Opinion
2015 CA 1492
04-27-2016
LINDA S. LEJEUNE v. RANDY JOSEPH GERACE
Cy J. D'Aquila, Jr. New Roads, Louisiana Attorney for Plaintiff/Appellee, Linda S. LeJeune Michael E. Parks New Roads, Louisiana Attorney for Defendant/Appellant, Randy Joseph Gerace
NOT DESIGNATED FOR PUBLICATION On Appeal from the 18th Judicial District Court In and for the Parish of Pointe Coupee State of Louisiana
Trial Court No. 45,768, Div. B The Honorable J. Robin Free, Judge Presiding Cy J. D'Aquila, Jr.
New Roads, Louisiana Attorney for Plaintiff/Appellee,
Linda S. LeJeune Michael E. Parks
New Roads, Louisiana Attorney for Defendant/Appellant,
Randy Joseph Gerace BEFORE: WHIPPLE, CJ., WELCH, AND DRAKE, JJ. DRAKE, J.
Randy Gerace appeals the judgment of the Eighteenth Judicial District Court, Parish of Pointe Coupee, making several judgments executory in favor of his former spouse, Linda S. LeJeune. For the following reasons, we affirm the trial court's judgment.
FACTS AND PROCEDURAL HISTORY
Following the divorce of Mr. Gerace and Ms. LeJeune, the Twenty-Seventh Judicial District Court, Parish of St. Landry (Twenty-Seventh JDC) rendered three separate judgments pertaining to custody and child support of the couple's minor children. (R. 2-11). Those judgments were dated October 19, 2004, July 14, 2005, and September 22, 2005 (St. Landry Judgments). On February 21, 2014, at which time Ms. LeJeune was a resident and domiciliary of Pointe Coupee Parish, she filed a Rule to Make Judgment Executory, for Contempt, to Make Past Due Child Support Executory, to Modify Custody and Support (Petition) in the Eighteenth Judicial District Court, Parish of Pointe Coupee (Eighteenth JDC).
When the first of the judgments was rendered, the couple had three minor children. When the Petition was filed in the present matter, two of the children had reached majority status. The current Petition pertains to the custody and child support of the third minor child.
On February 26, 2014, the trial court signed an order making the St. Landry Judgments executory and setting a hearing on the child support and custody issues. Mr. Gerace filed an Exception of Improper Venue and Objection to Registration of Support Order (Exception). A hearing officer for the Eighteenth JDC issued recommendations making the St. Landry Judgments executory, denying the exception and objection filed by Mr. Gerace, setting a child support hearing, and modifying the custody of the minor child. Mr. Gerace filed an objection to the recommendations of the hearing officer, which he titled an appeal. The minutes of the trial court indicated that a hearing was held on the Exception, which the trial court denied. Trial was held in this matter on February 10, 2015, wherein the trial court held that Mr. Gerace owed past due child support in the amount of $48,949.00. A judgment was signed on April 8, 2015, setting forth that Mr. Gerace owed that amount to Ms. LeJeune and making the amount executory. It is from this judgment that Mr. Gerace appeals.
This court notes that although the trial court overruled the Exception, there is no judgment in the record. The only judgment is dated April 8, 2015, following the trial, and is limited to the arrearages due by Mr. Gerace. Generally, silence in a judgment of the trial court as to any issue, claim or demand placed before the court is deemed a rejection of the claim and the relief sought is presumed to be denied. Schoolhouse, Inc. v. Fanguy, 2010-2238 (La. App. 1 Cir. 6/10/11), 69 So. 3d 658, 664. This court further notes that the minutes of the trial court indicate a hearing on the Exception was held on July 15, 2014, and was overruled. --------
ERRORS
On appeal, Mr. Gerace assigns as error the trial court's failure to vacate the registration of the St. Landry Judgments in the Eighteenth JDC and the calculation of past due child support.
LAW AND DISCUSSION
Ms. LeJeune claims that Mr. Gerace is actually attempting to appeal two separate judgments of the trial court: (1) the judgment denying his Exception of Improper Venue and Objection to the Registration of the Child Support Order, and (2) the trial court's final determination of the arrearages owed by Mr. Gerace, which is the judgment dated April 8, 2015.
