29,729 La.App. 2 Cir. 8/20/97, Addington v. McGehee

• Decision Date: 20 August 1997
• Parties: 29,729 La.App. 2 Cir
• Court: Court of Appeal of Louisiana — District of US

Page 702

698 So.2d 702

29,729 La.App. 2 Cir. 8/20/97

Susan Willis ADDINGTON, Plaintiff-Appellant, v. Charles G. McGEHEE, III, Defendant-Appellee.

No. 29729-CA.

Court of Appeal of Louisiana Second Circuit.

Aug. 20, 1997.

C. Jerome D'Aquila, New Roads, for Defendant-Appellee.

Ronald J. Miciotto, Shreveport, for Plaintiff-Appellant.

Before NORRIS, WILLIAMS and PEATROSS, JJ.

NORRIS, Judge.

In this domestic case the mother, Mrs. Addington, appeals a judgment sustaining an exception of venue and transferring the case to the domicile of the father, Mr. McGehee. Treating the appeal as a request for supervisory review, we affirm the judgment.

Mrs. Addington obtained a divorce from Mr. McGehee on February 24, 1993 in the 18th Judicial District Court, Pointe Coupee Parish, apparently the couple's former marital domicile. The judgment awarded temporary custody of the couple's two minor children, Charlie and Patsy, to Mrs. Addington. The February 1993 judgment specifically reserved the issue of permanent custody until a hearing could be held.

After the parties physically separated, Mrs. Addington moved to Minden with the two children, took a job as a school teacher, and married her current husband, Mr. Addington. Mr. McGehee then filed a rule in the 18th JDC to be named domiciliary custodian of the older child, Charlie, on grounds of an ongoing conflict between Charlie and Mr. Addington. Mr. McGehee also sought a reduction of child support.

A hearing was held on February 2, 1996; a child psychologist and several witnesses, including the children, testified. The 18th JDC found a change of circumstances; it awarded domiciliary custody of the boy to Mr. McGehee, with a commensurate reduction in his support obligation. These conclusions were reduced to judgment dated June 28, 1996, which has not been appealed.

Mrs. Addington filed the instant petition in her domicile, the 26th JDC, on July 31, 1996. She sought to make both 18th JDC judgments executory in Webster Parish. Alleging that neither of the judgments included a plan of implementation, she attached a plan and prayed for a rule to show cause why it should not be "executed and filed" in the 26th JDC.

Mr. McGehee responded with exceptions of venue and of lis pendens. He argued in essence that proceedings were still in progress in Pointe Coupee Parish, and the case should continue there. Mrs. Addington opposed the lis pendens by arguing that the Pointe Coupee action was no longer pending. She opposed the venue exception by arguing that under La. C.C.P. art. 74.2, venue is proper either in the parish where the person awarded custody is domiciled (Webster) or in the parish where the custody decree was rendered (Pointe Coupee).

After argument of counsel, the 26th JDC ruled from the bench that lis pendens did not apply, but that art. 74.2 gave the court the authority to fix venue in the more convenient parish, Pointe Coupee. The court therefore rendered judgment transferring Mrs. Addington's case to the 18th JDC, Pointe Coupee Parish. Mrs. Addington has appealed suspensively.

At the outset we note that a transfer based on forum non conveniens is normally considered interlocutory. Cashio v. Cashio, 364 So.2d 188 (La.App. 1st Cir.1978); Communication Counselors Network, Inc. v. Burger Chef of La. Inc., 291 So.2d 849 (La.App. 4th Cir.1974). However, an interlocutory ruling may cause irreparable injury, in that there is no practical means of correcting it on appeal. Herlitz Const. Co. v. Hotel Investors of New Iberia Inc., 396 So.2d 878 (La.1981). Because the merits of the exception are squarely before us we will treat this appeal as a writ application and exercise our supervisory authority to review the correctness of the judgment. North Central Util. Inc. v. East Columbia Water Dist., 516 So.2d 1268 (La.App. 2d Cir.1987); Maxwell v. Wampler, 604 So.2d 628 (La.App. 3d Cir.1992).

On the merits, we note and dismiss both parties' arguments in brief that treat the exception of lis pendens as if it has been sustained. The District Court stated that the case was "not necessarily * * * a question of lis pendens," and both the judgment and the court minutes clearly state that the exception of venue was granted. Silence as to this exception constituted a rejection of it. Sun Finance Co. v. Jackson, 525 So.2d 532 (La.1988); Bamberg v. City of Shreveport, 26,278 (La.App.2d Cir. 12/7/94), 647 So.2d 1207, writ denied 95-0414 (La.3/30/95), 615 So.2d 845.

Mrs. Addington's chief contention in brief is that the District Court erred in sustaining Mr. McGehee's exception of venue and in transferring the case to Pointe Coupee Parish. She urges that venue was proper in either Webster or Pointe Coupee Parish under La. C.C.P. art. 74.2, which states in part:

A. A proceeding to obtain the legal custody of a minor or to establish an obligation of support may be brought in the parish where a party is domiciled or in the parish of the last matrimonial domicile.

B. A proceeding for change of custody may be brought in the parish where the person...