166 So. 3d 1066
La. Ct. App.2015Background
- Divorce filed by Guy Adams against Brandi Ballard Adams in 1997; couple had one young daughter. Trial court awarded joint custody during pendency and continued custody in the divorce judgment.
- On December 11, 1998, trial court orally granted joint custody with Brandi as domiciliary parent and awarded interim child support of $260/month; hearing was continued to March 1999 but never resumed and the oral ruling was not reduced to writing.
- Case lay dormant after a May 1999 status conference; no record activity from 1999 until Brandi filed motions in April 2013 to make past-due support executory, for contempt, and to modify custody/support.
- Guy filed an exception of no cause of action on June 4, 2013; trial court later signed a July 23, 2013 judgment recognizing the 1998 oral interim orders as still in effect and interim.
- Guy moved for new trial and later filed an ex parte motion to dismiss for abandonment; the trial court dismissed the matter for abandonment on October 23, 2013. Brandi appealed.
- The appellate court reversed, finding Guy’s pre-dismissal filings (exception and new-trial motion) submitted the case for decision and thus waived the right to assert abandonment; remanded for further proceedings.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the action was abandoned under La. C.C.P. art. 561 | Brandi: long dormancy occurred but a July 23, 2013 judgment recognizing interim orders had been rendered and should preclude dismissal | Guy: case was abandoned after ~14 years of inactivity and he later moved to dismiss for abandonment | Court: although dormant, abandonment defense precluded because Guy submitted the case for decision before moving to dismiss |
| Whether defendant waived abandonment by taking actions inconsistent with abandonment | Brandi: Guy’s June 2013 exception and July 2013 new-trial motion show intent to litigate, so he waived abandonment claim | Guy: contends dismissal was proper given long inactivity | Held: Guy’s exception and new-trial motion evince submission for decision and waiver of abandonment defense |
| Whether an earlier unappealed or final judgment prevented dismissal for abandonment | Brandi: argued a final, unappealable judgment awarding interim support/custody existed and barred dismissal | Guy: relied on abandonment despite prior oral interim order not reduced to writing | Held: Court found submission/wavier dispositive and pretermitted deciding whether a final appealable judgment existed |
| Proper remedy for dismissal based on abandonment | Brandi: dismissal was erroneous; matter should proceed on merits | Guy: sought dismissal without prejudice for abandonment | Held: dismissal reversed; case remanded for further proceedings |
Key Cases Cited
- Chevron Oil Co. v. Traigle, 436 So.2d 530 (La. 1983) (defendant’s actions submitting case for decision can waive abandonment defense)
- Hutchison v. Seariver Maritime, Inc., 22 So.3d 989 (La. App. 1 Cir. 2009) (manifest-error standard for factual determination whether steps were taken to avoid abandonment)
- Tessier v. Pratt, 7 So.3d 768 (La. App. 1 Cir. 2009) (three requirements for abandonment under La. C.C.P. art. 561)
- Voisin v. International Companies & Consulting, Inc., 924 So.2d 277 (La. App. 1 Cir. 2006) (recognizing exceptions to abandonment doctrine, including contra non valentem and waiver by defendant)