Opinion

Benny Council v. Tameka Collins Livingston

Court
Louisiana Court of Appeal
Filed
Jul 15, 2020
Status
Published
Author
Judge Regina Bartholomew-Woods
On the bench
Judge Sandra Cabrina Jenkins; Judge Regina Bartholomew-Woods; Judge Dale N. Atkins
Cited by
0 cases
Authority
More cited than 36.7%

The opinion

BENNY COUNCIL * NO. 2020-C-0208

VERSUS *

COURT OF APPEAL

TAMEKA COLLINS *

LIVINGSTON FOURTH CIRCUIT

*

STATE OF LOUISIANA

*******

APPLICATION FOR WRITS DIRECTED TO

CIVIL DISTRICT COURT, ORLEANS PARISH

NO. 2014-00672, DIVISION “K”

Honorable Bernadette D'Souza, Judge

******

Judge Regina Bartholomew-Woods

******

(Court composed of Judge Sandra Cabrina Jenkins,

Judge Regina Bartholomew-Woods, Judge Dale N. Atkins)

JENKINS, J., CONCURS IN THE RESULT

Jennifer Carter deBlanc

DE BLANC LAW FIRM, LLC

1615 Poydras Street, Suite 910

New Orleans, LA 70112

COUNSEL FOR RELATOR, TAMEKA COLLINS LIVINGSTON

Richard Lynn Ducote

318 East Boston Street, 2nd Floor

Covington, LA 70433

COUNSEL FOR RESPONDENT, BENNY COUNCIL

WRIT GRANTED; RELIEF DENIED

JULY 15, 2020

RBW

DNA

Relator seeks review of the judge pro tempore’s March 5, 2020 review

hearing, which was held during the pendency of this Court’s March 5, 2020 Order

staying all matters while the appeal of the trial court’s ruling regarding child

custody was pending. See Council v. Livingston, 2019-1049 (La. App. 4 Cir.

3/13/20), --- So. 3d ---, 2020 WL 1231392. Additionally, Relator seeks review of

the judge pro tempore’s declaration during the March 5, 2020 hearing that he kept

jurisdiction over this matter “in perpetuity” unless he chose to return jurisdiction to

the division judge.1

1

At the March 5, 2020 review hearing, the judge pro tempore stated:

The way it works with pro tempore Judges as opposed to

Ad Hoc Judges is when a Judge is assigned pro tempore that Judge

remains the Judge of that division over every case that has been

heard in that division before that Judge in perpetuity unless the pro

tempore Judge wants it to go back to the other Judge.

The issue of which you were concerned you thought my

assignment ended. It does not end.

1

Because review hearings are inappropriate in civil custody matters and this

Court amended the trial court’s judgment to delete the provision providing for a

review hearing we grant Relator’s writ and find that the review hearing was

inappropriate. Further, regarding the jurisdiction of the judge pro tempore, we

grant the writ, but deny relief, because we do not have jurisdiction to divest the

judge pro tempore of his appointment that was rendered by the Louisiana Supreme

Court; we find that authority is reserved solely to the Louisiana Supreme Court.

FACTUAL BACKGROUND AND PROCEDURAL HISTORY

On September 7, 2016, pursuant to a considered decree, Relator Tameka

Collins and Respondent Benny Council were granted joint custody of their minor

child with Relator designated as the domiciliary parent. On July 24, 2019, the

parties had motions set for hearing before Judge Bernadette D’Souza, Division “K”

of the Civil District Court for the Parish of Orleans. However, because Judge

D’Souza, would be away from court on that date, the Louisiana Supreme Court, on

July 18, 2019, issued an order appointing a judge pro tempore to serve in Division

“K” from July 22, 2019, through July 26, 2019, “subject to completion of any

unfinished business.”2

On July 24, 2019, the trial court held a one-day trial on Respondent’s motion

to modify custody. During the trial, the judge pro tempore denied Relator’s motion

for continuance and exceptions of no cause of action and vagueness. A revised

custody judgment dated August 14, 2019 ordered the following: continued joint

2

Retired Judge Max N. Tobias, Jr., was appointed as judge pro tempore by the Louisiana

Supreme Court.

