O'Bryan v. O'Bryan

• Citation: 391 So.2d 1206
• Decision Date: 06 October 1980
• Docket Number: No. 13583,13583
• Parties: Paul A. O'BRYAN, Jr. v. Iris Alvarez De O'BRYAN.
• Court: Court of Appeal of Louisiana (US)

Page 1206

391 So.2d 1206

Paul A. O'BRYAN, Jr. v. Iris Alvarez De O'BRYAN.

No. 13583.

Court of Appeal of Louisiana, First Circuit.

Oct. 6, 1980.

Paul A. O'Bryan, Jr., in pro. per.

Alan S. Fishbein, Baton Rouge, for plaintiff-appellee Paul A. O'Bryan, Jr.

John L. Glover, Baton Rouge, for defendant-appellant Iris Alvarez De O'Bryan.

Before COVINGTON, CHIASSON and LEAR, JJ.

CHIASSON, Judge.

Plaintiff, Paul A. O'Bryan, Jr., filed a petition for divorce on January 18, 1977, against his wife, Iris Alvarez de O'Bryan, on the ground of living separate and apart for two years. Mentioned in the petition was the existence of two minor children born of the marriage, but no prayer for custody was contained therein. The trial judge appointed John L. Glover, an attorney, to represent the defendant, Mrs. O'Bryan, a nonresident domiciled in Guatemala.

Mr. Glover contacted Mrs. O'Bryan concerning the suit and filed an answer and a reconventional demand seeking custody of the couple's two minor children and child support. After negotiations among the attorneys representing both sides, an agreement was reached concerning the custody of the children and the amount of support payments.

On October 12, 1977, the trial judge rendered judgment granting an absolute divorce to the plaintiff-appellee. In addition to the divorce decree, the court granted custody of the couple's two minor children in accordance with a stipulation entered in the record. The plaintiff was awarded custody of the minor son, while the defendant was awarded custody of the minor daughter. The plaintiff was ordered to pay $200 a month in child support for the minor daughter and to keep her name on the insurance policy he had with his employer.

The defendant was advised of the judgment by her counsel and she objected to the custody order. Mr. Glover then filed for a devolutive appeal to this court seeking to overturn the judgment of the trial court as it related to custody and child support. In an unreported decision, # 11,980, this court remanded the case to determine the matters relating to custody and child support but affirmed the finality of the divorce. Therein this court stated:

"Considering that plaintiff and defendant live in different countries, and that it is apparent that the issue of custody and child support was decided based upon the erroneous agreement entered into, we are of the opinion that the interest of justice demands that the judgment as it relates to custody of both minor children as well as the issue of child support be reversed and remanded to the trial court for a new trial on those issues alone." O'Bryan v. O'Bryan, # 11,980 1st Cir. May 1, 1978 unreported.

Mr. Glover then filed a rule to show cause in the trial court seeking compensation for his services as attorney ad hoc and for anticipated expenses of conducting discovery in preparation of trial to determine custody of the children and child support. Plaintiff-appellee filed exceptions of lack of procedural capacity, vagueness, and failure to show a right and/or cause of action.

The trial judge sustained the exception of no right of action based on the comments under Code of Civil Procedure, Articles 5094 and 5095. After his motion for a new trial was denied, defendant-appellant appealed to this court for a second time.

The issues presented on appeal concern the duties of a court appointed attorney in a divorce suit coupled with incidental matters of custody and child support. We will discuss these duties as they relate to each matter.

The duties and responsibilities of a court appointed attorney are set forth in the Code of Civil Procedure. Articles 5094 and 5095 and the comments under them read as follows:

Article 5094:

"When an attorney at law is appointed by the court to represent a defendant who is a nonresident or an absentee, the attorney shall use reasonable diligence to communicate with the defendant and inform him of the pendency and nature of the action or proceeding, and of the time available for the filing of an answer or the assertion of a defense otherwise.

Comments

(a) Notice of the pendency of the suit, and of the time available to the defendant for asserting his defense, are two of the most important duties of the appointed attorney in such cases.

(b) The phrase 'the assertion of a defense otherwise' applies to executory proceedings, where no exceptions or answer may be filed, and all defenses must be asserted either in a suit for an injunction to arrest the seizure and sale, or through a suspensive appeal."

Article 5095:

"The attorney at law appointed by the court to represent a defendant shall use reasonable diligence to inquire of the defendant, and to determine from other available sources, what defense, if any, the defendant may have, and what evidence is available in support thereof.

"Except in an executory proceeding, the attorney may except to the petition, shall file an answer in time to prevent a default judgment from being rendered, may plead therein any affirmative defense available, may prosecute an appeal from an adverse judgment, and generally has the same duty, responsibility, and authority in defending the action or proceeding as if he had been retained as counsel for the defendant.

Comments

(a) This article is based upon customary practices which are regarded as proper. The appointed attorney has no authority to force the defendant to become the actor by filing a separate suit in his name, or by calling in a third party defendant, or by reconvening. His function, and his sole authority under the law, is to defend the pending action or proceeding, and he may not commit the person he is appointed to represent in any other manner."

The general rule established in the jurisprudence is summarized in Johnson v. Jones, ...