Opinion
2023-CA-0309 2023-CA-0370 2023-CA-0371
08-23-2023
AMITH NAGARAJAN v. BRIDGET NEAL NAGARAJAN AMITH NAGARAJAN v. BRIDGET NEAL NAGARAJAN AMITH NAGARAJAN v. BRIDGET NEAL NAGARAJAN
Edith H. Morris Bernadette R. Lee Suzanne Ecuyer Bayle Sheila H. Willis MORRIS LEE BAYLE & WILLIS, L.L.C. Cynthia A. De Luca, A.P.L.C. Marynell L. Piglia ATTORNEYS AT LAW COUNSEL FOR PLAINTIFF/APPELLEE Christine L. DeSue ATTORNEY AT LAW COUNSEL FOR DEFENDANT/APPELLANT
APPEAL FROM CIVIL DISTRICT COURT, ORLEANS PARISH NO. 2015-05778, DIVISION "H" Honorable Monique E. Barial, Judge
Edith H. Morris Bernadette R. Lee Suzanne Ecuyer Bayle Sheila H. Willis MORRIS LEE BAYLE & WILLIS, L.L.C. Cynthia A. De Luca, A.P.L.C.
Marynell L. Piglia ATTORNEYS AT LAW COUNSEL FOR PLAINTIFF/APPELLEE
Christine L. DeSue ATTORNEY AT LAW COUNSEL FOR DEFENDANT/APPELLANT
Court composed of Chief Judge Terri F. Love, Judge Joy Cossich Lobrano, Judge Karen K. Herman
LOBRANO, J., CONCURS IN THE RESULT
Karen K. Herman, Judge
In these three consolidated matters, Bridget Neal Nagarajan ("Ms. Neal") appeals: 1) the November 14, 2022 Judgment regarding the trial court's rulings on contempt and the selection of a reunification therapist (appeal number 2023-CA-0309); 2) the January 23, 2023 Judgment granting an Exception of No Cause of Action filed on behalf of Amith Nagarajan ("Mr. Nagarajan") (appeal number 2023-CA-0370); and 3) the trial court's February 1, 2023 handwritten notes, which were added to Ms. Neal's Motion for Devolutive Appeal of the November 14, 2022 Judgment (appeal number 2023-CA-0371). Additionally, Mr. Nagarajan has filed a Motion to Dismiss Appeals as to some of Ms. Neal's claims.
For the reasons explained below, we affirm the trial court's rulings in the November 14, 2023 Judgment, and we affirm the January 23, 2023 Judgment, which granted Mr. Nagarajan's Exception of No Cause of Action. However, we find that the appeal of the February 1, 2023 handwritten notes is not a final judgment over which we have appellate jurisdiction. In that matter, we exercise our discretion to convert the appeal into a supervisory writ application. We grant the writ and deny the relief requested. Finally, Mr. Nagarajan's Motion to Dismiss Appeals is rendered moot.
STATEMENT OF FACTS AND PROCEDURAL HISTORY
Ms. Neal and Mr. Nagarajan were divorced in March 2016, and initially shared joint custody and co-domiciliary status of their two minor children (D.N. and A.N.). On September 30, 2019, the trial court conducted a hearing on the parties' motions to modify custody. In connection with that hearing, a Written Stipulated Judgment ("Consent Judgment") was rendered by the trial court, providing that based on the custody evaluation of Dr. Kristen A. Luscher ("Dr. Luscher"), the parties would share joint legal custody, with Mr. Nagarajan designated as the domiciliary parent. Ms. Neal was granted weekend, holiday and summer visitation with the children. The Consent Judgment also required Ms. Neal to undergo both Dialectical Behavior Therapy ("DBT") and Parent-Child Interaction Therapy ("PCIT").
Dr. Luscher was appointed by the trial court, with consent of the parties in a January 5, 2017 Consent Judgment.
Subsequent to the rendition of the Consent Judgment, both parties filed motions to modify custody/visitation and for contempt. A five-day trial on those matters began September 26, 2022.
