Codey Short Versus Ashley Burquera ( 2024 )

CODEY SHORT NO. 24-CA-407
VERSUS FIFTH CIRCUIT
ASHLEY BURQUERA COURT OF APPEAL
STATE OF LOUISIANA
ON APPEAL FROM THE TWENTY-FOURTH JUDICIAL DISTRICT COURT
PARISH OF JEFFERSON, STATE OF LOUISIANA
NO. 843-612, DIVISION "J"
HONORABLE STEPHEN C. GREFER, JUDGE PRESIDING
October 18, 2024
SCOTT U. SCHLEGEL
JUDGE
Panel composed of Judges Marc E. Johnson,
Scott U. Schlegel, and Timothy S. Marcel
APPEAL DISMISSED
SUS
TSM
JOHNSON, J., CONCURS WITH REASONS
MEJ
COUNSEL FOR PLAINTIFF/APPELLANT,
CODEY SHORT
Jeremy L. Schrady
COUNSEL FOR DEFENDANT/APPELLEE,
ASHLEY BURQUERA
Christen E. DeNicholas
SCHLEGEL, J.
Appellant, Codey Short, appeals the trial court’s judgment of June 25, 2024.
For the following reasons, the appeal is dismissed. The judgment is an
interlocutory judgment and not subject to appellate review.
Procedural History
On April 3, 2024, the domestic commissioner held a hearing pursuant to the
Post-Separation Family Violence Relief Act (“PSFVRA”), La. R.S. §9:361, et seq.,
and found that a “history of family violence,” as defined by La. R.S. § 9:362(4),
had been perpetrated by both Mr. Short and appellee, Ashley Burquera. The
domestic commissioner issued an order in open court granting the parties joint
custody of their two minor children (ages two and four), with no domiciliary parent
designation. The judgment from this hearing was rendered and signed on June 27,
2024.
Mr. Short filed a timely objection to the domestic commissioner’s judgment
on April 10, 2024. The trial court conducted a do novo hearing on Mr. Short’s
objection on May 30, 2024. At the conclusion of the hearing, the trial court issued
a judgment and oral reasons denying Mr. Short’s objection to the domestic
commissioner’s judgment. In its oral reasons, the trial court indicated that there
was not sufficient proof that the actions of the parties triggered the PSFVRA and
ordered that “for the time being, the consent judgment that was in effect will
remain in effect with regard to custody and exchanges.” The trial court did,
however, modify the consent judgment and ordered (1) a change to the drop-off
time; (2) both parties to enroll in and complete a court-monitored domestic abuse
intervention program; and (3) a custody evaluator and/or a substance abuse
psychological evaluator. The judgment from the hearing, signed on June 25, 2024,
includes the following language:
24-CA-407 1
IT IS FURTHER ORDERED, ADJUDGED, AND
DECREED that the parties shall submit to the following evaluations
to be conducted by Dr. Kristen Lusher:
- Defendant shall submit to random drug testing and a
substance abuse evaluation;
- Both parties shall submit to a full custody evaluation; and
- Both parties shall submit to psychological evaluations.
Mr. Short appeals from the judgment of June 25, 2024, asserting that (1) the
trial court erred as a matter of law in disregarding the PSFVRA after finding two
relevant incidents of domestic violence perpetrated by Ms. Burquera against Mr.
Short; (2) any finding that Mr. Short had perpetrated a history of family violence is
unsupported by sufficient evidence as a matter of law; and (3) the trial court erred
as a matter of law in awarding joint custody.
Discussion
As a preliminary matter, we must first determine whether this court has
jurisdiction over Mr. Short’s appeal.
Mr. Short cites La. C.C.P. arts. 3943, 3942(A), and 2087(A), and asserts that
this court has jurisdiction over the appeal because an appeal from a judgment
awarding custody must be taken within 30 days from the expiration of the period
for filing for a new trial. Mr. Short’s statement of jurisdiction also asserts that this
court has supervisory jurisdiction to review the trial court’s order pursuant to La.
Const. art. V, § 10 (1974), La. C.C.P. art. 2201, and Uniform Rules-Courts of
Appeal, Rule 4-1, et seq.
A review of the judgment, however, leads to the conclusion that the trial
court’s judgment, regardless of how it was titled, is an interim judgment and thus,
interlocutory in nature. Further action is anticipated in the case. In addition to
ordering the defendant to undergo a substance abuse evaluation and both parties to
undergo psychological evaluations, the trial court ordered a full custody
evaluation. Thus, we find that the judgment appealed from is not a final judgment
because a final custody determination has not been made.
24-CA-407 2
The proper procedural vehicle to contest an interlocutory judgment is by
application for supervisory writ. See La. C.C.P. art. 2201. It is not this Court’s
policy to convert jurisdictionally defective appeals into supervisory writ
applications. See In re Medical Review Panel Proceedings of Foster, 17-653 (La.
App. 5 Cir. 3/28/18), 243 So.3d 1282, 1285; State v. Toussaint, 14-352 (La. App. 5
Cir. 10/29/14), 164 So.3d 900, 901 n. 3. However, Mr. Short is permitted to file an
application for supervisory writ, should he choose to do so, to review the trial
court’s ruling within 30 days of the date of this decision.
APPEAL DISMISSED
24-CA-407 3
CODEY SHORT NO. 24-CA-407
VERSUS FIFTH CIRCUIT
ASHLEY BURQUERA COURT OF APPEAL
STATE OF LOUISIANA
JOHNSON, J., CONCURS WITH REASONS
I write separately to clarify that Appellant, Cody Short, is allowed to file an
application for supervisory writ to review the trial court’s judgment—particularly
the rulings upholding the domestic commissioner’s finding that both parties have a
history of domestic violence and the PSFVRA has not been triggered—within 30
days of the date of this decision, should he choose to do so.
24-CA-407 1
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
STEPHEN J. WINDHORST LINDA M. WISEMAN
JOHN J. MOLAISON, JR.
FIRST DEPUTY CLERK
SCOTT U. SCHLEGEL
TIMOTHY S. MARCEL 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
OCTOBER 18, 2024 TO THE TRIAL JUDGE, CLERK OF COURT, COUNSEL OF RECORD AND ALL PARTIES
NOT REPRESENTED BY COUNSEL, AS LISTED BELOW:
24-CA-407
E-NOTIFIED
24TH JUDICIAL DISTRICT COURT (CLERK)
HONORABLE STEPHEN C. GREFER (DISTRICT JUDGE)
JEREMY L. SCHRADY (APPELLANT) JARED M. SHEARMAN (APPELLEE)
MAILED
CHRISTEN E. DENICHOLAS (APPELLEE)
ATTORNEY AT LAW
848 SECOND STREET
3RD FLOOR
GRETNA, LA 70053