In the Interest of Kyla A. Green & Joshua Green

• Court: Louisiana Court of Appeal
• Decided: December 10, 2008
• Docket: CA-0008-0782
• Status: Unknown

Opinion

STATE OF LOUISIANA COURT OF APPEAL, THIRD CIRCUIT

CA 08-782

IN THE INTEREST OF KYLE A. GREEN & JOSHUA GREEN

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APPEAL FROM THE THIRTIETH JUDICIAL DISTRICT COURT PARISH OF VERNON, NO. 77,657, DIV. C HONORABLE LESTER P. KEES, DISTRICT JUDGE

BILLY HOWARD EZELL JUDGE

Court composed of John D. Saunders, Billy Howard Ezell, and J. David Painter, Judges.

AFFIRMED.

Bradley L. Drell Michael J. O’Shee Gold, Weems, Bruser P. O. Box 6118 Alexandria, LA 71307 (318) 445-6471 Counsel for Appellee: Amanda Green Conn John K. (Mike) Anderson Attorney at Law 101 South First Street Leesville, LA 71446 (337) 239-9076 Counsel for Appellants: Patrick Green, Sr. Shirley Green Ezell, Judge.

This is an appeal by paternal grandparents who sought to amend a judgment

awarding them visitation. The grandparents sought to have certain language deleted

from the judgment. The trial court refused to amend the judgment, so the

grandparents filed the present appeal.

FACTS

In April of 2007, Shirley and Patrick Green filed a petition for visitation based

on the provisions of La.R.S. 9:344(A), which permits visitation by grandparents of

minor children whose parent has died during the marriage. Their son Ronnie Green

died on January 23, 2004. He was married to Amanda Green Conn at the time of his

death. Together they had two children, Kyle and Joshua Green.

At the time of the hearing on the petition, the parties had entered into a

stipulated agreement concerning the visitation. A judgment was presented to the trial

court and signed on November 6, 2007. On December 13, 2007, Shirley and Patrick

Green filed a motion to amend the judgment. It was the grandparents’ position that

the judgment did not represent the stipulation. The language with which they

disagree concerns the weekend of visitation that the grandparents were granted.

Weekend visitation was provided in the judgment as follows(contested language in

bold)(footnote added):

The third weekend of each month commencing the third Friday of the month at 5:00 o’clock p.m. through and until 6:00 o’clock p.m. the following Saturday, then the grandparents shall transport the children to the church that the minor children attend, together with their mother, and transport them after church back to the residence of the maternal1 grandparents to continue the visitation which will end at 6:00 o’clock p.m. on Sunday. In the event the children do not desire to stay overnight Saturday through Sunday, as described hereinabove, the maternal

1 On appeal, the grandparents point out another error in the judgment in that it refers to “maternal” grandparents. However, this issue was not raised in the trial court, so it will not be addressed here.

1 grandparents may request an additional Saturday visitation during the month from the hours of 9:00 o’clock a.m. through 6:00 o’clock p.m. on that day, which will be granted if the children, namely KYLE A. GREEN and JOSHUA D. GREEN, agree to the same.

The grandparents seek to amend the judgment by deleting the bold language.

They claim that the amendment alters only the phraseology of the judgment, which

does not follow the language of the stipulation. They argue that there is no change

in substance of the intent of the parties’ visitation. Ms. Conn argues that the

proposed amendment does affect the rights of the parties and substantively amends

the judgment.

Louisiana Code of Civil Procedure Article 1951 provides that a final judgment

may be amended to alter the phraseology of the judgment, as long as the substance

is not affected, or to correct errors in calculation. A judgment, therefore, may be

amended by the trial court when the amendment takes nothing from or adds nothing

to the original judgment. Bourgeios v. Kost, 02-2785 (La. 5/20/03), 846 So.2d 692;

Villaume v. Villaume, 363 So.2d 448 (La.1978); Perrodin v. S. Siding Co., Inc., 524

So.2d 885 (La.App. 3 Cir.1988). In order to substantively change a judgment, the

proper procedure is to file a motion for new trial, submit a timely application for

appeal, or by consent of the parties. Villaume, 363 So.2d 448; In re State ex rel D.T.,

03-166 (La.App. 3 Cir. 6/4/03), 847 So.2d 799. Substantive changes made without

granting a new trial are invalid. Id.

As the judgment stands now, the children have to agree to an additional

Saturday visitation if they do not stay the Saturday of the weekend visitation. The

removal of this phrase removes the condition of the children agreeing to another

Saturday. This is clearly a substantive change to judgment. If the grandparents

thought that this condition was not part of the stipulation, they should have filed a

motion for new trial or appealed the judgment. The trial court was correct in refusing

2 to amend the judgment.

The judgment of the trial court is affirmed. Costs of this appeal are assessed

to Shirley and Patrick Green.