Jeanne Varner v. Jarrod Varner

• Court: Louisiana Court of Appeal
• Decided: February 24, 2023
• Docket: 2022CU1166
• Status: Unknown

Opinion

STATE OF LOUISIANA

COURT OF APPEAL

FIRST CIRCUIT

NO. 2022 CU 1166

JEANNE VARNER

VERSUS

JARROD VARNER

Judgment Rendered: FEB 2 4 2M

Appealed from the 21" Judicial District Court In and for the Parish of Livingston State of Louisiana Docket No. 153152

The Honorable Jeffrey C. Cashe, Judge Presiding

Wyman E. Bankston Counsel for Plaintiff/Appellant, Livingston, LA Jeanne Varner

Sherman Q. Mack Counsel for Defendant/Appellee, C. Glenn Westmoreland Jarrod Varner

Albany, LA

Rebecca Lee Counsel for the Minor Children Hammond, LA

Laura Slocum Counsel for the Department of Livingston, LA Children and Family Services

BEFORE: GUIDRY, C.J., WOLFE, AND MILLER, JJ.

2.,/ / 57,crl( x- t-5- MILLER, J.

This matter is before us on appeal by Jeanne Varner from a judgment of the

trial court maintaining an ex parte custody order in favor of Jarrod Varner. For the

reasons that follow, the appeal is dismissed.

FACTS AND PROCEDURAL HISTORY

In this protracted custody matter, Jeanne and Jarrod Varner shared joint

custody of their two minor children, with neither party designated as the

domiciliary parent, pursuant to a stipulated judgment dated February 2, 2021. On

April 1, 2022, Mr. Varner filed a motion for emergency ex parte relief seeking

immediate emergency temporary custody of the minor children pursuant to La.

C. C. P. art. 3945( C), and a permanent modification of custody forthwith.' The trial

court signed an ex parte order awarding Mr. Varner temporary custody of the

children and granting Mrs. Varner supervised visitation with the children on

Saturdays. The trial court further ordered Mrs. Varner to show cause on April 13,

2022, why Mr. Varner should not be awarded immediate temporary custody and

why the current custody plan should not be modified to award Mr. Varner sole

custody of the children subject to supervised visitation by Mrs. Varner. The rule

was reset twice and ultimately heard by the trial court on May 26, 2022.2

Following the hearing, the trial court sustained the ex parte order. On June

221 2022, the court signed a " Judgment Maintaining Ex Parte Custody Order,"

which, by its terms, awarded Mr. Varner ex parte custody and awarded Mrs.

Prior to the instant motion, it appears from the record that Mr. Varner had also filed motions for ex parte custody" on September 14, 2020 and April 28, 2021.

2According to minute entries, the parties appeared on April 13, 2022 and April 27, 2022, and following " a status with the Court" the matter was reset.

2 Varner temporary supervised visitation pending the trial date of July 7, 2022.3

Mrs. Varner now appeals.

DISCUSSION

Following the lodging of this appeal, this Court, ex proprio motu, issued a

rule to show cause why this appeal should or should not be dismissed where the

judgment appealed maintained an ex parte custody order determining only

preliminary matters until a pending trial date of July 7, 2022, and thus appeared to

be a nonappealable interlocutory ruling.

In response to the show cause order, Mrs. Varner avers that the observations

made by the trial court were determinative of the merits, in part, because the

evidence adduced and testimony offered is the same evidence and testimony that

would be offered at trial. Mr. Varner contends that the June 22, 2022 judgment

maintains an ex parte order of custody pending the custody trial, which has not yet

taken place, and is an interlocutory ruling in that it does not determine the

substantive merits of the case. Mr. Varner thus requests that the instant appeal be

dismissed, citing Suazo v. Suazo, 2010- 0111 ( La. App. 1St Cir. 6111110), 39 So. 3d

830, 833 ( The trial court' s judgment granting temporary physical custody is an

interlocutory judgment because it does not determine substantive merits of the

case. La. C. C. P. art. 1841. Provisional custody orders are not appealable.).

