Sanderford v. Mason

• Decision Date: 01 November 2013
• Docket Number: No. 2012 CA 1881.,2012 CA 1881.
• Citation: 135 So.3d 745
• Parties: Deidre SANDERFORD v. Rodney D. MASON (Neely).
• Court: Court of Appeal of Louisiana — District of US

135 So.3d 745

Deidre SANDERFORD

v.Rodney D. MASON (Neely).

No. 2012 CA 1881.

Court of Appeal of Louisiana, First Circuit.

Nov. 1, 2013.

Jeffery S. Wittenbrink, Baton Rouge, Louisiana, Attorney for Plaintiff/Appellee, Deidre Sanderford.

Jack M. Dampf, Wendy L. Edwards, Baton Rouge, Louisiana, Attorneys for Defendant/Appellant, Rodney D. Mason (Neely).

Before WHIPPLE, C.J., WELCH, and CRAIN, JJ.

CRAIN, J.

The defendant in this paternity and child support suit filed a petition to annul judgments previously rendered in the proceeding. After a trial on the merits, the trial court dismissed the petition. We affirm.

FACTS AND PROCEDURAL HISTORY

Deidra Sanderford filed a petition seeking to establish Rodney D. Mason (Neely) as the father of her son, C.S., and requesting that Neely be ordered to pay child support.¹ According to the service return, Neely was served with the petition by domiciliary service at a residence on Government Street in Baton Rouge. Neely failed to file responsive pleadings, and Sanderford obtained a default judgment on July 6, 1995, that decreed Neely to be the father of C.S., awarded Sanderford permanent custody, and ordered Neely to pay child support in the amount of $150.00 per month. Evidence subsequently established that the residence at the service address belonged to Neely's mother and sister.

On October 20, 1995, Sanderford submitted an “Amended Judgment” that repeated all of the provisions contained in the original judgment but added two new decrees directing that an income assignment order issue upon Neely's employer and casting Neely with all costs of the proceeding. The amended judgment was signed on October 26, 1995, and was personally served on Neely. An income assignment order was issued, and according to evidence presented at the trial of the nullity action, Neely's wages were garnished beginning in December of 1995 through at least September of 1996, stopping only when his employment ended.

Approximately 15 years after the wage garnishment, Neely filed a petition seeking to annul the original judgment, alleging he was never served with the petition because he did not live at his mother's residence when the petition was served there in 1995.² At the conclusion of the trial, the trial court found that Neely did not reside at his mother's residence at the time of the service; however, Sanderford's counsel contended that Neely was barred from pursuing a nullity action by Louisiana Code of Civil Procedure article 2003 because he was present in the parish when the judgment was executed and did not attempt to enjoin its enforcement. After taking that issue under advisement, the trial court found that Article 2003 barred Neely from pursuing the nullity action and rendered judgment accordingly.³

Neely appealed and presents three assignments of errors that focus primarily on the following assertions: (1) the trial court erred in applying Article 2003 to the amended judgment, (2) the trial court erred in finding that the seizure of funds pursuant to an invalid income assignment order could bar his suit for nullity, and (3) the trial court erred in allowing the income assignment order to relate back to the original judgment.

LAW AND ANALYSIS

Before addressing the merits of Neely's claims, we must first determine which judgments are the subject of this nullity action. Neely's petition sought annulment of only the original judgment and made no mention of the amended judgment, however his counsel argued at length at the trial that the amended judgment was also null because it was an improper amendment of a final judgment. Although Sanderford's counsel stated on the record that this was a “new argument,” he did not object to the new claim and only requested that he be allowed to file a post-trial memorandum addressing it. Under these circumstances, we find the pleadings were expanded by consent of the parties to include a claim that the amended judgment was also null. SeeLa.Code of Civ. Pro. art. 1154. Accordingly, we will review the trial court's ruling concerning the nullity of the amended judgment.

In Neely's first assignment of error, he asserts that the trial court erred in applying Article 2003 to the amended judgment because it was deemed null under Article 1951. In reviewing a decision of the trial court on a petition for nullity, the issue for the reviewing court is not whether the trial court was right or wrong but whether the trial court's conclusions were reasonable. Belle Pass Terminal, Inc. v. John, Inc., 01–0149 (La.10/16/01), 800 So.2d 762, 766.

Louisiana Code of Civil Procedure article 2003 provides:

A defendant who voluntarily acquiesced in the judgment, or who was present in the parish at the time of its execution and did not attempt to enjoin its enforcement, may not annul the judgment on any of the grounds enumerated in Article 2002.