Shortly before trial, Ms. Neal filed a Motion to Set Aside [Consent] Judgment, asserting that she did not freely give her consent and that the Consent Judgment was in violation of public policy. In response, Mr. Nagarajan filed an Exception of No Cause of Action. That exception was granted from the bench on the second day of trial, giving Ms. Neal fifteen days to amend. Ms. Neal timely amended her motion. Mr. Nagarajan's re-urged Exception of No Cause of Action was granted January 23, 2023. Ms. Neal now appeals that ruling.
That ruling was not appealed.
Following the September 2022 trial on the merits, Judgment was rendered November 14, 2022, awarding Mr. Nagarajan sole custody and denying Ms. Neal visitation, upon finding that visitation would be harmful to the children. The Judgment further ordered Ms. Neal to complete six sessions of cognitive behavioral therapy, after which, Ms. Neal and the two minor children would begin reunification therapy with Betsey Backe ("Ms. Backe"). Mr. Nagarajan's Motion for Contempt was granted, and Ms. Neal was ordered to perform twenty-four hours of community service with The New Orleans Mission. Ms. Neal's Motion for Contempt was denied.
On January 13, 2023, Ms. Neal filed a Motion for Devolutive Appeal of the November 14, 2022 Judgment. The Order for Appeal was granted February 1, 2023. However, the trial court added a handwritten notation indicating that the motion for appeal was "[d]enied as to custody, visitation, and therapy with the children only. See [La.] C.C.P. 3943." On February 27, 2023, Ms. Neal also appealed the handwritten portion of the trial court's Order.
La. C.C.P. art. 3943 provides: "An appeal from a judgment awarding, modifying, or denying custody, visitation, or support of a person can be taken only within the delay provided in Article 3942. Such an appeal shall not suspend execution of the judgment insofar as the judgment relates to custody, visitation, or support." La. C.C.P. art. 3942 provides that "[a]n appeal from a judgment granting or refusing an annulment of marriage or a divorce can be taken only within thirty days from the applicable date provided in Article 2087(A)." (Emphasis added).
In these consolidated appeals, Ms. Neal asserts the following assignments of error:
1. Regarding the November 14, 2022 Judgment on the merits, the trial court erred in: (a) finding her in contempt of court; (b) not finding Mr. Nagarajan in contempt of court; and (c) designating a specific reunification therapist, i.e., Ms. Backe.
2. The trial court erred in failing to timely hear Mr. Nagarajan's Exception of No Cause of Action prior to trial as required by law and in sustaining the exception.
3. Regarding the trial court's handwritten notes on Ms. Neal's Motion for Devolutive Appeal, the trial court incorrectly denied the appeal as to "therapy with the children" as being untimely pursuant to La. C.C.P. art. 3943.
For ease of analysis, the underlying appeals will be addressed separately.
LAW AND ANALYSIS
I. Appeal from the November 14, 2022 Judgment
In connection with the trial on the merits, the trial court rendered judgment on various issues. From that judgment, Ms. Neal has only appealed the contempt rulings and the appointment of a specific reunification therapist.
A). Contempt Rulings
"Appellate courts review a trial court's finding of contempt by a manifestly erroneous standard." State, through Dep't. of Children &Family Servs., Child Support Enforcement v. Knapp, 2016-0979, p. 11 (La.App. 4 Cir. 4/12/17), 216 So.3d 130, 139 (citing Jaligam v. Pochampally, 2014-0724, p. 5 (La.App. 4 Cir. 2/11/15), 162 So.3d 464, 467). "The trial court is vested with great discretion in determining whether a party should be held in contempt for disobeying a court order and the court's decision should be reversed only when the appellate court discerns an abuse of that discretion." Id., pp. 13-14, 216 So.3d at 140 (citing Burst v. Schmolke, 2010-1036, p. 6 (La.App. 4 Cir. 4/6/11), 62 So.3d 829, 833).
"[C]ontempt of court is any act or omission tending to obstruct or interfere with the orderly administration of justice, or to impair the dignity of the court or respect for its authority." La. C.C.P. art. 221. Constructive contempt includes willful disobedience of any lawful judgment or order of the court. La. C.C.P. art. 224(2).
