Ryan Bunch Versus Cassandra Rabius

Opinion

RYAN BUNCH NO. 23-CA-453

VERSUS FIFTH CIRCUIT

CASSANDRA RABIUS COURT OF APPEAL

STATE OF LOUISIANA

ON APPEAL FROM THE TWENTY-NINTH JUDICIAL DISTRICT COURT PARISH OF ST. CHARLES, STATE OF LOUISIANA NO. 78,881, DIVISION "C" HONORABLE CONNIE M. AUCOIN, JUDGE PRESIDING

December 20, 2023

SUSAN M. CHEHARDY CHIEF JUDGE

Panel composed of Judges Susan M. Chehardy, John J. Molaison, Jr., and Scott U. Schlegel

APPEAL DISMISSED SMC JJM SUS COUNSEL FOR PLAINTIFF/APPELLEE, RYAN BUNCH Corey M. Oubre

COUNSEL FOR DEFENDANT/APPELLANT, CASSANDRA RABIUS Richard L. Ducote CHEHARDY, C.J.

Defendant-appellant, Cassandra Rabius, appeals a June 30, 2022 judgment

regarding custody, a November 18, 2022 ruling denying Ms. Rabius’s motion for

new trial on that custody ruling, and the trial court’s rulings denying Ms. Rabius’s

requests for appointment of counsel for the child and for a court-appointed

evaluation. Finding this Court lacks jurisdiction, we dismiss the appeal.

Relevant Facts and Procedural History

Plaintiff-appellee, Ryan Bunch, filed suit in 2014 against Ms. Rabius, who

lives in Texas and is the mother of their older daughter Kelsi, seeking custody and

support.1 At a February 2022 trial, the trial court heard matters related to custody,

child support, and various outstanding contempt motions.

On June 30, 2022, the trial court issued a judgment awarding joint care,

custody, and control of the minor to both parents, with Mr. Bunch designated as

the primary domiciliary parent. Ms. Rabius was further ordered to continue to

carry the child on her health and dental insurance, with all of the child’s remaining

expenses to be split 50/50. The June 30, 2022 judgment specifically denied any and

all pending contempt motions, and further indicated that “any relief requested by

either of the parties and heard on the above hearing date and not specifically

addressed herein be and is hereby denied.” In written reasons for judgment, the

trial court stated that with regard to child support, neither party presented sufficient

evidence to allow the court to make a determination. Therefore the court intended

to defer ruling on child support until a new motion with adequate evidence was

filed. However, the trial court’s intention in this regard, stated in the reasons for

judgment, was not included in the June 30, 2022 written judgment.

1 Ms. Rabius and Ms. Bunch have a separate proceeding pending in Texas addressing custody and support for their younger daughter.

23-CA-453 1 On July 13, 2022, Ms. Rabius filed a motion for new trial under La. C.C.P.

art. 1972(2), arguing that she had discovered new evidence related to the custody

issue since the trial, claiming that it was evidence that she could not have obtained

before or during trial. The newly discovered evidence alleged that Kelsi told her

school counselor before Christmas 2021, or alternatively in early February 2022,

just before trial, that her father had been abusing her; that as a result of this

reporting, there was a police and/or child-protection investigation; and that Kelsi

told her mother that her father lied to the counselor and/or the police when he said

that the abuse did not happen. The trial court set the new trial motion for hearing

on September 8, 2022, which hearing was continued to November 18, 2022.

Meanwhile, on October 13, 2022, Mr. Bunch filed a Motion to Re-Set

Hearing on Child Support, requesting that the original September 4, 2014 petition

for child support be set for hearing pursuant to the June 30, 2022 reasons for

judgment. In response, the trial court ordered that the child support matter also be

set for a November 18, 2022 hearing, and further ordered Ms. Rabius to produce to

Mr. Bunch’s counsel certain documents related to child-support calculations.

On November 3, 2022, Ms. Rabius filed a “Motion for Appointment of

Counsel for Child, and for Court-Appointed Evaluation of Child by Abuse

Specialist, Relative to Motion for New Trial.” On November 9, 2022, Ms. Rabius

filed an Exception of No Cause of Action and Motion to Stay or Vacate ex parte

Order, arguing that Mr. Bunch had no cause of action to reset his September 4,

2014 petition for child support, because the trial court had denied his child support

request in the June 30, 2022 judgment.

