State of Louisiana Dept. of Children & Family Services Versus Denzel Ridley

• Court: Louisiana Court of Appeal
• Decided: December 4, 2024
• Docket: 23-CA-565
• Status: Unknown

Opinion

STATE OF LOUISIANA DEPT. OF CHILDREN NO. 23-CA-565 & FAMILY SERVICES FIFTH CIRCUIT VERSUS COURT OF APPEAL DENZEL RIDLEY STATE OF LOUISIANA

ON APPEAL FROM THE FORTIETH JUDICIAL DISTRICT COURT PARISH OF ST. JOHN THE BAPTIST, STATE OF LOUISIANA NO. 53,631, DIVISION "A" HONORABLE VERCELL FIFFIE, JUDGE PRESIDING

December 04, 2024

STEPHEN J. WINDHORST JUDGE

Panel composed of Judges Stephen J. Windhorst, John J. Molaison, Jr., and Timothy S. Marcel

APPEAL DISMISSED SJW JJM TSM COUNSEL FOR PLAINTIFF/APPELLANT, STATE OF LOUISIANA O/B/O THE DEPARTMENT OF CHILDREN AND FAMILY SERVICES (DCFS) Kim Ancona Laborde

COUNSEL FOR DEFENDANT/APPELLEE, DENZEL RIDLEY In Proper Person WINDHORST, J.

Appellant, the State of Louisiana, on behalf of the Department of Children

and Family Services (“DCFS”), appeals the trial court’s August 23, 2023 judgment.

For the following reasons, we find this court lacks jurisdiction to consider the merits

of this appeal. We find the August 23, 2023 judgment is an absolute nullity, and it

is hereby annulled and set aside. The March 16, 2023 judgment is therefore

reinstated. Because appellant did not timely appeal the March 16, 2023 judgment,

this appeal is dismissed as untimely.

PROCEDURAL HISTORY

On July 28, 2015, the DCFS and defendant/appellee, Denzel Ridley entered

into a stipulated order of support under La. R.S. 46:236.7, whereby defendant agreed

to pay DCFS $246.33 per month commencing on August 28, 2015 for the support

of his minor child, A.B., and other provisions to which defendant agreed.

On August 12, 2021, the DCFS filed a Rule to Review Child Support seeking

to modify the existing award of child and medical support against defendant for the

support of A.B. The hearing was initially set for September 16, 2021.1 The matter

was subsequently continued several times.2 On November 10, 2022, defendant did

not appear for the hearing. Because defendant was served with notice of the

November 10, 2022 hearing, the trial court heard testimony and received evidence

on DCFS’s rule to review child support. At the conclusion of the hearing, the matter

was taken under advisement. On December 20, 2022, the trial court issued a

judgment ordering (1) defendant to pay child support directly to DCFS until notice

of garnishment; (2) defendant to provide DCFS notification any change of

1 Due to Hurricane Ida, the matter was reset to January 27, 2022. 2 An email from the court shows that the January 27, 2022 hearing was reset to March 17, 2022, because defendant was on active duty and in training until the end of February. On March 17, 2022, the hearing was again reset. It appears from the minute entry and the record that defendant was not served with the March 17, 2022 date. The matter was subsequently reset for June 16, 2022. On June 16, 2022, despite being served, defendant did not appear and the matter reset to August 11, 2022. On August 11, 2022, despite being served, defendant did not appear again and the matter was continued to October 13, 2022. On October 13, 2022, the matter was continued again to November 10, 2022. The minute entry and record do not indicate defendant was served with the October 13, 2022 date.

23-CA-565 1 circumstances, including but not limited to changes of address, residence,

employment, salary, or medical coverage; (3) an immediate income assignment

order under the provisions of La. R.S. 46:236.3; (4) defendant to provide medical

support for the minor through his employer; (5) defendant to pay $10.00 per month

as cash medical support to DCFS if he loses health coverage on minor through his

employer, or if such coverage is not available; and (6) defendant to send his

insurance card to DCFS, if A.B. was included on his insurance.

