David Eugene Garcia v. Michelle Rushing Garcia

• Court: Louisiana Court of Appeal
• Decided: March 17, 2010
• Docket: CA-0010-0134
• Status: Unknown

Opinion

NOT DESIGNATED FOR PUBLICATION

STATE OF LOUISIANA COURT OF APPEAL, THIRD CIRCUIT

10-134

DAVID EUGENE GARCIA VERSUS MICHELLE RUSHING GARCIA

********** APPEAL FROM THE FIFTEENTH JUDICIAL DISTRICT COURT PARISH OF LAFAYETTE, NO. 2004-2846 HONORABLE PHYLLIS M. KEATY, DISTRICT JUDGE

********** ELIZABETH A. PICKETT JUDGE

**********

Court composed of Jimmie C. Peters, Elizabeth A. Pickett, and Shannon J. Gremillion, Judges.

Gremillion, J., dissents and assigns written reaons.

APPEAL CONVERTED TO MOTION TO REMAND UNLODGEDAPPEAL. MOTION DENIED.

Susan L. Theall The Theall Firm LLC 1304 Lafayette Street Lafayette, LA 70501 (337) 264-9000 FOR PLAINTIFF: David Eugene Garcia

Michelle Rushing Garcia 212 Vivian Drive Lafayette, LA 70508 (337) 212-6834 FOR DEFENDANT: In Proper Person Pickett, Judge.

The plaintiff, David Eugene Garcia, moves to have this case remanded to the

trial court so that Garcia may have a chance to traverse the right of the defendant,

Michelle Rushing Garcia, to proceed in forma pauperis. For the reasons assigned

below, we deny the plaintiff’s motion.

This is a custody matter in which judgment was rendered in open court on

November 16, 2009. The designated record does not indicate the date on which a

final, written judgment was signed. The defendant subsequently filed a motion for

appeal on December 2, 2009, and a motion to proceed in forma pauperis, which was

granted on the same day. Thereafter, on January 11, 2010, the plaintiff filed a motion

for devolutive appeal seeking to have this court remand the matter for traversing the

defendant’s pauper status.

Although the plaintiff used an improper procedure in filing a motion for appeal

regarding the traversal, we keep with the jurisprudence construing pleadings liberally

in order to give litigants their day in court. See Sevarg Co., Inc. v. Energy Drilling

Co., 591 So.2d 1278 (La.App. 3 Cir. 1992). Accordingly, we hereby construe the

plaintiff’s motion for appeal as a motion to remand an unlodged appeal for purposes

of traversal and convert this appeal into a motion to remand.

In the plaintiff’s motion, the plaintiff argues that the trial court signed a motion

for appeal after granting the defendant’s pauper status, thereby divesting itself of

jurisdiction in this matter. The plaintiff contends that he did not have an opportunity

to traverse the defendant’s pauper status, and he asks this court to remand this matter

to the trial court so that he may traverse the defendant’s pauper status.

Here, we find that the plaintiff will not suffer any injury if the defendant is

allowed to proceed with her appeal in forma pauperis. As described above, this is a

1 custody matter, which our rules provide must be heard expeditiously. See Uniform

Rules—Courts of Appeal, Rule 5–1. Therefore, in the interest of justice, we deny the

plaintiff’s motion to remand. See La.Code Civ.P. art. 2164.

APPEAL CONVERTED TO MOTION TO REMAND UNLODGED APPEAL. MOTION DENIED.

THIS OPINION IS NOT DESIGNATED FOR PUBLICATION. Rule 2-16.3 Uniform Rules, Court of Appeal.

2 STATE OF LOUISIANA COURT OF APPEAL, THIRD CIRCUIT 10-134

DAVID EUGENE GARCIA

VERSUS

MICHELLE RUSHING GARCIA

Gremillion, J., dissents and assigns written reasons. In the instant case, when the trial court granted the defendant's motion for

appeal, it lost jurisdiction to entertain a motion to traverse the defendant's pauper

status. Because the motion to proceed in forma pauperis was signed concurrently

with the motion for appeal, the plaintiff did not have ample opportunity to traverse

the defendant's pauper status before the appeal order was granted. See McKellar v.

Mason, 154 So.2d 237 (La.App. 4 Cir. 1963). As such, I would remand this matter

to the Fifteenth Judicial District Court for a hearing on the plaintiff's motion to

traverse the defendant's right to proceed in forma pauperis.