193 So. 3d 397
La. Ct. App.2016Background
- In June 2010 Regina E. Wiles (Mrs. Wiles) filed for divorce under La. C.C. art. 102; the petition was served on Stephen W. Wiles (Mr. Wiles) on September 15, 2010.
- In October 2010 the parties entered a consent judgment (signed by the court) that required Mr. Wiles to pay child support for the parties’ minor child.
- No rule to show cause for divorce was filed within two years, so the divorce action was abandoned by operation of law under La. C.C.P. art. 3954 on September 16, 2012.
- Mrs. Wiles filed a rule for past-due child support and contempt in February 2015, alleging payments stopped in November 2012.
- Mr. Wiles filed an exception of no cause of action, arguing the consent judgment terminated when the divorce was abandoned and/or when the parties reconciled.
- The trial court granted the exception and dismissed Mrs. Wiles’ claim; the appellate court reversed, holding the consent child-support judgment remained enforceable and remanding for further proceedings.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether a consent judgment for child support terminates when a divorce action is abandoned under La. C.C.P. art. 3954 | Mrs. Wiles: consent judgment survived abandonment and remains enforceable | Mr. Wiles: the consent judgment (an ancillary matter) was abandoned with the divorce and thus no cause of action exists | Consent child-support consent judgment remained valid and enforceable despite abandonment; appeal reversed and remanded |
| Whether denial of motion for new trial limits appellate review | Mrs. Wiles: appeal intends to challenge merits of April 8, 2015 judgment | Mr. Wiles: appeal should be limited to denial of new trial because order of appeal references only that judgment | Court treated appeal of denial of new trial as appeal of merits because appellant’s brief clearly challenged the underlying judgment |
Key Cases Cited
- Foti v. Holliday, 27 So.3d 813 (La. 2009) (standard and purpose of the peremptory exception of no cause of action)
- Lewis v. Lewis, 404 So.2d 1230 (La. 1981) (child support obligation has an independent legal basis separate from marriage)
- State Dept. of Children & Family Servs. ex rel. A.L. v. Lowrie, 167 So.3d 573 (La. 2015) (parental duty to support arises from parentage, not marriage)
- Pylant v. Pylant, 41 So.3d 1282 (La. App. 2 Cir. 2010) (consent judgment for custody/support survives abandonment of prior divorce action)
- Shewbridge v. Shewbridge, 685 So.2d 418 (La. App. 2 Cir. 1996) (alimony pendente lite terminated with abandonment of divorce; distinguishes interim spousal support from child support)
- Horrigan v. Horrigan, 70 So.3d 111 (La. App. 1 Cir. 2011) (consent support judgment treated as enforceable contract that does not fall with abandoned divorce)