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 0565

C.M.J.

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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. DEVEREAUX, JUDGE!

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

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

BEFORE: McDONALD, LANIER, AND WOLF E, JJ.

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

McDONALD, J.

This appeal 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.
The mother appeals a trial court judgment that, in part, assessed her with costs,
attorney’s fees, and sanctions pursuant to La. C.C.P. art. 863, and pursuant to La.
R.S. 46:2136.1(A). After review, we vacate the judgment and remand the matter to
the district court.

FACTS AND PROCEDURAL HISTORY

The father in this case, C.M.J., filed a motion for sanctions against the mother,
L.M.C., her attorney, Richard Ducote, and her prior attorney, Ellen Badeaux. The
trial court granted the motion for sanctions against L.M.C. and Mr. Ducote, and
denied the motion for sanctions against Ms. Badeaux. That judgment was signed on

January 15,2020. See C.M.J. v. L.M.C., 2021-0431 (La. App. 1 Cir. //), WL

A separate judgment, in part, ordered L.M.C. to pay C.M.J.’s costs, attorney’s
fees, and sanctions pursuant to La. C.C.P. art. 863, and pursuant to La. R.S.
46:2136.1A.2_ That judgment was signed on December 31, 2020. L.M.C. has
appealed that judgment.
ASSIGNMENTS OF ERROR
L.M.C. makes the following assignments of error on appeal.

1. The trial court clearly erred as a matter of law, and manifestly
abused its discretion, in ordering [her] to pay all court costs, fees,
attorney’s fees, costs of appeal, evaluation fees, and expert witness fees
incurred by [C.M.J.] 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
these proceedings because . . .,” because: A) no petition was ever filed
alleging that [L.M.C.] was a perpetrator of domestic abuse or violence;

* The judgment noted that it was “specifically reserving a determination . . . regarding Richard L. Ducote
to occur at a later time.”

2

B) there are no findings that [L.M.C.] was a perpetrator of domestic
abuse or violence; C) the actual findings upon which the judgment was
based are not “domestic abuse” within the definition of [La.] R.S.
46:2132(3); and D) there is no evidence in the record to support a
finding of “domestic abuse” being perpetrated by [L.M.C.]

2. The trial court clearly erred as a matter of law, and manifestly
abused its discretion in ordering [L.M.C.] to pay all of [C.M.J.’s]
attorney’s fees in the amount of $690,498.50, court fees in the amount
of $21,981.71 along with any fees that accrue hereafter, and $27,000
for “overpayments in spousal support,” with interest, all as sanctions
purportedly pursuant to [La.] C.C.P. art. 863, because: A) the trial court
violated [La.] C.C.P. art. 863(E) by refusing, under an erroneous res
judicata analysis, to allow [L.M.C.] to present relevant evidence by
way of her children’s testimony in defense of the sanctions motion; B)
the trial court violated [La.] C.C.P. art 863(E) by failing to conduct the
hearing on the reasonableness of the attorney’s fees and expenses; and
C) the trial court violated [La.] C.C.P. art. 863 by ordering the wholesale
shifting of all of [C.M.J.’s] attorney’s fees, costs, and expenses to
[L.M.C.]

THE JUDGMENT
The trial court judgment provides in part:

IT IS HEREBY ORDERED, ADJUDGED AND DECREED
that hereby [L.M.C.] be and the same is hereby Ordered to pay
[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 in the amount of
$690,498.50, expert fees including the costs of Dr. Alicia Pellegrin
($25,600.00); the deposition of Catherine Austin ($500.00), Louis
Eaton ($250.00), court reporters ($5,301.02); Dr. Thompson ($1,800),
with interest as provided for by law. [L.M.C.] shall be responsible for
and is hereby cast with any and all clerk of court fees incurred by her.

It IS FURTHER ORDERED, ADJUDGED AND
DECREED that pursuant to [C.M.J.’s] Motion for Sanctions pursuant
to La. C.C.P. art. 863, [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 attorney fees in the amount of $690,498.50, 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 overpayments in spousal
support following the July 20, 2012, Judgment of Divorce, in the
amount of $27,000.00 with interest as provided for by law.

