FROM THE SIXTEENTH JUDICIAL DISTRICT COURT PARISH OF IBERIA,
NO. 128700 HONORABLE KEITH R.J. COMEAUX, DISTRICT JUDGE.
Lucretia Pecantte Attorney at Law COUNSEL FOR
PLAINTIFF/APPELLANT: Corey Lewis.
J. Celestine Jr., Law Office of Irvin J. Celestine Jr.,
L.L.C. 214 E. Landry Street, COUNSEL FOR DEFENDANT/APPELLEE:
composed of Shannon J. Gremillion, John E. Conery, and David
E. Chatelain, Judges.
Conery, J., concurs in the result.
E. CHATELAIN [*] JUDGE.
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.
AND PROCEDURAL HISTORY
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.
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
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. 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),
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.
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.
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.
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
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."
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.
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 ...