On January 20, 2023, DCFS filed a motion to reset its rule to review child

support, contending that the December 20, 2023 judgment only ordered cash medical

support and it did not address DCFS’s rule to review child support. Therefore, DCFS

requested its rule be reset to address the modification of child support.

The matter came before the trial court on March 16, 2023. At the conclusion

of the hearing, the matter was taken under advisement. On the same day, the trial

court issued a judgment granting DCFS’s modification and ordering defendant to

pay $400.00 per month in child support, effective March 16, 2023. The judgment

also ordered (1) defendant to pay an extra $20.00 per month toward arrears; (2)

defendant to make child support payment to DCFS, until notice of garnishment; (3)

defendant to notify DCFS of any change of circumstances; (4) an immediate income

assignment order under La. R.S. 46:236.3; and (5) defendant to pay medical support

through employer for minor child. Notice of signing of the judgment was issued on

April 11, 2023. No motion for a new trial was filed.

On August 23, 2023, the record shows that the trial court issued a second

judgment with reasons, sua sponte,3 granting DCFS’s rule to review child support.

The judgment ordered defendant to pay “plaintiff, Niya Annie Gilmore” child

support in the amount of $400.00 per month, effective “retroactively (March 16,

3 There is nothing in the record indicating why the trial court issued this second judgment sua sponte over five months after the hearing on DCFS’s rule. In its brief to this court, DCFS alleged that it requested reasons for judgment and that the August 23, 2023 judgment was the trial court’s reasons for judgment.

23-CA-565 2 2023).” The judgment further stated that arrearages “created by this judgment shall

be extinguished by the payment of an additional” twenty dollars each month, “to be

paid in one installment.” The judgment also contained the trial court’s reasons for

the amount of child support awarded in deviation of the guidelines. Notice of signing

of the judgment was issued the same day.

On September 8, 2023, DCFS filed a motion for appeal of the August 23, 2023

judgment. This appeal followed.

LAW and ANALYSIS

Jurisdictional Issue

On appeal, DCFS contends it is seeking review of the trial court’s March 16,

2023 judgment and the trial court’s written reasons on August 23, 2023. DCFS

contends the trial court abused its discretion in not applying the increase in the child

support retroactive to the date the rule was filed.

Appellate courts have a duty to examine subject matter jurisdiction sua

sponte, even when the parties do not raise the issue. Succession of St. Germain, 22-

148 (La. App. 5 Cir. 12/21/22), 355 So.3d 674, 676.

As a procedural matter, the record before us contains two final judgments

signed by the trial court regarding the March 16, 2023 hearing on DCFS’s rule for

review of child support. After taking the matter under advisement, the trial court

signed the original judgment on the merits on March 16, 2023 and issued notice of

judgment to the parties on April 11, 2023. A motion for new trial was not filed by

either party. A second judgment on the merits was signed on August 23, 2023.4 No

4 In its brief to this court, appellant contends that the trial court rendered judgment on March 16, 2023, and subsequently rendered “reasons for judgment” on August 23, 2023. Appellant filed the motion for appeal as to the August 23, 2023 judgment. However, a judgment and reasons for judgment are two separate and distinct legal documents. Appeals are taken from the judgment, not the reasons for judgment. Alexander v. Maki, 15-517 (La. App. 5 Cir. 01/04/16), 183 So.3d 821, 822; State Farm Mut. Auto. Ins. Co. ex rel. Robinson v. Jimenez, 98-1057 (La. App. 5 Cir. 01/26/99), 726 So.2d 465, 466.

23-CA-565 3 notice of appeal was filed before or during the four-month period between the April

11, 2023 notice of judgment and the August 23, 2023 judgment.

The judgments differ in that the original judgment is rendered against

defendant increasing the amount of child support which is payable to DCFS on

behalf of the minor child. The second judgment is rendered against defendant

increasing the amount of child support, but support is payable to “plaintiff, Niya

Annie Gilmore,” not to DCFS on behalf of the minor child.5 The judgments further

differ in the substance included therein. There is nothing in the record to indicate

that the trial court moved for or granted a new trial as provided by La. C.C.P. art.