However, the judgment before us maintains an ex parte award of temporary

custody pursuant to La. C. C. P. art. 3945. Louisiana Code of Civil Procedure

article 3945, entitled " Incidental order of temporary child custody; injunctive

relief; exceptions" provides, in part, as follows:

B. An ex parte order of temporary custody of a minor child shall not be granted unless:

1) it clearly appears from specific facts shown by a verified petition or by supporting affidavit that immediate and irreparable injury will

Although the judgment indicates the matter was heard on May 25, 2022, the minute entry and transcript show the matter was heard on May 26, 2022. 3 result to the child before the adverse party or his attorney can be heard in opposition.

C. An ex parte order of temporary custody shall:

1) Expire by operation of law within thirty days of signing of the order; however, the order may be extended for good cause shown at any time before its expiration for one period not exceeding fifteen days.

D. The rule to show cause why the respondent should not be awarded the custody, joint custody, or visitation of the child shall be assigned for hearing not more than thirty days after signing of the ex parte order of temporary custody.

E. Any ex parte order not in compliance with the provisions of this Article is not enforceable, and is null and void.

An ex parte order of temporary custody pursuant to La. C. C. P. art. 3945

expires by operation of law within thirty days of the signing of the order and may

be extended for good cause shown before its expiration for one period not

exceeding fifteen days. La. G. C. P. art. 3945( 0)( 1). The remedy for a party who

objects to the ex parte order is the La. C. C. P. art. 3945( D) adversarial hearing, after

which an appealable final judgment will be entered. Monica Hof Wallace, A

Primer on Child Custody in Louisiana, 65 Loy. L. Rev. 1, 26 ( 2019). With

reference to the adversarial hearing, Section ( D) provides that the rule to show

cause why the respondent should not be awarded the custody, joint custody, or

visitation " shall be assigned for hearing not more than thirty days after the signing

of the ex parte order of temporary custody." Further, La. C. C. P. art. 3945( E)

provides that "[ a] ny ex parte order not in compliance with the provisions of this

Article is not enforceable, and is null and void."

In the instant case, the April 1, 2022, ex parte order awarding temporary

custody to Mr. Varner expired by operation of law, at the latest ( assuming a timely

extension was granted by the trial court), within forty- five days of its signing. See

El La. C. C. P. art. 3945( C)( 1). Thus, where the judgment had expired by operation of

law, it was not enforceable at the time of the May 26, 2022 hearing date.

Furthermore, it was made clear by the trial court that the June 22, 2022

Judgment Maintaining Ex Parte Custody Order," which resulted from the show

cause hearing, was not that judgment provided for in La. C. C. P. art. 3945( D), but

instead, was an extension of the original ex parte order signed on April 1, 2022. At

the commencement of the hearing, the trial court stated, " This is not the custody

trial. This is just the ex parte trial." Again, at the conclusion of the hearing, the

trial court noted. " We are coming back to court in about a month and a half ... So

this is not going to be a long term schedule."

A judgment maintaining ex parte custody beyond forty- five days is not

provided for in La. C. C. P. art. 3945, and is thus not in compliance with its

provisions. As such, it is null and void and not enforceable. See La. C.C. P. art.

3945( E). Because the judgment before us on appeal is null and void, the appeal is

dismissed. See Brennan' s, Inc. v. Colbert, 2013- 0943 ( La. App. 0' Cir. 9125113),

125 So. 3d 537, 541, on rehh' (Nov. 15, 2013), writ denied, 2013- 2917 ( La.

6120114), 141 So. 3d 285 ( an appeal cannot lie from an absolutely null judgment).

Considering our resolution of the appeal herein, we hereby recall the previous

show cause order issued in this matter.

CONCLUSION

For the above and foregoing reasons, this appeal of the June 22, 2022

judgment maintaining an ex parte custody judgment is dismissed. Costs of this

appeal are assessed one- half to the appellant, Jeanne Varner, and one- half to the

appellee, Jarrod Varner.

APPEAL DISMISSED.