Kelly v. Kelly, 94 So. 3d 179

Helen and Tom Kelly divorced in 2002; Tom was ordered to pay child support and 79% of specified education and related costs.
On April 20, 2010 Helen filed a Rule for Contempt, Arrearages, Attorney’s Fees, and Costs for Tom’s alleged 79% share of costs.
Trial was set for Dec. 8, 2010, continued to Mar. 17, 2011; Helen did not appear but was represented by counsel.
Tom’s counsel moved for involuntary dismissal; the court granted it with prejudice.
Helen later filed a motion for new trial (Jun. 20, 2011) alleging abuse of discretion in denying continuance and granting dismissal; judge denied.
Appeal challenged dismissal with prejudice and denial of new trial; the appellate court vacated and remanded for further proceedings.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether dismissal with prejudice was proper for failure to appear	Kelly argues dismissal was abuse of discretion	Kelly argues no fault by plaintiff; counsel presence mitigates	Dismissal with prejudice abused discretion; remanded
Whether alternatives to dismissal were considered	Kelly asserts continuance or other sanctions were warranted	Kelly contends no need for continuance	Court failed to consider alternatives; remanded
Effect of dismissal on arrearages and children’s welfare	Arrearage relief should not be barred by absence	Dismissal should resolve contempt claims promptly	Remand to address arrears and welfare implications

England v. Baird, 772 So.2d 905 (La. App. 1 Cir. 2000) (consideration of less severe remedies before dismissal)
Zavala v. St. Joe Brick Works, Inc., 897 So.2d 703 (La. App. 1 Cir. 2004) (willfulness/bad faith required for dismissal with prejudice)
Spencer v. Children’s Hospital, 432 So.2d 823 (La. 1983) (presence by counsel satisfies appearance requirement in some contexts)
Dickens v. Commercial Union Ins. Co., 762 So.2d 1193 (La. App. 1 Cir. 2000) (appearance through counsel acknowledged)