Opinion
2018 CU 1563
03-12-2019
NATALIE WALL FOWLKES v. JUSTIN DAVID FOWLKES
Karen D. Downs Natalie C. Neale Baton Rouge, Louisiana Counsel for Plaintiff-Appellant Natalie Wall Fowlkes Melaine Newkome Jones Baton Rouge, Louisiana Counsel for Defendant-Appellee Justin David Fowlkes
NOT DESIGNATED FOR PUBLICATION ON APPEAL FROM THE FAMILY COURT
NUMBER F191,775, DIVISION D, PARISH OF EAST BATON ROUGE
STATE OF LOUISIANA HONORABLE HUNTER GREENE, JUDGE Karen D. Downs
Natalie C. Neale
Baton Rouge, Louisiana Counsel for Plaintiff-Appellant
Natalie Wall Fowlkes Melaine Newkome Jones
Baton Rouge, Louisiana Counsel for Defendant-Appellee
Justin David Fowlkes BEFORE: WELCH, CHUTZ, AND LANIER, JJ.
Disposition: APPEAL DISMISSED; MOTION TO DISMISS APPEAL DENIED AS MOOT; AND MOTION TO DISMISS DENIED AS MOOT.
CHUTZ, J.
This appeal is taken from a family court judgment denying a mother's request to relocate a minor child out-of-state. For the following reasons, we dismiss the appeal and deny the appellee's motions to dismiss as moot.
FACTUAL AND PROCEDURAL BACKGROUND
Natalie Wall Fowlkes and Justin David Fowlkes were married on June 24, 2006, and one child, Rose Camille Fowlkes (DOB 6/18/13), was born of the marriage. They were divorced on October 29, 2014.
An interim judgment was signed on September 30, 2014, granting joint custody to Natalie and Justin, with Natalie designated as the domiciliary parent. On July 5, 2018, Natalie filed a "Rule for Final Custody and for Joint Custody Implementation Plan." In addition to a final joint custody award and a joint implementation plan, Natalie also requested that she be allowed to relocate Rose's primary residence from Louisiana to the Houston, Texas area. Natalie wished to relocate in order to accept a job at M.D. Anderson in her specialized field of anatomic veterinary pathology. Justin opposed the relocation.
After a trial on the merits, Judge Hunter Greene took the matter under advisement. Judge Greene denied Natalie's relocation request in open court on August 8, 2018. In extensive, oral reasons for judgment, Judge Greene concluded relocation was not in Rose's best interest. A written judgment denying Natalie's relocation request was subsequently signed by Judge Charlene Charlet Day, a family court judge, on September 14, 2018. Natalie filed a motion for appeal, which correctly noted that judgment was rendered on August 8, 2018, but incorrectly stated that the September 14, 2018 judgment was signed by Judge Greene. An order granting an appeal was signed by Judge Greene on September 24, 2018. In her appellate brief, Natalie argues in six assignments of error that the family court legally erred and/or abused its discretion either in failing to consider or in giving improper weight to various factors affecting Rose's best interest.
Judge Day serves a different division of family court than Judge Greene. During oral argument before this court, Natalie's counsel asserted that the clerk of court's office mistakenly directed the judgment to Judge Day's office, and she signed it without realizing the error.
Natalie also filed a writ application with this court in which she sought review of the denial of her relocation request. This court granted the writ application, reversed the trial court's ruling, and granted Natalie's request to relocate to the Houston, Texas area. Fowlkes v. Fowlkes , 18-1433 (La. App. 1st Cir. 11/7/18) (unpublished writ action). In response, Justin sought review of the writ action by filing a writ application with the Louisiana Supreme Court. The writ application was denied. Fowlkes v. Fowlkes , 18-1989 (La. 1/18/19), ___ So.3d ___.
