James Nicholas Arterburn v. Karen Ann Arterburn

• Court: Louisiana Court of Appeal
• Decided: February 22, 2012
• Docket: CA-0012-0034
• Status: Unknown

Opinion

NOT DESIGNATED FOR PUBLICATION

STATE OF LOUISIANA COURT OF APPEAL, THIRD CIRCUIT

CA 12-34

JAMES NICHOLAS ARTERBURN

VERSUS

KAREN ANN ARTERBURN

**********

APPEAL FROM THE FIFTEENTH JUDICIAL DISTRICT COURT PARISH OF LAFAYETTE, NO. C-2007-6667 HONORABLE DAVID A. BLANCHET, DISTRICT JUDGE

ELIZABETH A. PICKETT

JUDGE

Court composed of Ulyssess Gene Thibodeaux, Elizabeth A. Pickett, and Shannon J. Gremillion, Judges.

MOTION TO DISMISS APPEAL GRANTED.

Philip Collins Kobetz Attorney at Law Post Office Box 80275 Lafayette, LA 70598 (337) 291-1990 COUNSEL FOR PLAINTIFF/APPELLEE: James Nicholas Arterburn Bradford Hyde Felder Huval, Veazey, Felder & etc. Post Ofice Box 80948 Lafayette, LA 70598-0948 (337) 234-5350 COUNSEL FOR DEFENDANT/APPELLANT: Karen Ann Arterburn PICKETT, Judge.

The plaintiff-appellee, James Nicholas Arterburn, has filed a motion to

dismiss this appeal as having been untimely filed. The defendant-appellant, Karen

Ann Arterburn, has filed an opposition to the motion to dismiss. For the reasons

stated below, we hereby grant the motion to dismiss the appeal at the defendant’s

cost.

This case involves a contentious divorce proceeding between the plaintiff

and the defendant. On February 3, 2010, the trial court conducted a hearing at

which it determined that the defendant was not free from fault in the marriage.

Therefore, the trial court denied the defendant’s motion for final/permanent

spousal support. The trial court ordered the plaintiff’s attorney to prepare a

judgment within twenty days and that both parties approve the proposed judgment

as to form and content. The parties later hired new counsel, and a judgment was

not submitted and signed by the trial court until May 16, 2011. Notice of signing

of the judgment was mailed on May 24, 2011. The defendant did not file a motion

for new trial.

On July 15, 2011, the defendant filed a petition for appeal. However, on

July 21, 2011, the defendant filed a motion and order to dismiss her appeal. The

motion alleged that the judgment appealed was invalid because it contained an

incorrect date. The trial court signed the order dismissing the appeal on July 21,

2011. In the meantime, on July 19, 2011, the defendant filed a motion to amend

the judgment on motion for final spousal support. The judgment incorrectly stated

that the hearing on that issue was held on February 10, 2010, when the hearing was

actually held on February 3, 2010. The trial court denied the motion. The

defendant filed a writ application bearing this court’s docket number 11-1014 alleging that the trial court erred in refusing to correct the judgment. This court

issued a ruling on September 30, 2011, stating:

WRIT GRANTED AND MADE PEREMPTORY. We find that the trial court erred when it found that it lacked authority to amend the judgment signed on May 16, 2011, in connection with Relator’s motion for final spousal support. See Breithaupt v. Houston General Ins. Co., 398 So.2d 608 (La.App. 3 Cir. 1981). Therefore, we hereby reverse and set aside the trial court’s ruling. We hereby remand this case to the trial court and order that the judgment on Relator’s motion for final spousal support be amended to reflect the correct date on which the hearing was held for that motion.

The trial court signed an amended judgment on motion for final spousal

support on October 24, 2011, amending the date as ordered. Notice of signing of

the amended judgment was mailed on October 26, 2011. The defendant filed a

petition for appeal on November 17, 2011. The trial court signed the appeal order

on November 29, 2011. The appeal was lodged in this court on January 12, 2012.

In his motion to dismiss this appeal as having been untimely filed, the

plaintiff contends that the defendant did not file an appeal from the judgment on

motion for final spousal support within the applicable appeal delays. Pursuant to

La.Code Civ.P. art. 3943, the defendant’s delay for filing her appeal expired on

July 5, 2011.

In opposition to the motion to dismiss, the defendant contends that the

original judgment contained an error that prohibited her from obtaining an appeal

until the error was corrected by the trial court’s amended judgment. Although

acknowledging that non-substantive amendments to judgments do not extend the

appeal delays, the defendant argues that the unique circumstances of this case

dictate that her appeal should be maintained. The defendant explains that after her

original petition for appeal was filed, the lower court’s clerk advised that it could

not determine what record was needed to prepare the appeal record because the 2 judgment referred to a hearing date that did not exist in the record. The defendant

states that is why she dismissed her original appeal and sought to have the trial

court amend the judgment.

This court has specifically held that a trial court does have authority, under

La.Code Civ.P. art. 1951, to amend a judgment to reflect the true date on which a

decision was rendered. Breithaupt v. Houston General Ins. Co., 398 So.2d 608

(La.App. 3 Cir. 1981). The amendment of a judgment in accordance with La.Code

Civ.P. art. 1951 does not affect the time delay for taking an appeal from that

judgment. Goodwin v. Gulledge, 391 So.2d 883 (La.App. 3 Cir. 1980). Therefore,

we find that the defendant’s petition for appeal filed on November 17, 2011, was

untimely filed. We further note that even if the defendant had maintained her

original appeal, that appeal, too, was untimely filed. As stated above, the appeal

delay in this case ran on July 5, 2011, and the defendant filed her original petition

for appeal on July 15, 2011. Therefore, we hereby grant the plaintiff’s motion to

dismiss the appeal and dismiss this appeal at the defendant’s cost.

MOTION TO DISMISS APPEAL GRANTED .

THIS OPINION IS NOT DESIGNATED FOR PUBLICATION. Rule 2-16.3 Uniform Rules, Court of Appeal.