C.M.J. v. L.M.C., wife of C.M.J.

NOT DESIGNATED FOR PUBLICATION
STATE OF LOUISIANA

COURT OF APPEAL

FIRST CIRCUIT

2021 CA 0431

C. M.J.

VERSUS

L.M.C.

MAY -
Judgment Rendered: ; .

APPEALED FROM THE TWENTY-SECOND JUDICIAL DISTRICT COURT
IN AND FOR THE PARISH OF ST. TAMMANY
STATE OF LOUISIANA
DOCKET NUMBER 2011- 13039, DIVISION " K"

HONORABLE MARY C. DEVEREUX, JUDGE'

Robert C. Lowe Attorneys for Plaintiff/Appellant
Suzette Marie Smith C. M.J.
New Orleans, Louisiana

Richard J. Ducote Attorneys for Appellant
In Proper Person Richard J. Ducote
and

Victoria McIntyre
Covington, Louisiana

Richard Ducote
Attorneys for Defendant/Appellee
Victoria McIntyre L.M.C.
Covington, Louisiana

Ellen Cronin Badeaux Attorneys for Appellee
In Proper Person Ellen Cronin Badeaux
and

Richard Badeaux
J. Craig Diamond
Janice K. Dore
Covington, Louisiana

BEFORE:
McDONALD, LANIER, AND WOLFE, JJ.

Judge Mary C. Devereaux presided over the case and signed the judgment. Judge Devereaux has since
retired, and Judge Patrice W. Oppenheim in now the presiding judge in the case.

McDONALD, J.

This matter before us stems from ongoing litigation in a custody dispute over
three minor children. See C.M.J. v. L.M.C., 2014- 1119 ( La. 10/ 15/ 14),
156 So. 3d

16. In this case, the father, C. M.J., filed a motion for sanctions against the mother,

L.M.C., pursuant to La. C. C. P. art. 863 and La. R.S. 46: 2136. 1( A), and against

L.M.C.' s attorney, Richard Ducote, and her former attorney, Ellen Cronin Badeaux
pursuant to La. C. C.P. art. 863. The district court granted the motion for sanctions
against L.M.C. pursuant to La. C. C. P. art. 863 and La. R.S. 46: 2136. 1( A), granted

the motion for sanctions against Mr. Ducote pursuant to La. C. C. P. art. 863, and

denied the motion for sanctions against Ms. Badeaux. That judgment was signed on

January 15, 2020.2

Mr. Ducote appealed the portion of the judgment that granted the motion for
sanctions against him.
C.M.J. appealed the district court' s denial of his motion for
sanctions against Ms. Badeaux.

C.M.J. filed a motion to dismiss Mr. Ducote' s appeal, and answered Mr.

Ducote' s appeal, maintaining that the appeal was frivolous and asking for an award
of damages including attorney fees against Mr. Ducote. Ms. Badeaux filed an

answer to C.M.J.' s appeal of the denial of sanctions against her, asked for sanctions
against C.M.J. pursuant to La. C.C. P. art. 863, and asked that C.M.J. be ordered to
pay her costs in the trial and appellate courts.

After review, we vacate the judgment and remand the matter to the district
court.

THE JUDGMENT

The judgment provides in pertinent part:

2 A separate judgment, signed on December 31, 2020, ordered L.M.C. to pay C.M.J. costs, fees, and
sanctions pursuant to La. R. S. 46: 2136. 1( A) and pursuant to La. C.C.P. art. 863. See C.M.J. v. L.M.C., 2021 CA 0565, ( La. App. 1 Cir. / /_}, _ WL _

2

XIII. IT IS HEREBY ORDERED, ADJUDGED AND
DECREED that [ C. M.J.' s] Motion and Order to Set and Tax Costs and
Expert Fees is hereby granted. [ L.M.C.] ... is hereby Ordered to pay
C.M.J.' s] expert fees and court costs incurred in obtaining the February
8, 2013 Judgment of Child Custody, including the costs of Dr. Alicia
Pellegrin ($ 25, 600. 00), the deposition of Catherine Austin ($ 500. 00),
Louis Eaton ($ 200. 00), court reporters ($ 5, 301. 02), and the fees of the
Clerk of Court from the filing of the Verified Petition for La. Civ. Code
Art. 102 Divorce, and for Incidental Relief, filed May 26, 2011, through
the granting of the February 8, 2013, Judgment of Child Custody, all
with interest as provided for by law.