On November 14, 2018, Judge Greene signed a written judgment denying Natalie's relocation request. The judgment is a copy of the prior judgment signed by Judge Day and includes a notation that it had been "[s]igned by Judge Day on 9/14/18 in error." (R 436) Judge Day's signature on the judgment is struck through with a solid line. Additionally, the sentence in the November 14 judgment stating, "IT IS FURTHER ORDERED, ADJUDGED AND DECREED that this judgment shall constitute and is hereby designated as a final judgment, there being no just cause for delay[,]" is crossed out with a solid line.
DISCUSSION
On December 19, 2018, Justin filed a motion to dismiss Natalie's appeal. Justin alleged the appeal was not taken from a final judgment because the judgment "expressly notes" that it "was not a final judgment." In making this allegation, Justin apparently relied on the fact that, in the November 14 judgment, the language stating that it was a final judgment and that there was no just cause for delay was crossed out with a solid line. On January 16, 2019, however, Justin filed a motion in which he changed his position on the judgment's finality. In the second motion, Justin asserted that the November 14 judgment was final because relocation was the only issue tried by the family court, and he and Natalie had agreed the trial would be a final trial on that issue. Justin requested the dismissal of his earlier motion to dismiss the appeal.
Regardless of Justin's position on the finality of the November 14 judgment, appellate courts have a duty to examine subject matter jurisdiction sua sponte, even when the parties do not raise the issue. Texas Gas Exploration Corp. v. Lafourche Realty Company , Inc., 11-0520 (La. App. 1st Cir. 11/9/11), 79 So.3d 1054, 1059, writ denied, 12-0360 (La. 4/9/12), 85 So.3d 698. Initially, we note that in her motion for appeal, Natalie requested an appeal from the judgment rendered on August 8, 2018, and signed on September 14, 2018, by Judge Greene. Although Judge Greene rendered judgment on August 8, 2018, it was Judge Day who signed the September 14, 2018 judgment. Nevertheless, the circumstances indicate Natalie actually intended to appeal from Judge Greene's denial of her relocation request. See Riedel v. Fenasci , 18-0539 (La. App. 1st Cir. 12/28/18), ___ So.3d ___, ___; Byrd v. Pulmonary Care Specialists , Inc., 16-0485 (La. App. 1st Cir. 12/22/16), 209 So.3d 192, 195.
The circumstances include the fact that Natalie refers only to Judge Greene in her motion for appeal, the motion for appeal was submitted to and signed by Judge Greene, and Natalie's appellate brief states that Judge Greene rendered the judgment denying her relocation request. Additionally, Natalie's assignments of error and arguments on appeal are directed primarily at Judge Green's oral reasons for judgment, which are attached to and quoted extensively in her brief.
This circumstance means that Natalie's September 21 motion for appeal was premature because it was filed before Judge Greene signed a written judgment on November 14. See La. C.C.P. art. 1911(B). Under the jurisprudence, however, any defect arising from a premature motion for appeal is cured once a final judgment has been signed. Overmier v. Traylor , 475 So.2d 1094, 10945-95 (La. 1985) (per curiam); Chauvin v . Chauvin , 10-1055 (La. App. 1st Cir. 10/29/10), 49 So.3d 565, 568 n.1. Therefore, the prematurity of Natalie's motion for appeal was cured when Judge Greene signed a written judgment denying her relocation request on November 14, 2018.
Next, we must consider the finality of the appealed judgment since this Court's appellate jurisdiction extends only to "final judgments." See La. C.C.P. art. 2083; Joseph v. Ratcliff , 10-1342 (La. App. 1st Cir. 3/25/11), 63 So.3d 220, 224. A judgment that determines the merits in whole or in part is a final judgment. La. C.C.P. art. 1841. A judgment that only partially determines the merits of the action is a partial final judgment that is appealable only if authorized by La. C.C.P. art. 1915. Rhodes v. Lewis , 01-1989 (La. 5/14/02), 817 So.2d 64, 66-67.
