Joseph Trey Niquiporo v. Kristin E. Hill

NOT DESIGNATED FOR PUBLICATION

STATE OF LOUISIANA

COURT OF APPEAL

FIRST CIRCUIT

2020 CU 0848

JOSEPH TREY NIQUIPORO

VERSUS

KRISTIN E. HILL

Judgment Rendered: MAY 2 7 2021

APPEALED FROM THE TWENTY-FIRST JUDICIAL DISTRICT COURT,
IN AND FOR THE PARISH OF TANGIPAHOA
STATE OF LOUISIANA
DOCKET NUMBER 2011- 0000902

HONORABLE JEFFREY C. CASHE, JUDGE

Sonja C. Bradley Attorney for Plaintiff/Appellee
Livingston, Louisiana Joseph Niquiporo

Sherman Q. Mack Attorneys for Defendant/Appellant
C. Glenn Westmoreland Kristin E. Hill
Emily Guidry Jones
Albany, Louisiana

BEFORE: McDONALD, HOLDRIDGE, and PENZATO, JJ.

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McDONALD, J.

This is an appeal from a child custody judgment. After a hearing on January

249 2020, sole custody was awarded to the child' s father, Joseph Niquiporo, and

the mother, Kristin Hill, was awarded supervised visitation. The judgment was

signed on March 9, 2020. Ms. Hill appeals that judgment.

The judgment signed on March 9, 2020, states:

IT IS HEREBY ORDERED, ADJUDGED AND DECREED
that Joseph Niquiporo is awarded the sole legal custody of Joseph
Anthony Niquiporo. Kristin Hill shall have supervised visitation with
the minor child from 12: 00- 4: 00 every other Saturday with Betsy
Pease responsible for pick up and drop off.

IT IS FURTHER ORDERED, ADJUDGED AND
DECREED that the supervisors shall be designated as the PACT
Center in Lafourche Parish, Billy [Niquiporo] or Betsy Pease.

IT IS FURTHER ORDERED, ADJUDGED AND
DECREED that Kristin Hill' s visitation will remain supervised until
such time as she can provide something to the Court from a counselor
that states in their professional opinion that Kristin Hill is safe to be
around Anthony Niquiporo and that Kristin Hill is not going to have
conversations that are going to have some psychological damage to
Joseph Anthony Niquiporo. Once the Court has received the
statement from the counselor, Kristin Hill' s visitation of the
December 2018 Judgment will be reinstated.

A final judgment shall be identified as such by appropriate language. La.

C. C. P. art. 1918. Although the form and wording of judgments are not

sacramental, Louisiana courts require that a judgment be " precise, definite and

certain." Laird v. St. Tammany Parish Safe Harbor, 2002- 0045 ( La. App. 1

Cir. 12/ 20/ 02), 836 So. 2d 364, 365.

Moreover, a final appealable judgment must contain decretal language, and

it must name the party in favor of whom the ruling is ordered, the party against

whom the ruling is ordered, and the relief that is granted or denied. These

determinations should be evident from the language of the judgment without

reference to other documents in the record. Advanced Leveling & Concrete

2

Solutions v. Lathan Company, Inc., 2017- 1250 ( La. App. 1 Cir. 12/ 20/ 18), 268

So. 3d 1044, 1046.

The March 9, 2020 judgment is not precise, definite and certain. The

judgment requires a statement from a counselor before reinstating Kristin Hill' s

visitation back to that given in a December 2018 judgment. Thus, it is unclear

when the visitation would be reinstated. In the absence of a valid final judgment,

this court lacks subject matter jurisdiction to review this matter and the appeal

should be dismissed. Advanced Leveling & Concrete Solutions, 268 So. 3d at

1046- 1047.

For the foregoing reasons, we dismiss the appeal of the March 9, 2020

judgment. Costs of this appeal are assessed against the appellant, Kristin Hill.

APPEAL DISMISSED.

3

JOSEPH TREY NIQUIPORO STATE OF LOUISIANA

COURT OF APPEAL
VERSUS
FIRST CIRCUIT

KRISTIN E. HILL 2020 CU 0848

HOLDRIDGE, J., concurs.

I respectfully concur with the opinion. In several cases with similar visitation

provisions, this court has reviewed the matter instead of dismissing the appeal. It

would appear that we would be constrained to follow those cases. In Poillion v.

Thomas, 2015- 1564 ( La. App. 1 Cir. 9/ 21/ 17), 2017 WL 4216546 at * 1

unpublished opinion), this court considered a similar appeal on the merits. In

Poillion, the mother appealed the trial court judgment awarding the father sole

custody of the child and granting her supervised visitation pending a complete

evaluation clearing her for unsupervised visitation. Id. at * 5. Similarly, in Lowe v.

Bacon, 2018- 0766 ( La. App. 1 Cir. 11/ 6/ 18), 2018 WL 5817280 at * 1, 9- 10

unpublished opinion), where the father appealed from the trial court judgment

granting the mother sole custody, awarding him supervised visitation, and denying

his rule for contempt, this court did not dismiss the appeal even where the visitation

provisions in the judgment were unclear, and on appeal, the father challenged the

visitation award along with the other rulings.' This court found that the father' s

I
According to the judgment in Lowe, for the time period from the date of the hearing, January 8,
2018, until February 26, 2018, the date of the hearing officer conference, the parties were to meet
with the court' s social worker to try to work out the supervised visitation, and, if they could not
agree, then the visitation would be up to eight hours per week at the Sheriff' s Office to be worked
out " around the mother' s schedule, the children' s schedules, and the father' s schedule, thirdly."
Lowe v. Bacon, 2018- 0766 ( La. App. 1 Cir. 11/ 6/ 18), 2018 WL 5817280 at * 9- 10 ( unpublished
opinion). The parties were also to meet with the court' s social worker to determine if they could

mutually agree as to who would supervise the visitation and on dates and times. Id.

contentions on appeal as to visitation had merit because the visitation provisions in

the judgment were so unclear and remanded the matter in order for the court to

establish a valid visitation order. Id. at * 10. In Streetman v. Streetman, 2018-

1603 ( La. App. 1 Cir. 3/ 20/ 19), 2019 WL 1292362 at * 2 ( unpublished opinion), this

court handled the father' s appeal from the trial court judgment retaining sole custody

with the mother and awarding the father supervised visitation to be set up at a

specific center and as agreed upon by the parties.