1971.6

La. C.C.P. art. 1951 Amendment of Judgment 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, but not its substance, or to correct errors of calculation. The judgment may be amended only after a hearing with notice to all parties, except that a hearing is not required if all parties consent or if the court or the party submitting the amended judgment certifies that it was provided to all parties at least five days before the amendment and that no opposition has been received.

A judgment which has been signed cannot be altered, amended, or revised by

the judge who rendered the same, except in the manner provided by law. Bourgeois

v. Kost, 02-2785 (La. 05/20/03), 846 So.2d 692, 696. Without a specific statutory

grant of authority, the trial court is limited to the general authorization for amending

final judgments provided in La. C.C.P. art. 1951. Id. 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 does not authorize a trial court to make substantive

amendments to final judgments. La. C.C.P. art. 1951. Failure to comply with the

5 “Plaintiff, Niya Annie Gilmore” is not a named party in this lawsuit. 6 La. C.C.P. art. 1971 provides:

A new trial may be granted, upon contradictory motion of any party or by the court on its own motion, to all or any of the parties and on all or part of the issues, or for reargument only. If a new trial is granted as to less than all parties or issues, the judgment may be held in abeyance as to all parties and issues.

23-CA-565 4 requirements of La. C.C.P. art. 1951 results in the annulment and setting aside of the

amending judgment and reinstating the original judgment. Oreman v. Oreman, 05-

955 (La. App. 5 Cir. 03/31/06), 926 So.2d 709, 712, writ denied, 06-1130 (La.

09/01/06), 936 So.2d 206 (A second judgment amending the substance of an earlier

judgment without compliance with La. C.C.P. art. 1951 is an absolute nullity and

without legal effect); Kost, supra, (substantive amendments to judgments made

without compliance with the proper procedures, i.e., by way of a timely motion for

a new trial or by appeal, are absolute nullities); Alliance for Good Government, Inc.

v. Jefferson Alliance for Good Government, Inc., 96-309 (La. App. 5 Cir. 10/16/96),

683 So.2d 836, 839.

We find that the trial court’s August 23, 2023 judgment substantively altered

the March 16, 2023 judgment in violation of the mandatory requirements of La.

C.C.P. art. 1951. Specifically, the judgment ordered defendant to pay the child

support to “plaintiff, Niya Annie Gilmore”, instead of DCFS on behalf of the minor

child. The judgments further differ in the substance included. There is nothing in

the record to indicate that the trial court moved for or granted an amendment of

judgment or a new trial, as provided by La. C.C.P. arts. 1951 or 1971. This was an

impermissible substantive change to the original March 16, 2023 judgment. See

Washington v. Taylor, 21-80 (La. App. 4 Cir. 01/26/22), 334 So.3d 1060, 1070

(adding a party name is a substantive change); Duncan v. Gauthier, 21-220 (La. App.

1 Cir. 10/28/21), 332 So.3d 1191 (adding a party to a judgment is considered an

impermissible substantive change in the judgment); Tunstall v. Stierwald, 01-1765

(La. 02/26/02), 809 So.2d 916, 920 (changing the name of a party cast in the

judgment is a change of substance and not of phraseology). The August 23, 2023

judgment also impermissibly altered the substance of the original judgment. The

judgment may be amended by the court where the amendment takes nothing from or

adds nothing to the original judgment. Kost, 846 So.2d at 695. Because the second

23-CA-565 5 judgment added a non-party and changed the substance of the original judgment, this

was impermissible.

Absent a hearing or consent to amend, which is not present in this case, the

August 23, 2023 judgment is null and void. Accordingly, the August 23, 2023

judgment is annulled and set aside and the original March 16, 2023 judgment is

reinstated.

When an appellant fails to timely take and perfect an appeal, the appellate

court lacks jurisdiction to consider the appeal. Louisiana’s jurisprudence is clear

that 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. 09/30/14), 150 So.3d 934, 935; Brown v. Schreiner, 05-255 (La.

App. 4 Cir. 04/05/06), 929 So.2d 773, 775; Seaman v. Seaman, 10-1295 (La. App.

