Gigi Pomes Trumps v. Truman John Trumps, Jr.

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

24-383

GIGI POMES TRUMPS

VERSUS

TRUMAN JOHN TRUMPS, JR.

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APPEAL FROM THE
NINTH JUDICIAL DISTRICT COURT
PARISH OF RAPIDES, NO. 247,395
HONORABLE DAVID MICHAEL WILLIAMS, DISTRICT JUDGE

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ELIZABETH A. PICKETT
CHIEF JUDGE

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Court composed of Elizabeth A. Pickett, Ledricka J. Thierry, and Wilbur L. Stiles,
Judges.

REVERSED AND REMANDED.

Charles O. LaCroix
LaCroix, Levy and Barnett, LLC
1101 Bolton Ave.
Alexandria, LA 71301
(318) 443-7615
COUNSEL FOR PLAINTIFF- APPELLANT:
Gigi Pomes Trumps Wilkes

David C. Hesser
Hesser Cooper Law Group, LLC
812 Versailles Blvd, Suite A
Alexandria, LA 71303
(318) 542-4102
COUNSEL FOR DEFENDANT- APPELLEE:
Truman John Trumps, Jr.

PICKETT, Chief Judge.

In this civil action for recovery of child support payments, Gigi Pomes

Trumps (now Wilkes) 1 appeals the judgment of the trial court dismissing her

claims against her former husband, Truman John Trumps, Jr., after the trial court

granted Mr. Trumps’s peremptory exception of no cause of action.

FACTS

Following the filing of a petition for divorce in 2013 (district court docket

number 247,395), Gigi Trumps and Truman Trumps entered into a consent

judgment setting forth the custody and support obligations related to their seven

children. This custody agreement was modified in March 2014. A judgment of

divorce was signed on August 4, 2014.

In 2015, the State of Louisiana filed an ex parte motion in a separate docket

number (16,509) alleging that Mrs. Wilkes was receiving state support services and

asking that child support payments from Mr. Trumps be paid to the state. An

income assignment order was signed by the trial court on June 22, 2015.

Relevant to the case before us, on February 14, 2019, Mr. Trumps filed an

Affidavit of Intact Household or Noncustodial Parent Caregiver in docket number

16,509. Following a hearing on April 11, 2019, the hearing officer found that the

minor children were in the non-custodial parent’s custody and temporarily

suspended Mr. Trumps’s child support payments. A review hearing was set for

July 30, 2019. When no timely objection was filed to the recommendation of the

hearing officer, the trial court signed an order making the hearing officer

recommendation the judgment of the court on April 22, 2019. The review hearing

scheduled for July never occurred.

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While we recognize that Mrs. Wilkes was married to another man between
her marriage to Mr. Trumps and her current husband, we refer to her as Mrs.
Wilkes throughout this opinion for consistency.

On January 4, 2023, the state filed a motion and order in docket number

16,509 to reinstate Mr. Trumps’ child support obligation effective retroactive to

January 1, 2023. The trial court signed the order on the same day.

On August 28, 2023, Mrs. Wilkes filed a Motion to Modify Custody and for

Other Relief in docket number 247,395. The petition sought a modification of

custody, a determination that Mr. Trumps was in arrears with his support payments

and that he be found in contempt for his failure to pay support timely, a

modification of the support payments, and a finding that Mr. Trumps was in

contempt for other violations of the custody agreement. Mrs. Wilkes alleged that

the two youngest children were returned to her custody in September 2020 after a

court hearing, and Mr. Trumps failed to pay support for the twenty-eight months

from September 2020 through December 2022. In response, Mr. Trumps filed

peremptory exceptions of no cause of action, no right of action, and res judicata,

seeking dismissal of the claims for any arrearages in child support payments and

contempt for failure to pay support timely. Following a hearing on January 3,

2024, the trial court sustained the exception of no cause of action and overruled the

exception of no right of action. A judgment in conformity with the court’s ruling

was signed on January 30, 2024. This judgment was entered in both docket

numbers 247,395 and 16,509. Mrs. Wilkes appealed that judgment to this court.

Once the appeal was lodged in this court, we determined that the trial court’s

January 30, 2024 judgment lacked proper decretal language, in that it did not

specify the relief awarded. The appeal was suspended and the matter remanded to

the trial court for the purpose of amending the judgment. The trial court signed an

amended judgment on August 15, 2024, in which it sustained the exception of no

cause of action filed by Mr. Trumps and dismissed Mrs. Wilkes’ demand for a

determination of arrears and contempt for the alleged failure to pay support. The
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judgment overruled the exception of no right of action and dismissed that

exception.

ASSIGNMENT OF ERROR

Mrs. Wilkes asserts one assignment of error:

The Trial Court erred in granting the Exception of No Cause of
Action filed by Truman Trumps.

Put differently, the Trial Court erred in holding that an Order,
which was never served upon Gigi Trumps, could take away her cause
of action to seek a determination that the suspension of the child
support in her favor (put in place because the children were
temporarily in their father’s custody) should have ended on the date
that the children were returned to her physical custody.

