RYAN BUNCH NO. 23-C-142
VERSUS FIFTH CIRCUIT
CASSANDRA RABIUS COURT OF APPEAL
STATE OF LOUISIANA
June 21, 2023
Susan Buchholz Chief Deputy Clerk
IN RE CASSANDRA RABIUS
APPLYING FOR SUPERVISORY WRIT FROM THE TWENTY-NINTH JUDICIAL DISTRICT COURT, PARISH OF ST CHARLES, STATE OF LOUISIANA, DIRECTED TO THE HONORABLE CONNIE M. AUCOIN, DIVISION "C", NUMBER 78,881
Panel composed of Judges Fredericka Homberg Wicker, Marc E. Johnson, and Robert A. Chaisson
WRIT GRANTED; NOVEMBER 22, 2022 JUDGMENT VACATED; ORIGINAL JUDGMENT REINSTATED, AS AMENDED
Relator, Cassandra Rabius, seeks review of the trial court’s amended
judgment rendered on November 22, 2022. In her application, Relator argues that
the trial court’s amended judgment makes substantive changes to the child support
decree rendered on June 30, 2022; thus, the amended judgment is null and void.
In this matter, a de novo trial on the merits as to custody, child support and
various outstanding contempt motions was held before the trial court on February
23-25, 2022. The trial court rendered a judgment for the February trial on June 30,
2022, awarding the joint care, custody, and control of the minor child, Kelsi Rabius,
to both Relator and Plaintiff, Ryan Bunch. Mr. Bunch was designated the primary
domiciliary parent. In addition to a detailed visitation schedule, the judgment
ordered that Relator continue to carry the child on her health and dental insurance,
and all other expenses for the child be split 50/50 by both parents. It also denied any other relief requested by either of the parties that was heard at the hearing but not
specifically addressed in the judgment. In its extensive written reasons for judgment,
the trial court pointed out that “this case has been in a perpetual state of
litigation…spanning eight years, two states, three judges, six attorneys and three
volumes in the Clerk of Court’s record.” As to the specific issue of child support,
the trial judge found that neither party presented sufficient evidence to allow the
court to make a determination, in light of the court’s custody ruling. The trial court
stated that a ruling on child support would be deferred until a new motion for child
support was filed presenting the court with adequate evidence to make such a
determination.
On October 13, 2022, Mr. Bunch filed a “Motion to Re-Set Hearing on Child
Support,” wherein he requested that the September 4, 2014 petition for child support
be ordered pursuant to the June 20, 2022 reasons for judgment. An ex parte order
was issued by the trial court, setting a hearing date and ordering Relator to produce
certain documents for inspection by Mr. Bunch’s counsel of record. In response,
Relator filed an exception of no cause of action and a motion to stay or vacate the ex
parte order. In her brief, Relator argued that Mr. Bunch has no cause of action to
reset his September 4, 2014 petition because his child support request had been
denied in the June 30, 2022 judgment.
The motions filed by Relator1 and Mr. Bunch and Relator’s exception were
heard by the trial court on November 18, 2022. The motion for new trial of the
February hearing was denied. The trial court orally reasoned that the June 30, 2022
judgment was deficient because “[t]he reasons for judgment at page 17 were very
clear that I was deferring ruling on the child support issue.” It was then determined
that the court would amend the June 30, 2022 judgment, on its own motion.
1 Relator also filed a motion for new trial of the June 30, 2022 judgment. The trial court rendered its amended judgment on November 22, 2022. The
child custody arrangement and visitation schedule remained the same as ordered in
the June 30, 2022 judgment. However, the amended judgment added, “IT IS
FURTHER ORDERED, ADJUDGED AND DECREED that the Court will defer
ruling on child support until a Motion is filed presenting this Court with adequate
evidence (worksheets) to make such a determination.”
La. C.C.P. art. 1951 provides, “On motion of the court or any party, a final
judgment may be amended at any time to alter the phraseology of the judgment or
to correct deficiencies in the decretal language or errors of calculation.” La. C.C.P.
art. 1951 allows the amendment of judgments to correct errors in calculation and to
alter the phraseology of the judgment, but it does not authorize a trial court to make
substantive amendments to final judgments. Pitre v. Louisiana Thoroughbred
Breeders Ass’n, 21-195, p. 3 (La. App. 5 Cir. 7/5/22), --- So.3d ---,
2022WL2437560. An amendment to a judgment that adds to, subtracts from, or in
any way affects the substance of the judgment is considered a substantive
amendment. Id. Benoit v. Benoit, 21-864 (La. App. 1 Cir. 4/4/22), 341 So.3d 719,
730, writ not considered, 22-951 (La. 10/4/22), 347 So.3d 890. Failure to comply
with the requirements of La. C.C.P. art. 1951 results in the annulment and setting
aside of the amended judgment and reinstatement of the original judgment. Pitre,
supra.
