee v WiPk 03 Z App 1 Cir 4 878 So 2d inson Ii78 a 04j 2 552 554 55 This court has previously heid that th nullity of a judgment due to an improper amendment is based on jurisdictional grounds and is governed by Articles 2002 and 2003 In Edwards v Edwards 282 So 2d 858 861 La App 1 Cir 1973 writ refused 284 So 2d 777 a 1973 the plaintiff obtained a judgment ordering the judicial sale of property at a certain location Article 1951 was amended by 4ets 2013 No 7L After the 1 effective August 1 2013 Subsequent to this amendment a judganant may be axaended onIy after a hearing with notice to all parties except that a hearing is not required if all pa consent or if the court ar the party submitting ties the amended judgment certifies that ii was pxovided to all parties at least five days befere the amendment and that no opposition has been received S ment rfznal th lai k a a t ciaanged jud beaa caft e y rf d that d fra d ent r the locati riss trf va a A racc z ff a fl t t at E n iocatzon andl e oa participated n kE s iy n ae T c r Ti efer then l archa irsssi ppn clant filed a su sf 3c ara e a et d s 1e ht s oi the t l iu aari c er r le properP n pu 5 h ar iri arr rh tihe amE chsai the Y rc asP r ui ig t e di location of the sale vaas an ir abs an he trial court re p xi prc a endrrieiai dismissed the nullity action and this coazrt affirmed holding Irtespective of the inerits o Appellant contentions we find f s sctzons have estcp her From uestioning the alidity c Appellant aed f either ttie or Sheriff Sale i herein ment ud s ed ol asofar as s I Elppellant action consiztutes r attack on the juin lgnnent question her ction is Qbv eoncerned a an aileged tack ar 9uslti ith jurisdictio ori the p af the r c i 2 r al urr C azt 1i P provides thai a judgmen rnay be annulle lia rezid b a imter dy r courY lackbr jur Hewever LS1 art 20Q i sdictiors P i ares tha4 a jud may noi be aran f ar fhe ro i ment t liec r v eci r ds Articie 20 ab wh th jfadg debt a 2ee nt n sr quiesw sthe c r is present in the p at tbe tinrbe oY exec and makes ffio atitie rish ioi t r to enjoin i enfor L Lhe ci 4 i s em er t s e cnstanc i r ila t barred from asserti rsaadlatti of ih jua in qne5kzc gthe t aer g r vards Ed 82 SQ 2d at ee 2 v SPate I 61 860 als agi1Z fFublac i epartrnent Safety and eorrectian 27 L App 2 Cflr 1 666 So 2d 1260 1263 02 a 24i96j Percde v Morrow 04 I pp S C 2 97 So 2d 760 762 1076 a zr 15i05 izing reco that irial cc la iur t xzake a suY amendment urt k sdzctia dl tive sta to a nal u il ane l s ly ri at e taa x t1 at j is ut aais v the sco of I ed t 3ei ecigtn a i e Ye 2 a r Arti 2Q Le ir c t9a t c puri a ia Y se ce s aa i dicti k a ua h f rtia Iy ea substantiv ar tki ju a aa c i Arta 3 s xkz t z rza e z iv feze r ly applicable nd zvill har tr cldiz if ti a v the iasi en the rn k nded judgment vas exeLtated a ci noY a4ter n id tto e the n I a i r his J eni rr ment assigr af e has no meri tor We next consider Neely assignment ef error wherein he contends that the s trial court erred in finding that the seizure of funds pursuant to an invalid income 6 ern rbarr assignm ord c hi at 1r p a r aof error v lit rex sa t 3i s ent r Neely makes severa argurr g wa h sertic vh a garnislunent is rats i7nin a nt forced aact nd not a vol acquies in he judgment He further tary ce ai e claims ure z thaY e s ef s as w u dn llegai seizure that s not iaauld constitu ara a tl ai er ncir e yKzats t c at Neety du t is x t9 s ir tk sh r ri e i amishment occurred Artiele 2003 estop a defe pretient in the parish at ttzme Uf the dwca2 e s ment cution jud ex only wher the ehas been ozxipleted that ic u ecutian xe h hment ot garnis r only has arrest unds in t ands of the gamishee t raas e ut oblige3 th deflivery of the fnnds thrQugh th she to fhe jud credit iff ment r Strain v Premier Yideq Inc 99 La t I Cir 3131 64 So 2d 9i3 0181 pp 00 988 987 In thorough written reasoris for judgment the trial court found that the garnishment was an execu of the judgment ar we agree with this finding tion d Neely ackawledged that his vages we m3sh iza 1995 r 1y96 and tlxat he re d znade no effort Q preven the cc e ar his a l rrin nt rzur es Sanderford introduced n heck stutss carr vee aplr f li3 of u6 aerc s rn fl 5cam cernber iat 1995 thrrsugh Se e a hat idenkifie r anb th dfls es t ri e t ceedin prc alsu esta t drp ee1y lish h E th Qari7i and haner9 aist t a at a as ik d arfcl a 1 evidr e 3 ur l ine e fllg nu sa pi pe s i th rsz ment prior dljud 4ad to the gartaish Neely was n vsare oA tr sei a the leKal pxoce ent 11y ures d diri giving rise to the seizures yet he made no attzmpt to enjoiri or other prevent vise the enforcement action Neely re on Bryant v Pierson 583 S 2d 97 La App 3 Cir 1991 in lies support of his asset hat ais rrot ari execation af the judgment for ment arnis purposes of P 20d3 The Bryant court noted arn rQeeedings icye r that is ent filed n tu e se nc ciexit suf to arits estop ihe ciefFZYC frcrn at the ing ac i validity Qf a second judgrn rt ihe filing of th gamishment ea nd red proceeding and a The dafea Yiled a motiun tQ vacate the first judgment ar r ants t for a new trial at 9 n 1 Thc aarsshmant in the present case Bryant S83 dr occurr aft the issu or t1 arn an well b any attempt nc