Jennifer Brashier v. Jacob Brashier ( 2020 )

STATE OF LOUISIANA
COURT OF APPEAL
FIRST CIRCUIT
NUMBER 2019 CA 0934
JENNIFER BRASHIER
VERSUS
JACOB BRASHIER
Consolidated with
2019 CA 0935
JACOB BRASHIER
VERSUS
JENNIFER BRASHIER
Judgment Rendered:
FFR 2 1. 7070
Appealed from the
Twenty -First Judicial District Court
In and for the Parish of Livingston
State of Louisiana
Suit Number 143515 c/ w 145362
Honorable Jeffrey T. Oglesbee, Presiding
Jenel Guidry Secrease Counsel for Plaintiff/Appellant
Jay Michael Futrell Jennifer Brashier
Ponchatoula, LA
Sherman Q. Mack Counsel for Defendant/Appellee
C. Glenn Westmoreland Jacob Brashier
Albany, LA
BEFORE: WHIPPLE, C. J., GUIDRY, AND BURRIS, 1 JJ
Judge William J. Burris, retired, serving pro tempore by special appointment of the Louisiana
Supr ours
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GUIDRY, J.
Plaintiff/Appellant, Jennifer Brashier, appeals from a judgment of the trial
court ordering the parties to file amended tax returns for tax years 2014, 2015, and
2016, with defendant/ appellee, Jacob Brashier, claiming all three of the parties'
minor children as dependents. For the reasons that follow, we dismiss the appeal.
FACTS AND PROCEDURAL HISTORY
Jacob and Jennifer Brashier were married on September 24, 2005, and three
children were born of the parties' marriage. Jacob filed a petition for divorce on
June 4, 2014, seeking a divorce pursuant to La. C. C. art. 102, and Jennifer filed an
answer and reconventional demand thereafter seeking a divorce pursuant to La. C. C.
arts. 103 and 103. 1( 1)( b). The parties entered into an Interim Stipulated Judgment,
which was signed by the trial court on August 28, 2014, whereby custody, visitation,
child support, and medical expenses were determined.
Following a trial on November 21, 2014, on Jacob' s petition for divorce and
Jennifer' s reconventional demand, the trial court signed a judgment on December
11, 2014, awarding the parties joint custody of the minor children, with Jennifer
designated as the primary domiciliary parent, and setting forth the custody and
visitation of the parties. The judgment further ordered Jacob to pay child support in
the amount of $ 1, 428. 00 per month, retroactive to December 9, 2013, and also
provided for use of the family home and automobile. A judgment of divorce was
subsequently signed by the trial court on January 28, 2015.
On November 15, 2016, Jacob filed a Rule for Contempt of Court and For
Modification of Custody, wherein he sought to be named as the minor children' s
primary domiciliary parent. Additionally, Jacob asserted that the court had
previously awarded Jacob the right to claim the minor children on his federal and
state income tax returns, but that this language was omitted from the December 11,
2014 judgment. Accordingly, Jacob requested that the trial court amend the
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December 11, 2014 judgment to provide that Jacob is entitled to claim the minor
children on his federal and state income tax returns as dependents and that he be
given a credit for the amount of refund Jennifer received on her 2014 and 2015
income tax returns. Following a hearing on Jacob' s rule for contempt, the trial court
signed a judgment modifying custody on an interim basis, deferring the issue of
modification of child support, and deferring the issue of claiming the children on tax
returns pending receipt of the transcript of the ruling of the court from November
21, 2014.
Thereafter, on February 6, 2018, the trial court signed an amended judgment,
amending the December 11, 2014 judgment to provide that Jacob shall be entitled to
claim all three minor children on his federal and state income tax returns as a tax
dependency exemption and that all other provisions of the judgment shall remain in
full force and effect.
A hearing officer with the Twenty -First Judicial District Court subsequently
issued a recommendation on December 4, 2018, wherein the hearing officer
indicated that a trial on Jacob' s November 15, 2016 pleading requesting that he be
entitled to a credit towards his child support arrearages for his inability to claim the
minor children as dependents as ordered was held on August 23, 2018. 2 The hearing
officer stated that Jacob had submitted to the court for review, without objection, his
actual and proposed tax returns for 2014, 2015, and 2016. After reviewing the record,
particularly the amended judgment signed on February 6, 2018, and the transcript
from the November 21, 2014 hearing, the hearing officer recommended that both
parties be ordered to file amended income tax returns for 2014, 2015, and 2016,
2 The minute entry in the record indicates that the matter was called on the non-support docket
before the hearing officer on August 23, 2018, for the purpose of tax dependency review.
However, according to the minutes, the matter was continued subject to reassignment, and there is
no indication either in the minute entry or elsewhere in the record when this matter was before the
hearing officer for review and consideration.