DISCUSSION

The supreme court explained the peremptory exception of no cause of action

in Ramey v. DeCaire, 03-1299, p. 7 (La. 3/19/04), 869 So.2d 114, 118:

A cause of action, when used in the context of the peremptory
exception, is defined as the operative facts that give rise to the
plaintiff’s right to judicially assert the action against the defendant.
Everything on Wheels Subaru, Inc. v. Subaru South, Inc., 616 So.2d
1234, 1238 (La.1993). The function of the peremptory exception of no
cause of action is to test the legal sufficiency of the petition, which is
done by determining whether the law affords a remedy on the facts
alleged in the pleading. Id. at 1235. No evidence may be introduced to
support or controvert an exception of no cause of action. La. C.C.P.
art. 931. Consequently, the court reviews the petition and accepts
well-pleaded allegations of fact as true. Jackson v. State ex rel. Dept.
of Corrections, 00-2882, p. 3 (La.5/15/01), 785 So.2d 803, 806;
Everything on Wheels Subaru, 616 So.2d at 1235. The issue at the
trial of the exception is whether, on the face of the petition, the
plaintiff is legally entitled to the relief sought. Montalvo v. Sondes,
93-2813, p. 6 (La.5/23/94), 637 So.2d 127, 131.

The party asserting an exception of no cause of action bears the burden of

demonstrating that the petition does not state a cause of action. City of New

Orleans v. Board of Com’rs of Orleans Levee Dist., 93-690 (La. 7/5/94), 640 So.2d

237. An appellate court reviewing a lower court judgment sustaining or overruling

a peremptory exception of no cause of action reviews the matter de novo. Fink v.
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Bryant, 01-987 (La. 11/28/01), 801 So.2d 346. Thus, we must determine whether

the facts alleged in the petition, viewed in the light most favorable to the plaintiff

and with every doubt resolved in the plaintiff’s favor, state any valid cause of

action. City of New Orleans, 640 So.2d 237.

Mrs. Wilkes’ petition states the following facts related to the arrearage of

child support payments:

8.
Mover shows that she has applied for Support Services from the
State of Louisiana. An Order was entered on June 19, 2015 making all
payments payable through the State of Louisiana, and transferring all
actions in regard to the support to the Juvenile Division of this Court,
said Order and all subsequent proceedings pending in Docket Number
IV-16,509.

9.
For that reason, the State of Louisiana is an indispensible party
to this proceeding.

10.
Mover shows further that in Docket Number IV-16,509, an
Order was entered on April 11, 2019, suspending the child support
payments of TRUMAN JOHN TRUMPS, JR., as the children were
temporarily in his physical custody. A review hearing was then
scheduled for July 30, 2019, but not held on that date.

11.
Ultimately, the parties returned to Court on September 9, 2020,
at which time the children were returned to Mover's physical custody
and the Court Ordered that all previous Orders go back into effect.

12.
Despite the return of the children, TRUMAN JOHN TRUMPS,
JR. failed and refused to resume the payment of any support, and paid
nothing for the months of September 2020 through December, 2022, a
period of 28 months, for total unpaid support (during this time period)
of $25,200.00.

13.
Mover requests a Judgment herein, setting all arrears owed by
TRUMAN JOHN TRUMPS, JR.

14.
Mover also requests a Judgment herein, holding TRUMAN
JOHN TRUMPS, JR. in contempt for his failure to pay his support
during this 28 month period and punishing him accordingly, said
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punishment to include an award of attorneys fees for the prosecution
of this Rule.

In support of the trial court’s judgment, Mr. Trumps argues that Fusilier v.

Johnson, 626 So.2d 65 (La.App. 3 Cir. 1993), supports his position that Mrs.

Wilkes has not stated a cause of action. In Fusilier, the father’s child support

payments were suspended because he was ill and unable to earn an income. He

later received a settlement of a claim that included as an element lost wages during

the time his child support obligation was suspended. This court held that if child

support payments are suspended, there is no mechanism in the law to allow the

obligee to retroactively recover lost wages attributable to the period of the

suspension.

We note, though, that paragraph eleven of Mrs. Wilkes’ petition alleges

there was an order issued at the time her two children were returned to her custody

that “all previous Orders go back into effect.” We assume that statement to be true

for the purpose of determining whether she has stated a cause of action. If such an

order was issued on September 9, 2020, then Mrs. Wilkes’ petition seeks

enforcement of the order that Mr. Trumps resume his child support payments from

that date forward. Unlike the obligee in Fusilier, Mrs. Wilkes does not seek to

have the court retroactively award child support.

Mrs. Wilkes argues the January 4, 2023 order indicating Mrs. Wilkes

reapplied for support services and reinstating the previous order of support against

Mr. Trumps is a nullity because she was never served with that judgment. Mr.

Trumps in his brief to this court argues that his exception of no cause of action

does not rely on the January 4, 2023 order. Instead, Mr. Trumps argues that his

peremptory exception of res judicata relied on that order. The trial court did not

rule on the exception of res judicata. “Ordinarily, issues not passed on by the trial

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court are not reviewable by the appellate court.” Devillier v. City of Opelousas,

247 So.2d 412, 418 (La.App. 3 Cir. 1971). As neither party argued the issue of res

judicata in this appeal, we will not address it.

CONCLUSION

The judgment of the trial court sustaining the exception of no cause of action

is reversed, the exception is overruled, and the matter is remanded for further

proceedings. Costs of this appeal are assessed to Mr. Trumps.

REVERSED AND REMANDED.

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