XVI. IT IS HEREBY ORDERED, ADJUDGED AND DECREED
that [ C. M.J.' s] Motion for Sanctions against [ L.M.C.], pursuant to La.
C. C.P. art 863, is hereby granted. [ L.M.C.] is hereby sanctioned by this
Court pursuant to La. C. C. P. art. 863 for her filing of the two ( 2)
Petitions for Protection from Abuse, the Motion for Emergency Ex
Parte Custody, for her allegations made throughout the proceeding, and
for all other acts she took to maintain these proceedings. [ L.M.C.] is
hereby ordered to pay [ C. M.J.] all of the reasonable expenses incurred
because of the filing of the pleadings, including reasonable attorney
fees, costs, including [ C. M.J.' s] clerk of court fees in the amount of
21, 981. 71 along with any fees that may accrue hereafter, and for any
overpayments in spousal support following the July 20, 2012, Judgment
of Divorce, all with interest as provided for by law.

XVII. IT IS HEREBY FURTHER ORDERED, ADJUDGED AND
DECREED that [ C.M.J.' s] Motionfor Sanctions against [ Mr.] Ducote,
pursuant to La. C. C.P. art. 863,
is hereby granted. [ Mr.] Ducote is
hereby sanctioned by this Court pursuant to La. C. C. P. art. 863, for
continuing to prosecute this case when he knew or should have known
that the allegations of [L.M.C.] were blatantly false and calculated to
deprive [ C. M.J.] of the custody of his children and to gain an advantage
in the issues of support and community property. [ Mr.] Ducote is
hereby ordered to pay [ C. M.J.] all of the reasonable expenses incurred
because of the filing of the pleadings, from the time of his enrollment
in this case through the present date, including reasonable attorney fees,
costs, and for any overpayments in spousal support following the July
20, 2012, Judgment of Divorce, all with interest as provided for by law.
XVIII. IT IS HEREBY FURTHER ORDERED, ADJUDGED AND
DECREED that [ C.M.J.' s] Motion for Sanctions against Ellen C.
Badeaux, pursuant to La. C. C.P. art. 863, is hereby denied.
XIX. IT IS HEREBY ORDERED, ADJUDGED AND DECREED
that [ C. M.J.' s] Motion for Sanctions against [ L.M.C.], pursuant to La.
R. S. 46: 2136. 1( A), is hereby granted. [ L.M.C.]
is hereby sanctioned
by this Court, pursuant to La. R. S. 46: 2136. 1( A), for her filing of the
two (2) Petitions for Protectionfrom Abuse, the Motionfor Emergency
Ex Parte Custody, for her allegations made throughout the proceeding,
3

and for all other acts she took to maintain these proceedings. [ L.M.C.]
is hereby ordered to pay [ C.M.J.] all court costs, including [ C.M.J.' s]
clerk of court fees in the amount of $21, 981. 71 along with any fees that
may accrue hereafter, attorney fees, costs of enforcement and

modification proceedings, costs of appeal, evaluation fees, and expert
witness fees incurred in defending any proceeding concerning domestic
abuse assistance in accordance with La. R.S. 46: 2136. 1( A), including
all costs of medical and psychological care for ... any of the children,
necessitated by [L.M.C.' s] acts and/ or omissions forming the basis for
the proceedings, all with interest as provided for by law.

XX. IT IS HEREBY FURTHER ORDERED, ADJUDGED AND
DECREED that [ L.M.C.], [ Mr.] Ducote, and [ C. M.J.] shall appear on
the 19th day of February, 2020, at 9: 00 o' clock a. m., for a scheduling
conference to select a date for a hearing to determine the total amounts
of court costs, including [ C. M.J.' s] clerk of court fees in the amount of
21, 981. 71 along with any fees that may accrue hereafter; attorney' s
fees, expert fees including the costs of Dr.
Alicia Pellegrin
25, 000. 00); the deposition of Catherine Austin ($ 500. 00), Louis
Eaton ($ 200. 00), court reporters ($ 5, 301. 02);
sanctions, along with any
and all other costs and interest cast against [ L.M.C.] and [ Mr.] Ducote,
as set forth hereinabove.

