Ryan Bunch Versus Cassandra Rabius ( 2023 )

RYAN BUNCH NO. 23-CA-453
VERSUS FIFTH CIRCUIT
CASSANDRA RABIUS COURT OF APPEAL
STATE OF LOUISIANA
ON APPEAL FROM THE TWENTY-NINTH JUDICIAL DISTRICT COURT
PARISH OF ST. CHARLES, STATE OF LOUISIANA
NO. 78,881, DIVISION "C"
HONORABLE CONNIE M. AUCOIN, JUDGE PRESIDING
December 20, 2023
SUSAN M. CHEHARDY
CHIEF JUDGE
Panel composed of Judges Susan M. Chehardy,
John J. Molaison, Jr., and Scott U. Schlegel
APPEAL DISMISSED
SMC
JJM
SUS
COUNSEL FOR PLAINTIFF/APPELLEE,
RYAN BUNCH
Corey M. Oubre
COUNSEL FOR DEFENDANT/APPELLANT,
CASSANDRA RABIUS
Richard L. Ducote
CHEHARDY, C.J.
Defendant-appellant, Cassandra Rabius, appeals a June 30, 2022 judgment
regarding custody, a November 18, 2022 ruling denying Ms. Rabius’s motion for
new trial on that custody ruling, and the trial court’s rulings denying Ms. Rabius’s
requests for appointment of counsel for the child and for a court-appointed
evaluation. Finding this Court lacks jurisdiction, we dismiss the appeal.
Relevant Facts and Procedural History
Plaintiff-appellee, Ryan Bunch, filed suit in 2014 against Ms. Rabius, who
lives in Texas and is the mother of their older daughter Kelsi, seeking custody and
support.1 At a February 2022 trial, the trial court heard matters related to custody,
child support, and various outstanding contempt motions.
On June 30, 2022, the trial court issued a judgment awarding joint care,
custody, and control of the minor to both parents, with Mr. Bunch designated as
the primary domiciliary parent. Ms. Rabius was further ordered to continue to
carry the child on her health and dental insurance, with all of the child’s remaining
expenses to be split 50/50. The June 30, 2022 judgment specifically denied any and
all pending contempt motions, and further indicated that “any relief requested by
either of the parties and heard on the above hearing date and not specifically
addressed herein be and is hereby denied.” In written reasons for judgment, the
trial court stated that with regard to child support, neither party presented sufficient
evidence to allow the court to make a determination. Therefore the court intended
to defer ruling on child support until a new motion with adequate evidence was
filed. However, the trial court’s intention in this regard, stated in the reasons for
judgment, was not included in the June 30, 2022 written judgment.
1
Ms. Rabius and Ms. Bunch have a separate proceeding pending in Texas addressing custody
and support for their younger daughter.
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On July 13, 2022, Ms. Rabius filed a motion for new trial under La. C.C.P.
art. 1972(2), arguing that she had discovered new evidence related to the custody
issue since the trial, claiming that it was evidence that she could not have obtained
before or during trial. The newly discovered evidence alleged that Kelsi told her
school counselor before Christmas 2021, or alternatively in early February 2022,
just before trial, that her father had been abusing her; that as a result of this
reporting, there was a police and/or child-protection investigation; and that Kelsi
told her mother that her father lied to the counselor and/or the police when he said
that the abuse did not happen. The trial court set the new trial motion for hearing
on September 8, 2022, which hearing was continued to November 18, 2022.
Meanwhile, on October 13, 2022, Mr. Bunch filed a Motion to Re-Set
Hearing on Child Support, requesting that the original September 4, 2014 petition
for child support be set for hearing pursuant to the June 30, 2022 reasons for
judgment. In response, the trial court ordered that the child support matter also be
set for a November 18, 2022 hearing, and further ordered Ms. Rabius to produce to
Mr. Bunch’s counsel certain documents related to child-support calculations.
