George W. Wolfe II v. Lindsey Renee Breaud

• Court: Louisiana Court of Appeal
• Decided: March 2, 2020
• Docket: 2019CU0453
• Status: Unknown

Opinion

NOT DESIGNATED FOR PUBLICATION

STATE OF LOUISIANA

COURT OF APPEAL

FIRST CIRCUIT

NUMBER 2019 CU 0453

GEORGE W. WOLFE, II

VERSUS

LINDSEY RENEE BREAUD

Judgment Rendered: MAR 0 2 2020 Appealed from the Twenty -Third Judicial District Court In and for the Parish of Ascension, Louisiana Docket Number 115, 954

Honorable Katherine Stromberg, Judge Presiding

Pegram J. Mire, Jr. Counsel for Plaintiff/Appellee, Gonzales, LA George W. Wolfe, II

Brian J. Prendergast Counsel for Defendant/ Appellant, Baton Rouge, LA Lindsey Renee Breaud and

Marcus J. Plaisance Mark D. Plaisance Prairieville, LA

1 BEFORE: WHIPPLE, C.J., GUIDRY AND BURRIS, JJ.

Judge William J. Burris, retired, serving pro tempore by special appointment of the Louisiana Supreme Court. WHIPPLE, C.J.

In this appeal, Lindsey Breaud challenges the trial court' s custody

judgment implementing a 50150 shared custody plan between the parties.

For the following reasons, we dismiss the appeal.

FACTS AND PROCEDURAL HISTORY

Lindsey Breaud and George Wolfe, II, who were never married, are

the parents of one child, M.B., born on February 1, 2012. The parties have

shared joint custody of the child with Ms. Breaud designated as the

domiciliary parent since the trial court signed a Stipulated Judgment of

custody on September 1, 2016. Additional stipulated judgments modifying

certain conditions of the physical custody implementation were signed on

January 4, 2017 and May 19, 2017.

Pertinent to the instant appeal, a hearing on the issue of custody was

conducted on November 7, 2018, after Mr. Wolfe requested that his original

petition for joint custody with a 50150 sharing of physical custody be heard

and after Ms. Wolfe filed a Rule for Sole Custody alleging a physical

altercation between Mr. Wolfe and his teenaged son from another

relationship had occurred and placed her child " in severe risk of harm." At

the conclusion of the hearing, the trial court found that the child was not in

any danger from Mr. Wolfe and ordered that the parents share physical

custody on a 50150 basis on a week -to -week schedule with Ms. Breaud

designated as the domiciliary parent.

The trial court then signed two judgments, each dated November 29,

2018. While each judgment orders that custody is modified to award the

parties 50150 shared custody rotated on a weekly basis with Ms. Breaud

designated as the domiciliary parent, certain provisions of each judgment

differ substantively from the other. Ms. Breaud timely appealed both

2 judgments, which appeals have been docketed separately, with the instant

appeal bearing docket number 2019 CU 0453, and the appeal of the other

November 29, 2018 judgment bearing docket number 2019 CU 0454.

The November 29, 2018 judgment that is the subject of this appeal has

a handwritten notation that the judgment was vacated, which was signed and

dated by the trial court; therefore, this court issued a Rule to Show Cause

Order on April 17, 2019, ordering the parties to show cause by briefs on or

before May 2, 2019, as to why this appeal should or should not be

dismissed. Only Ms. Breaud responded.

Additionally, noting the lack of a Motion for New Trial in the

appellate records of either appeal, this court further issued orders of limited

remand in both the present appeal and the appeal bearing docket number

2019 CU 0454, seeking clarification from the trial court. The trial court

responded by filing written reasons with attached exhibits, stating that the

judgment that is the subject of this appeal was vacated with " agreement from

counsel for both parties."

DISCUSSION

As a reviewing court, we are obligated to recognize our lack of

jurisdiction if it exists. Starnes v. Asplundh Tree Expert Company, 94- 1647

La. App. 1St Cir. 10/ 6/ 95), 670 So. 2d 1242, 1245. Furthermore, where

there is no right to appeal, an appellate court may dismiss an appeal on its

own motion. LSA-C. C. P. art. 2162; see generally Guidry v. Sothern, 98-

1152 ( La. App. 1St Cir. 5/ 14/ 99), 734 So. 2d 928, 930- 931 ( judgment that

was in effect a consent judgment, although not specifically termed as such,

was not appealable). Generally, the substance of a final judgment can be

altered only by a timely motion for new trial, a timely appeal, or on the trial

court' s own motion with the consent of the parties. LaBove v. Theriot, 597

3 So. 2d 10079 1010 ( La. 1992); Villaume v. Villaume, 363 So. 2d 448, 450-

451 ( La. 1978).

Now that the record on appeal has been supplemented with the trial

court' s reasons with attached exhibits, this court concludes that the

November 29, 2018 judgment that is the subject of this appeal was vacated

2 by the trial court on its own motion with the consent of the parties . Cf.

LaBove, 597 So. 2d at 1010. Thus, we dismiss the instant appeal of the

vacated judgment.

CONCLUSION

For the above and foregoing reasons, the instant appeal of the

November 29, 2018 judgment which was vacated by the trial court with the

consent of the parties, is hereby dismissed. Costs of this appeal are assessed

one- half each against the parties, George W. Wolfe, II and Lindsey Renee

Breaud.

APPEAL DISMISSED.

2The Louisiana Supreme Court has held that a trial court' s substantive amendment to a final judgment made with the consent of the parties and prior to the lapse of the delay for taking an appeal creates a new final judgment. See Brazan v. Brazan, 653 So. 2d 581 ( La. 1995), & Villaume v. Villaume, 363 So. 2d at 451. The delay for taking an appeal of a child custody judgment is thirty days, LSA-C. C. arts. 3943 & 3942. The trial court' s December 20, 2018 handwritten order vacating the November 29, 2018 judgment subject to this appeal was clearly within the appeal delays and, thus, was a timely amendment to that judgment.