Opinion
No. 2008 CW 1469.
May 8, 2009.
ON APPLICATION FOR SUPERVISORY REVIEW FROM THE FAMILY COURT IN AND FOR THE PARISH OF EAST BATON ROUGE TRIAL COURT NO. 157,850, DIVISION "D" HONORABLE ANNETTE LASALLE, JUDGE PRESIDING.
Dana A. Bolton, Baton Rouge, LA, Counsel for Plaintiff/Relator, Kenneth Levatino.
Brian J. Prendergast, Wendy L. Edwards, Baton Rouge, LA, Defendant/Respondent, Michelle Levatino.
BEFORE: PETTIGREW, McDONALD, AND HUGHES, JJ.
Herein we consider whether a family court judgment setting the fair market rental value of a former matrimonial domicile was procedurally barred. For the following reasons, we deny the application for supervisory review.
FACTUAL AND PROCEDURAL HISTORY
Kenneth and Michelle Levatino were married in March 1992. They had two children: a son, Nathan, born in 2000; and a daughter, Leanna, born in 2002. Mr. Levatino is a long-time employee of the Baton Rouge Fire Department. Ms. Levatino is employed by SRA International, Inc. as an information technology project manager, working from home with occasional out-of-state travel.
The caption and the body of the original petition incorrectly identified the parties' last name as "Levantino." The record clearly establishes that the proper spelling is "Levatino." We further note that Michelle's legal name is "Joannie Michelle Levatino."
Mr. Levatino filed a petition for divorce on March 29, 2006. Each party sought custody of the children, child support, and exclusive use of the former matrimonial domicile; alternatively, Ms. Levatino asked that a fair market rental value for the home be fixed. Ms. Levatino also sought and was granted a temporary restraining order against Mr. Levatino, restraining, enjoining, and prohibiting him, his agents or assigns from any form of harassment of Ms. Levatino at her residence or "anywhere she may be located."
On May 2, 2006, the parties agreed to a stipulated judgment, reduced to writing and signed by the trial court on June 12, 2006, which awarded joint custody of the children to the parents and alternated physical custody of the children on a week-to-week basis. The stipulated judgment also provided that the children's nanny was to be allowed to resume the children's home school curriculum on May 3, 2006 and continue it until May 25, 2006. The parties were further ordered to "maintain the status quo regarding the community obligations of the parties as per their budget of August 2005" with the parties to continue to pay the monthly obligations they had each paid since August 2005. Mr. Levatino was granted the exclusive use and occupancy of the former matrimonial domicile pending trial. Each party was enjoined from alienating, disposing, or encumbering any asset of the community during the pendency of the proceedings.
Subsequently, Mr. Levatino filed a rule for contempt alleging that Ms. Levatino had violated the stipulated judgment by refusing to pay the mortgage note on the former matrimonial domicile, and by interfering with the children's home schooling and visitation plan. Ms. Levatino also filed a rule for contempt similarly asserting that Mr. Levatino had failed to pay certain community obligations and had failed to maintain the children's home school curriculum.
A trial was conducted on August 2, 4, and 28, 2006. The family court rendered judgment awarding the parties joint custody of the children, designating Ms. Levatino as the domiciliary parent, and granting visitation to Mr. Levatino. Each party's rule for contempt was dismissed. On August 31, 2006, the family court issued supplemental written reasons for judgment emphasizing that its judgment was predicated on Ms. Levatino's assurances that she intended to reside in Baton Rouge and that her work-related travel would be nominal. A final written judgment memorializing the family court's custody decision and dismissing the parties' respective rules for contempt was signed on November 30, 2006. In addition, the judgment ordered the parties to attend counseling with Dr. Alan Taylor, and submit a "child support calculation and a Custody Implementation Plan" within ten days. Mr. Levatino devolutively appealed this judgment on March 2, 2007. The judgment was subsequently affirmed by this court in an unpublished decision. See Levatino v. Levatino, 2007-1238 (La.App. 1 Cir. 11/2/07) (unpublished), 966 So.2d 1247 (table).