A valid judgment must be precise, definite, and certain. The specific nature

and amount of damages should be determinable from a judgment so that a third

person is able to determine from a judgment the amount owed without reference to
other documents. Advanced Leveling & Concrete Solutions v. The Lathan

Company, Inc., 2017- 1250 ( La. App. 1 Cir. 12/ 20/ 18), 268 So. 3d 1044, 1046 ( en

banc).

The judgment orders L.M.C. to pay "[ C. M.J.' s] expert fees and court costs

incurred in obtaining the February 8, 2013, Judgment of Child Custody, including
the costs of Dr. Alicia Pellegrin ($ 25, 600. 00), the deposition of Catherine Austin

500. 00), Louis Eaton ($ 200. 00), court reporters ($ 5, 301. 02), and the fees of the

Clerk of Court from the filing of the Verified Petition for La. Civ. Code Art. 102

Divorce, and for Incidental Relief, filed May 26, 2011, through the granting of the
February 8, 2013, Judgment ofChild Custody, all with interest provided for by law."
This amount is imprecise, indefinite, and uncertain.
See Advanced Leveling &
Concrete Solutions, 268 So.3d at 1046.
2!

The judgment orders Mr. Ducote " to pay [ C. M.J.] all attorney' s fees and costs

incurred in connection with the violation of the February 8, 2013, Protective

Order[.]" This amount is imprecise, indefinite, and uncertain. See Advanced

Leveling & Concrete Solutions, 268 So. 3d at 1046.

The judgment orders L.M.C. " to pay [ C.M.J.] all of the reasonable expenses

incurred because of the filing of the pleadings, including reasonable attorney fees,
costs, including [ C.M.J.' s] clerk of court fees in the amount of $21, 981. 71 along

with any fees that may accrue hereafter, and for any overpayments in spousal support
following the July 20, 2012, Judgment of Divorce[.]" This amount is imprecise,

indefinite, and uncertain.
See Advanced Leveling & Concrete Solutions, 268
So. 3d at 1046.

The judgment orders Mr. Ducote " to pay [ C. M.J.] all of the reasonable

expenses incurred because of the filing of the pleadings, from the time of his

enrollment in this case through the present date, including reasonable attorney fees,
costs, and for any overpayments in spousal support following the July 20, 2012,
Judgment of Divorce[.] This amount is imprecise, indefinite, and uncertain. See

Advanced Leveling & Concrete Solutions, 268 So. 3d at 1046.

The judgment orders L.M.C. " to pay [ C. M.J.] all court costs,
including

C.M.J.' s] clerk of court fees in the amount of $21, 981. 71 along with any fees that
may accrue hereafter, attorney fees, costs of enforcement and modification

proceedings, costs of appeal, evaluation fees, and expert witness fees incurred in

defending any proceeding concerning domestic abuse assistance in accordance with
La. R. S. 46: 2136. 1( A), including all costs of medical and psychological care ... for

any of the children, necessitated by [ L.M.C.' s] acts and/ or omissions forming the

basis for the proceedings[.]" This amount is imprecise, indefinite, and uncertain.

See Advanced Leveling & Concrete Solutions, 268 So. 3d at 1046.

k

A final judgment that does not contain appropriate decretal language shall be

remanded to the trial court, which shall amend the judgment in accordance with La.

C. C. P. art 1951 within the time set by the appellate court. La. C. C. P. art. 1918. On

motion of the court or any party, a final judgment may be amended at any time to
alter the phraseology of the judgment or to correct deficiencies in the decretal

language, or errors of calculation. A final judgment may not be amended under this
Article to change its substance. La. C. C. P. art. 1951. An amendment to a judgment

that adds to, subtracts from, or in any way affects the substance of the judgment, is

considered a substantive amendment. Dean v. Dimattia, 2021- 0288 (La. App. 1 Cir.
10/ 4/ 21), 330 So. 3d 658, 661.