This court has also handled a similar case under its supervisory jurisdiction as

opposed to dismissing the appeal. See Wolfe v. Breaud, 2019- 0454 ( La. App. 1

Cir. 3/ 2/ 20), 2020 WL 998759 at * 4 ( unpublished opinion) ( This court could not

determine whether the judgment appealed from was valid because more than one

judgment was signed, but in the interests of justice converted the appeal to an

application for supervisory writs.). This court noted that:

the procedural quagmire before us was created through no fault of the
parties, this matter involves child custody and further delay in ruling
could negatively affect the best interests of the child, Ms. Breaud has
already been forced to pay for two appellate records in an attempt to
seek review of the trial court' s substantive ruling on custody, and the
trial court' s ruling on Mr. Wolfe' s requested custody change is arguably
incorrect.
Id.

I do note that Ms. Hill filed a motion to modify custody and a rule for contempt

for Mr. Niquiporo' s alleged failure to inform her of the child' s school behaviors and

discipline information, to continue behavior modification counseling, and to confer

with her before making medical and educational decisions as to the child. Mr.

Niquiporo filed a rule to be awarded sole custody. The trial court set the motions

for hearing, but it never specifically ruled on the contempt issue. Arguably, the

judgment is a partial final judgment without a designation under La. C. C. P. art. 1915.

See Fowlkes v. Fowlkes, 2018- 1563 ( La. App. 1 Cir. 3/ 12/ 19), 2019 WL 1147216

at * 3 ( unpublished opinion), writ denied, 201.9- 0556 ( La. 5/ 28/ 19), 273 So. 3d 310.

N

In Fowlkes, this court discussed exercising its power of supervisory jurisdiction to

convert the appeal from a non -appealable judgment into an application for a

supervisory writ under Stelluto v. Stelluto, 2005- 0074 ( La. 6/ 29/ 05), 914 So. 2d 34,

39, but declined to do so in that case because the matter had previously been

reviewed on writs. Fowlkes, 2019 WL 1147216 at * 3.

Thus, in this case, even if the visitation provision is considered as lacking

decretal language in contrast to the Poillion case, such that the judgment is not a

final judgment" that invokes our appellate jurisdiction, the arguable lack of decretal

language does not impact the critical issue on review on appeal. Additionally, if the

judgment is considered a partial final judgment, we could go to the merits under this

court' s supervisory jurisdiction in the interests of justice because with a custody

ruling, time is critical and unnecessary delay should be avoided.

However, the judgment in this case was rendered on March 9, 2020, over one

year ago. Since the majority opinion has found that the judgment was not a final,

appealable judgment, the judgment " may be revised at any time prior to rendition of

the judgment adjudicating all the claims and the rights and liabilities of all the

parties." See La. C. C. P. art 1915( B)( 2). The trial court is in a position to determine

if the terms and conditions of the March 9" judgment have been met by Ms. Hill, the

status and condition of the minor child, and any additional factors which may

currently be present in the lives of all of the parties. Since this appeal is being

dismissed, the trial court can revisit all of the issues presented on appeal and make

any changes or additions which would be in the best interest of the minor child and

which would do justice to both of the parties in accordance with La. C. C. P. art

1915( B)( 2). For these reasons, I concur in the result reached in this case.

3

STATE OF LOUISIANA
COURT OF APPEAL
FIRST CIRCUIT
2020 CU 0848

JOSEPH TREY NIQUIPORO

VERSUS

KRISTIN E. HILL

PENZATO, J., dissents.

I respectfully disagree with the majority' s decision to dismiss this appeal

based on the lack of a valid final judgment. I do not agree that " it is unclear when

the visitation would be reinstated." The visitation provision of the March 9, 2020

judgment provides that Ms. Hill' s visitation remains supervised until she presents

to the trial court a statement from her counselor that it is safe for her to be around

her son. In that event, I find that the March 9, 2020 judgment necessarily

contemplates a subsequent judgment reinstating Ms. Hill' s visitation to that of a

previous December 2018 judgment. Thus, the provision requiring supervised

visitation remains in effect until a subsequent judgment is rendered by the trial

court.

In contrast, in Laird v. St. Tammany Parish Safe Harbor, 2002- 0045 ( La.

App. 1 Cir. 12/ 20/ 02), 836 So. 2d 364, 366, the ruling was not " precise, definite

and certain" because the parties' names did not appear anywhere in the ruling.

And in Advanced Leveling & Concrete Solutions v. Lathan Co., Inc., 2017- 1250

La. App. 1 Cir. 12/ 20/ 18), 268 So. 3d 1044, 1046, the ruling was not " precise,

definite and certain" because the exact amount of attorney' s fees could not be

determined from the judgment.

Moreover, in cases involving similarly worded judgments, this court has

reviewed the matter instead of dismissing the appeal. See, e.g., Poillion v. Thomas,

2015- 1564 ( La. App. 1 Cir. 9/ 21/ 17), 2017 WL 4216546.

Thus, I respectfully dissent.