As noted above, there is no judgment contained in the record as to the Exception, but it is deemed denied. Schoolhouse, Inc. v. Fanguy, 2010-2238 (La. App. 1 Cir. 6/10/11), 69 So. 3d 658, 664. Furthermore, although Ms. LeJeune sets forth argument regarding the venue, Mr. Gerace does not assign as error or brief the issue of venue. Finally, the trial court's ruling denying the declinatory exception objecting to venue may only be raised by supervisory writ. A party who does not bring a supervisory writ to object to the denial of the declinatory exception of venue, waives the right to do so. Land v. Vidrine, 2010-1342 (La. 3/15/11), 62 So. 3d 36, 41. This court has noted that "[w]hile it is true that normally when an unrestricted appeal is taken from a final judgment, the appellant is entitled to seek review of all adverse interlocutory judgments prejudicial to him, in addition to the review of the final judgment," such a review is meaningless to correct the alleged error of a denial of the declinatory exception raising the objection of improper venue on appeal after a final judgment is rendered. Alexander v. Palazzo, 2008-1541 (La. App. 1 Cir. 2/13/09), 5 So. 3d 950, 953. Therefore, the issue of venue is not before this court. Execution of St. Landry Judgments
Mr. Gerace does appeal whether Ms. LeJeune properly registered the St. Landry Judgments pursuant to La. C.C.P. art. 2785, et seq. and claims that the St. Landry Judgments cannot be made executory and subsequently modified in the Eighteenth JDC.
Mr. Gerace relies upon La. C.C.P. art. 2785, et seq. and Roberson v. Roberson, 2012-2052 (La. App. 1 Cir. 8/5/13), 122 So. 3d 561. Specifically, he claims that La. C.C.P. art. 2791 sets forth the requirements for registering a support order from one court of our state to another court of our state and that Ms. LeJeune did not comply with the requirements.
Ms. LeJeune claims that La. C.C.P. art. 2786 provides for the intrastate registration of support orders for modification and enforcement only when the rendering court is divested of jurisdiction because both parties no longer reside in that jurisdiction. It is undisputed by both parties that Mr. Gerace continues to reside in St. Landry parish. Therefore, Ms. LeJeune claims that Mr. Gerace's arguments are misplaced and that La. C.C.P. art. 2785, et seq. does not apply at all to the present situation where the obligor continues to reside in the jurisdiction of the rendering court.
Generally, a judgment rendered in a Louisiana court may be made executory in any other Louisiana court of competent jurisdiction, if its execution has not been and may not be suspended by appeal. La. C.C.P. art. 2781. In order to do so, a creditor "may file an ex parte petition complying with Article 891, with a certified copy of the judgment annexed, praying that the judgment be made executory. The court shall immediately render and sign its judgment making the judgment of the other Louisiana court executory." La. C.C.P. art. 2782. However, La. C.C.P. art. 2785, et seq. specifically apply to the modification and enforcement of a "support order," which is defined as "a judgment, decree, or order, whether temporary, final, or subject to modification, for the benefit of a child, a spouse, or a former spouse, which provides for monetary support, health care, arrearages, or reimbursement, and may include related costs and fees, interest, income withholding, attorney fees, and other relief." La. C.C.P. art. 2785(4).
Louisiana Code of Civil Procedure articles 2786-2790 pertain to the requirements for the registration and confirmation of a support order wherein the obligee seeks modification of the support order. Louisiana Code of Civil Procedure articles 2791-2794 pertain to the registration and confirmation of a support order wherein the obligee seeks enforcement only of the support order. Under the modification articles, La. C.C.P. art. 2786(A) applies "if all parties to the order are no longer domiciled in the parish of the rendering court." Ms. LeJeune relies upon this provision to argue that La. C.C.P. art. 2785, et seq. is not applicable to the current situation, since Mr. Gerace continues to reside in St. Landry Parish. Mr. Gerace relies upon the enforcement articles and argues that La. C.C.P. art. 2791(A), which states, "[a] support order rendered by a court of this state may be registered for enforcement in another court of this state" applies to this matter, and there is no requirement that the parties no longer be domiciled in the parish of the rendering court. Mr. Gerace claims that Ms. LeJeune did not comply with the requirements of La. C.C.P. art. 2791(B)-(D) which provide:
B. An obligee of a support order seeking to register a support order pursuant to the provisions of this Paragraph shall transmit to the clerk of the registering court all of the following:
(1) A certified copy of the support order.