In the instant matter, the trial court added language in the amended judgment
that deferred its ruling on child support. Although the written reasons for judgment
stated that the child support determination would be deferred, the original judgment
made no mention of that deferment.2 In the original judgment, the trial court set
forth orders for the health insurance, dental insurance, and “[a]ny and all other
2 The written reasons for judgment are merely an explication of the trial court’s determination, and do not alter, amend, or affect the final judgment. Mariana v. Magnolia Auto Transport, LLC, 21-447 (La. App. 5 Cir. 5/26/22), 341 So.3d 1281, 1293. expenses” for the child. It also denied any relief that was not specifically addressed
in the judgment. Furthermore, the trial court denied the motion for new trial of the
June 30, 2022 judgment. Consequently, without a successfully litigated application
for new trial, action for nullity, or appeal, we find that the trial court improperly
amended the original judgment with a substantive change by adding the language
that deferred the child support determination. (See, State ex rel. Dep’t of Soc. Serv.
V. A.P., 02-2372 (La. App. 1 Cir. 6/20/03), 858 So.2d 498, 503, where the First
Circuit held, “The trial court cannot, as here, deny a motion for new trial and amend
a judgment.”).3 Thus, we conclude that the November 22, 2022 amended judgment
is null and without legal effect. Therefore, we reinstate the original June 30, 2022
judgment.
However, upon consideration of the unique circumstances presented in this
case and the impact that the trial court’s error may have on the best interest of the
minor child involved in this complex, contentious, and ongoing litigation in which
the child’s best interests have not been considered by the parties, we exercise our
supervisory jurisdiction for the sparingly used practice in this Court, to amend the
June 30, 2022 judgment to comply with the trial judge’s clear intent. 4 We hereby
amend the June 30, 2022 judgment to provide:
3 See also, Thomas v. Williams, 48,003 (La. App. 2 Cir. 5/15/13), 115 So.3d 715, 720, where the Second Circuit held, “Under La. C.C.P. art.
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RYAN BUNCH NO. 23-C-142
VERSUS FIFTH CIRCUIT
CASSANDRA RABIUS COURT OF APPEAL
STATE OF LOUISIANA
June 21, 2023
Susan Buchholz Chief Deputy Clerk
IN RE CASSANDRA RABIUS
APPLYING FOR SUPERVISORY WRIT FROM THE TWENTY-NINTH JUDICIAL DISTRICT COURT, PARISH OF ST CHARLES, STATE OF LOUISIANA, DIRECTED TO THE HONORABLE CONNIE M. AUCOIN, DIVISION "C", NUMBER 78,881
Panel composed of Judges Fredericka Homberg Wicker, Marc E. Johnson, and Robert A. Chaisson
WRIT GRANTED; NOVEMBER 22, 2022 JUDGMENT VACATED; ORIGINAL JUDGMENT REINSTATED, AS AMENDED
Relator, Cassandra Rabius, seeks review of the trial court’s amended
judgment rendered on November 22, 2022. In her application, Relator argues that
the trial court’s amended judgment makes substantive changes to the child support
decree rendered on June 30, 2022; thus, the amended judgment is null and void.
In this matter, a de novo trial on the merits as to custody, child support and
various outstanding contempt motions was held before the trial court on February
23-25, 2022. The trial court rendered a judgment for the February trial on June 30,
2022, awarding the joint care, custody, and control of the minor child, Kelsi Rabius,
to both Relator and Plaintiff, Ryan Bunch. Mr. Bunch was designated the primary
domiciliary parent. In addition to a detailed visitation schedule, the judgment
ordered that Relator continue to carry the child on her health and dental insurance,
and all other expenses for the child be split 50/50 by both parents. It also denied any other relief requested by either of the parties that was heard at the hearing but not
specifically addressed in the judgment. In its extensive written reasons for judgment,
the trial court pointed out that “this case has been in a perpetual state of
litigation…spanning eight years, two states, three judges, six attorneys and three
volumes in the Clerk of Court’s record.” As to the specific issue of child support,
the trial judge found that neither party presented sufficient evidence to allow the
court to make a determination, in light of the court’s custody ruling. The trial court
stated that a ruling on child support would be deferred until a new motion for child
support was filed presenting the court with adequate evidence to make such a
determination.
