In re J.E.T.

211 So. 3d 575, 2016 La.App. 1 Cir. 0384, 2016 La. App. LEXIS 1985
CourtLouisiana Court of Appeal
DecidedOctober 31, 2016
DocketNUMBER 2016 CU 0384
StatusPublished
Cited by10 cases

This text of 211 So. 3d 575 (In re J.E.T.) 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
In re J.E.T., 211 So. 3d 575, 2016 La.App. 1 Cir. 0384, 2016 La. App. LEXIS 1985 (La. Ct. App. 2016).

Opinions

WHIPPLE, C.J.

lain this appeal, the adoptive mother of the minor child challenges the trial court’s judgment denying her request for modification of a stipulated judgment of custody rendered in 2005, through which she and her female partner were granted joint custody of her adoptive son, and further denying her request to relocate with the child to the state of Texas. For the following reasons, we affirm the judgment of the trial court. Additionally, the adoptive mother’s “Motion for Leave to Attach Additional Documents” is denied as moot.

FACTS AND PROCEDURAL HISTORY

Jennifer Thomas (now Nolan) and Jacqueline Calandro were involved in an intimate relationship for seventeen years, during which time they lived together in Walker, Louisiana. During their relationship, Nolan underwent several unsuccessful in vitro fertilization procedures. Thereafter, by a judgment of adoption dated May 2, 2005, Nolan adopted the minor child whose custody is at issue, who was sixteen months old at the time of the adoption. However, the child had been residing with Nolan and Calandro since the day after he was born. At the time that Nolan adopted the child, she and Calandro had been involved in a relationship for six years.

On May 12, 2005, ten days after the adoption, Nolan and Calandro jointly filed a “Motion to Implement and Establish Joint Custody” in the district court below, through which Nolan sought a court order allowing her to jointly share the “legal care, custody and control” of her adoptive son with Calandro. By judgment dated May 12, 2005, Nolan and Calandro were granted joint legal care, custody, and control of the minor child and were further designated as co-domiliciary parents.

| .¡Thereafter, Nolan and Calandro resided together with the minor child in Calan-dro’s home in Walker, Louisiana until March of 2015, when Nolan moved out of the home. On June 23, 2015, approximately three months after ending her relationship with Calandro, Nolan married Scott Nolan, a colonel in the United States Army stationed in Austin, Texas.

On February 24, 2015, shortly before Nolan moved out of Calandro’s home, Ca-landro filed a Rule to Show Cause, wherein, based on concerns that Nolan planned to relocate outside of the state of Louisiana with the minor child, she sought an order prohibiting either party from removing the child from the state and allocating physical custody of the minor child to her and Nolan on a week-to-week basis. An order was entered on March 2, 2015, prohibiting the parties from removing the minor child from the state of Louisiana until a hearing on the issue of physical allocation of custody could be held.1

Nolan then filed a “Rule for Sole Custody and to Relocate the Minor Child” [579]*579on September 28, 2015.2 In the rule, Nolan asserted that a ^material change in circumstances had occurred since the rendition of the 2005 stipulated judgment in that she and Calandro were no longer intimate partners, that she intended to relocate to Texas and that she was the only legal parent of the child. Thus, Nolan sought to have the 2005 stipulated judgment modified to reflect that she is the child’s only legal parent, to grant her sole custody of the child, and further that she be allowed to relocate with the child to the state of Texas.

A hearing on the rules was conducted on November 4, 2015. By judgment dated November 17, 2015, the trial court denied Nolan’s request to modify the award of joint custody to sole custody and further denied her request to relocate with the child to the state of Texas. The court further designated specific periods of physical custody for the parties in a Joint [580]*580| ^Custody Plan attached to the judgment.3

Prom this judgment, Nolan appeals, contending in a single assignment of error that the trial court erred in: (1) finding the May 12, 2005 stipulated judgment valid; (2) applying the incorrect burden of proof to her request to modify the prior custody judgment; and (3) denying the child’s only parent the right to relocate with the child, to foster a third party’s interest. Nolan also filed with this court a “Motion for Leave of Court to Attach Additional Documents,” which was referred to the panel hearing the merits of this appeal and which we will address first.

MOTION FOR LEAVE OF COURT TO ATTACH ADDITIONAL DOCUMENTS

Nolan filed with this court a “Motion for Leave to Attach Additional Documents,” seeking leave to attach to her appellate brief the “original petition,” which was actually a motion, through which she and Calandro sought to establish joint custody of the minor child, and the May 12, 2005 stipulated judgment granting the parties joint custody. Nolan avers that this pleading and the resulting judgment are “integral parts of this suit’s record and should be available for this [cjourt to review when considering this matter.”

At the outset, we note that an appellate court must render its judgment upon the record on appeal, LSA-C.C.P. art. 2164, and the appellate briefs of the parties are not a part of the record on appeal. Augustus v. St. Mary Parish School Board, 95-2498 (La.App. 1st Cir. 6/28/96), 676 So.2d 1144, 1156. Thus, this court has no authority to consider on appeal facts referred to in appellate briefs or in exhibits attached thereto, if those facts are not in the record on appeal. Augustus, 676 So.2d at 1156.

However, in the instant case, the documents that Nolan seeks to attach to her appellate brief, ie., the 2005 “Motion to Implement and Establish Joint Custody” and the stipulated judgment, are actually part of the record on appeal. Thus, they are already properly before us for consideration in rendering an opinion in this appeal. Because the documents are already a part of the appellate record and have been considered as such by this court, we deny as moot Nolan’s motion to attach them to her appellate brief.

VALIDITY OF THE MAY 12, 2005 STIPULATED JUDGMENT

On appeal, Nolan first contends that the May 12, 2005 stipulated judgment is an absolute nullity pursuant to this court’s prior decision in In re Melancon, 2010-1463 (La.App. 1st Cir. 12/22/10), 62 So.3d 759, amended on rehearing, 2010-1463 (La.App. 1st Cir. 4/7/11), 102 So.3d 65, and that the trial court erred in failing to so rule.

At the outset, we note that the May 12,2005 judgment is a stipulated judgment between the parties. A consent or a stipulated judgment is a bilateral contract by which the parties adjust their differences by mutual consent, with each party balanc[581]*581ing his hope of gain against his fear of loss. Leonard v. Reeves, 2011-1009 (La.App. 1st Cir. 1/12/12), 82 So.3d 1250, 1261; see also LSA-C.C. arts. 3071 and 3072. Its binding force arises from the voluntaiy acquiescence of the parties rather than the adjudication by the court. Leonard, 82 So.3d at 1261.

Thus, generally, there is no right to appeal a stipulated or consent judgment, see Mill Creek Homeowners Association, Inc. v. Manuel, 2004-1385 (La.App. 1st Cir. 6/10/05), 916 So.2d 268, 270, because “[a]n appeal |7cannot be taken by a party who confessed judgment in the proceedings in the trial court or who voluntarily and unconditionally acquiesced in a judgment rendered against him.” LSA-C.C.P. art. 2085; Guidry v. Sothern, 98-1152 (La.App. 1st Cir. 5/14/99), 734 So.2d 928, 930.

Moreover, the only remedy available to a party seeking to set aside a final judgment is a claim in nullity.

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211 So. 3d 575, 2016 La.App. 1 Cir. 0384, 2016 La. App. LEXIS 1985, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-jet-lactapp-2016.