If IS FURTHER ORDERED, ADJUDGED AND
DECREED that . . . pursuant to [C.M.J.’s] Motion for Sanctions
against [L.M.C.], pursuant to La. R.S. 46:2136. 1(A), [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 in the amount [of] $690,498.50, costs of
enforcement and modification proceedings, costs of appeal, evaluation

3

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 these proceedings, all with interest as provided for

by law.

IT IS FURTHER ORDERED, ADJUDGED AND
DECREED that any prior Judgments not specifically modified herein
shall remain in full force and effect. [Emphasis added.]
DISCUSSION

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

The judgment assesses L.M.C. with “clerk of court fees in the amount of
$21,981.71, along with any fees that may accrue thereafter[.]” This amount is
imprecise, indefinite, and uncertain.? Pursuant to La. C.C.P. art. 863, the judgment
assesses L.M.C. with “all of the reasonable expenses incurred because of the filing
of the pleadings, including attorney fees in the amount of $690,498.50[.]” This
amount is imprecise, indefinite, and uncertain. See Advanced Leveling &
Concrete Solutions, 268 So.3d at 1046.

Additionally, the judgment assesses L.M.C. with costs “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 these proceedings[.]” The

amount is imprecise, indefinite, and uncertain. See Advanced Leveling &

Concrete Solutions, 268 So.3d at 1046. Further, the judgment, “pursuant to... La.

3 We note that $21,981.71 in court costs is assessed against L.M.C. three times in this judgment and that
$21,981.71 in court costs is also assessed against L.M.C. in the judgment signed on January 15, 2020.

4

R.S. 46:2136.1(A)” assesses L.M.C. with “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 these proceedings[.]”* That amount is imprecise, indefinite, and uncertain.
The specific amount of damages assessed against L.M.C. for medical and
psychological care is not determinable from the judgment so that a third person is
able to determine the amount owed without reference to other documents. See
Advanced Leveling & Concrete Solutions, 268 So.3d at 1046.

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 for 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

4 Louisiana Revised Statutes 46:2136.1 provides that:

A. All court costs, attorney fees, costs of enforcement and modification proceedings, costs
of appeal, evaluation fees, and expert witness fees incurred in maintaining or defending
any proceeding concerning domestic abuse assistance in accordance with the provisions of
this Part shall be paid by the perpetrator of the domestic violence, including all costs of
medical and psychological care for the abused adult, or for any of the children, necessitated
by the domestic violence.

B. However, if the court determines the petition was frivolous, the court may order the
nonprevailing party to pay all court costs and reasonable attorney fees of the other party.

We note that the trial court could not assesses costs and fees against L.M.C. as a perpetrator of domestic
violence pursuant to La. R.S. 46:2136. 1(A) unless a petition alleging that she was the perpetrator of
domestic violence was filed by C.M.J. However, La. R.S. 46:2136.1(B) provides that the court may order
the nonprevailing party to pay all court costs and reasonable attorney fees of the other party. As L.M.C.
filed a petition alleging that C.M.J. was a perpetrator of domestic violence, if the trial court found that the

petition was frivolous, court costs and reasonable attorney fees of C.M.J. could be assessed against L.M.C.
pursuant to La. R.S. 46:2131.1(B).

It appears that there was no hearing conducted to determine the amount of attorney fees attributable to
the petition alleging domestic abuse filed by L.M.C.

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, 2021-0388 (La. App. 1 Cir.
10/4/21), 330 So. 3d 658, 661.

This judgment cannot be fixed simply by changing the decretal language or
correcting errors of calculation. The judgment is duplicative, as it assesses L.M.C.
with the same item multiple times. For example, attorney fees in the amount of
$690,498.50 are assessed against L.M.C. pursuant to both La. C.C.P. art. 863 and
La. R.S. 46:2136.1(A). Further, clerk of court fees of $21,981.71 are assessed
against L.M.C. three times in the judgment, including pursuant to both La. C.C.P.
art. 863 and La. R.S. 46:2136.1(A).

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.

CONCLUSION

For the foregoing reasons, the appeal from the district court judgment dated
December 31, 2020 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.