On October 13, 2022, Mr. Bunch filed a “Motion to Re-Set Hearing on Child
Support,” wherein he requested that the September 4, 2014 petition for child support
be ordered pursuant to the June 20, 2022 reasons for judgment. An ex parte order
was issued by the trial court, setting a hearing date and ordering Relator to produce
certain documents for inspection by Mr. Bunch’s counsel of record. In response,
Relator filed an exception of no cause of action and a motion to stay or vacate the ex
parte order. In her brief, Relator argued that Mr. Bunch has no cause of action to
reset his September 4, 2014 petition because his child support request had been
denied in the June 30, 2022 judgment.
The motions filed by Relator1 and Mr. Bunch and Relator’s exception were
heard by the trial court on November 18, 2022. The motion for new trial of the
February hearing was denied. The trial court orally reasoned that the June 30, 2022
judgment was deficient because “[t]he reasons for judgment at page 17 were very
clear that I was deferring ruling on the child support issue.” It was then determined
that the court would amend the June 30, 2022 judgment, on its own motion.
1 Relator also filed a motion for new trial of the June 30, 2022 judgment. The trial court rendered its amended judgment on November 22, 2022. The
child custody arrangement and visitation schedule remained the same as ordered in
the June 30, 2022 judgment. However, the amended judgment added, “IT IS
FURTHER ORDERED, ADJUDGED AND DECREED that the Court will defer
ruling on child support until a Motion is filed presenting this Court with adequate
evidence (worksheets) to make such a determination.”
La. C.C.P. art. 1951 provides, “On motion of the court or any party, a final
judgment may be amended at any time to alter the phraseology of the judgment or
to correct deficiencies in the decretal language or errors of calculation.” La. C.C.P.
art. 1951 allows the amendment of judgments to correct errors in calculation and to
alter the phraseology of the judgment, but it does not authorize a trial court to make
substantive amendments to final judgments. Pitre v. Louisiana Thoroughbred
Breeders Ass’n, 21-195, p. 3 (La. App. 5 Cir. 7/5/22), --- So.3d ---,
2022WL2437560. An amendment to a judgment that adds to, subtracts from, or in
any way affects the substance of the judgment is considered a substantive
amendment. Id. Benoit v. Benoit, 21-864 (La. App. 1 Cir. 4/4/22), 341 So.3d 719,
730, writ not considered, 22-951 (La. 10/4/22), 347 So.3d 890. Failure to comply
with the requirements of La. C.C.P. art. 1951 results in the annulment and setting
aside of the amended judgment and reinstatement of the original judgment. Pitre,
supra.
In the instant matter, the trial court added language in the amended judgment
that deferred its ruling on child support. Although the written reasons for judgment
stated that the child support determination would be deferred, the original judgment
made no mention of that deferment.2 In the original judgment, the trial court set
forth orders for the health insurance, dental insurance, and “[a]ny and all other
2 The written reasons for judgment are merely an explication of the trial court’s determination, and do not alter, amend, or affect the final judgment. Mariana v. Magnolia Auto Transport, LLC, 21-447 (La. App. 5 Cir. 5/26/22), 341 So.3d 1281, 1293. expenses” for the child. It also denied any relief that was not specifically addressed
in the judgment. Furthermore, the trial court denied the motion for new trial of the
June 30, 2022 judgment. Consequently, without a successfully litigated application
for new trial, action for nullity, or appeal, we find that the trial court improperly
amended the original judgment with a substantive change by adding the language
that deferred the child support determination. (See, State ex rel. Dep’t of Soc. Serv.
V. A.P., 02-2372 (La. App. 1 Cir. 6/20/03), 858 So.2d 498, 503, where the First
Circuit held, “The trial court cannot, as here, deny a motion for new trial and amend
a judgment.”).3 Thus, we conclude that the November 22, 2022 amended judgment
is null and without legal effect. Therefore, we reinstate the original June 30, 2022
judgment.