Granting Mr. Nagarajan's Motion for Contempt
Ms. Neal was found in contempt of court for violating the provisions of the Consent Judgment that required her to undergo therapy. On that issue, the Consent Judgment provides in pertinent part, as follows:
IT IS FURTHER ORDERED, ADJUDGED, AND DECREED that the following rules, hereinafter "Therapy Requirements" are binding upon the parties. The parties further agree that any violation of any individual guideline will constitute a material breach of judgment.
a. The mother shall immediately begin participating in Dialectical Behavior Therapy with a clinical psychologist specializing in Dialectical Behavior Therapy. The parties agree to Wake Kendall to do the DBT therapy. The therapist shall be provided a copy of the child custody evaluation rendered in this matter dated February 11, 2019 as well as the instant Judgment. The mother shall sign the necessary consent forms allowing communication between her treating psychologist, her treating therapist, and Kristen A. Luscher, Ph.D. within 15 days of signing of this Judgment. The mother shall follow the therapy schedule recommended by the treating psychologist for a period of at least twelve (12) months. Discontinuation of therapy after the initial twelve (12) month period shall be based on the treating psychologist's recommendation and consultation with Dr. Kristen Luscher .... If mother does not use Wake Kendall, then any other choice for DBT shall be jointly approved by Dr. Luscher and the father.
b. The mother shall participate in the Parent-Child Interaction Therapy (PCIT) with a psychologist who is licensed to perform same. The psychologist shall be provided a copy of the child custody evaluation rendered in this matter dated February 11, 2019 as well as the instant Judgment. The mother shall sign the necessary consent forms allowing communication between her treating psychologist and Karen A. Luscher, Ph.D. The mother shall follow the therapy schedule recommended by the treating psychologist. The mother shall provide the name and contact information of the clinical psychologist to her attorney within seven (7) days of the signing of this Judgment and that provider shall be approved by Dr. Luscher.
In finding Ms. Neal in contempt, the trial court stated in Reasons for Judgment that Ms. Neal violated the provisions of the Consent Judgment "requiring her to begin both DBT and PCIT therapy. Despite agreeing to these provisions, Ms. Neal's own testimony reflects that she never initiated either DBT or PCIT therapy, and the Court does not find that her failure, or refusal, to do so was justifiable." For the reasons expressed below, we find no error on the part of the trial court in holding Ms. Neal in contempt.
Ms. Neal was also found to be in contempt of court for violating the parenting guidelines and the physical custody provisions of the Consent Judgment. However, Ms. Neal does not assign error to those findings.
Regarding the requirement for DBT, Ms. Neal testified at trial that she chose the Wake Kendall treatment facility in Washington D.C. where she was living for a time. However, Ms. Neal explained that she did not go to therapy because she did not understand the structure and intent of the program and that she "didn't really understand what DBT was." She also took issue with the fact that Wake Kendall had a "long wait time."
Ms. Neal acknowledged that her counsel presented other treatment options to Dr. Luscher in April 2022. Dr. Luscher indicated that those options were not as organized of a program, but that "they would be fine." Dr. Luscher also opined that as long as someone was DBT trained, "that would be fine." At that time, Dr. Luscher offered Katy St. Cross in Covington as another treatment option. Ms. Neal admitted that she did not participate in any of the programs.
In her brief to this Court, Ms. Neal only argues that she did not participate in DBT because she has been misdiagnosed with borderline personality disorder. Specifically, she argues that she was unable to utilize the treatment of a certified DBT program because she does not meet the criteria for DBT. Thus, she claims she was "justified in not pursuing a DBT program as there was no program that would accommodate her lacking the appropriate borderline personality diagnosis." Ms. Neal provided no support for this assertion. Ms. Neal acknowledged at trial that prior to Dr. Luscher's custody evaluation, she sought treatment at a facility in Arizona where she self-reported with borderline personality disorder, PTSD, and anxiety. Moreover, Dr. Luscher has testified that DBT is not only used to treat borderline personality disorder, but is highly effective with the treatment of many conditions, including bipolar disorder, mood disorder and other personality disorders.