Meanwhile, on February 13, 2007, Ms. Levatino filed a "Rule for Restraining Order and Injunction" against Mr. Levatino, alleging that he was engaging in demeaning, threatening, and physically and verbally abusive behavior toward her, as well as attempting to demean her reputation through statements to others, including the children and her co-workers.
On February 14, 2007 a judgment of divorce was signed.
Following a hearing on March 27, 2007, a permanent injunction was issued against Mr. Levatino enjoining and prohibiting him or anyone acting on his behalf from "harassing, stalking, surveilling, or any deliberate observation or monitoring of the activities of [Michelle Levatino] via telephone, at her place of employment, her home or at any location or going within 500 yards of [her] at any time or by any other means during the pendency of these proceedings or until further orders of the court except the prearranged exchange of the children." The judgment was signed June 18, 2007. Mr. Levatino filed a motion for devolutive appeal of this judgment on July 2, 2007, which we address in a decision also rendered this date under number 2008CA1468.
Thereafter, on June 25, 2007, the family court notified the parties of its decision fixing child support to be paid by Mr. Levatino to Ms. Levatino. The court's notice stated that the matter came before the court on August 3, 4, and 28, 2006, at which time the parties were ordered to submit a child support obligation worksheet within ten days, and that Ms. Levatino submitted a worksheet on May 30, 2007, while Mr. Levatino had not submitted a worksheet. The family court determined that Mr. Levatino owed Ms. Levatino $751.53 per month in child support. The parties' respective shares of medical, dental, insurance, and school related expenses were also fixed in this judgment. These court rulings were included in a judgment signed by the family court on August 7, 2007. Mr. Levatino devolutively appealed this judgment, which we address in a decision rendered this date under number 2008CA1478.
We further note that a separate written judgment was also issued by the court on August 7, 2007, fixing the fair market rental value of the former matrimonial domicile at $1,700.00 per month "as per the appraisal submitted at [the August 2006] trial." A devolutive appeal was also taken by Mr. Levatino from this judgment. However, Mr. Levatino's appeal was dismissed by this court ex proprio motu on December 8, 2008 upon a finding that the judgment at issue was not a final judgment or a partial final judgment subject to appeal pursuant to LSA-C.C.P. art. 1915. We have converted the appeal to an application for supervisory review, which we consider herein.
DISCUSSION
Mr. Levatino contends that the August 7, 2007 judgment fixing the fair market rental value of the parties' former matrimonial domicile should be declared null and void, urging the following assignments of error:
I. The trial court lacked subject matter jurisdiction to render the August 7, 2007 [j]udgment while it was divested of subject matter jurisdiction by [o]rder of [a]ppeal signed March 2, 2007.
II. The August 7, 2007 [j]udgment is null and void.
III. The August 7, 2007 [j]udgment setting the fair market rental value of the home located at 5166 Charing Way Avenue, Baton Rouge, Louisiana at One Thousand Seven Hundred and no/100 ($1,700.00) Dollars per month is [res judicata].
Mr. Levatino argues that when the judgment rendered by the family court on November 30, 2006 (following the August 2, 4, and 28, 2006 trial) was appealed on March 2, 2007, the family court was divested of jurisdiction pursuant to LSA-C.C.P. art. 2088, and therefore the family court did not have jurisdiction to render the August 2007 judgment setting the fair market rental value of the former matrimonial domicile. Mr. Levatino further contends that since the November 2006 judgment was "silent as to the issue of fair market rental value" that silence constituted a rejection of the claimed relief and the judgment could not be substantively "amended" by the August 7, 2007 judgment; therefore he asserts that the 2007 judgment is null and void. Mr. Levatino points out that Ms. Levatino did not appeal or file an answer to his March 2007 appeal of the November 2006 judgment; therefore, he contends, any claim Ms. Levatino had for having the fair market rental value of the former matrimonial domicile set was barred by the doctrine of res judicata. Mr. Levatino reasons that the doctrine of res judicata precludes any cause of action arising out of the transaction or occurrence previously litigated.
