Muller v. Muller

643 So. 2d 478, 1994 WL 541955
CourtLouisiana Court of Appeal
DecidedOctober 5, 1994
Docket94-281
StatusPublished
Cited by20 cases

This text of 643 So. 2d 478 (Muller v. Muller) 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
Muller v. Muller, 643 So. 2d 478, 1994 WL 541955 (La. Ct. App. 1994).

Opinion

643 So.2d 478 (1994)

Carl C. MULLER, Jr., Plaintiff-Appellant,
v.
Elizabeth MULLER, Defendant-Appellee.

No. 94-281.

Court of Appeal of Louisiana, Third Circuit.

October 5, 1994.

*480 Carl C. Muller Jr., pro se.

John Green, Lake Charles, for Elizabeth Muller.

Before LABORDE, KNOLL and THIBODEAUX, JJ.

THIBODEAUX, Judge.

This appeal involves whether the trial court improperly rejected the request of Carl Muller, Jr., plaintiff-appellant, to share equal physical custody of his daughter, Sara, with his ex-wife, Elizabeth Muller. Ancillary issues are whether the judgment of the trial court improperly deviated from the court's oral reasons and whether the judgment was properly signed without the prior approval of Mr. Muller.

The standard of review on appeal is a clear showing of abuse of the trial court's discretion. Williams v. Bernstine 626 So.2d 497 (La.App. 3d Cir.1993). Because we find no abuse of discretion by the trial court and for the following additional reasons, we affirm.

FACTS

Carl and Elizabeth were divorced on April 28, 1993. As part of the divorce proceedings, Carl and Elizabeth were granted joint custody of their minor child, two-year old Sara. The judgment named Elizabeth as the domiciliary parent and granted Carl specific and very detailed visitation privileges on weekends, holidays, birthdays, summer months, etc. Of particular relevance is the provision which granted Carl visitation on every other weekend from Friday at 6:00 p.m. to Sunday at 8:00 p.m.

On September 20, 1993, Carl filed a motion requesting that the trial court amend the April, 1993 judgment pertaining to his visitations with Sara and also requesting a reduction of his child support obligation.

After a hearing was held on December 14, 1993, the trial court ordered the following modifications in a judgment signed on January 4, 1994: (1) Carl was allowed to begin his weekend visitation on Thursday evening as opposed to Friday evening, provided that he give Elizabeth twenty-four (24) hours notice of his intent to exercise his visitation; (2) the place of exchange of the child was changed from Elizabeth's home to the sheriff's substation in Sulphur, Louisiana; (3) if Carl moved back to the Lake Charles area and provided both the court and Elizabeth with proof of his residence in the Lake Charles area, consisting of receipts showing payment of one month's rent, as well as telephone, gas, and electric service deposits and if he is unemployed, Carl may exercise visitation with Sara during the hours that she would otherwise attend daycare while Elizabeth was at work; and, (4) Carl's weekend visitation, as specified in the original judgment, would be revoked should he choose to exercise the visitation allowed in number three (3). The practical effect of the modified judgment was to grant Carl more visitation than that granted in the April 1993, custody and visitation judgment.

LAW AND DISCUSSION

A. Deviation of Final Judgment From Oral Reasons for Judgment

We will first address Carl's contention that the trial court's judgment erroneously deviated from the oral reasons for judgment. Specifically, Carl claims that the trial judge said nothing, in his oral reasons for judgment, about he and Elizabeth exchanging their daughter at the sheriff's substation located in Sulphur, Louisiana as opposed to Elizabeth's home. However, the final judgment eventually signed by the trial court states that the parents are to exchange the child, in the exercise of Carl's visitation, at the sheriff's substation in Sulphur, Louisiana. It has been well established that a trial judge may discretionarily sign a judgment *481 based on reasons which differ substantially from previously stated oral reasons. Bordelon v. Dauzat, 389 So.2d 820 (La.App. 3d Cir.1980).

A trial judge's oral reasons for judgment do not constitute a final judgment. Therefore, prior to a final judgment, a trial judge may, at his discretion, change the substance or the result of any interlocutory rulings. Id. Moreover, since a trial judge may sign a final judgment that differs substantially from previously written reasons for judgment, a fortiori, a trial judge may sign a final judgment that differs from previously rendered oral reasons for judgment. Furthermore, the trial court is not bound by what the parties request in their petitions, and could render any judgment that is just and equitable based on the evidence presented at trial. Spalitta v. Silvey, 526 So.2d 471 (La. App. 1st Cir.), writ denied, 532 So.2d 115-116 (1988).

The record on appeal shows that Carl and Elizabeth have, on numerous occasions during the exchange of their child, engaged in altercations. Both parties express concern about encountering the other during an exchange of the child due to the possibility of arguments leading to physical confrontations. Furthermore, Carl has filed at least three criminal charges against Elizabeth. During one exchange when Elizabeth's brother was present, Carl and the brother engaged in a fist fight. Both Elizabeth and Carl recalled an incident when she did not want to give Sara to Carl because Carl had been drinking and she felt that he was drunk. Elizabeth testified that when she refused to hand over the child, Carl grabbed the child then slapped her across the face knocking her to the ground. Carl testified that it was Elizabeth who hit him. Although there is a dispute as to just what occurred during that exchange, it is clear that there exists a great potential for violence during the exchange of the child. Therefore, the trial court's final judgment mandating that the child be exchanged at the sheriff's substation in Sulphur, Louisiana was not an abuse of the trial judge's discretion since Elizabeth asked for that location and the evidence reveals that it is best that there be witnesses, other than family members, during the exchange. See, Edmond v. Hairford, 539 So.2d 815 (La.App. 3d Cir.1989); see also, Thurman v. Thurman, 521 So.2d 579 (La.App. 1st Cir.1988).

B. Failure to Submit Judgment to Opposing Litigant Prior to Presentation to Trial Judge

Secondly, Carl contends that the trial court's judgment is invalid because the final judgment, although signed by the trial court, was prepared and submitted by counsel for Elizabeth, the defendant, without his knowledge.

Although submission of the judgment to the opposing counsel or party for approval is the professionally courteous practice, it is not required under the Louisiana Code of Civil Procedure. Petersen v. State Farm Automobile Insurance Company, 543 So.2d 109, 117 (La.App. 3d Cir.), writ denied, 546 So.2d 1223 (1989); Barnes v. L.M. Massey, Inc., 612 So.2d 120 (La.App. 1st Cir.1992), writ denied, 614 So.2d 81 (1993). However, this case was heard in the Fourteenth Judicial District Court which has apparently codified this professional courtesy. Rule 6 of the Louisiana Rules of Court for the 14TH JDC provides that in the event a judgment is not presented by the party in whose favor judgment was rendered within a reasonable amount of time, the party or counsel against whom judgment was rendered may prepare and present a formal judgment to the court "after ... submitting a copy to the opposing party ... and furnishing such notice of presentation."

Counsel for Elizabeth, against whom judgment was rendered, states, in brief, that a reasonable time had passed after rendition of the judgment without Carl presenting a formal judgment to the trial court.

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Bluebook (online)
643 So. 2d 478, 1994 WL 541955, Counsel Stack Legal Research, https://law.counselstack.com/opinion/muller-v-muller-lactapp-1994.