Giffin v. Giffin

721 So. 2d 1012, 97 La.App. 3 Cir. 1331, 1998 La. App. LEXIS 3016, 1998 WL 749188
CourtLouisiana Court of Appeal
DecidedOctober 28, 1998
DocketNo. 97-1331
StatusPublished

This text of 721 So. 2d 1012 (Giffin v. Giffin) 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
Giffin v. Giffin, 721 So. 2d 1012, 97 La.App. 3 Cir. 1331, 1998 La. App. LEXIS 3016, 1998 WL 749188 (La. Ct. App. 1998).

Opinion

liAMY, Judge.

The defendant appeals the lower court’s refusal to allow credit for payments made to his former wife prior to the imposition of alimony. We affirm.

Factual and Procedural Background

Reference to the record in this matter indicates a lengthy and complex procedural history. This case is presently before this court on remand from the Louisiana Supreme Court. Although unclear in areas, the record indicates the underlying facts of this appeal are that a judgment of divorce dissolving the marriage of the plaintiff, Margaret Giffin, and the defendant, Jerry Giffin, was signed and filed on February 21, 1995. Subsequently, in August 1995, judgment was entered ordering Jerry to pay permanent alimony to Margaret in the amount of $2,000.00 per month. [/The award was made retroactive to the date of the divorce. Jerry’s subsequent motion for new trial was denied.1

In December 1995, Margaret filed a Motion and Order for Appearance for Sentencing and Contempt arguing that Jerry had failed to pay the permanent alimony as ordered. The minutes of that hearing, held in January 1996, indicate that Jerry raised the issue of credits due him for sums paid to Margaret prior to the award of alimony. In a ruling dated April 3, 1996, the trial judge found Margaret entitled to $16,000.00 in past-due alimony and $1,000.00 in attorney’s fees. The court further denied Jerry’s request for credit due to his delay in payment “in a very contemptuous manner.” A judgment on this ruling was signed on April 24, 1996.

At a hearing held on April 25, 1996, which involved the couple’s community property settlement, the trial court explained that the judgment rendered the previous day contained a calculation error. He stated that Jerry owed $12,000.00 in past-due alimony rather than $16,000.00 as provided on the judgment and that he would render a revised judgment indicating the reduction. The filing of any such judgment, however, is absent from the record.

On April 29, 1996, Jerry filed a Motion for New Trial. He asserted that the April 24, 1996, judgment was “contrary to the law and evidence” as “[t]he total amount of arrearage from January 1, 1995 through March 1996 is the sum of Twelve Thousand and No/100 ($12,000.00) Dollars, rather than Sixteen Thousand and {¡No/lOO ($16,000.00) Dollars.” Despite the filing of this motion, there is no indication that the matter was ever fixed for hearing or that a ruling was made in this regard. Following the filing of this Motion for New Trial, which remains unresolved, the record indicates that the case progressed with filings regarding community property and, once again, payment of past-due alimony.

[1014]*1014On March 19, 1997, a judgment substantively the same as that filed on April 24, 1996, was signed based on the written ruling on April 3, 1996. Without explanation in the record, this judgment was signed by a different judge than that rendering the ruling or signing the previous judgment. On March 27, 1997, Jerry filed a Motion for New Trial arguing that the judgment was contrary to the law and evidence and that he was not in arrears in the amount of $16,000.00, that Margaret should not have been awarded $1,000.00 in attorney’s fees, and that he should not have been cast with costs of the proceedings.2

A hearing was held on this final Motion for New Trial on May 12, 1997. At the time of this hearing, at which other matters were considered by the court,3 the lower court denied Jerry’s claim that he was entitled to additional credits than those ^originally given by the previous judge. The lower court stated as follows in denying the motion for new trial:

On the Motion for New Trial, apparently, on two separate occasions, Mr. Seaman, on behalf of Mr. Giffin has presented to the Court credits that he alleged that his client is entitled to during the year, 1995, which at one time totalled over seven thousand dollars ($7,000). The Judge, Judge Cunningham, gave credits for forty-nine hundred, seventy-four dollars and seventy-seven cents ($4,974.77). I have no way of knowing which credits he gave .... allowed and which ones he cut out, there’s no break down on that. I don’t have anything to show his reasoning and, in his Reasons for Judgment, he talks about financial and physical problems, but I- I still have nothing presented to me to show a break down of which credits were allowed and which ones were not and to know his thinking and reasoning in that point. I_for those reasons, you know, I think some of those things are allowable by law, but I don’t know which ones he took and why. I’m not going to say that his reasoning was bad or those numbers are bad because I have nothing to show that break down. For that reason, I’m just going to deny the Motion for New Trial....

The judgment denying the motion was filed on May 23, 1997. On June 23, 1997, Jerry filed a suspensive appeal from this judgment asserting that he is entitled to additional credits other than those previously applied against his past-due alimony.

In response to this appeal, Margaret filed a Motion to Dismiss asserting that Jerry was not entitled to an appeal from the May 23, 1997, denial of Jerry’s request for new trial. Instead, she argued that a denial of a motion for new trial is not a final judgment, but is interlocutory and, in the absence of irreparable injury, is not appealable. Further, she argued that the appeal is actually one taken from the judgment of April 24, 1996, and that, although a timely Motion for New Trial was filed in that matter and never resolved, it was actually a Motion to Amend and, therefore, any appellate delays from this judgment had expired.

bOn original review by this court, we concluded that the March 19, 1997, judgment had no legal effect since judgment had been entered on April 24, 1996. Furthermore, finding that the Motion for New Trial filed in regard to this judgment was actually a request for amendment to the judgment, and, therefore, appellate delays were not suspended, we found the appeal untimely.

The Louisiana Supreme Court granted Jerry’s subsequent writ of certiorari finding that as “the defendant made a timely motion for new trial which has not yet been considered by the court, the delay for filing an appeal to the April 25[sie], 1996 judgment [1015]*1015has not closed, and his appeal is timely.” Giffin v. Giffin, 98-0960, p. 1 (La.6/5/98); 712 So.2d 496, 497(footnote omitted). Thus, the supreme court ordered a remand for this court to consider the matter as “a timely filed appeal.” Id. We do so now.

Discussion

Before proceeding to the merits of Jerry’s argument, we are mindful that this matter appears before the court after a peculiar procedural history. Namely, this matter is before the court following a judgment wherein Jerry was found to owe $16,000.00 in past-due alimony, but prior to a determination of the Motion for New Trial. Despite the fact that the motion was never adjudicated, Jerry has filed a timely appeal. Courts of this state have previously found that “[a] party’s motion for new trial is effectively waived or abandoned when, on that party’s motion, an order of appeal is entered.” Grant v. Federal Land Bank., 586 So.2d 685, 688 (La.App. 2 Cir.1991) citing Mouton v. Mosley, 448 So.2d 893 (La.App. 3 Cir.1984). See also Vicknair v. T.L. James Co., Inc., 375 So.2d 960 (La, App. 4 Cir.1979), writ denied, L379 So.2d 10 (La.1980).4

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Related

Mouton v. Mosley
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Lynch v. Lynch
422 So. 2d 703 (Louisiana Court of Appeal, 1982)
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721 So. 2d 1012, 97 La.App. 3 Cir. 1331, 1998 La. App. LEXIS 3016, 1998 WL 749188, Counsel Stack Legal Research, https://law.counselstack.com/opinion/giffin-v-giffin-lactapp-1998.