In Re Miller

665 So. 2d 774, 1995 WL 743589
CourtLouisiana Court of Appeal
DecidedDecember 15, 1995
Docket95 CA 1051, 95 CA 1052
StatusPublished
Cited by20 cases

This text of 665 So. 2d 774 (In Re Miller) 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 Miller, 665 So. 2d 774, 1995 WL 743589 (La. Ct. App. 1995).

Opinion

665 So.2d 774 (1995)

In re Donna D. MILLER.
In re Deanna Kristine MILLER.
Applying for Intrafamily Adoption.

Nos. 95 CA 1051, 95 CA 1052.

Court of Appeal of Louisiana, First Circuit.

December 15, 1995.
Writ Denied February 9, 1996.

Carey T. Jones, Denham Springs, for Phildon K. Miller.

*775 C. John Caskey, Baton Rouge, for Richard D. McShan.

Before LOTTINGER, C.J., and GONZALES and FITZSIMMONS, JJ.

LOTTINGER, Chief Judge.

These consolidated cases involve an intrafamily adoption and a motion to fix custody and visitation. The trial judge authorized the adoption in favor of the natural mother's spouse and dismissed, as moot, the natural father's motion to fix custody and visitation. The father appeals.

BACKGROUND

On March 3, 1989, in case number 12,587, a judgment of divorce was entered in favor of Donna Miller (now Donna McShan hereinafter referred to a Mrs. McShan) granting her a divorce from her husband Phildon Miller (Mr. Miller). The court awarded joint legal custody of the minor child, Deanna Miller, with Mrs. McShan being the primary domiciliary parent. Mr. Miller was ordered to pay child support in the amount of $250.00 per month.

In June of 1993, Mrs. McShan married Richard McShan (Mr. McShan). In May of 1994, approximately one year after Mrs. McShan's marriage, Mr. Miller filed a motion and order to fix custody and visitation rights in case number 12,587. Mr. McShan then filed a petition for intrafamily adoption on July 1, 1994. The adoption suit was numbered A-850. It is undisputed that Mr. Miller failed to maintain his child support obligation in the year immediately preceding the filing of the adoption petition. The matters were consolidated for trial and heard on September 23, 1994. The trial judge approved the adoption and dismissed, as moot, the motion to fix custody and visitation.

On September 30, 1994, Mr. Miller filed a pleading entitled, motion to re-set matter for hearing. While the motion referenced only suit number A-850, the adoption, it was filed into the records of both cases. The trial judge treated the motion as a motion for new trial and on December 16, 1994, the motion was denied. The denial was also filed into the records of both cases. On January 12, 1995, Mr. Miller filed the present appeal citing both cases.[1] On appeal, Mr. Miller assigns two errors:

(1) The trial court misallocated the burden of proof under Children's Code Article 1255(B).
(2) The trial court's determination of the child's best interest was so tainted by legal error and by insufficient evidence that the judgment must be vacated and the case remanded for new hearing.

Mr. and Mrs. McShan have filed motions for dismissal in each case.

MOTIONS TO DISMISS

A. Dismissal of the Adoption

Mr. McShan asserts that the appeal in the adoption suit is untimely because the Louisiana Children's Code mandates that appeals be taken within 30 days of rendition of a judgment granting an adoption.

Article 1259 of the Children's Code provides:

A. Any party to the proceedings or any other party in interest shall have the right to appeal a judgment granting or refusing to grant an interlocutory or final decree regarding any type of adoption within 30 days after the rendition of a judgment or decree.
B. If no appeal is perfected within 30 days after a judgment is rendered, the judgment shall be final.

Article 104 of the Children's Code specifically states that where procedures are not provided by this code or otherwise by law, the court shall proceed in accordance with the Code of Civil Procedure. The Children's Code does not provide for, nor does it expressly exclude motions for new trial. Therefore, such motions are incorporated into the Children's Code by virtue of article 104. Because Mr. Miller is entitled to seek a new trial in this adoption matter in accordance with La.Code Civ.P. arts. 1971-79, the *776 thirty day period allowed in article 1259 of the Children's Code must be construed as not starting until disposition of the new trial motion. See Ball v. Campbell, 222 La. 399, 62 So.2d 621 (La.1952); In re Adoption of Otterstatter, 502 So.2d 1172 (La.App. 3rd Cir. 1987).[2]

There are other decisions in which appellate courts have dismissed appeals which were not filed within 30 days of rendition of the judgment granting the adoption. See Adoption of C.C.B. v. Hebert, 566 So.2d 1051 (La.App. 3rd Cir.), writ granted, 567 So.2d 1108 (La.1990) (Remanded for opinion on other grounds); In re Salmon, 318 So.2d 897 (La.App. 2nd Cir.1975) (on rehearing); Adoption of Lindsey, 302 So.2d 925 (La.App. 1st Cir.), writ denied 303 So.2d 492 (La. 1974); Adoption of Lemoine, 146 So.2d 12 (La.App. 4th Cir.1962). In each of these cases, however, no new trial motions were filed and therefore, the appeal delays were 30 days from the rendition of the judgment granting the adoption. These cases are not in conflict with our present decision which holds that when a new trial motion is filed in an adoption suit, the 30 day period allowed by article 1259 does not begin to run until disposition of the new trial motion.

In the present case, a new trial motion was timely filed and denied on December 16, 1994. This appeal was filed on January 12, 1995, well within the 30 day period allowed by article 1259. Mr. McShan's motion to dismiss the appeal in suit number A-850 must be denied.

B. Dismissal of the Motion to Fix Custody and Visitation

Mrs. McShan asserts that the appeal of the trial judge's dismissal of the motion to fix custody and visitation in case number 12,587 is untimely on its face. Mrs. McShan contends that no new trial motion was filed relative to case number 12,587. The first pleading directed to this matter was the appeal which was filed on January 12, 1995, over three months after the judgment. Mrs. McShan contends that the appeal in case number 12,587 is untimely and should be dismissed.

Mr. Miller asserts that because the cases were consolidated, the new trial motion filed in the adoption suit interrupted the appeal delays in both suits. Mr. Miller further notes that although the motion referenced only one case number, it was actually filed into the records of both cases. For these reasons, Mr. Miller contends that the appeal, which was filed within 30 days of the denial of the new trial motion, is timely in suit number 12,587.

Initially, we note that consolidation of actions pursuant to La.Code Civ.P. art. 1561 is a procedural convenience designed to avoid multiplicity of actions and does not cause a case to lose its status as a procedural entity. Howard v. Hercules-Gallion Co., 417 So.2d 508, 511 (La.App. 1st Cir.1982). Procedural rights peculiar to one case are not rendered applicable to a companion case by the mere fact of consolidation; each case must stand on its own merits. Id. The filing of a pleading or motion in one of several consolidated cases does not procedurally affect the others. Howard, 417 So.2d at 511; Phillips v. State, Through Department of Transportation and Development, 400 So.2d 1091, 1093 (La.App. 1st Cir.), writ denied, 401 So.2d 1195 (La.1981).

Unlike the cases of Howard and Phillips, where the pleadings were filed into the records of only one of the companion cases, Mr. Miller's motion was filed into both records. Although the caption referenced only one case number, all parties were aware that the motion for new trial had been filed.

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Cite This Page — Counsel Stack

Bluebook (online)
665 So. 2d 774, 1995 WL 743589, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-miller-lactapp-1995.