3 Cir. 12/15/10), 54 So.3d 756, 760; State ex rel. E.A., 02-996 (La. App. 3 Cir.

10/02/02), 827 So.2d 594, 596. Additionally, neither the court of appeal nor the trial

court has the jurisdictional power and authority to reverse, revise, or modify a final

judgment after the time for filing a devolutive appeal has elapsed. Williams v.

Atmos Energy Corp., 09-1061 (La. App. 5 Cir. 05/11/10), 42 So.3d 409, 410-411;

Parish of Jefferson v. McGee, 11-76 (La. App. 5 Cir. 05/24/11), 67 So.3d 640, 642;

Baton Rouge Bank & Trust Co. v. Coleman, 582 So.2d 191, 192 (La. 1991).

Further, the provision in La. C.C.P. art. 2161 that an appeal should not be

dismissed because of any irregularity, error, or defect unless it is imputable to the

appellant does not include the failure to bring an appeal within the requisite period.

Martin v. Freiberger, 02-188 (La. App. 5 Cir. 06/26/02), 822 So.2d 810, 811. Under

such circumstances, the appellate court may, on its own motion, recognize its lack

of jurisdiction and dismiss the appeal as untimely. Hamilton v. Lefevre, 06-729 (La.

App. 5 Cir. 01/30/07), 951 So.2d 1223, 1224; State Farm Mut. Auto. Ins. Co. ex rel.

Robinson v. Jimenez, 98-1057 (La. App. 5 Cir. 01/26/99), 726 So.2d 465, 466.

23-CA-565 6 La. C.C.P. art. 2087 provides the time period within which a party must appeal

a trial court judgment:

A. Except as otherwise provided in this Article or by other law, an appeal which does not suspend the effect or the execution of an appealable order or judgment may be taken within sixty days of any of the following: (1) The expiration of the delay for applying for a new trial or judgment notwithstanding the verdict, as provided by Article 1974 and Article 1811, if no application has been filed timely. (2) The date of the mailing of notice of the court's refusal to grant a timely application for a new trial or judgment notwithstanding the verdict, as provided under Article 1914.

The delay for applying for a new trial is seven days, exclusive of legal

holidays. La. C.C.P. art. 1974. The delay for applying for a new trial commences

to run on the day after the clerk has mailed, or the sheriff has served, the notice of

judgment as required by Article 1913. Id.

In this case, the judgment was signed March 16, 2023 and issued on April 11,

2023 to the parties. The motion for appeal was filed on September 8, 2023, more

than sixty days from the expiration of the delay for applying for a new trial.

Consequently, this court lacks jurisdiction to consider this untimely appeal.

DECREE

For the reasons stated herein, we find this court lacks jurisdiction to consider

the merits of this appeal. We find the August 23, 2023 judgment is an absolute

nullity and as such, is annulled and set aside and we reinstate the March 16, 2023

judgment. Because appellant did not timely appeal the March 16, 2023 final

judgment, this appeal is dismissed as untimely.

APPEAL DISMISSED

23-CA-565 7 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 STEPHEN J. WINDHORST LINDA M. WISEMAN JOHN J. MOLAISON, JR. FIRST DEPUTY CLERK SCOTT U. SCHLEGEL TIMOTHY S. MARCEL 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 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 4, 2024 TO THE TRIAL JUDGE, CLERK OF COURT, COUNSEL OF RECORD AND ALL PARTIES NOT REPRESENTED BY COUNSEL, AS LISTED BELOW:

23-CA-565 E-NOTIFIED 40TH DISTRICT COURT (CLERK) HONORABLE VERCELL FIFFIE (DISTRICT JUDGE) VERCELL FIFFIE (APPELLANT) KIM ANCONA LABORDE (APPELLANT)

MAILED DENZEL RIDLEY (APPELLEE) GABRIELLE BREAUX (APPELLEE) HONORABLE BRIDGET A. DINVAUT 21 TWIN OAKS CIRCLE 677 ROCCAFORTE AVENUE (APPELLANT) COLUMBIA, SC 29209 GARYVILLE, LA 70051 DISTRICT ATTORNEY FORTIETH JUDICIAL DISTRICT PARISH OF ST. JOHN THE BAPTIST 1342 LA. HIGHWAY 44 RESERVE, LA 70084