On November 18, 2022, after hearing the motion for new trial and the

additional motions and exceptions related to the other pending matters, the trial

court denied the motion for new trial from the bench. The trial court further stated

that the June 30, 2022 judgment was deficient because “the reasons for judgment at

23-CA-453 2 page 17 were very clear that I was deferring ruling on the child support issue,” but

that this intention was inadvertently excluded from the judgment. The trial court

then indicated that it would amend the June 30, 2022 judgment on its own motion.

Accordingly, on November 22, 2022, the trial court amended the June 30, 2022

judgment to add: “IT IS FURTHER ORDERED, ADJUDGED AND DECREED

that the Court will defer ruling on child support until a Motion is filed presenting

the Court with adequate evidence (worksheets) to make such a determination.”

On December 5, 2022, Ms. Rabius filed a “Notice of Intent to Seek Writ to

Contest the Court’s November 22, 2022 Amended Judgment, and the November

18, 2022 Overruling of Defendant’s Exception of No Cause of Action Related to

Plaintiff’s October 20, 2022 Motion to Reset Hearing on Child Support.”

On December 16, 2022, Ms. Rabius also filed a Motion for Expedited

Appeal of the June 30, 2022 judgment and the November 18, 2022 denial of Ms.

Rabius’s timely motion for new trial.

On February 7, 2023, the trial court issued a written judgment memorializing

the denial of Ms. Rabius’s motion for new trial; denying her motion for

appointment of counsel for the child and for a court-appointed evaluation;

overruling Ms. Rabius’s exception of no cause of action; and resetting the child

support hearing for March 3, 2023.

On February 22, 2023, the trial court granted Ms. Rabius’s third request for

an extension of time to file her writ application in this Court related to the

November 22, 2022 amendment to the June 30, 2022 judgment and the trial court’s

overruling of her exception of no cause of action on November 18, 2022.

On February 23, 2023, Mr. Rabius filed a subsequent motion for appeal of

the February 7, 2023 judgment and requested a stay of the March 3, 2023 child

23-CA-453 3 support hearing. The trial court granted the order of appeal but denied the request

to stay the child support hearing.2

On March 7, 2023, the trial court issued an order indicating that Ms.

Rabius’s December 16, 2022 Motion for Expedited Appeal had never been

granted.3 Thus, on March 10, 2023, two separate notices of appeal appear in the

record – one referencing the February 7, 2023 judgment, and the other referencing

the June 30, 2022 judgment from which Ms. Rabius had timely sought an appeal.

Attached to each notice of appeal were separate invoices for estimated appeal costs

in the amount of $6,470.50 for each appeal, which costs were due to be paid by

March 30, 2023.

The estimated appeal costs were not paid by March 30, 2023. Thus, on April

6, 2023, the Clerk of Court for the 29th Judicial District Court filed a Motion for a

Contradictory Hearing Seeking Dismissal of Appeal as Abandoned for the appeal

from the June 30, 2022 judgment and November 18, 2022 denial of the motion for

new trial), and for the appeal from the February 7, 2023 judgment, which included

2 Ms. Rabius then filed a motion to continue the March 3, 2023 support hearing, which the trial court also denied. But on March 3, 2023, the trial court effectively stayed the support hearing after determining that it no longer retained jurisdiction, due to Ms. Rabius’s two pending appeals. Nevertheless, the same day, Mr. Bunch filed a new Motion to Set Child Support, and the trial court rescheduled the child support hearing for June 21, 2023. 3 The March 7, 2023 Order stated:

In preparing for Plaintiff’s Motion for Child Support and Defendant’s Opposed Motion to Continue, the Court discovered that the Defendant’s Motion for Expedited Appeal which was electronically filed on December 16, 2022 was never printed by the Clerk of Court, nor forwarded to the undersigned’s chambers for signature. As of March 3, 2023, the original was still not contained in the Clerk’s physical record. Counsel for both parties were questioned at the March 3, 2023 hearing regarding whether the Motion for Appeal electronically filed on December 16, 2022 had been granted/signed and whether either attorney could provide the Court/Clerk of Court with a signed copy. Neither counsel has responded to that request. IT IS HEREBY ORDERED that the motion is granted and Defendant Cassandra Rabius is granted an appeal of the Judgment signed June 30, 2022, and the denial of the November 18, 2022, timely motion for new trial, to the Court of Appeal for Fifth Circuit, and the Clerk of Court shall, therefore, prepare and lodge the record in accordance with the Code of Civil Procedure.

