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In re ALR And BAR

Court of Appeals of Louisiana, Third Circuit

March 14, 2018

IN RE: ALR AND BAR

         APPEAL FROM THE SIXTEENTH JUDICIAL DISTRICT COURT PARISH OF IBERIA, NO. 15-82 HONORABLE CURTIS SIGUR, DISTRICT JUDGE

          Edward Moses, Jr. Attorney at Law P. O. Box 83232 Baton Rouge, LA 70884 COUNSEL FOR DEFENDANT-APPELLANT: S.R.

          Shane Errol Romero, Jr. Attorney at Law COUNSEL FOR PLAINTIFFS-APPELLEES: C.R. M.R.

          David Y. Lamm Attorney at Law COUNSEL FOR APPELLEES: A.L.R. B.A.R.

          Court composed of Marc T. Amy, Shannon J. Gremillion, and Candyce G. Perret, Judges.

          CANDYCE G. PERRET JUDGE

         In this intrafamily adoption case, the trial court granted the petition for adoption filed by the biological father, C.R., [1] and his wife, M.R. In granting the adoption, the trial court terminated the parental rights of S.R., the natural mother, finding that she failed to make child support payments for at least six months and that the adoption by the stepmother was in the best interest of the two minor children. For the following reasons, we affirm the judgment of the trial court.

         FACTS AND PROCEDURAL HISTORY:

         The mother of the children, S.R., and their natural father, C.R., were married to each other in September 2001, and divorced on October 16, 2006. From their marriage, two girls were born: A.L.R. was born on March 13, 2000, and B.A.R. was born on March 31, 2004. On November 16, 2009, S.R. was ordered to pay child support to C.R. in the amount of $305.00 per month, effective November 1, 2009. On March 17, 2010, C.R. was awarded sole custody of the two minor children. At that time, S.R. was involved in a criminal proceeding, which resulted in her incarceration in the Lafayette and Vermillion parish jails from March 11, 2010 until November 15, 2010.

         On April 14, 2007, C.R. married M.R., the minors' stepmother (collectively "the Plaintiffs"). On January 6, 2012, the Plaintiffs filed this intrafamily adoption suit alleging that S.R. failed to support her minor children without just cause for a period of six months and that she failed to communicate with the minor children without just cause for a period of six months. On March 22, 2012, the trial court granted the adoption finding that it is in the best interest of the children.

         However, on June 14, 2012, S.R. filed a Petition to Annul Final Judgment alleging that the Plaintiffs did not properly serve her with the adoption suit and that the judgment was obtained by fraud and ill practice. After a hearing on March 19, 2014, the trial court found that no service was ever attempted on the mother, C.R., and that the Plaintiffs failed to provide the appointed curator with information that would have been helpful in locating her. On May 22, 2014, the trial court signed the judgment that granted the Petition to Annul Final Judgment. In its reasons for judgment, the trial court did not find fraud; rather, the annulment was only to cure procedural defects and to allow S.R. the opportunity to object to the Plaintiffs' Petition for Intrafamily Adoption. Specifically, the trial court stated as follows (citations omitted):

An ill practice justifying annulment of a judgment encompasses situations where the circumstances under which the judgment is rendered show the deprivation of the legal rights of the litigant who seeks relief, if the enforcement of the judgment would be unconscientious and inequitable, even though no actual fraud or intentional wrong is shown in the procurement of the judgment. The jurisprudence has considered conduct which unfairly prevents the opposing party from having his day in court to urge his defenses as an ill practice justifying annulment of a judgment so obtained.
In this case, the Court does not find fraud, however, the Court does find that the information withheld from Mr. Tabb [the curator], directly prevented [S.R.] from being notified of the adoption of the minor children. This resulted in ill practice. Plaintiff did not accomplish due process.

         On May 27, 2014, S.R. was personally served with the Petition for Intrafamily Adoption. On October 8, 2014, S.R. filed an answer alleging that she was unable to financially pay the support obligation and that in May of 2011, she was involved in an automobile accident with an eighteen wheeler that rendered her unable to work. S.R. also filed peremptory and declinatory exceptions of no cause of action, no right of action, lis pendens, and improper service, all of which were denied by the trial court on January 22, 2015. On January 29, 2015, S.R. filed a motion for new trial, re-urging her exceptions of no cause of action, no right of action, and lis pendens. On December 19, 2016, after a hearing, the trial court signed a judgment that denied the motion for new trial.

         On May 17, 2016, a bench trial was held on the Petition for Intrafamily Adoption. After a four-day trial, the trial court granted the Plaintiffs' adoption, finding that S.R. failed to pay child support and that it was in the best interest of the minor children to be adopted. S.R. now appeals this final judgment, alleging the following assignments of error: (1) the trial court erred when it allowed C.R. and M.R. to re-litigate their intrafamily adoption after it was annulled by judgment on May 22, 2014; (2) the trial court erred when it overruled her peremptory exception of no cause of action and no right of action and her declinatory exception of lis pendens; (3) the trial court erred when it failed to find that when an adoption judgment is annulled, the case resolves itself into a custody dispute; and (4) the trial court erred in finding that her consent was dispensed with when she failed to pay child support for a period of six months after the court ruled that C.R. and M.R. interfered with her attempts to visit or communicate with her children.

         In their appellee brief, Plaintiffs alleged as their assignment of error that the December 13, 2016 judgment "should be modified, revised or reversed insofar as the adoption should have also been granted for the refusal or failure of [S.R.] to visit, communicate or attempt to communicate with the children, without just case, for a period of at least six (6) months." However, we find that this issue is not properly before this court as no answer to the appeal was filed pursuant to La.Code Civ.P. art. 2133. Thus, we will not consider Plaintiffs' argument.

         While on appeal, S.R. filed two motions to consolidate, a peremptory exception of res judicata, and an emergency motion to correct record. On November 15, 2017, this court denied S.R.'s expedited motion to consolidate this current intrafamily adoption proceeding with an unlodged appeal in her non-support action finding that "judicial efficiency is not served with this consolidation." After reviewing the record, and for the reasons already stated by this court in its November 15, 2017 ruling, we deny S.R.'s second motion to consolidate this appeal with her unlodged appeal involving her non-support proceeding.

         S.R. argues in her exception of res judicata that once the trial court annulled the Plaintiffs' intrafamily adoption decree on grounds of ill practices on May 22, 2014, the doctrine of res judicata bars the Plaintiffs from re-litigating their intrafamily adoption case. S.R. also argues that the intrafamily adoption proceeding resolved into a custody dispute by operation of law after the trial court annulled the adoption decree because it was obtained through ill practices. In support of this argument, S.R. cites to In Re Wildeboer, 406 So.2d 687, 690 (La.App. 2 Cir. 1981) and Durr v. Blue, 454 So.2d 315 (La.App. 3 Cir. 1984), for the proposition that once the nullity of an adoption judgment is determined, the contest resolves itself into a custody dispute. As such, S.R. argues that the Lafayette Parish District Court has subject matter jurisdiction over the custody and child support issues and that the Iberia Parish District Court lacked jurisdiction over the intrafamily adoption proceeding. After reviewing the ...


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