Codey Short Versus Ashley Burquera

• Court: Louisiana Court of Appeal
• Decided: October 18, 2024
• Docket: 24-CA-407
• Status: Unknown

Opinion

CODEY SHORT NO. 24-CA-407

VERSUS FIFTH CIRCUIT

ASHLEY BURQUERA COURT OF APPEAL

STATE OF LOUISIANA

ON APPEAL FROM THE TWENTY-FOURTH JUDICIAL DISTRICT COURT PARISH OF JEFFERSON, STATE OF LOUISIANA NO. 843-612, DIVISION "J" HONORABLE STEPHEN C. GREFER, JUDGE PRESIDING

October 18, 2024

SCOTT U. SCHLEGEL JUDGE

Panel composed of Judges Marc E. Johnson, Scott U. Schlegel, and Timothy S. Marcel

APPEAL DISMISSED SUS TSM

JOHNSON, J., CONCURS WITH REASONS MEJ COUNSEL FOR PLAINTIFF/APPELLANT, CODEY SHORT Jeremy L. Schrady

COUNSEL FOR DEFENDANT/APPELLEE, ASHLEY BURQUERA Christen E. DeNicholas SCHLEGEL, J.

Appellant, Codey Short, appeals the trial court’s judgment of June 25, 2024.

For the following reasons, the appeal is dismissed. The judgment is an

interlocutory judgment and not subject to appellate review.

Procedural History

On April 3, 2024, the domestic commissioner held a hearing pursuant to the

Post-Separation Family Violence Relief Act (“PSFVRA”), La. R.S. §9:361, et seq.,

and found that a “history of family violence,” as defined by La. R.S. § 9:362(4),

had been perpetrated by both Mr. Short and appellee, Ashley Burquera. The

domestic commissioner issued an order in open court granting the parties joint

custody of their two minor children (ages two and four), with no domiciliary parent

designation. The judgment from this hearing was rendered and signed on June 27,

2024.

Mr. Short filed a timely objection to the domestic commissioner’s judgment

on April 10, 2024. The trial court conducted a do novo hearing on Mr. Short’s

objection on May 30, 2024. At the conclusion of the hearing, the trial court issued

a judgment and oral reasons denying Mr. Short’s objection to the domestic

commissioner’s judgment. In its oral reasons, the trial court indicated that there

was not sufficient proof that the actions of the parties triggered the PSFVRA and

ordered that “for the time being, the consent judgment that was in effect will

remain in effect with regard to custody and exchanges.” The trial court did,

however, modify the consent judgment and ordered (1) a change to the drop-off

time; (2) both parties to enroll in and complete a court-monitored domestic abuse

intervention program; and (3) a custody evaluator and/or a substance abuse

psychological evaluator. The judgment from the hearing, signed on June 25, 2024,

includes the following language:

24-CA-407 1 IT IS FURTHER ORDERED, ADJUDGED, AND DECREED that the parties shall submit to the following evaluations to be conducted by Dr. Kristen Lusher: - Defendant shall submit to random drug testing and a substance abuse evaluation; - Both parties shall submit to a full custody evaluation; and - Both parties shall submit to psychological evaluations.

Mr. Short appeals from the judgment of June 25, 2024, asserting that (1) the

trial court erred as a matter of law in disregarding the PSFVRA after finding two

relevant incidents of domestic violence perpetrated by Ms. Burquera against Mr.

Short; (2) any finding that Mr. Short had perpetrated a history of family violence is

unsupported by sufficient evidence as a matter of law; and (3) the trial court erred

as a matter of law in awarding joint custody.

Discussion

As a preliminary matter, we must first determine whether this court has

jurisdiction over Mr. Short’s appeal.

Mr. Short cites La. C.C.P. arts. 3943, 3942(A), and 2087(A), and asserts that

this court has jurisdiction over the appeal because an appeal from a judgment

awarding custody must be taken within 30 days from the expiration of the period

for filing for a new trial. Mr. Short’s statement of jurisdiction also asserts that this

court has supervisory jurisdiction to review the trial court’s order pursuant to La.

Const. art. V, § 10 (1974), La. C.C.P. art. 2201, and Uniform Rules-Courts of

Appeal, Rule 4-1, et seq.

A review of the judgment, however, leads to the conclusion that the trial

court’s judgment, regardless of how it was titled, is an interim judgment and thus,

interlocutory in nature. Further action is anticipated in the case. In addition to

ordering the defendant to undergo a substance abuse evaluation and both parties to

undergo psychological evaluations, the trial court ordered a full custody

evaluation. Thus, we find that the judgment appealed from is not a final judgment

because a final custody determination has not been made.

24-CA-407 2 The proper procedural vehicle to contest an interlocutory judgment is by

application for supervisory writ. See La. C.C.P. art. 2201. It is not this Court’s

policy to convert jurisdictionally defective appeals into supervisory writ

applications. See In re Medical Review Panel Proceedings of Foster, 17-653 (La.

App. 5 Cir. 3/28/18), 243 So.3d 1282, 1285; State v. Toussaint, 14-352 (La. App. 5

Cir. 10/29/14), 164 So.3d 900, 901 n. 3. However, Mr. Short is permitted to file an

application for supervisory writ, should he choose to do so, to review the trial

court’s ruling within 30 days of the date of this decision.

APPEAL DISMISSED

24-CA-407 3 CODEY SHORT NO. 24-CA-407

JOHNSON, J., CONCURS WITH REASONS

I write separately to clarify that Appellant, Cody Short, is allowed to file an

application for supervisory writ to review the trial court’s judgment—particularly

the rulings upholding the domestic commissioner’s finding that both parties have a

history of domestic violence and the PSFVRA has not been triggered—within 30

days of the date of this decision, should he choose to do so.

24-CA-407 1 SUSAN M. CHEHARDY CURTIS B. PURSELL

CHIEF JUDGE CLERK OF COURT

SUSAN S. BUCHHOLZ FREDERICKA H. WICKER CHIEF DEPUTY CLERK JUDE G. GRAVOIS MARC E. JOHNSON STEPHEN J. WINDHORST LINDA M. WISEMAN JOHN J. MOLAISON, JR. FIRST DEPUTY CLERK SCOTT U. SCHLEGEL TIMOTHY S. MARCEL FIFTH CIRCUIT MELISSA C. LEDET JUDGES 101 DERBIGNY STREET (70053) DIRECTOR OF CENTRAL STAFF POST OFFICE BOX 489 GRETNA, LOUISIANA 70054 (504) 376-1400

(504) 376-1498 FAX www.fifthcircuit.org

NOTICE OF JUDGMENT AND CERTIFICATE OF DELIVERY I CERTIFY THAT A COPY OF THE OPINION IN THE BELOW-NUMBERED MATTER HAS BEEN DELIVERED IN ACCORDANCE WITH UNIFORM RULES - COURT OF APPEAL, RULE 2-16.4 AND 2-16.5 THIS DAY OCTOBER 18, 2024 TO THE TRIAL JUDGE, CLERK OF COURT, COUNSEL OF RECORD AND ALL PARTIES NOT REPRESENTED BY COUNSEL, AS LISTED BELOW:

24-CA-407 E-NOTIFIED 24TH JUDICIAL DISTRICT COURT (CLERK) HONORABLE STEPHEN C. GREFER (DISTRICT JUDGE) JEREMY L. SCHRADY (APPELLANT) JARED M. SHEARMAN (APPELLEE)

MAILED CHRISTEN E. DENICHOLAS (APPELLEE) ATTORNEY AT LAW 848 SECOND STREET 3RD FLOOR GRETNA, LA 70053