(2) A verified statement of support or a federally approved URESA or UIFSA form, signed by a party to the support order, indicating all of the following:
(a) The name and street address of the obligee.
(b) The name, last known place of residence, and post office or street address of the obligor.
(c) The total amount of arrearages owed pursuant to the support order which have not been reduced to a judgment.
(d) A list of all the jurisdictions in which the order is registered.
C. Upon receipt of these documents, the clerk of court shall:
(1) Treat the documents as if they were a petition seeking relief relative to a family law matter by assigning a docket number and, if applicable, designate a division to which the matter is allotted.
(2) Register the support order by stamping or making a notation thereof on the certified copy of the support order in substantially the following form: "REGISTERED FOR ENFORCEMENT by the Clerk of the [District, Family, or Juvenile] Court in and for the Parish of [name of parish] on [date]."
(3) (a) Send a copy of the registered support order and verified statement of support, by certified or registered mail, to the obligor at the addresses provided in the verified statement of support, or (b) Issue service of process as permitted by law and notice of registration in lieu of citation, which shall be served by ordinary process.
D. The filing of a support order in compliance with the provisions hereof constitutes registration of the support order for enforcement. (Emphasis added).
Mr. Gerace claims that Ms. LeJeune did not comply with La. C.C.P. art. 2791(B), since she did not file a verified statement of support or a federally approved URESA or UIFSA form, did not provided her name and address, did not provide Mr. Gerace's last known place of residence, and did not list the jurisdictions in which the order was registered. Furthermore, the Clerk of Court of the Parish of Pointe Coupee did not mark the Petition "Registered for Enforcement" as required by La. C.C.P. art. 2791(C). Therefore, Mr. Gerace claims there was never a valid registration of the support order for enforcement.
A review of the Petition reveals that it sought to make the St. Landry Judgments executory in the Eighteenth JDC, but also sought to modify the custody arrangement of the minor child. In accordance with the sought-after modification to the child custody, Ms. LeJeune sought to modify the child support. Because Ms. LeJeune was seeking to modify the support order, not seeking only to enforce it, we must look to the provisions of La. C.C.P. art. 2785-2790.
Ms. LeJeune relies upon Goutreaux v. Goutreaux, 47,769 (La. App. 2 Cir. 1/16/13), 109 So. 3d 935, wherein the parties were domiciled and divorced in Acadia Parish. After receiving a support order, the wife and obligee moved to Caddo Parish. The wife filed a petition in Caddo Parish to make the judgment executory and increase child support payments. The appellate court found that because the father was still domiciled in Acadia Parish, La. C.C.P. art. 2785 et seq. did not apply since "[t]hose provisions are designed to address the situation in which the rendering court is divested of jurisdiction because the parties no longer reside there, and the registering court is vested with jurisdiction." Goutreaux, 109 So. 3d at 937 (quoting McIntyre v. Becker, 2005-0257 (La. App. 4 Cir. 8/03/05), 918 So. 2d 40, 45). "They do not, as [the defendant] suggests, establish exclusive jurisdiction in the rendering court when, as here, one party still resides there." Id.
Both Goutreaux and McIntyre refer to La. C.C.P. art. 2785, et seq. without distinguishing between the modification provisions and the enforcement provisions. However, the modification provisions set forth the requirements for the intrastate registration of support orders for modification when the rendering court is divested of jurisdiction because both parties no longer reside in that jurisdiction. La. C.C.P. art. 2786(A). While La. C.C.P. art. 2791, which applies to the enforcement only of a support order, has no requirement that the parties no longer reside in the rendering court's jurisdiction, the present facts are that Ms. LeJeune sought to modify the support order. Therefore, Goutreaux and McIntyre apply to the present matter. As in Goutreawc and McIntyre, La. C.C.P. art. 2785, et seq. do not apply since Mr. Gerace continues to reside in the jurisdiction of the rendering court, and Ms. LeJeune was not required to register and confirm the support orders in the Eighteenth JDC. Instead, all she had to do was comply with La. C.C.P. art. 2781-2782, the general provisions for making intrastate judgments executory. Furthermore, the Roberson case relied upon by Mr. Gerace is distinguishable from the present matter. In Roberson, both parties no longer resided in the rendering jurisdiction, which are not the facts before this court. Roberson, 122 So. 3d at 563-64. Payments made for Insurance
Mr. Gerace claims the trial court erred in not giving him credit for insurance payments he made to Johnny LeJeune, the current husband of Ms. LeJeune. The consent judgment entered into on September 22, 2005, provided that Mr. Gerace "shall continue to maintain the medical insurance coverage that is in effect through his employer at his expense, said amount being taken into consideration in the award of child support stipulated to above." Mr. Gerace was to pay Ms. LeJeune child support of $900.00 per month until September 30, 2005, and then $700.00 per month beginning October 1, 2005. Beginning in 2011, Mr. Gerace no longer provided the mandated medical insurance coverage. Ms. LeJeune then added the minor child to Johnny LeJeune's insurance. Ms. LeJeune requested that Mr. Gerace pay $145.00 every two weeks to cover the costs of the minor child's insurance, which he paid for approximately a year and five months.