After a thorough consideration of these arguments, the record presented to this court, and the legal principles implicated, we conclude that Mr. Levatino has presented no basis for relief. Initially we note that the doctrine of res judicata is inapplicable under the circumstances of this case. The doctrine of res judicata is set forth in LSA-R.S. 13:4231, which provides:
Except as otherwise provided by law , a valid and final judgment is conclusive between the same parties, except on appeal or other direct review, to the following extent:
(1) 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 litigation are 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 action on those causes of action.
(3) A judgment in favor of either the plaintiff or the defendant is conclusive, in any subsequent action between them, with respect to any issue actually litigated and determined if its determination was essential to that judgment.
(Emphasis added.)
Comment (c) to LSA-R.S. 13:4231 provides: "This makes it clear that the general principal of res judicata is subject to the exceptions set forth in R.S. 13:4232 and to any other exceptions that may be provided for in the substantive law as, for example, in cases of family matters." An exception for divorce actions and related matters is found in LSA-R.S. 13:4232(B), which provides:
In an action for divorce under Civil Code Article102 or103, in an action for determination of incidental matters under Civil Code Article105, in an action for contributions to a spouse's education or training under Civil Code Article121, and in an action for partition of community property and settlement of claims between spouses under R.S. 9:2801, the judgment has the effect of res judicata only as to causes of action actually adjudicated.
(Emphasis added.) The Comments to LSA-R.S. 13:4232 further state: "Subsection B is added to this Section to make it clear that failure to raise related causes of action in any of the specified actions will not result in the actions that were not urged being barred by the subsequent judgment, if that judgment is silent as to the actions in question."
Although the family court received evidence on the issue of the fair market rental value of the matrimonial domicile during the August 2006 trial, the matter was not adjudicated at that time. Rather, the court recognized that additional information was required prior to adjudication of that issue, as evidenced by the following colloquy that took place between the family court judge and counsel for the parties on August 28, 2006:
The Court: . . . Your stipulated judgment that you entered into back in — the only stipulated judgment in the record in — it was in the record on May 2, 2006. It was not submitted to me for signature until June 12, 2006. It is not clear and that will be very clear in my rulings in a minute. One thing we need to clear up, Mr. Levatino was awarded exclusive use of the family home. Each of you, Ms. Bolton [counsel for Mr. Levatino] and Mr. Prendergast [counsel for Ms. Levatino], did you intend for that to be final or for this to be an interim award?
Mr. Prendergast: I wasn't there at that particular hearing, Your Honor.
The Court: Just you prepared that, Ms. Bolton.
Ms. Bolton: She had other counsel at that time.
The Court: But you're the only one that signed it.
Mr. Prendergast: And there was a request in one of those pleadings, one of those amended pleadings.
The Court: I saw that and that's my question, but the way this judgment reads is that it's a final award of exclusive use. That's how it reads. I know you had absolutely nothing to do with this —
Mr. Prendergast: I have the —
The Court: The reason I ask this question is because it's going to become important when I rule. You guys are going to have to find out what happened with exclusive use, because I have no way of knowing.