The grounds enumerated in Article 2002 include a judgment rendered: (1) against an incompetent person not represented as required by law, (2) against a defendant who has not been served with process as required by law and who has not waived objection to jurisdiction, or against whom a valid judgment by default has not been taken, and (3) by a court which does not have jurisdiction over the subject matter of the suit. La.Code of Civ. Pro. art. 2002A.

In support of his claim challenging the amended judgment, Neely argues that Article 2003 does not bar him from annulling that judgment because the alleged grounds for the nullity—the improper amendment of a final judgment—are not included in the “grounds enumerated in Article 2002,” as required by Article 2003. A review of the law and jurisprudence addressing improper amendments of judgments does not support that position.

The amendment of a judgment is governed by Louisiana Code of Civil Procedure article 1951, which provides that a final judgment may be amended by the trial court at any time, with or without notice, on its own motion or on motion of any party to alter the phraseology of the judgment, but not the substance, or to correct errors of calculation.⁴ A judgment may be amended by the court where the resulting judgment takes nothing from or adds nothing to the original judgment. Villaume v. Villaume, 363 So.2d 448, 450 (La.1978). However, an amendment to a judgment which adds to, subtracts from, or in any way affects the substance of the judgment, is considered a substantive amendment. Suprun v. Louisiana Farm Bureau Mutual Insurance Co., 09–1555 (La.App. 1 Cir. 4/30/10), 40 So.3d 261, 268. Substantive amendments to judgments can be made only by consent of the parties or after a party has successfully litigated a timely application for new trial, an action for nullity, or a timely appeal. Villaume, 363 So.2d at 451;Suprun, 40 So.3d at 268. Otherwise, a trial court lacks authority to make any modifications of substance to a final judgment. Bourgeois v. Kost, 02–2785 (La.5/20/03), 846 So.2d 692, 696. When the substance of a judgment has been improperly amended, the amending judgment is annulled and set aside, and the original judgment is reinstated. See McGee v. Wilkinson, 03–1178 (La.App. 1 Cir. 4/2/04), 878 So.2d 552, 554–55.

This court has previously held that the nullity of a judgment due to an improper amendment is based on jurisdictional grounds and is governed by Articles 2002 and 2003. In Edwards v. Edwards, 282 So.2d 858, 861 (La.App. 1 Cir.1973), writ refused,284 So.2d 777 (La.1973), the plaintiff obtained a judgment ordering the judicial sale of property at a certain location. After the judgment became final, the plaintiff obtained an amended judgment that changed the location of the sale. The defendant attended the sale at the new location and participated in the sale by purchasing some of the property. The defendant then filed a suit seeking, to annul the amended judgment and set aside the sale of the property not purchased by her. arguing in part that the amendment changing the location of the sale was an improper substantive amendment. The trial court dismissed the nullity action, and this court affirmed, holding:

Irrespective of the merits of Appellant's contentions, we find Appellant's actions have estopped her from questioning the validity of either the judgment or Sheriff's Sales involved herein....

Insofar as Appellant's action constitutes an attack on the judgment in question, her action is obviously concerned. with an alleged lack of jurisdiction on the part of the trial court. LSA–C.C.P. art 2002 provides that a judgment may be annulled, inter alia, if rendered by a court lacking jurisdiction. However, LSA–C.C.P. art. 2003 declares that a judgment may not be annulled for any of the grounds recited in Article 2002, above, where the judgment debtor acquiesces therein or is present in the parish at the time of execution and makes no attempt to enjoin its enforcement Under the circumstances, Appellant is barred from asserting the nullity of the judgment in question

Edwards, 282 So.2d at 860–861.See also Magill v. State, Department of Public Safety and Corrections, 27,802 (La.App. 2 Cir. 1/24/96), 666 So.2d 1260, 1263;Percle v. Morrow, 04–1076 (La.App. 5 Cir. 2/15/05), 897 So.2d 760, 762 (recognizing that trial court lacked jurisdiction to make a substantive amendment to a final judgment).

Neely's claim that the amended judgment is null falls within the scope of Article 2002 because it concerns the trial court's jurisdiction, or lack thereof, to substantively amend the. judgment after it became final. Article 2003 is therefore applicable and will bar the claim if Neely was in the parish when the amended judgment was executed and did not attempt, to enjoin the enforcement This assignment of error has no merit.

We next consider Neely's assignment of error wherein he contends that the trial court erred in finding that the seizure of funds pursuant to an invalid income assignment, order barred his suit for nullity. In support of this assignment of error,...