Ms. Neal was also held in contempt of court for failing to complete PCIT. On this issue, Ms. Neal testified that she could not participate in PCIT because the children were "too old." Dr. Luscher refuted this assertion, explaining that when the parties entered into the Consent Judgment in 2019, the children were at an appropriate age for PCIT, but that they are currently too old.
At the time of trial, the children were 13 and 15 years old.
Ms. Neal also argues that she was justified in not pursuing PCIT because under the Consent Judgment, Dr. Luscher was to approve a therapist, and that there is no evidence in the record that she did so. However, we note that regarding PCIT, the Consent Judgment provides that "[t]he mother shall provide the name and contact information of the clinical psychologist to her attorney within seven (7) days of the signing of this Judgment and the provider shall be approved by Dr. Luscher." Ms. Neal presented no evidence that she provided a therapist's name to Dr. Luscher for approval.
Based on our review of the record, we find that Ms. Neal's reasoning for failing to participate in the court ordered therapy was not justified. Thus, we cannot say that the trial court abused its discretion in holding Ms. Neal in contempt for willfully disobeying the Consent Judgment.
Denying Ms. Neal's Motion for Contempt
Ms. Neal argued in her Motion for Contempt that Mr. Nagarajan has purposely withheld the minor children from her in violation of the Consent Judgment. Following the testimony of Mr. Nagarajan and the children's therapists, the trial court determined that Mr. Nagarajan was not in contempt. More specifically, the trial court stated in its Reasons for Judgment, as follows:
Though Mr. Nagarajan confirmed in his testimony that he did withhold physical custody of the children from Ms. Neal and curtail the children's communication with her, the Court notes that those decisions were made after consultation with the individual therapists for both minor children, Dr. Chin Chin Ho and Dr. Ginger Touzet. Both therapists testified as to the fact that both children expressly refused to visit with their mother, the severely deleterious effects the children suffered under the custodial arrangement at the time, and the potential impact of both on the mental health of the children. The Court, recognizing the validity of the issues raised by these therapists, and Mr. Nagarajan's good faith attempt to abide by the therapists' recommendations as they relate to the children's mental health, cannot find that Mr. Nagarajan's violations of the October 1, 2019 Consent Judgment were unjustified, and accordingly does not find him in contempt of court.
Mr. Nagarajan testified at trial that both children decided, at different times in 2021, that they no longer wanted to see their mother. He described numerous instances where Ms. Neal's interactions with the children had negative impacts on them.
Mr. Nagarajan further testified that he discussed the issue with the children's therapists at different times to get their input. He explained that each time, he was advised that it would be a bad idea to force the children to visit with their mother.
Dr. Chin Chin Ho ("Dr. Ho"), D.N.'s therapist since 2016, testified that D.N. made the decision to stop seeing his mother in August 2021. Dr. Ho did not believe that Mr. Nagarajan pressured him into that decision. She further opined that it would be detrimental to push him to have interactions and communications with his mother.
Ginger Touzet ("Ms. Touzet"), LPC, A.N.'s therapist since 2021, expressed her opinion in a May 2022 deposition and at trial, that it was not in A.N.'s best interest to force her to see her mother under the current circumstances. She explained that A.N. was "adamant" that she did not want to see her mother. Ms. Touzet also expressed concern that forcing visitation with Ms. Neal could negate the ongoing therapy.
Based on our thorough review of the record, we find no abuse of discretion on the part of the trial court in denying Ms. Neal's Motion for Contempt.
B). Designation of a Specific Reunification Therapist
As previously stated, the November 14, 2022 Judgment ordered that after Ms. Neal completed six sessions of cognitive behavioral therapy, Ms. Neal and the children would begin reunification therapy with Ms. Backe. Ms. Neal argues that the trial court erred in naming a specific therapist. However, Ms. Neal indicates in her brief to this Court that "Betsy Backe has resigned and the parties are searching for a new reunification therapist." In light of this assertion, we find this assignment of error to be moot.
