Laura Leonard Leblanc v. Mitchel Brett Leblanc

• Court: Louisiana Court of Appeal
• Decided: November 22, 2006
• Docket: CA-0006-1307
• Status: Unknown

Opinion

NOT DESIGNATED FOR PUBLICATION

STATE OF LOUISIANA COURT OF APPEAL, THIRD CIRCUIT

06-1307

LAURA LEONARD LEBLANC VERSUS MITCHELL BRETT LEBLANC

********** APPEAL FROM THE FIFTEENTH JUDICIAL DISTRICT COURT PARISH OF LAFAYETTE, NO. 98-2178 HONORABLE JULES D. EDWARDS, III, DISTRICT JUDGE

********** SYLVIA R. COOKS JUDGE

**********

Court composed of Sylvia R. Cooks, Elizabeth A. Pickett, and James T. Genovese, Judges.

MOTION TO DISMISS SUSPENSIVE APPEAL GRANTED. SUSPENSIVE APPEAL DISMISSED. APPEAL MAINTAINED AS DEVOLUTIVE.

Julie Vaughn Felder Julie Koren Vaughn Felder, A.P.L.C. 101 Fue Follet, Suite 101 Post Office Box 80399 Lafayette, LA 70598 (337) 865-3444 COUNSEL FOR DEFENDANT/APPELLEE: Mitchell Brett LeBlanc Samuel David Abraham 120 East Third Street Post Office Drawer 2309 Lafayette, LA 70502 (337) 234-4523 COUNSEL FOR PLAINTIFF/APPELLANT: Laura Leonard Ritchey (formerly Laura Leonard LeBlanc) COOKS, Judge.

The defendant, Mitchell LeBlanc, moves to dismiss the suspensive appeal of

the plaintiff, Laura Leonard LeBlanc, for her failure to furnish a suspensive appeal

bond. For the reasons assigned, we grant the Motion to Dismiss Suspensive Appeal.

We accordingly dismiss the suspensive appeal and maintain the appeal as devolutive.

This cases arises out the child custody and child visitation disputes incident to

the divorce of the parties. On March 13, 2006, the trial court signed a final judgment

regarding child custody, child visitation and constructive contempt. The trial court

found the plaintiff in contempt of court orders and ordered that she serve jail time,

pay all court costs and attorneys’ fees. However, the plaintiff’s jail term was

suspended by the trial court on two conditions. The first condition was that the

plaintiff pay one-third of the amount she was ordered to pay for attorneys’ fees to the

defendant, with the remainder of the amount ordered in a joint interest bearing

account for the benefit of the minor child of the marriage. The second condition for

suspension of the plaintiff’s jail term was that she take steps to facilitate a positive

relationship between the defendant and their minor child. The trial court required

that the plaintiff weekly document her efforts to improve that relationship.

The trial court’s March 13, 2006 judgment also found the defendant in

contempt of the trial court’s orders relating to child custody and visitation. The

defendant was ordered to pay a fine and serve jail time. However, the defendant’s jail

term was suspended by the trial court, on the condition that he enroll in anger

management and parenting classes within fifteen days of the trial court’s order.

Notice of the trial court’s March 13, 2006 judgment was mailed on March 15,

2006. On April 7, 2006, the plaintiff filed a timely Motion for Appeal. The trial

court granted the plaintiff “a suspensive appeal of the portion of the judgment which

provides for the payment of money and the documentation of conduct”. The plaintiff was required to furnish a fifteen thousand dollar bond as security for the suspensive

appeal. The trial court further granted “a devolutive appeal from the portion of the

judgment that addresses custody periods and medical obligations”.

The record in the appeal was lodged in this court on October 10, 2006. The

plaintiff has not furnished a bond for security to date. As a result, the defendant filed

a Motion to Dismiss Suspensive Appeal on October 12, 2006.

The defendant’s Motion to Dismiss Suspensive Appeal avers that since the

plaintiff has not posted a suspensive appeal bond, her suspensive appeal should be

dismissed. La.Code Civ.P. art. 2161. In order to perfect a suspensive appeal, the

appellant must obtain an order granting the appeal and file a suspensive appeal bond

within the delays set forth in La.Code Civ.P. art. 2123. In the instant case, the

plaintiff has not posted a suspensive appeal bond as required by La.Code Civ.P. art.

2123.

The plaintiff’s opposition memorandum argues that she was unable to secure an

appeal bond based upon her bankruptcy status. The plaintiff further argues that she

timely filed for both a suspensive and devolutive appeal in the instant case and should

be allowed to maintain this matter as a devolutive appeal.

Under a similar fact pattern, this court found in Landry v. Hornsby, 544 So.2d

55 (La.App. 3 Cir.1989):

Failure to timely file a suspensive appeal bond results in the suspensive appeal being dismissed. Whitehead v. Fireman's Fund Insurance Co., 520 So.2d 1324 (La.App. 3 Cir.1988). However, La.Code Civ.P. art. 2124 provides in part that, "No security is required for a devolutive appeal." Thus, even though appellant's suspensive appeal is dismissed, the appeal is sustained as devolutive. See Whitehead, supra.

We accordingly dismiss the suspensive appeal and entertain the appeal as devolutive.

Therefore, we find that the suspensive appeal must be dismissed. However, we

agree with the plaintiff that although the suspensive appeal should be dismissed, the appeal should be maintained as devolutive. See Landry v. Hornsby, 544 So.2d 55

(La.App. 3 Cir. 1989). Accordingly, we dismiss the suspensive appeal and maintain

the appeal as devolutive.

MOTION TO DISMISS SUSPENSIVE APPEAL GRANTED. SUSPENSIVE APPEAL DISMISSED. APPEAL MAINTAINED AS DEVOLUTIVE.