23-CA-453 4 the trial court’s rulings denying Ms. Rabius’s request for a court-appointed

evaluation of the child and for the appointment of counsel for the child.

On April 12, 2023, the trial court signed separate orders setting contradictory

hearings for May 24, 2023, for appellant to show cause why each appeal should

not be dismissed for failure to timely pay the estimated appeal costs.

On May 23, 2023, one day before the scheduled hearing, Ms. Rabius filed an

opposition to the motion to dismiss the appeals, contending that she paid the

estimated costs of the appeal on May 22, 2023, and therefore the motions to

dismiss the appeals were moot and should be denied.

On May 24, 2023, the trial court proceeded with the contradictory hearing,

but neither Ms. Rabius nor her counsel appeared. The trial court stated for the

record that Ms. Rabius, through her counsel of record, had been notified of the

hearing; that defense counsel’s paralegal had contacted the court to determine if

the hearing was going to move forward, which the court affirmed; and that counsel

did not appear. The trial court further indicated that although appeals generally are

not dismissed when the estimated appeal costs are paid before the contradictory

hearing seeking dismissal of an appeal is held, the court, having received a single

check for $6,470.50, had no way of knowing to which appeal these costs should be

applied. Accordingly, the trial court, ruling from the bench, dismissing both

appeals.

On June 20, 2023, the trial court issued a written judgment dismissing both

the appeal of the June 30, 2022 judgment and the appeal of the February 7, 2023

judgment. Having learned that the trial court had orally dismissed both appeals at

the May 24, 2023 contradictory hearing, on May 26, 2023, Ms. Rabius filed a

“Notice of Intent to File Writ Application to Contest the Order of Dismissal by the

Court of Defendant’s February 28, 2023 [sic] and March 7, 2023 Appeals.” The

trial court set the return date for “no later than June 24, 2023.”

23-CA-453 5 On June 21, 2023, exercising its supervisory review on Ms. Rabius’s

pending writ application from March, this Court annulled the November 22, 2022

judgment that had amended the June 30, 2022, judgment, and reinstated the June

30, 2022 judgment, finding that the amendment of that judgment constituted a

substantive change not permitted “without a successfully litigated application for

new trial, action for nullity, or appeal” pursuant to La. C.C.P. art. 1951. See Bunch

v. Rabius, 23-C-142 (La. App. 5 Cir. 6/21/23) (unpublished writ disposition).

However, given the unique circumstances of the case, and considering the best

interest of the child, in that disposition this Court determined that an amendment to

the June 30, 2022 judgment would comply with the trial court’s original intent to

defer the award of child support until a properly supported motion was filed, as

stated in its June 30, 2022 reasons for judgment. To that end, this Court amended

the June 30, 2022 judgment to include: “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.”

On June 26, 2023, Ms. Rabius filed a Motion for Expedited Appeal of the

“Reinstated and Amended June 30, 2022 Judgment, and the Court’s November 18,

2022 Denial of Motion for New Trial.” On July 5, 2023, the trial court granted the

motion for appeal, and Ms. Rabius timely paid estimated appeal costs. That appeal

is now before this Court.

Jurisdiction

In his brief as appellee, Mr. Bunch argues that the present appeal should be

dismissed due to the trial court’s earlier dismissal of Ms. Rabius’s appeal from the

June 30, 2022 judgment and the November 18, 2022 ruling denying the motion for

new trial. We find merit in Mr. Bunch’s argument.