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wherein Jacob shall claim all of the parties' minor children in accordance with the
November 21, 2014 judgment.
Thereafter, Jennifer filed an exception to the hearing officer' s
recommendation, which was set for hearing on February 6, 2019. On January 23,
2019, Jennifer also filed a motion to vacate and rule to show cause, asserting that the
December 11, 2014 judgment was silent as to which party was entitled to claim the
minor children for tax purposes, that the trial court signed an amended judgment on
February 6, 2018, awarding Jacob the tax exemption for the minor children, and that
the February 6, 2018 judgment is an absolute nullity, being a substantive amendment
of a final judgment in contravention of La. C. C. P. art. 1951. The motion to vacate
was set for hearing on February 20, 2019. The hearing on Jennifer' s exception was
continued from February 6, 2019 to February 20, 2019. On February 20, 2019, the
matter appeared before the civil rules docket for the purposes of the exception
hearing reset from February 6, 2019. After a status conference with the court in
chambers, the matter was reset to April 3, 2019.
On April 3, 2019, the trial court held a hearing on Jennifer' s exception. At
the conclusion of the hearing, the trial court signed a judgment ordering that both
parties shall be ordered to file amended tax returns for tax years 2014, 2015, and
2016 with Jacob claiming all three of the parties' minor children as dependents.
Jennifer filed a motion for suspensive appeal from the trial court' s April 3, 2019
judgment.
APPELLATE JURISDICTION
On August 5, 2019, this court, ex proprio motu, examined the appellate record
and noted that the April 3, 2019 judgment appears not to be a final, appealable
judgment. Specifically, this court noted that it does not appear in the record that the
trial court ruled on Jennifer' s January 23, 2019 motion to vacate and rule to show
cause, which appears to be directly related to the April 3, 2019 judgment at issue
herein. Accordingly, this court issued a rule to show cause order, ordering the parties
to show cause by briefs as to why the appeal should or should not be dismissed.
In response to this court' s show cause order, Jennifer asserts that the April 3,
2019 judgment is a final, appealable judgment because when a judgment is silent
with respect to an issue that is placed before the court, it is presumed that the relief
sought is denied. See Caro v. Caro, 95- 0173, P. 7 ( La. App. 1 st Cir. 10/ 6/ 95), 671
So. 2d 516, 520. However, in the instant case, while Jennifer' s motion to vacate was
set for hearing before the court on February 20, 2019, there is no indication in the
record that the motion was before the court on that date. Rather, the minute entries
reflect that the only matter before the court on February 20, 2019, and on April 3,
2019, when the February 20, 2019 hearing was reset, was Jennifer' s exception to the
hearing officer' s recommendation. As such, absent evidence in the record to indicate
that Jennifer' s motion to vacate was placed before the court for consideration, we
cannot presume that the trial court denied that issue.
Accordingly, because the validity of the February 6, 2018 amended judgment,
upon which the trial court relied in rendering the April 3, 2019 judgment, is still at
issue, we do not find that the April 3, 2019 judgment is a final, appealable judgment.
See La. C. C.P. art. 1841, 1915; see Blake v. Blake, 12- 0655, 12- 0656, pp. 6- 12, ( La.
App. 4th Cir. 10/ 31/ 12), 103 So. 3d 683, 686- 689. Absent a final, appealable
judgment, this court lacks subject matter jurisdiction to consider the appeal. See La.
C. C. P. art 2083. Therefore, we dismiss the appeal. See Tramontin v. Tramontin,
10- 0060, pp. 7- 8 ( La. App. 1st Cir. 12/ 22/ 10), 53 So. 3d 707, 710- 712.
CONCLUSION
For the foregoing reasons, we dismiss the appeal. Jennifer Brashier' s motion
to supplement the record on appeal is denied as moot. All costs of this appeal are
assessed to Jennifer Brashier.
APPEAL DISMISSED. MOTION TO SUPPLEMENT THE
APPELLATE RECORD DENIED AS MOOT.
JENNIFER BRASHIER STATE OF LOUISIANA
COURT OF APPEAL
VERSUS
FIRST CIRCUIT
JACOB BRASHIER NUMBER 2019 CA 0934
CONSOLIDATED WITH
JACOB BRASHIER STATE OF LOUISIANA
COURT OF APPEAL
V RSUS
FIRST CIRCUIT
JENNIFER BRASHIER NUMBER 2019 CA 0935
WHIPPLE, C.J., concurring.
Although the parties apparently believed the motion to vacate was considered
and denied) by the trial court, the record does not clearly establish or reflect that
this occurred. Because the minute entries control, the dismissal of the appeal is
warranted. Thus, I concur in the majority opinion.