On November 3, 2022, Ms. Rabius filed a “Motion for Appointment of
Counsel for Child, and for Court-Appointed Evaluation of Child by Abuse
Specialist, Relative to Motion for New Trial.” On November 9, 2022, Ms. Rabius
filed an Exception of No Cause of Action and Motion to Stay or Vacate ex parte
Order, arguing that Mr. Bunch had no cause of action to reset his September 4,
2014 petition for child support, because the trial court had denied his child support
request in the June 30, 2022 judgment.
On November 18, 2022, after hearing the motion for new trial and the
additional motions and exceptions related to the other pending matters, the trial
court denied the motion for new trial from the bench. The trial court further stated
that the June 30, 2022 judgment was deficient because “the reasons for judgment at
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page 17 were very clear that I was deferring ruling on the child support issue,” but
that this intention was inadvertently excluded from the judgment. The trial court
then indicated that it would amend the June 30, 2022 judgment on its own motion.
Accordingly, on November 22, 2022, the trial court amended the June 30, 2022
judgment to add: “IT IS FURTHER ORDERED, ADJUDGED AND DECREED
that the Court will defer ruling on child support until a Motion is filed presenting
the Court with adequate evidence (worksheets) to make such a determination.”
On December 5, 2022, Ms. Rabius filed a “Notice of Intent to Seek Writ to
Contest the Court’s November 22, 2022 Amended Judgment, and the November
18, 2022 Overruling of Defendant’s Exception of No Cause of Action Related to
Plaintiff’s October 20, 2022 Motion to Reset Hearing on Child Support.”
On December 16, 2022, Ms. Rabius also filed a Motion for Expedited
Appeal of the June 30, 2022 judgment and the November 18, 2022 denial of Ms.
Rabius’s timely motion for new trial.
On February 7, 2023, the trial court issued a written judgment memorializing
the denial of Ms. Rabius’s motion for new trial; denying her motion for
appointment of counsel for the child and for a court-appointed evaluation;
overruling Ms. Rabius’s exception of no cause of action; and resetting the child
support hearing for March 3, 2023.
On February 22, 2023, the trial court granted Ms. Rabius’s third request for
an extension of time to file her writ application in this Court related to the
November 22, 2022 amendment to the June 30, 2022 judgment and the trial court’s
overruling of her exception of no cause of action on November 18, 2022.
On February 23, 2023, Mr. Rabius filed a subsequent motion for appeal of
the February 7, 2023 judgment and requested a stay of the March 3, 2023 child
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support hearing. The trial court granted the order of appeal but denied the request
to stay the child support hearing.2
On March 7, 2023, the trial court issued an order indicating that Ms.
Rabius’s December 16, 2022 Motion for Expedited Appeal had never been
granted.3 Thus, on March 10, 2023, two separate notices of appeal appear in the
record – one referencing the February 7, 2023 judgment, and the other referencing
the June 30, 2022 judgment from which Ms. Rabius had timely sought an appeal.
Attached to each notice of appeal were separate invoices for estimated appeal costs
in the amount of $6,470.50 for each appeal, which costs were due to be paid by
March 30, 2023.
The estimated appeal costs were not paid by March 30, 2023. Thus, on April
6, 2023, the Clerk of Court for the 29th Judicial District Court filed a Motion for a
Contradictory Hearing Seeking Dismissal of Appeal as Abandoned for the appeal
from the June 30, 2022 judgment and November 18, 2022 denial of the motion for
new trial), and for the appeal from the February 7, 2023 judgment, which included
2
Ms. Rabius then filed a motion to continue the March 3, 2023 support hearing, which the trial
court also denied. But on March 3, 2023, the trial court effectively stayed the support hearing
after determining that it no longer retained jurisdiction, due to Ms. Rabius’s two pending
appeals. Nevertheless, the same day, Mr. Bunch filed a new Motion to Set Child Support, and the
trial court rescheduled the child support hearing for June 21, 2023.