2

custody, maintained Relator as the domiciliary parent, and expanded Respondent’s

visitation rights. It was further ordered that the parties attend a review hearing on

March 5, 2020, at which “the Court may, in its discretion, modify this judgment

and enter such Orders or decrees warranted.” Respondent timely appealed the

August 14, 2019 ruling.

On March 2, 2020, while the appeal was pending before a different panel of

this Court, the trial court advised counsel for Relator and Respondent that the

review hearing would proceed as scheduled on March 5, 2020. Respondent filed an

exception of lack of subject matter jurisdiction, citing the ongoing appeal before

this Court. Respondent’s exception was denied.

On March 5, 2020, a motion to stay was filed with this Court.3 This Court

issued an order granting the motion, staying all matters pending further decisions

by this Court, citing La. C.C.P. art 2088.4 Nevertheless, the trial court informed

3

At the March 5, 2020 hearing, the judge pro tempore insisted that this Court “stayed the trial,

not the conference.” He proceeded to reprimand the attorneys for challenging both the review

hearing and his jurisdiction stating, “[i]t is wantonly unprofessional. It may even be unethical.

You need to grow up and find out what the law is or call somebody to find out what is going on.”

Despite this Court’s stay of all proceedings, the judge pro tempore insisted that the review

hearing proceed; in response to the attorneys’ late arrival, he stated “that is really an insult to me.

That is a personal insult to me. It is an insult to the profession of lawyers and an insult to deal

with these things . . . Your clients should be ashamed of you. If they are not, then that is their

mistake.” Additionally, the judge pro tempore stated, “I am so seriously offended by it. I will tell

you I will advise — I am inclined to advise the Judges of this Court about what has happened. I

will get the word out to the judiciary and all of my judge friends in the state and tell them what I

have experienced. Your reputations are going to be whatever they are, and they are going to be

enhanced further. This is not the way you do it.”

4

La. C.C.P. art. 2088 provides in, pertinent part:

A. The jurisdiction of the trial court over all matters in the case reviewable under the

appeal is divested, and that of the appellate court attaches, on the granting of the order

of appeal and the timely filing of the appeal bond, in the case of a suspensive appeal or

on the granting of the order of appeal, in the case of a devolutive appeal.

3

counsel for Relator and Respondent, on behalf of the judge pro tempore, that the

review hearing would proceed as scheduled. Under much protest, as reflected by

the transcript from the proceeding, counsel for both parties appeared for the review

as instructed. On March 13, 2020, this Court affirmed and amended the trial

court’s August 14, 2019 judgment, thus, deleting the trial court’s order setting a

review hearing. See Council v. Livingston, 2019-1049 (La. App. 4 Cir. 3/13/20), ---

So. 3d ---, 2020 WL 1231392.

DISCUSSION

Assignments of Error

Relator raises the following assignments of error:

1. Whether the trial court erred by disregarding this Court’s Stay Order by

requiring the parties, under the threat of attachment,5 to appear at the

March 5, 2020 review hearing;

2. Whether the trial court, specifically the judge pro tempore, erred in

declaring at the March 5, 2020 review hearing that he retained

jurisdiction over this matter “in perpetuity.”

Standard of Review

Relator argues that the trial court committed legal errors.

“[L]egal errors are reviewed under the de

novo standard of review.” 1026 Conti Condominiums,

LLC v. 1025 Bienville, LLC, 2015-0301, p. 5 (La. App. 4

Cir. 12/23/2015), 183 So.3d 724, 727.

“A legal error occurs when a trial court applies incorrect

5

Counsel for Respondent stated that he could hear the judge pro tempore “in the background

screaming, you better be here — tell him he better — his but[t] better be here or there is going to

be an attachment for him. Totally inappropriate, Your Honor.”

4

principles of law and such errors are

prejudicial.” Id. “Legal errors are prejudicial when they

materially affect the outcome and deprive a party of

substantial rights.” Evans v. Lungrin, 1997-0541, p. 7

(La. 2/6/98), 708 So.2d 731, 735. “Where an error of law

taints the record, we are not bound to affirm the judgment

of the lower court.” City of New Orleans, 2007-1066, p.

3, 985 So.2d at 834-35.

