Drury v. Drury

835 So. 2d 533, 2002 WL 1920471
CourtLouisiana Court of Appeal
DecidedAugust 21, 2002
Docket2001 CA 0877
StatusPublished
Cited by9 cases

This text of 835 So. 2d 533 (Drury v. Drury) 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
Drury v. Drury, 835 So. 2d 533, 2002 WL 1920471 (La. Ct. App. 2002).

Opinion

835 So.2d 533 (2002)

Sharon Cortez DRURY (Vicknair)
v.
Steve DRURY.

No. 2001 CA 0877.

Court of Appeal of Louisiana, First Circuit.

August 21, 2002.

*534 Mary E. Heck Barrios, Denham Springs, for Plaintiff-Appellant Sharon Cortez Drury Vicknair.

*535 Brenda Braud, John Braud, Independence, for Defendant-Appellant Steven R. Drury.

Before: FOIL and PETTIGREW, JJ., and KLINE[1], J., Pro Tem.

PETTIGREW, J.

This is an action for divorce, child custody, and support. Both parties have appealed and object to the district court's award of child support. Sharon Cortez Drury has also appealed the district court's decision to assess her with court costs and attorney fees. For the reasons set forth below, we vacate in part, affirm in part, reverse in part, and remand.

FACTS

Petitioner Sharon Cortez Drury ("Ms.Drury") and defendant Steve Drury ("Mr.Drury") were married on September 4, 1982, in Tangipahoa Parish, Louisiana, where they established a matrimonial domicile. According to the facts set forth in the Petition For Divorce filed by Ms. Drury on August 14, 1996, "[t]wo children were born of this marriage, namely, Steven Drury, age nine and Shane Drury, age eight."

The divorce petition further alleged that the parties separated on August 6, 1996, and that Ms. Drury desired a divorce pursuant to La. Civ.Code art. 102. As part of her petition, Ms. Drury sought to be designated as the domiciliary parent of the minor children pursuant to a plan of joint custody and an award of child support. Ms. Drury also sought issuance of temporary orders and injunctive relief prohibiting Mr. Drury from harassing her or alienating or encumbering the community property.

Mr. Drury filed an answer to the divorce petition in the form of a general denial, and through a reconventional demand, sought an immediate divorce based upon "numerous acts of adultery" alleged to have been committed by Ms. Drury. Mr. Drury further sought to be designated as the domiciliary parent of the minor children pursuant to a plan of joint custody.

The record reflects that in a hearing held on October 10, 1996, the parties entered into various stipulations that were incorporated into a Joint Custody Agreement and plan of implementation. This plan designated the parent in actual physical custody of the minor children as the domiciliary parent pending further orders of the court. The plan also set forth a visitation schedule for major holidays and granted each parent two weeks of summer visitation with the children. A formal judgment was also prepared that granted four days of alternating visitation to each party. Both the agreement and the judgment were signed by the parties and their respective attorneys. The trial judge signed both documents on the same date.[2]

On December 16, 1996, Mr. Drury, appearing in proper person, filed a Rule For Contempt along with a Motion and Order for temporary physical custody of the minor children. These matters were inexplicably transferred from Division "D" to Division "E" of the district court, and a hearing on Mr. Drury's motion was scheduled. Said matters were later resolved, *536 and the scheduled hearing was removed from the court's docket.

On March 19, 1997, Mr. Drury filed an Amended Reconventional Demand For Divorce seeking termination of the marriage alleging that the parties had lived separate and apart for a period in excess of six months. The parties were then divorced on June 16, 1997.

Ms. Drury subsequently filed a Petition For Custody And Contempt on September 10, 1997, alleging that her ex-husband had denied her request for two weeks of summer visitation with the children. Ms. Drury further alleged that the existing custody plan, providing for four days of alternating visitation, had not proved to be workable and was not in the best interest of the minor children. Accordingly, Ms. Drury reasserted her request to be designated the domiciliary parent of the minor children pursuant to a "standard joint custody plan." Ms. Drury further sought an award of reasonable child support as set forth in the child support guidelines. Mr. Drury responded with a denial of his ex-wife's allegations and asserted his own request for designation as the domiciliary parent pursuant to a plan of joint custody. Mr. Drury also sought an award of reasonable child support as set forth in the guidelines.

A hearing on these issues was subsequently conducted on October 14, 1997. A transcript of the hearing, contained in the record, disclosed no evidence or argument regarding child support by either party. The sole issue presented at the October 14, 1997 hearing concerned which parent should be awarded domiciliary custody of the minor children. In a judgment signed October 17, 1997, the district court denied Ms. Drury's rule for contempt and granted custody of the minor children jointly to the parties. The district court further designated Mr. Drury as the children's domiciliary parent with alternating weekends of visitation to Ms. Drury. Neither party appealed from this judgment.

Eight months later, on June 16, 1998, Ms. Drury filed a "Rule For New Trial Specify Visitation And Joint Custody Plan." Mr. Drury responded with a motion to continue the hearing on Ms. Drury's rule and his own rule requesting that Ms. Drury show cause why child support should not be fixed. A hearing was later held on August 24, 1998. At the hearing, the district court took the custody issue under advisement and suggested the parties exchange income information and, "come up with a guideline amount" for child support. The district court subsequently issued Reasons For Judgment on October 28, 1998, denying Ms. Drury's rule for a new trial on the grounds that its previous judgment of October 17, 1997, was "just and equitable and in accordance with law." No judgment was submitted in connection with the August 24, 1998 hearing.

On March 3, 1999, pleadings were filed by both parties. Mr. Drury filed a motion to set his earlier Rule For Child Support for hearing; however, the order attached to Mr. Drury's was inscribed "Moot" and filed unsigned. Ms. Drury filed a Rule to Show Cause seeking a change in custody based upon material changes in circumstances. Inexplicably, the district court prepared an order noting that since all previous rules in the matter had been disposed of, Ms. Drury's rule should be reallotted in accordance with local court rules. This matter was then transferred from Division "E" back to Division "D" by random reallotment on March 11, 1999.

On March 31, 1999, after the matter had been reallotted, the judge of Division "E" (from whose docket this case had recently been transferred) issued, sua sponte, Amended Reasons For Judgment reaffirming *537 the correctness of her previous October 17, 1997 judgment, but directing that child support be set in accordance with the applicable child support guidelines. Again, no judgment had ever been prepared in connection with the hearing of August 24, 1998.

Over the ensuing twelve months, Mr. Drury filed motions and sought a supervisory writ from this court[3] and ultimately, writs of certiorari, prohibition and mandamus from the Louisiana Supreme Court[4] in an unsuccessful effort to have this matter transferred back to Division "E" from Division "D."

During the pendency of Mr. Drury's writ applications, Ms.

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Cite This Page — Counsel Stack

Bluebook (online)
835 So. 2d 533, 2002 WL 1920471, Counsel Stack Legal Research, https://law.counselstack.com/opinion/drury-v-drury-lactapp-2002.