Mr. Gerace claims that because he was injured on the job and was seeking disability, he could not maintain insurance through his employer. He asserts that he is entitled to a credit for the amount he did pay to Johnny LeJeune for the medical expenses.
A court of appeal may not overturn a judgment of a trial court absent an error of law or a factual finding that is manifestly erroneous or clearly wrong. Morris v. Safeway Ins. Co. of Louisiana, 2003-1361 (La. App. 1 Cir. 9/17/04), 897 So.2d 616, 617, writ denied, 2004-2572 (La. 12/17/04), 888 So. 2d 872. The Louisiana Supreme Court has posited a two-part test for the appellate review of facts in order to affirm the factual findings of the trier of fact: (1) the appellate court must find from the record that there is a reasonable factual basis for the finding of the trier of fact; and (2) the appellate court must further determine that the record establishes that the finding is not clearly wrong (manifestly erroneous). See Mart v. Hill, 505 So. 2d 1120, 1127 (La. 1987). Thus, if there is no reasonable factual basis in the record for the trier of fact's finding, no additional inquiry is necessary to conclude there was manifest error. However, if a reasonable factual basis exists, an appellate court may set aside a factual finding only if, after reviewing the record in its entirety, it determines the factual finding was clearly wrong. See Stobart v. State, through Dep't of Transp. and Dev., 617 So. 2d 880, 882 (La. 1993); Moss v. State, 2007-1686 (La. App. 1 Cir. 8/8/08), 993 So. 2d 687, 693, writ denied, 2008-2166 (La. 11/14/08), 996 So. 2d 1092. If the trial court's findings are reasonable in light of the record reviewed in its entirety, the court of appeal may not reverse those findings, even though convinced that, had it been sitting as the trier of fact, it would have weighed the evidence differently. Hulsey v. Sears, Roebuck & Co., 1996-2704 (La. App. 1 Cir. 12/29/97), 705 So. 2d 1173, 1176-77. A reviewing court may only disturb the lower court's holding upon a finding that the trier of fact was clearly wrong or manifestly erroneous. Reed v. Wal-Mart Stores, Inc., 1997-1174 (La. 3/4/98), 708 So. 2d 362, 364-65 (citing Stobart v. State, 617 So.2d 880 (La.1993)).
The trial court found after the trial that the child support award of $700.00 per month was never reduced and did not award a credit for the health insurance paid to Johnny LeJeune. The cost of health insurance premiums incurred on behalf of a child shall be added to the basic child support obligation. La. R.S. 9:315.4(A). This is exactly what was done when the Twenty-Seventh JDC ordered Mr. Gerace to pay $700.00 per month in child support and maintain medical insurance coverage for the minor child. There is nothing in the record indicating that Mr. Gerace sought to modify this order once he lost his job. Therefore, the Eighteenth JDC was correct in not granting a credit for any amount of health insurance premiums Mr. Gerace did pay to cover the medical insurance of the minor child. We find a reasonable factual basis exists for the trial court's judgment which did not allow a credit for the amount paid to Johnny LeJeune for medical insurance for Mr. Gerace's minor child.
CONCLUSION
For the above and foregoing reasons, the trial court's judgment in favor of plaintiff, Linda S. LeJeune, and against defendant, Randy Joseph Gerace, is hereby affirmed. Costs of this appeal are assessed against Randy Joseph Gerace.
AFFIRMED.