3
The March 7, 2023 Order stated:
In preparing for Plaintiff’s Motion for Child Support and Defendant’s Opposed
Motion to Continue, the Court discovered that the Defendant’s Motion for
Expedited Appeal which was electronically filed on December 16, 2022 was never
printed by the Clerk of Court, nor forwarded to the undersigned’s chambers for
signature. As of March 3, 2023, the original was still not contained in the Clerk’s
physical record. Counsel for both parties were questioned at the March 3, 2023
hearing regarding whether the Motion for Appeal electronically filed on December
16, 2022 had been granted/signed and whether either attorney could provide the
Court/Clerk of Court with a signed copy. Neither counsel has responded to that
request.
IT IS HEREBY ORDERED that the motion is granted and Defendant Cassandra
Rabius is granted an appeal of the Judgment signed June 30, 2022, and the denial
of the November 18, 2022, timely motion for new trial, to the Court of Appeal for
Fifth Circuit, and the Clerk of Court shall, therefore, prepare and lodge the record
in accordance with the Code of Civil Procedure.
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the trial court’s rulings denying Ms. Rabius’s request for a court-appointed
evaluation of the child and for the appointment of counsel for the child.
On April 12, 2023, the trial court signed separate orders setting contradictory
hearings for May 24, 2023, for appellant to show cause why each appeal should
not be dismissed for failure to timely pay the estimated appeal costs.
On May 23, 2023, one day before the scheduled hearing, Ms. Rabius filed an
opposition to the motion to dismiss the appeals, contending that she paid the
estimated costs of the appeal on May 22, 2023, and therefore the motions to
dismiss the appeals were moot and should be denied.
On May 24, 2023, the trial court proceeded with the contradictory hearing,
but neither Ms. Rabius nor her counsel appeared. The trial court stated for the
record that Ms. Rabius, through her counsel of record, had been notified of the
hearing; that defense counsel’s paralegal had contacted the court to determine if
the hearing was going to move forward, which the court affirmed; and that counsel
did not appear. The trial court further indicated that although appeals generally are
not dismissed when the estimated appeal costs are paid before the contradictory
hearing seeking dismissal of an appeal is held, the court, having received a single
check for $6,470.50, had no way of knowing to which appeal these costs should be
applied. Accordingly, the trial court, ruling from the bench, dismissing both
appeals.
On June 20, 2023, the trial court issued a written judgment dismissing both
the appeal of the June 30, 2022 judgment and the appeal of the February 7, 2023
judgment. Having learned that the trial court had orally dismissed both appeals at
the May 24, 2023 contradictory hearing, on May 26, 2023, Ms. Rabius filed a
“Notice of Intent to File Writ Application to Contest the Order of Dismissal by the
Court of Defendant’s February 28, 2023 [sic] and March 7, 2023 Appeals.” The
trial court set the return date for “no later than June 24, 2023.”
23-CA-453 5
On June 21, 2023, exercising its supervisory review on Ms. Rabius’s
pending writ application from March, this Court annulled the November 22, 2022
judgment that had amended the June 30, 2022, judgment, and reinstated the June
30, 2022 judgment, finding that the amendment of that judgment constituted a
substantive change not permitted “without a successfully litigated application for
new trial, action for nullity, or appeal” pursuant to La. C.C.P. art. 1951. See Bunch
v. Rabius, 23-C-142 (La. App. 5 Cir. 6/21/23) (unpublished writ disposition).
However, given the unique circumstances of the case, and considering the best
interest of the child, in that disposition this Court determined that an amendment to
the June 30, 2022 judgment would comply with the trial court’s original intent to
defer the award of child support until a properly supported motion was filed, as
stated in its June 30, 2022 reasons for judgment. To that end, this Court amended
the June 30, 2022 judgment to include: “IT IS FURTHER ORDERED,
ADJUDGED AND DECREED that the Court will defer ruling on child support
until a Motion is filed in this Court with adequate evidence (worksheets) presented
to make such a determination.”
On June 26, 2023, Ms. Rabius filed a Motion for Expedited Appeal of the
“Reinstated and Amended June 30, 2022 Judgment, and the Court’s November 18,
2022 Denial of Motion for New Trial.” On July 5, 2023, the trial court granted the
motion for appeal, and Ms. Rabius timely paid estimated appeal costs. That appeal
is now before this Court.