23-CA-453 6 Louisiana C.C.P. art. 3943 states: “An appeal from a judgment awarding

custody, visitation, or support of a person can be taken only within the delay

provided in Article 3942. Such an appeal shall not suspend the execution of the

judgment insofar as the judgment relates to custody, visitation, or support.” La.

C.C.P. art. 3942 sets a 30-day period within which such an appeal must be filed.

Louisiana jurisprudence is clear that the timeliness of an appeal is jurisdictional,

and neither the trial court nor the appellate court has the authority to extend this

delay. Dew v. Blankenship, 14-649 (La. App. 5 Cir. 9/30/14), 150 So.3d 934, 935.

There is no question that in filing her first Motion for Expedited Appeal on

December 16, 2022, Ms. Rabius timely moved for an appeal of the June 30, 2022

judgment regarding the custody issue and the November 18, 2022 denial of her

motion for new trial and related motions. But Ms. Rabius failed to timely pay the

estimated appeal costs; her counsel failed to appear at the May 24, 2023

contradictory hearing to address dismissal for failure to pay costs; the trial court

ordered the appeals dismissed; and, notwithstanding her timely filed notice of

intent, Ms. Rabius did not file a supervisory writ application in this Court to

address the trial court’s orders dismissing those two appeals.

Moreover, this Court’s June 21, 2023 disposition in 23-C-142, which

amended the June 30, 2022 judgment as to the deferral of an award of child

support, was unrelated to and had no bearing on the custody rulings at issue in the

dismissed appeal, and as such cannot revive her right to appeal the custody matter.

See Seaman v. Seaman, 10-1295 (La. App. 3 Cir. 12/15/10), 54 So.3d 756, 760

(“[W]e find no logical reason for postponing an immediate appeal of a judgment of

custody simply because the parties may have outstanding issues pertaining to

support or visitation matters.”).

Because Ms. Rabius failed to file a writ application seeking review of the

trial court’s May 24, 2023 dismissal of her appeal regarding custody, and her

23-CA-453 7 appeal of the motion for new trial that flowed from that judgment, the dismissal of

those appeals is final. This Court’s June 21, 2023 ruling in 23-C-142 does not give

Ms. Rabius a second bite at the apple, as that disposition merely added language to

the original judgment from the trial court’s written reasons for judgment that was

unrelated to the custody matter. The June 26, 2023 motion for expedited appeal,

Ms. Rabius’s second attempt to appeal the same rulings that were the subject of her

now-dismissed appeals, is filed too late because it was sought more than 30 days

after the trial court’s custody rulings rendered on June 30, 2022 and November 18,

2022. La. C.C.P. arts. 3942, 3943. Absent a timely motion for appeal, the appellate

court lacks jurisdiction. Dew, 150 So.3d at 935 (citing Davis v. Caraway, 13-619

(La. App. 5 Cir. 2/12/14), 136 So.3d 81, 82).

DECREE

For the foregoing reasons, we dismiss this appeal for lack of jurisdiction.

APPEAL DISMISSED

23-CA-453 8 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. SCOTT U. SCHLEGEL FIFTH CIRCUIT MELISSA C. LEDET JUDGES 101 DERBIGNY STREET (70053) DIRECTOR OF CENTRAL STAFF POST OFFICE BOX 489 GRETNA, LOUISIANA 70054 (504) 376-1400

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NOTICE OF JUDGMENT AND CERTIFICATE OF DELIVERY I CERTIFY THAT A COPY OF THE OPINION IN THE BELOW-NUMBERED MATTER HAS BEEN DELIVERED IN ACCORDANCE WITH UNIFORM RULES - COURT OF APPEAL, RULE 2-16.4 AND 2-16.5 THIS DAY DECEMBER 20, 2023 TO THE TRIAL JUDGE, CLERK OF COURT, COUNSEL OF RECORD AND ALL PARTIES NOT REPRESENTED BY COUNSEL, AS LISTED BELOW:

23-CA-453 E-NOTIFIED 29TH JUDICIAL DISTRICT COURT (CLERK) HONORABLE CONNIE M. AUCOIN (DISTRICT JUDGE) COREY M. OUBRE (APPELLEE) RICHARD L. DUCOTE (APPELLANT)

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