Louisiana Code of Civil Procedure article 1915(B) states, in part:
(1) When a court renders a partial judgment ... as to one or more but less than all of the claims, demands, issues, or theories, ... the judgment shall not constitute a final judgment unless it is designated as a final judgment by the court after an express determination that there is no just reason for delay.(Emphasis added.)
(2) In the absence of such a determination and designation, any order or decision which adjudicates fewer than all claims or the rights and liabilities of fewer than all the parties, shall not terminate the action as to any of the claims or parties and shall not constitute a final judgment for the purposes of an immediate appeal. Any such order or decision issued may be revised at any time prior to rendition of the judgment adjudicating all the claims and the rights and liabilities of all the parties.
In the instant case, Natalie filed a rule requesting a final custody decree and implementation of a joint custody plan, as well as a request to be allowed to relocate to Texas with Rose. The trial court judgment merely adjudicated Natalie's relocation request. It did not dispose of her request for a final custody decree and for implementation of a joint custody plan. Accordingly, the trial court judgment is a partial judgment on the merits. Moreover, the fact that Judge Greene crossed out the language in the November 14 judgment stating that the judgment shall constitute a final judgment and there there is no just cause for delay indicates he specifically considered and then refused to designate the November 14, 2018 judgment as final and appealable. The lack of a designation of finality is a jurisdictional defect in that Article 1911(B) provides, in part, that "[no] appeal may be taken from a partial final judgment ... until the judgment has been designated a final judgment under Article 1915(B)." (Emphasis added.) See also La. C.C.P. art. 1915(B)(1) & (2); Texas Gas Exploration Corporation , 79 So.3d at 1061. This court lacks appellate jurisdiction to review the partial judgment signed on November 14, denying Natalie's relocation request, since it is not a final judgment for purposes of an appeal. La. C.C.P. art. 1915(B); see also Texas Gas Exploration Corporation , 79 So.3d at 1061; Joseph , 63 So.3d at 224.
In some cases where a partial judgment lacked a designation of finality, this court remanded the matter to the trial court for the limited purpose of either advising this court that the judgment does not warrant a designation under Article 1915(B) or signing an amended judgment containing the designation. See, e.g., In re Succession of Cannon , 14-0059 (La. App. 1st Cir. 3/25/15), 166 So.3d 1097, 1101 n.1, writ denied, 15-0816 (La. 6/5/15), 171 So.3d 948; Jones v. Fontenot , 12-0441 (La. App. 1st Cir. 12/28/12), 112 So.3d 865, 866 n.2. It would be futile to do so in this case, since Judge Greene has already indicated his determination on this issue by signing a judgment where the designation of finality is crossed out. --------
This court has on occasion exercised its power of supervisory jurisdiction to convert an appeal from a non-appealable judgment into an application for a supervisory writ. The decision to do so is within the discretion of an appellate court. Stelluto v. Stelluto , 05-0074 (La. 6/29/05), 914 So.2d 34, 39. In this instance, we decline to exercise our discretion to convert Natalie's appeal into a writ application. The subject of this appeal is the denial of Natalie's relocation request. A different panel of this court has previously reviewed this ruling on a writ application. Moreover, the writ panel granted Natalie the relief she sought, which was to be allowed to relocate to Texas with Rose. Further, the Supreme Court denied Justin's writ application seeking review of that writ action. Thus, through this court's supervisory jurisdiction, Natalie has already been granted the relief she seeks in this appeal. No purpose would be served by converting this appeal to an application for a supervisory writ.
CONCLUSION
For the above assigned reasons, we dismiss this appeal at the cost of appellant, Natalie Walls Fowlkes. In view of the dismissal of this appeal, the "Motion to Dismiss Appeal" and the "Motion to Dismiss" filed by appellee, Justin David Fowlkes, are denied as moot.
APPEAL DISMISSED; MOTION TO DISMISS APPEAL DENIED AS MOOT; AND MOTION TO DISMISS DENIED AS MOOT.