Ordoyne v. Ordoyne
| Decision Date | 02 April 2008 |
| Docket Number | No. 2007-CA-0235.,2007-CA-0235. |
| Parties | Misty Marie Ruschel ORDOYNE v. Bill Joseph ORDOYNE, Jr. |
| Court | Court of Appeal of Louisiana — District of US |
Rita K. Akehurst, II, Rita Akehurst & Associates, Houston, TX, for Defendant/Appellant, Bill Joseph Ordoyne, Jr.
(Court composed of Judge CHARLES R. JONES, Judge EDWIN A. LOMBARD, Judge LEON A. CANNIZZARO, JR.).
In this child custody matter, the defendant, Bill Joseph Ordoyne, Jr. ("Mr. Ordoyne"), appeals from a trial court judgment denying his peremptory exception of no cause of action. He also appeals an oral ruling of the trial court finding him in contempt of court.
Mr. Ordoyne and the plaintiff, Misty Marie Ruschel Ordoyne ("Ms. Ordoyne")1 were married in 1995 and divorced in 1998. The couple has three minor children. Pursuant to a consent judgment entered into by the parties and signed by the trial court on March 17, 2005, Mr. Ordoyne and Ms. Ordoyne shared joint custody of the children, with Mr. Ordoyne named as the domiciliary parent. The consent judgment provided that Ms. Ordoyne would have supervised visitation with the children every other weekend at the home of her parents, Mr. and Mrs. Leonard Ruschel. It further provided that if Ms. Ordoyne lived in her own home for a period of six months without incident, then the children would be allowed to spend one night at her home (unsupervised) and one night at her parents' home (supervised) during the weekend visitations, and if she lived in her own home for one year without incident Ms. Ordoyne would have unsupervised weekend visitations. Also, pursuant to the consent judgment, Ms. Ordoyne was required to pay for the children's school supplies each year beginning with the 2005-2006 school year.
On June 6, 2006, Ms. Ordoyne filed a "Rule for Custody" seeking a change in custody and domiciliary custody of the children and a request for mediation.2 In response, Mr. Ordoyne filed peremptory exceptions of no cause of action and res judicata, a rule for contempt and a motion for sanctions for filing a frivolous pleading, arguing that the consent judgment of March 17, 2005 was still in effect, that Ms. Ordoyne failed to allege any material change in circumstance since then, and that she had violated several terms of the consent judgment.
Following a hearing held on August 16, 2006, the trial court ordered both parties to undergo a child custody evaluation at Ms. Ordoyne's expense. Mr. Ordoyne objected to the trial court's ordering another custody evaluation3 without first considering his peremptory exceptions and requested the court to stay the order to allow him to apply for an emergency writ to this court. The trial court denied the stay, and Mr. Ordoyne filed an emergency writ application and a request for a stay in this court. This court denied the stay and the writ application.4 Mr. Ordoyne then applied for a writ and a request for a stay to the Louisiana Supreme Court, which were denied.5
A hearing on Mr. Ordoyne's exceptions, rule for contempt and motion for sanctions was held October 30, 2006. The trial judge denied Mr. Ordoyne's exceptions of no cause of action and res judicata and the motion for sanctions, finding that Ms. Ordoyne had alleged a substantial change of circumstances. The trial judge then held Mr. Ordoyne in contempt of court for not undergoing the custody evaluation as ordered.6 Mr. Ordoyne appealed.
Mr. Ordoyne asserts two assignments of error on appeal. First, he contends that the trial court erred in denying his exception of no cause of action where Ms. Ordoyne failed to allege any material change in the circumstances. Second, he argues that the trial court erred in finding him in contempt of court for not undergoing the custody evaluation while his application for supervisory writs and requests for a stay from the August 16, 2006 judgment were pending.