Jurisdiction
In his brief as appellee, Mr. Bunch argues that the present appeal should be
dismissed due to the trial court’s earlier dismissal of Ms. Rabius’s appeal from the
June 30, 2022 judgment and the November 18, 2022 ruling denying the motion for
new trial. We find merit in Mr. Bunch’s argument.
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Louisiana C.C.P. art. 3943 states: “An appeal from a judgment awarding
custody, visitation, or support of a person can be taken only within the delay
provided in Article 3942. Such an appeal shall not suspend the execution of the
judgment insofar as the judgment relates to custody, visitation, or support.” La.
C.C.P. art. 3942 sets a 30-day period within which such an appeal must be filed.
Louisiana jurisprudence is clear that the 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. 9/30/14), 150 So.3d 934, 935.
There is no question that in filing her first Motion for Expedited Appeal on
December 16, 2022, Ms. Rabius timely moved for an appeal of the June 30, 2022
judgment regarding the custody issue and the November 18, 2022 denial of her
motion for new trial and related motions. But Ms. Rabius failed to timely pay the
estimated appeal costs; her counsel failed to appear at the May 24, 2023
contradictory hearing to address dismissal for failure to pay costs; the trial court
ordered the appeals dismissed; and, notwithstanding her timely filed notice of
intent, Ms. Rabius did not file a supervisory writ application in this Court to
address the trial court’s orders dismissing those two appeals.
Moreover, this Court’s June 21, 2023 disposition in 23-C-142, which
amended the June 30, 2022 judgment as to the deferral of an award of child
support, was unrelated to and had no bearing on the custody rulings at issue in the
dismissed appeal, and as such cannot revive her right to appeal the custody matter.
See Seaman v. Seaman, 10-1295 (La. App. 3 Cir. 12/15/10), 54 So.3d 756, 760
(“[W]e find no logical reason for postponing an immediate appeal of a judgment of
custody simply because the parties may have outstanding issues pertaining to
support or visitation matters.”).
Because Ms. Rabius failed to file a writ application seeking review of the
trial court’s May 24, 2023 dismissal of her appeal regarding custody, and her
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appeal of the motion for new trial that flowed from that judgment, the dismissal of
those appeals is final. This Court’s June 21, 2023 ruling in 23-C-142 does not give
Ms. Rabius a second bite at the apple, as that disposition merely added language to
the original judgment from the trial court’s written reasons for judgment that was
unrelated to the custody matter. The June 26, 2023 motion for expedited appeal,
Ms. Rabius’s second attempt to appeal the same rulings that were the subject of her
now-dismissed appeals, is filed too late because it was sought more than 30 days
after the trial court’s custody rulings rendered on June 30, 2022 and November 18,
2022. La. C.C.P. arts. 3942, 3943. Absent a timely motion for appeal, the appellate
court lacks jurisdiction. Dew, 150 So.3d at 935 (citing Davis v. Caraway, 13-619
(La. App. 5 Cir. 2/12/14), 136 So.3d 81, 82).
DECREE
For the foregoing reasons, we dismiss this appeal for lack of jurisdiction.
APPEAL DISMISSED
23-CA-453 8
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
ROBERT A. CHAISSON LINDA M. WISEMAN
STEPHEN J. WINDHORST
FIRST DEPUTY CLERK
JOHN J. MOLAISON, JR.
SCOTT U. SCHLEGEL 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 20, 2023 TO THE TRIAL JUDGE, CLERK OF COURT, COUNSEL OF RECORD AND ALL PARTIES
NOT REPRESENTED BY COUNSEL, AS LISTED BELOW:
23-CA-453
E-NOTIFIED
29TH JUDICIAL DISTRICT COURT (CLERK)
HONORABLE CONNIE M. AUCOIN (DISTRICT JUDGE)
COREY M. OUBRE (APPELLEE) RICHARD L. DUCOTE (APPELLANT)
MAILED
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