Havener v. Havener

700 So. 2d 533, 1997 WL 471959
CourtLouisiana Court of Appeal
DecidedAugust 20, 1997
Docket29785-CA
StatusPublished
Cited by47 cases

This text of 700 So. 2d 533 (Havener v. Havener) 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
Havener v. Havener, 700 So. 2d 533, 1997 WL 471959 (La. Ct. App. 1997).

Opinion

700 So.2d 533 (1997)

Lance Paul HAVENER, Plaintiff-Appellee,
v.
Deborah Leanne Stumpff HAVENER, Defendant-Appellant.

No. 29785-CA.

Court of Appeal of Louisiana, Second Circuit.

August 20, 1997.

*534 Weems, Wright, Schimpf, Hayter & Carmouche by Carey T. Schimpf, Kenneth P. Haines, Shreveport, for Defendant-Appellant.

Wiener, Weiss & Madison by Katherine Clark Hennessey, Shreveport, for Plaintiff-Appellee.

Before MARVIN, C.J., and STEWART and PEATROSS, JJ.

*535 PEATROSS, Judge.

Defendant Deborah Leanne Stumpff Havener appeals the judgment of the trial court awarding sole custody of her minor child to his father, plaintiff Lance Paul Havener. Mr. Havener appeals the trial court's calculation of the child support obligation and the finding of contempt. We amend the judgment (1) to award joint custody to the parties and to designate the father as the domiciliary parent; (2) to extend the period of Ms. Havener's custody in the summer from 20 days to 30 days; (3) to increase the mother's monthly support obligation to $528; and (4) to vacate Mr. Havener's being held in contempt. We affirm, as amended, the trial court's very detailed judgment, for reasons which follow.

FACTS

Lance Paul Havener and Deborah Leanne Stumpff Havener were married on August 9, 1985. Brett William Havener was born to the parties on August 18, 1990. The parties physically separated on July 31, 1993, and Mr. Havener filed for divorce on September 1, 1993. The physical custody of Brett was shared by the parties through the separation and the divorce on March 31, 1994. In October 1994, trial on a custody rule was begun; however, the parties settled and a judgment continuing joint and shared custody was signed on October 21, 1994.

On September 1, 1995, Mr. Havener filed a Rule for Contempt and Change in Custody. In his petition, he requested that he be named the domiciliary parent of Brett with reasonable visitation granted to Ms. Havener. Mr. Havener also requested incidental relief, including a modification of child support, attorney fees and costs of the proceeding.

Ms. Havener filed an Exception of Prematurity to the rule, which was denied by the trial court on October 12, 1995. The trial court appointed Dr. Bruce McCormick to evaluate the parties, their "significant others"/spouses and Brett.

In November 1995, Mr. Havener filed a Petition to Obtain an Ex Parte Order of Provisional Custody of Brett. After a hearing, on December 1, 1995, the trial court found no reason to discontinue the current visitation schedule and denied Mr. Havener's petition for provisional custody. The parties remained co-domiciliary parents pursuant to the joint custody order.

On December 27, 1995, Ms. Havener filed a Petition for Rule Nisi for Custody, Child Support, Contempt and Attorney Fees, requesting that she be awarded "the sole custody and/or domiciliary control" of Brett.

After trial, on July 19, 1996, the trial judge signed a judgment awarding Mr. Havener the sole custody of Brett and designating specific visitation for Ms. Havener. The trial court also awarded child support and found both parties in contempt.

Assigning three assignments of error, Ms. Havener appeals. Mr. Havener answers, assigning two assignments of error.

DISCUSSION

Scope of Pleadings

Ms. Havener asserts that the trial court erred as a matter of law in rendering a judgment beyond the scope of the relief requested in the petition of Lance Havener. Specifically, she argues that the trial court was without authority to award sole custody to Mr. Havener, when the request in his pleadings was that he be named the domiciliary parent of Brett.

A judgment rendered beyond the pleadings is a nullity. Ussery v. Ussery, 583 So.2d 838 (La.App. 2d Cir.1991); Romero v. State Farm Fire & Casualty Co., 479 So.2d 694 (La.App. 3d Cir.1985). The trial court has discretion to allow enlargement of the pleadings to conform to the evidence. La. C.C.P. art. 1154 .

A timely objection, coupled with the failure to move for an amendment of the pleadings is fatal to an issue not raised by the pleadings. Ussery, supra; Guillory v. Buller, 398 So.2d 43 (La.App. 3d Cir.1981). If the evidence is admissible on the issues properly pleaded, the pleadings are not enlarged by its admission. Pond v. Campbell, 251 La. 921, 207 So.2d 535 (1968); Ussery, supra.

*536 Article 1, Section 2 of the Louisiana Constitution of 1974 provides that no person shall be deprived of life, liberty, or property except by due process of law. The essentials of "due process of law" are notice and an opportunity to be heard and to defend in an orderly proceeding rules and principles established in our system adapted to the nature of the case. Ussery, supra; Littleton v. Littleton, 514 So.2d 248 (La.App. 5th Cir.1987).

La. C.C.P. art. 862 grants the trial court authority to render a final judgment granting the relief to which the party in whose favor it is rendered is entitled, even if the party has not demanded such relief in his pleadings. La. C.C.P. art. 862. Nothing in the article, however, is intended to confer jurisdiction on a court to decide a controversy which the parties have not regularly brought before it. Ussery, supra; Patrick v. Patrick, 227 So.2d 162 (La.App. 2d Cir.1969), writ denied, 255 La. 238, 230 So.2d 91 (1970); Littleton, supra.

In the instant case, on the issue of custody, the petition filed by Lance Havener on September 1, 1995, specifically requested the following relief:

* * * * * *
That a rule to show cause issue directing Ms. Havener to appear and show cause why:
* * * * * *
(b) There should not be judgment herein modifying the Judgment dated October 21, 1994 accordingly, and designating Mr. Havener as domiciliary parent of the minor child, Brett William Havener, subject to the reasonable visitation of Ms. Havener.... (emphasis added)

Mr. Havener never amended his pleadings, either in writing or verbally in open court, to reflect that he was seeking sole custody of the child.[1]

Ms. Havener asserts that the relief sought by Mr. Havener was that he be granted domiciliary status and that at no point in his pleadings did he request sole custody of Brett. She contends that no evidence was presented at trial which expanded the pleadings to allow for an award of sole custody to Mr. Havener, but that all evidence admitted at trial was proper in that it related to the issue of whether Mr. Havener should be granted domiciliary status in a joint custody plan. Ms. Havener argues that because no evidence was admitted which expanded the pleadings, she had no reason to object that any evidence was going beyond the scope of the pleadings.

Asserting that she had no notice that sole custody was at issue with regard to the relief sought by Mr. Havener, Ms. Havener maintains that the judgment is beyond the scope of the pleadings and that the award must be vacated. We find merit in this argument.

We note that the trial judge commented at the beginning of the trial that both parties had requested sole custody. Notwithstanding the statement of the trial judge, however, the relief sought by Mr. Havener, as fixed by the pleadings, was joint custody, with him to be designated the domiciliary parent of Brett. At no point did Mr. Havener amend his pleadings in writing or verbally in open court.

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Bluebook (online)
700 So. 2d 533, 1997 WL 471959, Counsel Stack Legal Research, https://law.counselstack.com/opinion/havener-v-havener-lactapp-1997.