Barlow v. Barlow

149 So. 3d 856, 14 La.App. 3 Cir. 361, 2014 La. App. LEXIS 2370, 2014 WL 4851870
CourtLouisiana Court of Appeal
DecidedOctober 1, 2014
DocketNo. 14-361
StatusPublished
Cited by2 cases

This text of 149 So. 3d 856 (Barlow v. Barlow) is published on Counsel Stack Legal Research, covering Louisiana Court of Appeal primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Barlow v. Barlow, 149 So. 3d 856, 14 La.App. 3 Cir. 361, 2014 La. App. LEXIS 2370, 2014 WL 4851870 (La. Ct. App. 2014).

Opinion

THIBODEAUX, Chief Judge.

|, Laney Ray Barlow, Jr. appeals the trial court’s award of sole custody of a minor daughter to Sandra Guillot Barlow in response to her request to modify a considered joint-custody decree to supervised physical custody for reduced periods. Mr. [858]*858Barlow did not appear at the hearing. He later filed a motion for new trial contending that the clerk of court failed to give the notice of trial date prescribed by local court rules. The trial court denied the motion. Because we find that actual notice of the trial date remedied the lack of prescribed notice and that the record supports the trial court’s judgment to modify the considered decree to sole custody, we affirm.

I.

ISSUES

We must determine whether:

(1) the trial court abused its discretion in denying a motion for new trial when notice of the trial date did not comply with local rules;
(2) the trial court committed manifest error in finding the evidentiary burden to modify a considered custody decree had been met; and
(3) the trial court abused its discretion in awarding sole custody.

II.

FACTS AND PROCEDURAL HISTORY

Sandra Guillot Barlow and Laney Ray Barlow, Jr. divorced in 2007, at which time they shared one minor daughter, Ashley Barrow. Following the divorce, a hearing on custody was held. The trial court rendered judgment in June |gof 2010, awarding Mr. and Mrs. Barlow joint custody of Ashley, designating Mrs. Barlow as the domiciliary parent, and determining other matters incidental to custody. The judgment provided that Mr. Barlow would have physical custody on his days off from work and the two would split holiday time.

Subsequently, Mrs. Barlow filed a rule to modify the existing custody order. She premised her rule on several events that had occurred since the June 2010 judgment, including Mr. Barlow’s separation from his second wife and loss of his permanent home. She asked that Mr. Barlow’s periods of physical custody be reduced and supervised by her, that Mr. Barlow be required to give notice before exercising custody, and that incidental relief arising from the June 2010 judgment be granted. Mr. Barlow received service of this rule and its fixed hearing date. Before the hearing date, Mr. Barlow’s attorney filed a motion for continuance. A telephone conference then took place, during which attorneys for both parties and the trial court agreed the matter would be reaffixed for February 1, 2013. The judge then rendered an order reassigning the new agreed upon date on Mrs. Barlow’s motion.

Thereafter, Mr. Barlow and his attorney met to prepare for the February hearing. Mr. Barlow’s attorney filed a Motion to Resign upon learning that Mr. Barlow could not pay him. The motion included a request that the February hearing be continued. On January 22, 2013, the attorney advised Mr. Barlow of the February hearing date, and Mr. Barlow signed an affidavit consenting to the withdrawal. The trial court denied the motion to withdraw.

At the February hearing neither the attorney nor Mr. Barlow appeared. The trial court proceeded in their absence. At the close of the hearing, the court awarded Mrs. Barlow sole custody of Ashley and other incidental relief. Mr. |sBarlow then filed a motion for new trial through new counsel. Mr. Barlow based his motion on his purported lack of notice of the February hearing date. The trial court denied the motion and defendant filed this appeal.

III.

STANDARD OF REVIEW

A trial court’s decision to grant or deny a motion for new trial will not be [859]*859disturbed absent a clear abuse of discretion. Garrett v. Universal Underwriters, 586 So.2d 727 (La.App. 3 Cir.1991). A trial court’s finding that a plaintiff has satisfied the requisite burden of proof to modify a considered custody decree is a question of fact which will not be disturbed absent manifest error. Oliver v. Oliver, 95-1026 (La.App. 3 Cir. 3/27/96), 671 So.2d 1081. As such, the trial court’s finding will not be reversed unless a review of the record in its entirety reveals both that a reasonable factual basis does not exist for the trial court’s finding and that the finding is clearly wrong. Id. Additionally, a trial court’s ultimate determination regarding child custody is to be afforded great deference on appeal and will not be disturbed absent a clear abuse of discretion. Martin v. Martin, 11-1496 (La.App. 3 Cir. 5/16/12), 89 So.3d 526.

IV.

LAW AND DISCUSSION

Whether Lack of Prescribed Notice Warranted a New Trial

Mr. Barlow contends the trial court should have granted him a new trial because the clerk of court failed to give him written notice of the trial date at least ten days before trial, as required by court rules. We disagree and find Mr. Barlow’s actual notice of the set trial date remedied the lack of formal notice.

|4Under the Seventh Judicial District Court Rule 9.14, the clerk of court is required to give written notice of the date fixed for trial at least ten days before trial in two situations: (1) when either party submits a written request for notice pursuant to Article 1572 of the Code of Civil Procedure and (2) in all cases where the date is not fixed in open court in the presence of all parties or agreed to in writing by all parties and the court. The purpose of this rule is to provide adequate notice of trial to all parties for reasons of due process. La. Code Civ.P. art. 1571.

A clerk’s failure to give mandatory notice under Rule 9.14 is not necessarily fatal to a judgment. This court has found that actual notice of trial date can remedy the failure of a clerk to give formal notice or serve as an implied waiver of such notice. In Posey v. Smith, 427 So.2d 928 (La.App. 3 Cir.1983), this court found that defendant’s actual notice of trial date cured the clerk’s failure to give mandatory notice under Article 1572. The court noted that the purpose of the article is to ensure that a party receives at least ten days’ notice of the trial date. Id. In Richards v. Richards, 525 So.2d 163 (La.App. 3 Cir.1988), this court found that a party waived his right to assert error in the clerk’s failure to give mandatory notice when he had actual notice of trial date by virtue of his agreement with opposing counsel and the court of the set date. The court noted the purpose of required notice is to ensure that a party receives at least ten days to prepare for trial. Id. In Rosette v. Opelousas Gen. Hosp. Adm’r, 00-378 (La.App. 3 Cir. 9/27/00), 771 So.2d 203, this court found that a party impliedly waived mandatory notice of trial date under Article 1572 when it had actual notice by virtue of its own request to continue and acceptance of the new date. These cases indicate that notice requirements under Rule 9.14 are meant to give parties at least ten days’ notice of the trial date to prepare, and when a party receives actual notice of trial | -date at least ten days in advance it cannot then assert error on the sole ground that such notice did not conform to the manner specified by local rules.

Mr. Barlow asserts the clerk’s failure to comply with local court rules warranted a new trial. While the clerk did not comply with formal notice require-[860]*860merits, Mr.

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Bluebook (online)
149 So. 3d 856, 14 La.App. 3 Cir. 361, 2014 La. App. LEXIS 2370, 2014 WL 4851870, Counsel Stack Legal Research, https://law.counselstack.com/opinion/barlow-v-barlow-lactapp-2014.