It is evident from this colloquy that the family court judge recognized that both parties had filed pleadings requesting the exclusive use of the former matrimonial domicile and that, alternatively, Ms. Levatino had requested that the rental value of the home be assessed, but during the August 2006 hearing, the court expressed concerned about the effect of the earlier stipulated judgment between the parties, which had given Mr. Levatino use of the home. Thus the court instructed counsel for the parties to ascertain the status of this issue, taking into account that Ms. Levatino's trial counsel was not the same attorney who had been involved in the earlier proceedings. Hence, a determination of the fair market rental value of the former matrimonial domicile was not adjudicated at that time, but rather was left open until the information requested by the court was received. Judgment was subsequently rendered in 2007 after the court had apparently been satisfied on his inquiry to the parties. Thus, we find no merit in Mr. Levatino's arguments based on the doctrine of res judicata. Accord Stelly v. Stelly, 2007-640 (La.App. 3 Cir. 11/7/07), 969 So.2d 1283; Richardson v. Richardson, 2002-2415 (La.App. 1 Cir. 7/9/03), 859 So.2d 81. See also Patin v. Patin, 2000-0969 (La.App. 1 Cir. 6/22/01), 808 So.2d 673. Mr. Levatino further relies on LSA-C.C.P. art. 2088 in asserting that after the March 2007 appeal was taken from the November 2006 judgment, the trial court was divested of jurisdiction over the fair market rental value matter. Article2088 provides:
We note that an appraisal was introduced into evidence during the 2006 hearing, prepared by Joseph L. Cobb, finding the rental value of the property to be $1,700.00 per month. No objection was made to the introduction of this appraisal.
A. The jurisdiction of the trial court over all matters in the case reviewable under the appeal is divested , and that of the 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 jurisdiction in the case only over those matters not reviewable under the appeal , including the right to:
(1) Allow the taking of a deposition, as provided in Article 1433;
(2) Extend the return day of the appeal, as provided in Article 2125;
(3) Make, or permit the making of, a written narrative of the facts of the case, as provided in Article 2131;
(4) Correct any misstatement, irregularity, informality, or omission of the trial record, as 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, and 5126;
(6) Grant an appeal to another party;
(7) Execute or give effect to the judgment when its execution or effect is not suspended by the appeal;
(8) Enter orders permitting the deposit of sums of money within the meaning of Article 4658 of this Code;
(9) Impose the penalties provided by Article 2126, or dismiss the appeal, when the appellant fails to timely pay the estimated costs or the difference between the estimated costs and the actual costs of the appeal; or
(10) Set and tax costs and expert witness fees.
B. In the case of a suspensive appeal, when the appeal bond is not timely filed and the suspensive appeal is thereby not perfected, the trial court maintains jurisdiction to convert the suspensive appeal to a devolutive appeal, except in an eviction case.
(Emphasis added.)
Under the plain language of LSA-C.C.P. art. 2088, a trial court's jurisdiction is divested on the taking of an appeal only as to "matters in the case reviewable under the appeal." After the taking of an appeal, LSA-C.C.P. art. 2088 clearly provides that a trial court has jurisdiction in the case "over those matters not reviewable under the appeal."
In the prior appeal of the instant case, the only matters reviewable were: the custody judgment designating the mother as the domiciliary parent of the minor children and awarding Mr. Levatino less than equal physical custody, and the provision of the judgment dismissing Mr. Levatino's rule for contempt. See Levatino v. Levatino, 2007-1238. Thus, the trial court was not divested of jurisdiction to hear the issue of fair market value of the former matrimonial domicile, which was not a matter reviewable under the prior appeal, as no judgment had been rendered by the family court thereon at that time.
We further reject Mr. Levatino's argument that because the November 2006 judgment did not fix the fair market rental value of the home, the subsequently rendered 2007 judgment so doing constituted an impermissible "amended" judgment prohibited by LSA-C.C.P. art. 1951. Since our review of the record in this case revealed that the issue of fair market rental value was left open following the August 2006 hearing dates for the submission of additional information as directed by the family court, the November 2006 judgment signed following those hearing dates did not adjudicate fair market rental value. This issue was clearly severed from the other issues and reserved for later decision by the family court. Thus the judgment rendered by the court and signed on August 7, 2007, was not an amendment of the prior 2006 judgment. We find no merit in the assignments of error presented in this writ application.
Lousiana Code of Civil Procedure article1951 provides:
A final judgment may be amended by the trial court at any time, with or without notice, on its own motion or on motion of any party:
(1) To alter the phraseology of the judgment, but not the substance; or
(2) To correct errors of calculation.
CONCLUSION
For the reasons assigned, we deny this writ application; all costs are assessed to Kenneth Levatino.