II. Appeal from the January 23, 2023 Judgment granting Mr. Nagarajan's Exception of No Cause of Action
Ms. Neal filed a motion seeking to set aside and/or annul the Consent Judgment. Mr. Nagarajan's Exception of No Cause of Action was granted from the bench at trial and rendered October 21, 2022, giving Ms. Neal fifteen days to amend. After amending her motion, the trial court rendered judgment on January 23, 2023, granting Mr. Nagarajan's re-urged Exception of No Cause of Action. Ms. Neal appeals that judgment.
Ms. Neal first argues that the trial court erred in not timely hearing the Exception of No Cause of Action prior to trial in accordance with La. C.C.P. art. 929(B), which provides that "[i]f the peremptory exception has been filed after the answer, but at or prior to the trial of the case, it shall be tried and disposed of either in advance of or on the trial of the case."
Ms. Neal's Motion to Set Aside [Consent] Judgment and Mr. Nagarajan's Exception of No Cause of Action were not set to be heard with the trial on the merits. However, the transcript of the first morning of trial reflects that after a pretrial conference, Ms. Neal's counsel agreed on the record that the exception would be taken up on day two of the trial. The exception was heard, and granted from the bench on the second day of trial. On the record before us, we find no merit in this argument.
Ms. Neal further argues that the trial court erred in granting Mr. Nagarajan's Exception of No Cause of Action on the merits. We disagree.
This Court has recognized that "[a] peremptory exception of no cause of action may be raised in objection to a motion to modify judgments in family law litigation, including motions to modify support obligations." Davies v. Davies, 2018-0453, p. 2 (La.App. 4 Cir. 12/19/18), 318 So.3d 789, 791 (citing, e.g., Rigaud v. DeRuise, 2013-0376 (La.App. 4 Cir. 5/21/14), 141 So.3d 917, 919).
In Rigaud, this Court further stated that:
[T]he grant of an exception of no cause of action [is subject] to de novo review because the exception raises an issue of law and the trial court's decision is based solely on the sufficiency of the petition. Fink v. Bryant, 2001-0987, pp. 3-4 (La. 11/28/01), 801 So.2d 346, 348-49. "The peremptory exception of no cause of action is designed to test the legal sufficiency of the petition by determining whether the particular plaintiff is afforded a remedy in law based on the facts alleged in the pleading." Industrial Companies, Inc. v. Durbin, 20020665, p. 6 (La. 1/28/03), 837 So.2d 1207, 1213. "The exception is triable on the face of the petition and, for the purpose of determining the issues raised by the exception, the well-pleaded facts in the petition must be accepted as true." Id.; Badeaux v. Southwest Computer Bureau, Inc., 2005-0612, 2005-0719, p. 7 (La. 3/17/06), 929 So.2d 1211, 1217.Rigaud, pp. 4-5, 141 So.3d at 920.
In Brown v. Brown, 2015-1016, p. 2 (La.App. 4 Cir. 2/24/16), 187 So.3d 538, 540, this Court reiterated the following well-settled rule:
A consent judgment is essentially a bilateral contract which is voluntarily signed by the parties and accepted by the court. It has binding force from the voluntary acquiescence of the parties, not from
the court's adjudication. It may be invalidated when a unilateral error exists as to a fact which was the principal cause of the contract. Consent may be vitiated by error, fraud, or duress. La. C.C. art. 1948. The error must concern a cause without which the obligation would not have been incurred and that cause was known or should have been known to the other party. La. C.C. art. 1949. (Citations omitted).
In the present case, the record reflects that Ms. Neal's Supplemental and Amended Motion to Set Aside and/or Rescind [Consent] Judgment, does not allege a change of circumstances since the rendition of the Consent Judgment, which could warrant a modification. The amended motion mainly reiterates her initial claims that: 1) the Consent Judgment was not made of her own free will; 2) the validity of Dr. Luscher's methodology was never litigated; 3) Dr. Luscher exceeded her role as the custody evaluator; and 4) the agreement is so one-sided in Mr. Nagarajan's favor that she has lost any meaningful impact on raising the children as prohibited by law and public policy.
