Jennifer Ann (Kaminski) Shriver v. Christopher Steven Shriver

NOT DESIGNATED FOR PUBLICATION

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

08-501

JENNIFER ANN (KAMINSKI) SHRIVER
VERSUS
CHRISTOPHER STEVEN SHRIVER

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APPEAL FROM THE
THIRTIETH JUDICIAL DISTRICT COURT
PARISH OF VERNON, NO. 72,894
HONORABLE LESTER P. KEES, DISTRICT JUDGE

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SYLVIA R. COOKS
JUDGE

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Court composed of Sylvia R. Cook, Glenn B. Gremillion, and Elizabeth A. Pickett,
Judges.

APPEAL DISMISSED.

Mitchel Mark Evans, II
Attorney at Law
Post Office Box 28
DeRidder, LA 70634
(337) 462-5225
Counsel for Defendant/Appellant:
Christopher Steven Shriver

Scott Westerchil
Attorney at Law
301 South 3rd Street
Leesville, LA 71446
(337) 238-0019
Counsel for Plaintiff/Appellee:
Jennifer Ann (Kaminski) Shriver

COOKS, Judge.

This court, ex proprio motu, issued a rule for the defendant-appellant,

Christopher Steven Shriver, to show cause, by brief only, why the appeal in

this case should not be dismissed as having been taken from a non-appealable,

interlocutory ruling. For the reasons given below, we dismiss the appeal.

The plaintiff-appellee, Jennifer Ann (Kaminski) Shriver, filed this suit

for divorce on July 16, 2004, and sought a joint custody order regarding the

couple’s minor children. The trial court signed a judgment granting the

divorce and an order implementing the joint custody plan on October 4, 2004.

These were amended to add the name of one of the parties’ children on

February 23, 2005.

On April 13, 2007, the defendant filed a Petition for Modification of

Custody. The plaintiff responded by filing an exception to the jurisdiction of

the court. The plaintiff asserted in this exception that she and the minor

children left the state of Louisiana in August of 2004 and that they have

resided in the state of North Carolina since on or about October 1, 2005.

The trial of the exception was conducted on November 29, 2007. At the

conclusion of the hearing, the trial court stated that it was granting the motion

and ordered these proceedings stayed pending the filing of custody

proceedings in a state that would be a proper forum. Following the

pronouncement of this ruling at the hearing, the defendant’s counsel orally

moved to be given a return date for the filing of an application for supervisory

writs with this court. The trial court set the return date for thirty days from the

date of the hearing.

1

The record reflects that on December 27, 2007, defense counsel filed a

Notice of Intention to Seek Suspensive Appeal. Attached to this notice was an

order that stated, “IT IS ORDERED THAT Defendant be and same is hereby

permitted to apply to the Court of Appeal, Third Circuit, for Suspensive

Appeal, from the Court’s ruling, rendered on the 29th of November, 2007,

which declined to exercise Jurisdiction in connection with that certain Petition

to Modify Custody.” Despite for foregoing, the next paragraph of this order

reads, “IT IS FURTHER ORDERED, that the Defendant’s application for

Supervisory Writs in the above captioned matter be filed in the Court of

Appeal, Third Circuit, on or about March 3, 2008.” This order was signed by

the trial court on January 3, 2008. However, handwritten below the trial

court’s signature on the above quoted order appears the following notation

dated January 9, 2008, and signed by the trial court, “Clerk’s office advised no

judgment filed in the record. Order for supervisory writs is hereby vacated.”

On January 25, 2008, the trial court signed a judgment granting the

exception of lack of jurisdiction. The judgment reads, in pertinent part, “IT IS

FURTHER ORDERED, ADJUDGED AND DECREED that this matter is

stayed pending the outcome of pleadings filed in North Carolina in this

matter.”

Again, defense counsel filed a Notice of Intention to Seek Suspensive

Appeal, dated February 21, 2008. The order granting this appeal was signed

on February 25, 2008. This court lodged the record in this appeal on April 25,

2008, and issued the rule sub judice on April 28, 2008. This court has received

no response to its rule.

2

The trial court, after granting the exception of lack of jurisdiction, chose

to stay the proceedings in this state, rather than ordering the dismissal of the

action. Therefore, we find that the trial court’s ruling is interlocutory, not

final. La.Code Civ.P. art. 1841. Because the instant judgment is an

interlocutory one that no statute expressly provides is appealable, we find that

the instant appeal must be dismissed at defendant’s cost. La.Code Civ.P. art.

2083.

APPEAL DISMISSED.

This opinion is NOT DESIGNATED FOR PUBLICATION.

Rules 2-16.2 and 2-16.3, Uniform Rules, Courts of Appeal.

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