However, upon consideration of the unique circumstances presented in this
case and the impact that the trial court’s error may have on the best interest of the
minor child involved in this complex, contentious, and ongoing litigation in which
the child’s best interests have not been considered by the parties, we exercise our
supervisory jurisdiction for the sparingly used practice in this Court, to amend the
June 30, 2022 judgment to comply with the trial judge’s clear intent. 4 We hereby
amend the June 30, 2022 judgment to provide:
3 See also, Thomas v. Williams, 48,003 (La. App. 2 Cir. 5/15/13), 115 So.3d 715, 720, where the Second Circuit held, “Under La. C.C.P. art. 1951, the trial court cannot substantively amend a final judgment even to express the court’s actual intent or to conform the judgment to the court’s oral or written reasons for judgment.” 4 See La. C.C.P. art. 2201 (“Supervisory writs may be applied for and granted in accordance with…rules of the supreme court and other courts exercising appellate jurisdiction.); Uniform Rules of Court, Courts of Appeal, Rule 5-4 titled “Applicability of Rules” for “Procedures for Writs and Appeals in Certain Cases Involving Minors”, including cases in which there is a modification of any custody arrangement (“All other Rules or laws regulating writs or appeals, not inconsistent with the foregoing, shall apply.”); La. C.C.P. art. 2164 (The appellate court shall render any judgment which is just, legal, and proper upon the record on appeal). See also the following cases, where the court of appeal has substantively amended final judgments, to correct a patent error: Donley v. Hudson's Salvage LLC, 13-1499 (La. App. 1 Cir. 3/21/14), 2014 WL 1165871, discussing Gray v. Holiday Inns, Inc., 99–1292 (La. App. 1 Cir. 6/23/00), 762 So.2d 1172, 1174–1175 (where the trial court made an “obvious clerical error in casting Holiday Inns, Inc. in judgment rather than MM Louisiana, Inc.,” the appellate court amended the judgment under the authority granted it by La. C.C.P. art. 2164 to name the correct defendant); Harvey v. Traylor, 96–1321 (La. App. 4 Cir.2/5/97), 688 So.2d 1324, 1329, writ denied, 97– 0587 (La.4/18/97), 692 So.2d 454 (where, after finding the trial court erred in amending a judgment after it was divested of jurisdiction and without a contradictory hearing as required for a substantive change, the appellate court amended the judgment under La. C.C.P. art. 2164, where it “was obvious that the trial court's intent was to cast the Sheriff’s Office in judgment”); see also Carter v. Brothers Lapalco, L.L.C., 13–1 (La. App. 5 Cir.5/16/13), 118 So.3d 1194, 1197 (where the appellate court amended a judgment that erroneously named a nonparty pursuant to La. C.C.P. art. 2164), and Turnstall v. Stierwald, 809 So.2d at 920–921 (where, after the district court changed the name of a party cast in judgment without a contradictory hearing, the Supreme Court, pursuant to La. C.C.P. art. 2164, vacated the amended judgment, reinstated the original judgment, then revised the original judgment to delete a “non- IT IS FURTHER ORDERED, ADJUDGED AND DECREED that the Court will defer ruling on child support until a Motion is filed in this Court with adequate evidence (worksheets) presented to make such a determination.
Accordingly, this writ application is granted, the November 22, 2022 amended
judgment is annulled and set aside, and the June 30, 2022 judgment is reinstated, as
amended herein by this Court.
Gretna, Louisiana, this 21st day of June, 2023.
MEJ FHW RAC
entity” and add in its place the proper party defendant); see also Acadian Heritage Realty v. City of Lafayette, 434 So.2d 180 (La. App. 3d Cir. 1983)(wherein the court amended a judgment to comply with the clear intent reflected in the court’s reasons for judgment). SUSAN M. CHEHARDY CURTIS B. PURSELL
CHIEF JUDGE CLERK OF COURT
SUSAN S. BUCHHOLZ FREDERICKA H. WICKER CHIEF DEPUTY CLERK JUDE G. GRAVOIS MARC E. JOHNSON ROBERT A. CHAISSON LINDA M. WISEMAN STEPHEN J. WINDHORST FIRST DEPUTY CLERK JOHN J. MOLAISON, JR. CORNELIUS E. REGAN, PRO TEM FIFTH CIRCUIT MELISSA C. LEDET JUDGES 101 DERBIGNY STREET (70053) DIRECTOR OF CENTRAL STAFF POST OFFICE BOX 489 GRETNA, LOUISIANA 70054 (504) 376-1400
(504) 376-1498 FAX www.fifthcircuit.org
NOTICE OF DISPOSITION CERTIFICATE OF DELIVERY I CERTIFY THAT A COPY OF THE DISPOSITION IN THE FOREGOING MATTER HAS BEEN TRANSMITTED IN ACCORDANCE WITH UNIFORM RULES - COURT OF APPEAL, RULE 4-6 THIS DAY 06/21/2023 TO THE TRIAL JUDGE, THE TRIAL COURT CLERK OF COURT, AND AT LEAST ONE OF THE COUNSEL OF RECORD FOR EACH PARTY, AND TO EACH PARTY NOT REPRESENTED BY COUNSEL, AS LISTED BELOW:
23-C-142 E-NOTIFIED 29th Judicial District Court (Clerk) Honorable Connie M. Aucoin (DISTRICT JUDGE) Corey M. Oubre (Respondent) Richard L. Ducote (Relator)
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