nent judg aaded are to annul either of she iudgsriei ua ts th rth acts c 13ry io ti that t aa r icate the gamisnment rnceedings resuited in an Gtua lseizure f fa efcare the filing ds of tha motion to vacate or that a long dela occurred between the filing of the garnishment and the defendants frling of the motion to vacate In contrast swages were actually seized for several months He not only failed to make Neely any attempt to prevent or stop those seizures he also did not contest the validity of the judgments until approximately 15 years later Bryant offers no support for Neely given these facts Neely also argues that Article 2003 does not apply because the garnishment was an illegal seizure of funds due to the improper issuance of the income assignment order In essence Neely contends khat Article 2003 only precludes a nuility action if the enforcement of the judgmerrt was procedurally proper Article 2003 does not contain any such requirement nar do we infer one from the language and context of the article Neely assertion lgnores that Article 2003 s applies to suits seeking to nullify judgments because of a fatal defect in the underlying proceeding The enforcement of a null judgment produced by such a flawed praceeding would rarely if ever be procedurally proper Thus any requirement that th enforcem be legal would render Article 2003 largely t x supertluous Gourts should give effect to all parts of a st and should not adopt tute a statutory construction that rriakes any pa superfluous or meaningl if that t ss result can be avaided Su Cor v Jewelers Mutuai Insurance Co 03 tuna 0360 La 12 860 So 2d 1112 1116 43 3 8 The focus of Article 2003 is the knowing submission by the judgment debtor to the judgment enforcement through a completed execution in a parish where s he is present This tacit recognition of the judgment validity estops the party s from later contesting it See Strain 764 So 2d at 987 Edwards 282 So 2d at 988 861 860 Neely does not assert that a defect in the garnishment proceeding caused him to be unaware of the amended judgment or otherwise limited his ability to enjoin its enforcement To the contrary Neely was personally served with the amended judgment and his payroll checks provided detailed information about the proceeding giving rise to the gamishment Based upon this evidence the trial court did not err in fmding that Neely was present in the parish at the time of the s judgment execution and did not attempt to enjoin its enforcement Pursuant to Article 2003 the trial court properly dismissed the claim seeking to annul the amended judgment which is fully enforceable against Neely See Edwards 282 So 2d at 860 861 In his remaining assignment of error Neely asserts that the trial court erred in allowing the income assignment order to relate back to the ariginal judgment Neely argues that the trial court improperly dismissed his claim to annul the original judgment because the gamishment proceeding was an enforcement of only the amended judgment and should not relate back to the original judgment Therefare according to Neely his failure to enjoin the garn does not bar an shment attack on the validity of the original judgment However that claim is rendered mooY by our holding that tYie amended judgment is ehforceable against Neely The 5 Neel Y a p oints out that the ori gmal udgment was signed by Judge Carl A Guidry who so Neely states was sitting ad hoc for Judge Jennifer Luse and that the amended judgment was signed by Judge Luse Neely argues that the amended judgxnent is null because Judge Luse could not amend a judgment she did not originally issue and that Articles 2002 and 2003 do not apply to an action for nullity on those grounds Neely cites no authority nor aze we aware of any authority for declaring an amended judgment to be null solely because the oxiginal judgment was signed by a different judge who was serving ad hoc in the same division Accordingly that claim cannot serve as alternative basis for declazing the amended judgment null See La Code of Civ Pro art 1911 La R 13 S 4209 9 amended judgment consists of every provision word set forth in the for original judgment plus decrees ordering the issuance of an income assignment order and assessing all costs to Nee1y Given the s of the amended judgment ope we find that it superseded the ariginal judgment and became the final judgment of the trial court Cf In re Transit Management of5outheast Louisiana Inc 04 0632 La App 4 Cir 10 942 So 2d 595 6U0 Nolan v High Grass LLC 06 20 601 80 07 La App 5 Cir S 960 So 2d 1103 1105 holding that original 07 29 judgment was superseded by an amended judgment Therefore Neely s assignment of error asserting that the trial court erred by dismissing his claim seeking to annul the original judgment is moot CONCLUSION Louisiana Code of Civil Procedure article 2003 bars Neely from annulling the amended judgment because he was present in the parish at the time of its execution and did not attempt to enjoin its enforcement Accordingly we affirm the trial court judgment dismissing the suit for nullity All costs of this appeal s are assessed to the defendant Rodney Neely appellant AFFIRMED 10

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