Jeanne Varner v. Jarrod Varner ( 2023 )

STATE OF LOUISIANA
COURT OF APPEAL
FIRST CIRCUIT
NO. 2022 CU 1166
JEANNE VARNER
VERSUS
JARROD VARNER
Judgment Rendered: FEB 2 4 2M
Appealed from the
21" Judicial District Court
In and for the Parish of Livingston
State of Louisiana
Docket No. 153152
The Honorable Jeffrey C. Cashe, Judge Presiding
Wyman E. Bankston Counsel for Plaintiff/Appellant,
Livingston, LA Jeanne Varner
Sherman Q. Mack Counsel for Defendant/Appellee,
C. Glenn Westmoreland Jarrod Varner
Albany, LA
Rebecca Lee Counsel for the Minor Children
Hammond, LA
Laura Slocum Counsel for the Department of
Livingston, LA Children and Family Services
BEFORE: GUIDRY, C.J., WOLFE, AND MILLER, JJ.
2.,/ / 57,crl( x-
t-5-
MILLER, J.
This matter is before us on appeal by Jeanne Varner from a judgment of the
trial court maintaining an ex parte custody order in favor of Jarrod Varner. For the
reasons that follow, the appeal is dismissed.
FACTS AND PROCEDURAL HISTORY
In this protracted custody matter, Jeanne and Jarrod Varner shared joint
custody of their two minor children, with neither party designated as the
domiciliary parent, pursuant to a stipulated judgment dated February 2, 2021. On
April 1, 2022, Mr. Varner filed a motion for emergency ex parte relief seeking
immediate emergency temporary custody of the minor children pursuant to La.
C. C. P. art. 3945( C), and a permanent modification of custody forthwith.' The trial
court signed an ex parte order awarding Mr. Varner temporary custody of the
children and granting Mrs. Varner supervised visitation with the children on
Saturdays. The trial court further ordered Mrs. Varner to show cause on April 13,
2022, why Mr. Varner should not be awarded immediate temporary custody and
why the current custody plan should not be modified to award Mr. Varner sole
custody of the children subject to supervised visitation by Mrs. Varner. The rule
was reset twice and ultimately heard by the trial court on May 26, 2022.2
Following the hearing, the trial court sustained the ex parte order. On June
221 2022, the court signed a " Judgment Maintaining Ex Parte Custody Order,"
which, by its terms, awarded Mr. Varner ex parte custody and awarded Mrs.
Prior to the instant motion, it appears from the record that Mr. Varner had also filed
motions for ex parte custody" on September 14, 2020 and April 28, 2021.
2According to minute entries, the parties appeared on April 13, 2022 and April 27, 2022,
and following " a status with the Court" the matter was reset.
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Varner temporary supervised visitation pending the trial date of July 7, 2022.3
Mrs. Varner now appeals.
DISCUSSION
Following the lodging of this appeal, this Court, ex proprio motu, issued a
rule to show cause why this appeal should or should not be dismissed where the
judgment appealed maintained an ex parte custody order determining only
preliminary matters until a pending trial date of July 7, 2022, and thus appeared to
be a nonappealable interlocutory ruling.
In response to the show cause order, Mrs. Varner avers that the observations
made by the trial court were determinative of the merits, in part, because the
evidence adduced and testimony offered is the same evidence and testimony that
would be offered at trial. Mr. Varner contends that the June 22, 2022 judgment
maintains an ex parte order of custody pending the custody trial, which has not yet
taken place, and is an interlocutory ruling in that it does not determine the
substantive merits of the case. Mr. Varner thus requests that the instant appeal be
dismissed, citing Suazo v. Suazo, 2010- 0111 ( La. App. 1St Cir. 6111110), 39 So. 3d
830, 833 ( The trial court' s judgment granting temporary physical custody is an
interlocutory judgment because it does not determine substantive merits of the
case. La. C. C. P. art. 1841. Provisional custody orders are not appealable.).