Exception of no cause of action
Generally, the denial of an exception of no cause of action is a nonappealable interlocutory judgment. La. C.C.P. arts. 1841 and 2083(C). In this case, however, the record indicates that Mr. Ordoyne timely filed a "Notice of Intent to File [a] Supervisory Writ and/or an Appeal" and the trial court set the return date in accord with the Louisiana Code of Civil Procedure. Considering that Mr. Ordoyne timely filed his appeal within the delays allowed for applying for supervisory writs7, we will convert the appeal, in part, to a writ and consider the first assignment of error under our supervisory jurisdiction.
Whether a plaintiff has a cause of action is a question of law. Therefore, this Court is required to conduct a de novo review in determining whether the trial court was legally correct in denying the exception of no cause of action. See, e.g., Badeaux v. Southwest Computer Bureau, Inc., 05-0612, 05-719, p. 7 (La.3/17/06), 929 So.2d 1211, 1217.
In the Badeaux case, the Louisiana Supreme Court discussed the function of an exception of no cause of action and stated that an exception of no cause of action "questions whether the law extends a remedy against the defendant to anyone under the factual allegations of the petition." 05-0612, 05-719, p. 7, 929 So.2d at 1217. In considering the merits of an exception of no cause of action, the trial court is required to decide whether to grant or deny the exception on the basis of the face of the petition. Id. To resolve the issues raised by an exception of no cause of action, "each well-pleaded fact in the petition must be accepted as true." Id.
Regarding a change of custody, the Louisiana Supreme Court in Evans v. Lungrin, 97-0541, 97-0577 (La.2/6/98), 708 So.2d 731, stated that when the custody decree sought to be modified is a stipulated judgment8, the party seeking to modify the decree must prove "(1) that there has been a material change of circumstances since the original custody decree was entered, and (2) that the proposed modification is in the best interest of the child." Id., p. 13, 708 So.2d at 738.
In this case, Ms. Ordoyne, completed the pre-printed "Rule for Custody" form requesting the court to set a hearing for custody and gave only the following reasons: "Rule to change custody/ domicilliary (sic) status/ request for mediation." On the face of the pleading, Ms. Ordoyne does not allege any fact of a material change in circumstance. Thus, we find Ms. Ordoyne's rule does not state a cause of action for a change of custody.
Nonetheless, when a petition fails to state a cause of action, but may be amended to cure the defect, the court shall grant the plaintiff leave to amend. La. C.C.P. art. 934; See Badeaux, 2005-0612, 2005-719, p. 10, 929 So.2d at 1219. If the petition's allegations are merely conclusory and fail to specify the acts that establish a cause of action, then the district court should permit the plaintiff the opportunity to amend the petition. 2005-0612, 2005-719, p. 11, 929 So.2d at 1219. Therefore, Ms. Ordoyne should be afforded an opportunity to...
To continue reading
Request your trial
-
Agrifund, LLC v. Radar Ridge Planting Co.
...(La. 10/16/07), 967 So. 2d 1137 ; Hebert v. Shelton , 2008-1275 (La. App. 3 Cir. 6/3/09), 11 So. 3d 1197 ; Ordoyne v. Ordoyne , 2007-0235 (La. App. 4 Cir. 4/2/08), 982 So. 2d 899.We will address each of the four counts in the order alleged by Agrifund. FRAUD AND CONSPIRACY TO COMMIT FRAUDAg......
- Heirs of John Beckwith LLC v. Sims
-
Heirs of John Beckwith LLC v. Sims
...question of whether a petition states a cause of action is a question of law. Ordoyne v. Ordoyne, 07-0235, p. 4 (La. App. 4 Cir. 4/2/08), 982 So.2d 899, 902 Plaintiffs contend, and we agree, that the Petition states a cause of action for a declaratory judgment as to the ownership of the pro......
-
Port City Glass & Paint Inc. v. Simmie Brooks
...(La. 10/16/07), 967 So.2d 1137 ; Hebert v. Shelton , 2008-1275 (La. App. 3 Cir. 6/3/09), 11 So.3d 1197 ; Ordoyne v. Ordoyne , 2007-0235 (La. App. 4 Cir. 4/2/08), 982 So.2d 899. The purpose of the exception of vagueness is to place the defendant on notice of the nature of the facts sought to......