We first note that the amended motion's claims of duress and coercion in connection with the Consent Judgment are very broad and conclusory in nature. Moreover, at the September 30, 2019 hearing on the Consent Judgment, Ms. Neal was represented by two counsel. Ms. Neal testified that she: 1) agreed to the Consent Judgment of her own free will, without duress or coercion; 2) had an opportunity to speak with her counsel, who answered her questions satisfactorily; 3) agreed to abide by the terms of the Consent Judgment; and 4) understood that she could be held in contempt of court for failing to abide by its terms.
Dr. Luscher testified, without opposition, regarding her custody evaluation, her recommendations for custody/visitation, and her recommendation that Ms. Neal undergo DBT. Furthermore, that Dr. Luscher's opinions and methodology were not challenged during cross-examination by Ms. Neal's counsel.
Dr. Luscher testified at length as to her reasoning for recommending reduced contact between Ms. Neal and the children, and why she considered her recommendation to be in the children's best interest. She explained that her opinion was formed after meeting with the parties and the children on multiple occasions, performing testing of Ms. Neal, speaking with the other therapists involved in this case, and reviewing Ms. Neal's prior treatment records. Dr. Luscher opined that it was clearly documented and reported to her by the other treatment providers that the children's mental health functioning was correlated with the behavior that Ms. Neal was exhibiting.
There is also no evidence to show that Dr. Luscher exceeded her role as the custody evaluator. Moreover, the Consent Judgment specifically provides that Ms. Neal agreed to unconditionally accept Dr. Luscher's report and agreed that the implementation of Dr. Luscher's recommendations was in the best interest of the children.
After our de novo review, we find that Ms. Neal has failed to allege any facts in her Supplemental and Amended Motion to Set Aside and/or Rescind [Consent] Judgment that would support the nullification of the Consent Judgment. Accordingly, we conclude that the trial court did not err in granting Mr. Nagarajan's Exception of No Cause of Action.
III. Appeal from the trial court's handwritten note on the Motion and Order for Devolutive Appeal
On February 1, 2023, the trial court indicated on Ms. Neal's Motion for Devolutive appeal of the November 14, 2022 Judgment that the appeal was denied on the issues of custody, visitation, and therapy with the children, indicating that La. C.C.P. art. 3943 required those claims to be filed within thirty days. Ms. Neal filed an appeal from that ruling, arguing only that La. C.C.P. art. 3943 does not apply to therapy with the children. Ms. Neal concedes that the thirty-day limitation provided by La. C.C.P. art. 3943 applies to an appeal regarding custody and visitation.
It is undisputed that Ms. Neal's appeal of the November 14, 2022 Judgment was not filed within thirty days.
Appellate Jurisdiction
"Appellate courts have a duty to determine sua sponte, whether the court has proper jurisdiction to consider the merits of an appeal filed in the court." Joseph v. Wasserman, 2021-0138, p. 3 (La.App. 4 Cir. 12/17/21), 334 So.3d 413, 416.
As this Court recently explained in Washington v. Taylor, 2021-0080, pp. 8 9 (La.App. 4 Cir. 1/26/22), 334 So.3d 1060, 1068,
"It is well-settled that judgments in Louisiana are 'either interlocutory or final.'" Jacobs v. Metzler-Brenckle, 20-0585, 200607, p. 12 (La.App. 4 Cir. 5/26/21), 322 So.3d 347, 356 (quoting Sullivan v. Malta Park, 16-0875, p. 2 (La.App. 4 Cir. 1/31/17), 215 So.3d 705, 707). "The distinction between interlocutory judgments and final judgments is that a final judgment determines the merits of an action in whole or in part, while an interlocutory judgment decides only preliminary matters in the course of the action." Jacobs, 200585, 20-0607, p. 12, 322 So.3d at 356.
"A final judgment is appealable in all causes in which appeals are given by law, whether rendered after hearing, by default, or by reformation under Article 1814." La. C.C.P. art. 2083. However, "[a]n interlocutory judgment is only appealable when expressly provided by law." Jacobs, 20-0585, p. 13, 322 So.3d at 356.