However, the judgment before us maintains an ex parte award of temporary
custody pursuant to La. C. C. P. art. 3945. Louisiana Code of Civil Procedure
article 3945, entitled " Incidental order of temporary child custody; injunctive
relief; exceptions" provides, in part, as follows:
B. An ex parte order of temporary custody of a minor child shall not
be granted unless:
1) it clearly appears from specific facts shown by a verified petition
or by supporting affidavit that immediate and irreparable injury will
Although the judgment indicates the matter was heard on May 25, 2022, the minute
entry and transcript show the matter was heard on May 26, 2022.
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result to the child before the adverse party or his attorney can be heard
in opposition.
C. An ex parte order of temporary custody shall:
1) Expire by operation of law within thirty days of signing of the
order; however, the order may be extended for good cause shown at
any time before its expiration for one period not exceeding fifteen
days.
D. The rule to show cause why the respondent should not be awarded
the custody, joint custody, or visitation of the child shall be assigned
for hearing not more than thirty days after signing of the ex parte
order of temporary custody.
E. Any ex parte order not in compliance with the provisions of this
Article is not enforceable, and is null and void.
An ex parte order of temporary custody pursuant to La. C. C. P. art. 3945
expires by operation of law within thirty days of the signing of the order and may
be extended for good cause shown before its expiration for one period not
exceeding fifteen days. La. G. C. P. art. 3945( 0)( 1). The remedy for a party who
objects to the ex parte order is the La. C. C. P. art. 3945( D) adversarial hearing, after
which an appealable final judgment will be entered. Monica Hof Wallace, A
Primer on Child Custody in Louisiana, 65 Loy. L. Rev. 1, 26 ( 2019). With
reference to the adversarial hearing, Section ( D) provides that the rule to show
cause why the respondent should not be awarded the custody, joint custody, or
visitation " shall be assigned for hearing not more than thirty days after the signing
of the ex parte order of temporary custody." Further, La. C. C. P. art. 3945( E)
provides that "[ a] ny ex parte order not in compliance with the provisions of this
Article is not enforceable, and is null and void."
In the instant case, the April 1, 2022, ex parte order awarding temporary
custody to Mr. Varner expired by operation of law, at the latest ( assuming a timely
extension was granted by the trial court), within forty- five days of its signing. See
El
La. C. C. P. art. 3945( C)( 1). Thus, where the judgment had expired by operation of
law, it was not enforceable at the time of the May 26, 2022 hearing date.
Furthermore, it was made clear by the trial court that the June 22, 2022
Judgment Maintaining Ex Parte Custody Order," which resulted from the show
cause hearing, was not that judgment provided for in La. C. C. P. art. 3945( D), but
instead, was an extension of the original ex parte order signed on April 1, 2022. At
the commencement of the hearing, the trial court stated, " This is not the custody
trial. This is just the ex parte trial." Again, at the conclusion of the hearing, the
trial court noted. " We are coming back to court in about a month and a half ... So
this is not going to be a long term schedule."
A judgment maintaining ex parte custody beyond forty- five days is not
provided for in La. C. C. P. art. 3945, and is thus not in compliance with its
provisions. As such, it is null and void and not enforceable. See La. C.C. P. art.
3945( E). Because the judgment before us on appeal is null and void, the appeal is
dismissed. See Brennan' s, Inc. v. Colbert, 2013- 0943 ( La. App. 0' Cir. 9125113),
125 So. 3d 537, 541, on rehh' (Nov. 15, 2013), writ denied, 2013- 2917 ( La.
6120114), 141 So. 3d 285 ( an appeal cannot lie from an absolutely null judgment).
Considering our resolution of the appeal herein, we hereby recall the previous
show cause order issued in this matter.
CONCLUSION
For the above and foregoing reasons, this appeal of the June 22, 2022
judgment maintaining an ex parte custody judgment is dismissed. Costs of this
appeal are assessed one- half to the appellant, Jeanne Varner, and one- half to the
appellee, Jarrod Varner.
APPEAL DISMISSED.
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