Brumfield v. Brumfield

178 So. 2d 379
CourtLouisiana Court of Appeal
DecidedNovember 8, 1965
Docket6509
StatusPublished
Cited by13 cases

This text of 178 So. 2d 379 (Brumfield v. Brumfield) 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
Brumfield v. Brumfield, 178 So. 2d 379 (La. Ct. App. 1965).

Opinion

178 So.2d 379 (1965)

Wilkie L. BRUMFIELD
v.
Helen Gottschalk BRUMFIELD.

No. 6509.

Court of Appeal of Louisiana, First Circuit.

July 1, 1965.
Rehearing Denied September 27, 1965.
Writ Refused November 8, 1965.

*380 L. Barbee Ponder, Jr., Amite, for relator.

Ronald A. Curet, Hammond, for respondent.

Before ELLIS, LOTTINGER, LANDRY, REID and BAILES, JJ.

LANDRY, Judge.

Relatrix, Helen Gottschalk Brumfield, invokes the supervisory jurisdiction of this court praying for writs of certiorari, prohibition and mandamus direct to the Honorable Ben N. Tucker, Judge, Division "B", Twenty-first Judicial District Court, Tangipahoa Parish, prohibiting respondent from proceeding with the trial of Suit No. 26,912, on the docket of said Court, entitled "Wilkie L. Brumfield v. Helen Gottschalk Brumfield Suto" (an action brought by relatrix's former husband to *381 reduce alimony granted relatrix and remove from relatrix the care, custody and control of the minor children of the marriage heretofore existing between relatrix and her said former husband).

Predicated upon the contentions of relatrix as hereinafter set forth, we issued an alternative writ ordering respondent to transfer the case to Division A or show cause why the writ should not be made peremptory. Respondent has replied thereto by brief timely filed.

Succinctly stated, relatrix contends our learned colleague of the trial court is without authority to adjudicate the hereinabove numbered and entitled cause because said matter was regularly and duly allotted to Division A of said court, whose rules provide all causes shall be heard before the judge of the division to which each action is assigned.

In support of his contention, able counsel for relatrix cites the following rules of the Twenty-first Judicial District Court adopted December 1, 1952:

Part I, Rule 1, Section 2.

SECTION 2. Each of the judges of the Court shall preside in the division of the court to which he has been elected or appointed. The judge who has begun the trial of any civil cause and has tried the same in part or in whole shall complete the said trial and shall sign any judgment which he has previously rendered, anything else contained in these rules to the contrary notwithstanding.

Part II, Rule 15, Section 2.

SECTION 2. In case an ex parte hearing or the signing of an ex parte order is necessary or convenient before the allotment of a case, such hearings may be held before or such order signed by any one of the judges.

Part II, Rule 15, Section 3.

SECTION 3. After a case has been allotted, all hearings shall be held before and all orders signed by, the judge then presiding over the division to which the case has been allotted. However, should it be impracticable or extremely inconvenient for a party to apply to the judge then presiding over the division to which such case has been allotted, he may apply to the judge then presiding over the other division. If he applies to the judge then presiding over the other division, he or his counsel shall explain orally to said judge to whom the application is made the reasons for not applying to the judge then presiding over the division to which the case has been allotted, and if the reasons are considered satisfactory by the judge to whom the application is made, he may hold the hearing or sign the order.

The chronology of events leading to the present application for supervisory writs commenced with the institution by relatrix of a suit for separation entitled "Helen L. Gottschalk Brumfield v. Wilkie L. Brumfield," bearing docket number 25,493, which was allotted to Division A of the court below and in which judgment was rendered on May 25, 1962 granting relatrix a judgment of separation, alimony and the custody of the children of the marriage; reserving to defendant reasonable visitation rights.

Subsequently, relatrix's said husband instituted suit number 26,912 in the same court entitled "Wilkie L. Brumfield v. Helen L. Gottschalk Brumfield," in which he prayed for a final divorce on the grounds of adultery, which said action was allotted to Division B of the court below. Relatrix reconvened in the aforesaid divorce action praying for a final divorce on the ground more than one year had elapsed since rendition in her favor of the hereinabove mentioned judicial separation. Though allotted to Division B, the action for divorce was heard by the Judge of Division A on June 19, 1963, in the nature of a *382 default confirmation with the consent and acquiescence of both parties inasmuch as the record shows both husband and wife were present with counsel and made no objection to the Judge of Division A adjudicating the matter.

The record further reflects the judgment of June 19, 1963 awarded relatrix an absolute divorce and continued in effect the provisions of the previous judgment of separation regarding custody of the children and alimony. Thereafter Wilkie L. Brumfield, plaintiff in suit number 26,912, filed a motion therein seeking to have his visitation rights judicially fixed and determined. The minutes of the court show this rule was taken up before the Judge of Division B, both parties being present and represented by their respective counsel of record as of said date. After hearing testimony, judgment was rendered November 4, 1963, fixing the visitation rights of the father except during school vacation periods with regard to which time the question of visitation was pretermitted pending receipt of professional advice or testimony regarding one of the minor children.

Later, on November 6, 1964, respondent heard a motion for contempt instituted by relatrix against her former spouse, both parties and their counsel of record being present in court. This hearing resulted in the rendition of an order clarifying the visitation rights of the father.

On an undisclosed date relatrix instituted suit number 28,934, an action to fix her husband's visitation rights, which matter was allotted to Division A.

On December 18, 1964, respondent tried cross motions by relatrix and her former spouse. The rule brought by Mr. Brumfield was in the nature of a contempt proceeding alleging relatrix failed and refused to comply with the visitation privileges accorded the husband. Mrs. Suto's motion filed in Number 28,934 sought a rule terminating the father's visitation privileges. The record reflects both parties were present and represented by counsel. After a pre-trial conference held December 18, 1964, respondent Judge continued the husband's rule for contempt against relatrix but made absolute the rule to fix visitation privileges and decreed certain visitation dates for the husband.

On March 4, 1965, the husband initiated a rule in Number 26,912 ordering relatrix to show cause on March 26, 1965, why custody of the children should not be granted to him and, alternatively, why the alimony previously awarded relatrix should not be reduced. Respondent signed said rule which was then allotted to Division B.

Subsequently, relatrix filed a motion for contempt in Division A, charging her erstwhile mate with failure to pay alimony which rule was made returnable April 27, 1965. On March 26, 1965 (the return day of the husband's rule in Suit Number 26,912 in Division B) relatrix presented respondent with a motion to consolidate the husband's rule with the contempt rule subsequently filed by relatrix together with the original separation suit and praying further that all matters be transferred to Division A and heard on April 27, 1965.

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Bluebook (online)
178 So. 2d 379, Counsel Stack Legal Research, https://law.counselstack.com/opinion/brumfield-v-brumfield-lactapp-1965.