Here, the trial court's handwritten note on Ms. Neal's Motion for Devolutive Appeal, indicating that her appeal of the ruling on therapy with the children was untimely, does not determine the merits in whole or in part. Thus, this judgment is interlocutory.
Notwithstanding, this Court has exercised its discretion to convert an appeal of a non-appealable judgment to an application for supervisory writs where two conditions are met:
• The motion for appeal has been filed within the thirty-day time period allowed for the filing of an application for supervisory writs under Rule 4-3 of the Uniform Rules, Courts of Appeal; and
• When the circumstances indicate that an immediate decision of the issue sought to be appealed is necessary to ensure fundamental fairness and judicial efficiency, such as where reversal of the trial court's decision would terminate the litigation.Parker v. Paladin Contractors, LLC, 2020-0492, p. 6 (La.App. 4 Cir. 3/3/21), 314 So.3d 1128, 1133-34 (citations omitted).
In the present case, we find that both conditions have been met. The motion for appeal was filed within thirty days of the date of the notice of judgment. Furthermore, we find that fundamental fairness and judicial efficiency dictates that we convert the appeal to an application for supervisory writ, and address Ms. Neal's arguments under our supervisory jurisdiction.
The question before the Court on the merits of this issue is whether the trial court's ruling ordering reunification therapy with the children falls within the thirty-day appeal delay provided by La. C.C.P. art. 3943 for custody cases. As this Court explained in LeBlanc v. LeBlanc, 404 So.2d 530, 531 (La.App. 4th Cir. 1981), "[o]ur jurisprudence has concluded that the term "custody" as used in Article 3943 also includes visitation privileges, and an appeal from a judgment concerning visitation privileges must be perfected within the thirty-day delay." See also Hanks v. Hanks, 527 So.2d 32 (La.App. 3rd Cir. 1988).
Here, the November 14, 2022 Judgment denied Ms. Neal any visitation with the children, finding that "instituting such would be harmful to both minor children, as well as to the relationship between them and Bridget Neal." The judgment also reflects the trial court's finding that reunification therapy was needed before visitation between Ms. Neal and the children could resume. On the record before us, it is evident that the trial court determined that therapy with the children was essential to restoring visitation and to rebuilding the children's relationship with their mother. Under the circumstances, and considering the jurisprudence, we find that the order for therapy with the children was clearly "related to custody" as that term is used in La. C.C.P. art. 3943. Thus, we find that the trial court did not err in denying Ms. Neal's appeal of that ruling as untimely. Accordingly, this writ application is denied.
Motion to Dismiss Appeals
Citing La. C.C.P. art. 3943, Mr. Nagarajan filed a motion seeking to dismiss Ms. Neal's appeal of the November 14, 2022 Judgment and her appeal of the trial court's handwritten notes, to the extent that those appeals sought review of any custody and/or visitation rulings. In accordance with the above finding that the trial court properly denied Ms. Neal's Devolutive appeal as to therapy with the children as untimely pursuant La. C.C.P. art. 3943, Mr. Nagarajan's Motion to Dismiss Appeals is rendered moot.
We note that Mr. Nagarajan's Motion to Dismiss Appeals was filed prior to the filing of Ms. Neal's appellant brief and, thus, prior to knowing what issues Ms. Neal would be appealing.
CONCLUSION
For the foregoing reasons, in appeal 2022-CA-0309, we affirm the trial court's November 14, 2022 Judgment granting Mr. Nagarajan's Motion for Contempt and denying Ms. Neal's Motion for Contempt. The appeal of the trial court's designation of a specific reunification therapist is rendered moot. In appeal 2022-CA-0370, we affirm the January 23, 2023 Judgment granting Mr. Nagarajan's Exception of No Cause of Action. We convert appeal 2022-CA-0371 into a supervisory writ application, grant the writ, but deny the relief requested. Finally, considering the above rulings, Mr. Nagarajan's Motion to Dismiss Appeals is rendered moot.
AFFIRMED IN PART; APPEAL CONVERTED TO APPLICATION FOR SUPERVISORY WRIT; WRIT GRANTED; RELIEF DENIED; MOTION TO DISMISS APPEALS RENDERED MOOT
KKH
TFL