Wiles v. Wiles

• Court: Court of Appeal of Louisiana (US)
• Citation: 193 So.3d 397
• Docket Number: No. 2015–CA–1302.,2015–CA–1302.
• Parties: Regina E. WILES v. Stephen W. WILES.
• Decision Date: 18 May 2016

193 So.3d 397

Regina E. WILES
v.
Stephen W. WILES.

No. 2015–CA–1302.

Court of Appeal of Louisiana, Fourth Circuit.

May 18, 2016.
Rehearing Denied June 13, 2016.

193 So.3d 397

Gordon S. Patton, New Orleans, LA, for Plaintiff/Appellant.

Jane Ettinger Booth, Booth & Booth, APLC, New Orleans, LA, for Defendant/Appellee.

(Court composed of Chief Judge JAMES F. McKAY, III, Judge EDWIN A. LOMBARD, Judge PAUL A. BONIN ).

JAMES F. McKAY III, Chief Judge.

Regina E. Wiles (“Mrs. Wiles”) appeals the August 17, 2015 judgment wherein the trial court denied her motion for new trial and upheld the April 8, 2015 judgment, which granted an exception of no cause of action in favor of Stephen W. Wiles (“Mr. Wiles”). For the reasons set forth below,

193 So.3d 398

we reverse the judgment of the trial court and remand.

STATEMENT OF FACTS AND PROCEDURAL HISTORY

In June 2010, Mrs. Wiles filed a petition for divorce pursuant to La. C.C. art. 102. Mr. Wiles was served with the petition on September 15, 2010. A consent judgment, wherein Mr. Wiles agreed to pay child support for the parties' minor child, was executed and signed by the court in October 2010. A motion and rule for divorce was never filed. Therefore, pursuant to La. C.C.P. art. 3954, the divorce proceedings were abandoned by operation of law on September 16, 2012, two years after service of the petition.

In February 2015, Mrs. Wiles filed a rule for past-due child support and contempt, asserting that Mr. Wiles stopped making his child support payments in November 2012.¹ In response, Mr. Wiles filed an exception of no cause of action, arguing that the consent judgment relied upon by Mrs. Wiles was abandoned when the divorce action became abandoned in September 2012, and/or when the parties temporarily reconciled sometime after the abandonment of the divorce action.²

The matter was brought before the trial court on April 1, 2015. Judgment was rendered on April 8, 2015, granting Mr. Wiles' exception of no cause of action. The trial court dismissed Mrs. Wiles' action stating that “the petition for divorce was abandoned, and as a result of the petition being abandoned, that all ancillary maters were also abandoned.” Mrs. Wiles' motion for new trial was thereafter denied on August 17, 2015. This timely appeal followed.

LAW AND ANALYSIS

Procedural Issue:

At the outset, we note that Mr. Wiles asserts that the issues for consideration in this appeal should be limited. Specifically, Mr. Wiles argues that Mrs. Wiles' order for appeal only specifies the August 17, 2015 judgment denying her motion for new trial, and thus, this Court's review should be limited to that single issue. We disagree.

It is well established that the denial of a motion for new trial is an interlocutory and non-appealable judgment. Habitat, Inc. v. Commons Condominiums, L.L.C., 11–1384, p. 6 (La.App. 4 Cir. 7/11/12), 97 So.3d 1126, 1131. However, our courts have consistently considered an appeal of the denial of a motion for new trial as an appeal of the judgment on the merits, when, as here, it is clear from the appellant's brief that the intent is to appeal the merits of the case. See, Clotworthy v. Scaglione, 11–1733, p. 3 (La.App. 4 Cir. 5/23/12), 95 So.3d 518, 520 ; Lozier v. Estate of Elmer, 10–0754, p. 4 (La.App. 5 Cir. 2/15/11), 64 So.3d 237, 239 ; McKee v. Wal–Mart, Stores, Inc., 06–1672, p. 8 (La.App. 1 Cir. 6/8/07), 964 So.2d 1008, 1013.

In this case, it is obvious from Mrs. Wiles' motion for appeal and from her appellate brief that she intended to appeal the April 8, 2015 judgment on the merits, which granted Mr. Wiles' exception of no cause of action. Accordingly, we will consider the appeal from the judgment on the merits.

Exception of No Cause of Action

“Exceptions of no cause of action present legal questions, and are reviewed

193 So.3d 399

under the de novo standard of review.” Phillips v. Gibbs, 10–0175, p. 3 (La.App. 4 Cir. 5/21/10), 39 So.3d 795, 797 (citing Tuban Petroleum, L.L.C. v. SIARC, Inc., 09–0302, p. 3 (La.App. 4 Cir. 4/15/09), 11 So.3d 519, 522 ). As the Supreme Court explained in Foti v. Holliday, 09–0093, pp. 5–6 (La.10/30/09), 27 So.3d 813, 817,

The peremptory exception of no cause of action is designed to test the legal sufficiency of a petition by determining whether a party is afforded a remedy in law based on the facts alleged in the pleading. La. C.C.P. arts. 681 and 927 ; Everything on Wheels Subaru, Inc. v. Subaru South, Inc., et al., 616 So.2d 1234, 1235 (La.1993). All well-pleaded allegations of fact are accepted as true and correct, and all doubts are resolved in favor of sufficiency of the petition so as to afford litigants their day in court. La. C.C.P. art. 865 ; Kuebler v. Martin, 578 So.2d 113, 114 (La.1991). The burden of demonstrating that a petition fails to state a cause of action is upon the mover. Ramey v. DeCaire, 09–1299, p. 7 (La.3/19/04), 869 So.2d 114, 119.

Mr. Wiles filed the exception of no cause of action asserting that the consent judgment, which...