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Lewis v. Hart

Court of Appeals of Louisiana, Third Circuit

May 17, 2017



          Lucretia Pecantte Attorney at Law COUNSEL FOR PLAINTIFF/APPELLANT: Corey Lewis.

          Irvin J. Celestine Jr., Law Office of Irvin J. Celestine Jr., L.L.C. 214 E. Landry Street, COUNSEL FOR DEFENDANT/APPELLEE: Tyrissa Hart.

          Court composed of Shannon J. Gremillion, John E. Conery, and David E. Chatelain, Judges.

          Conery, J., concurs in the result.


         In this custody proceeding, Corey Lewis (the Father) appeals the trial court's judgment that denied his peremptory exception of res judicata and also annulled and vacated all previous custody orders and judgments rendered by the court. Tyrissa Hart (the Mother) in response, raises the issue of whether the trial court erred in fixing the Father's exception for hearing, and in ruling thereon prior to ruling on her motion for new trial. For the following reasons, we vacate the trial court's judgment and remand for a hearing on the Mother's new trial motion.


         All the issues herein revolve around the custody of T.A.L., born on July 11, 2016. The parents were never married to each other. On July 25, 2016, the Father filed suit against the Mother to establish custody and visitation. The next day, July 26, 2016, the trial court signed an order setting (1) the hearing officer conference for September 1, 2016, and (2) the Rule for Joint Custody on September 28, 2016, "if all issues are not resolved, and any objections thereto are file[d] timely[.]" Shortly thereafter, on August 2, 2016, the Father filed a Motion and Order to Amend and Supplement the Petition for Custody, along with a Temporary Custody Implementation Plan. By order dated that same day, the trial court granted the Father temporary custody of the infant.

         After a continuance to allow the Mother to retain counsel, the hearing officer conference was held on September 12, 2016. On that date, the parties, along with their counsel, appeared before the hearing officer. Both parties and/or their attorneys spoke with the hearing officer and related what they expected the evidence at trial would show. The hearing officer rendered his written report that same day, recommending that the parties share joint custody, "with the Father designated as the domiciliary parent." Also on September 12, 2016, the Mother filed her Answer and Reconventional Demand in which she sought custody of T.A.L.[1]

         Pursuant to the Rules of Louisiana District Courts, the parties had five days in which to file with the clerk of court their written objections to the hearing officer's recommendations.[2] Prior to the lapse of that five-day delay, the Father, on September 16, 2016, filed a judgment to adopt the hearing officer's recommendations as the final judgment of the court, pursuant to La.R.S. 46:236.5(C)(7), which provides:

If no written objection is filed with the clerk of court within the time and manner established, the order shall become a final judgment of the court and shall be signed by a judge and appealable as a final judgment. The judgment after signature by a district judge shall be served upon the parties in accordance with law.

         As no written objection was filed, the trial court signed the judgment on September 28, 2016. On September 20, 2016, the Father filed an Amended Judgment to reflect the correct date of the hearing officer conference as September 12, 2016, instead of September 1, 2016, as reflected in the judgment originally submitted. The trial court signed the Amended Judgment on September 22, 2016.[3]

         Thereafter, on September 28, 2016, this matter came before the trial court for hearing on the previously set Rule for Joint Custody, and the trial court continued the matter without date. That same day, the trial court signed an order setting (1) the hearing officer conference on the Mother's reconventional demand for October 13, 2016, and (2) the Rule for Custody hearing on October 19, 2016, "if any party files a timely objection to the recommendations of the Hearing Officer, within the prescriptive delays allowed by law[.]" These dates were subsequently continued.

         The clerk of court then mailed the notice of signing of the Judgment and Amended Judgment to the parties on October 3, 2016. Thereafter, the Mother timely filed her Motion for New Trial on October 10, 2016, requesting the trial court "grant a new trial and/or that the Judgment, previously signed and executed, on or about, September 22, 2016, be held in abeyance as to all parties and issues presented."

         The next day, October 11, 2016, the trial court signed an order: (1) setting the Mother's Motion for New Trial hearing for October 19, 2016, (2) immediately vacating "the Judgment and Amended Judgment, signed and executed, on or about September 22, 2016, " and (3) ordering "that no Judgment shall be recognized in these proceedings, until further Order(s) of this Court and/or until a decision is rendered, as it relates to Defendant/Plaintiff-in-Reconvention's [the Mother's] Motion for New Trial hearing."

         Then, on October 12, 2016, the Father filed his Peremptory Exception of Res Judicata in which he asserted the Mother's reconventional demand was barred because the custody claims raised therein were "decided and set aside" by the trial court in the Amended Judgment. The trial court signed an order on October 13, 2016, setting the Father's exception for hearing on October 19, 2016.

         As the trial court minutes reflect, the parties appeared with counsel on October 19, 2016, for the "hearing on Rule for Custody on behalf of [the Mother]." After hearing the pleadings, evidence, and arguments of counsel, the trial court reset the matter until November 7, 2016, and apparently directed the parties "to ascertain whether the Answer and Reconventional Demand filed by [the Mother] will be considered an objection to the hearing officer ...

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