This judgment cannot be corrected simply by changing decretal language or
correcting errors of calculation. For example, the judgment orders Mr. Ducote to

pay C.M.J. " all of the reasonable expenses incurred because of the filing of the

pleadings, from the time of his enrollment in this case through the present date,

including reasonable attorney fees, costs, and for any overpayments in spousal

support following the July 20, 2012, Judgment of Divorce[.]" The judgment also

orders L.M.C.,
pursuant to La. C. C.P. art. 863, to pay " all of the reasonable expenses

incurred because of the filing of the pleadings, including reasonable attorney fees,
costs, including [ C. M.J.' s] clerk of court fees in the amount of $21, 981. 71 along

with any fees that may accrue hereafter, and for any overpayments in spousal support
following the July 20, 2012, Judgment of Divorce[.]"

Mr. Ducote would not be responsible for overpayments of spousal support
paid by C. M.J. to L.M.C., and the overpayments of spousal support made by C.M.J.

to L.M.C. should not be repaid twice. However, this amendment of the judgment

would be a substantive change.

Also, the trial court has ordered Mr. Ducote to pay all of the reasonable

expenses incurred " because of the filing of the pleadings, from the time of his

enrollment in this case through the present date" which are the same expenses that

the trial court has ordered L.M.C. to pay (" all of the reasonable expenses incurred

because of the filing of the pleadings"). Thus, the trial court again awarded the same

expenses twice.
The amendment that is necessary to determine which expenses are

assessed against each party would be a substantive change to the judgment. See La.

C. C. P. art. 1951.

Furthermore, the trial court sanctioned L.M.C. pursuant to La. C. C. P. art. 863
for " her filing of the two ( 2) Petitions for Protection from Abuse, the Motion for

Emergency Ex Parte Custody, for her allegations made throughout the proceeding,
and for all other acts she took to maintain these proceedings" and ordered her to pay

C. M.J. "
all of the reasonable expenses incurred because of the filing ofthe pleadings,

including reasonable attorney fees, costs, including [ C.M.J.' s] clerk of court fees in

the amount of $21, 981. 71 along with any fees that may accrue hereafter, and for any
overpayments in spousal support following the July 20, 2012, Judgment of
Divorce[.]"

However, the trial court also sanctioned L.M.C. pursuant to La. R.S.

46: 2136. 1( A), for "her filing of the two (2) Petitions for Protection from Abuse, the

Motion for Emergency Ex Parte Custody, for her allegations made throughout the
proceeding, and for all other acts she took to maintain these proceedings" and

ordered her to pay C.M.J. " all court costs, including [C. M.J.' s] clerk of court fees in

the amount of $
21, 981. 71 along with any fees that may accrue hereafter, attorney
fees, costs of enforcement and modification proceedings, costs of appeal, evaluation
fees,
and expert witness fees incurred in defending any proceeding concerning
domestic abuse assistance in accordance with La. R.S. 46: 2136. 1( A), including all

costs of medical and psychological care for ....
any of the children, necessitated by
7

L.M.C.' s] acts and/ or omissions forming the basis for the proceedings[.]"
With these duplicate awards, the trial court failed to determine which

sanctions were attributable to La. C. C. P. art. 863 and which sanctions were

attributable to La. R.S. 46: 2136. 1( A). That necessary determination would be a

substantive change to the judgment. See La. C. C. P. art. 1951.

Thus, we find that the judgment must be vacated, and the matter remanded to
the district court.
C. M.J.' s motion to dismiss Mr. Ducote' s appeal as well as C. M.J.

and Ms. Badeaux' s answers to the appeals are denied as moot.

CONCLUSION

For the foregoing reasons, the January 15, 2020 judgment is vacated and the
matter is remanded to the district court. Costs of this appeal are assessed against

C. M.J.

JUDGMENT VACATED, MATTER REMANDED. MOTION TO
DISMISS AND ANSWERS TO APPEALS DENIED AS MOOT.