Hankton v. State, 2019-0557, p. 5 (La. App. 4 Cir. 3/4/20), --- So.3d ----2020 WL

1056792.

Analysis

Relator argues that at the time of the review hearing, jurisdiction over the

instant matter was vested with this Court and that this Court’s Stay Order was in

effect when the trial court decided to proceed with its review hearing. We likewise

agree.

Pursuant to Article V, Section 10 of the Louisiana State Constitution of 1974:

Except as otherwise provided by this constitution, a court of

appeal has appellate jurisdiction of (1) all civil matters, including

direct review of administrative agency determinations in worker's

compensation matters as heretofore or hereafter provided by law, (2)

all matters appealed from family and juvenile courts, and (3) all

criminal cases triable by a jury, except as provided in Section 5,

Paragraph (D) (2) of this Article. It has supervisory jurisdiction over

cases which arise within its circuit.

Further, La. C.C.P. art. 2088 (A) provides:

The jurisdiction of the trial court over all matters in the case

reviewable under the appeal is divested, and that of the appellate court

attaches, on the granting of the order of appeal and the timely filing of

the appeal bond, in the case of a suspensive appeal or on the granting

of the order of appeal, in the case of a devolutive appeal.

5

Furthermore, La. C.C.P. art. 2081, provides that “[t]he provisions of this Title are

applicable to all appeals to the Supreme Court and the courts of appeal, except as

otherwise provided by law.”

Moreover, the trial court’s March 5, 2020 review hearing was contrary to

jurisdiction, which provides that “‘review hearings’ can be held in juvenile cases as

set forth in La. Ch. C. art. 1454, not in civil custody cases.” Brown v. Mock,

43,571, p. 6 (La. App. 2 Cir. 7/16/08); 987 So.2d 892, 895; Brown v. Brown, 2005-

1346 (La. App. 3 Cir. 3/1/06), 925 So.2d 662; R.J. v. M.J., 2003-2676, pp. 14-15

(La. App. 1 Cir. 5/14/04), 880 So.2d 20, 28-29. In fact, in Council v. Livingston,

2019-1049 (La. App. 4 Cir. 3/13/20), --- So. 3d ---, this Court amended the trial

court’s judgment to delete the provision providing for the March 5, 2020 review

hearing and cited Brown v. Mock, 43,571, p. 6 (La. App. 2 Cir. 7/16/08); 987 So.2d

892, 895; Brown v. Brown, 2005-1346 (La. App. 3 Cir. 3/1/06), 925 So.2d 662;

and R.J. v. M.J., 2003-2676, pp. 14-15 (La. App. 1 Cir. 5/14/04), 880 So.2d 20, 28-

29. This Court also cited Frase v. Barnhart, 379 Md. 100, 120-21, 840 A.2d 114,

126 (2003), wherein the court observed:

The court’s role is different in a normal private custody dispute.

It is to take evidence and decide the dispute, so that the child and the

other parties can get on with their lives. The court does not retain

jurisdiction until the child turns 21, or even 18. Although the matter of

custody, visitation, and support may always be reopened upon a

showing of changed circumstances, the court's jurisdiction over the

particular dispute ends when the dispute is resolved, which the law

anticipates will occur within a reasonable time after the evidentiary

hearing. Those kinds of cases are not to be strung out indefinitely, as

though they were CINA cases. [Emphasis added].

6

Based on the aforementioned jurisprudence, in particular this Court’s

holding in Council, which declares that review hearings are inappropriate in

private custody cases, we find that the trial court, through the judge pro tempore

committed legal error by holding the March 5, 2020 review hearing. Furthermore,

the review hearing was held during a time when the trial court was divested of its

jurisdiction over the matter.

In the second assignment of error, Relator contends that after the custody matter

was heard and taken under advisement and once the trial court’s written judgment

was issued on August 14, 2019, all duties of the serving judge pro tempore had

been completed. In support of this assertion, Relator relies on the Louisiana

Supreme Court’s July 18, 2019 Order, which established the pro tempore

appointment, stated that the appointment was to be effective from July 22, 2019

through July 29, 2019. Thus, Relator believes that any lawful authority the judge

pro tempore may have had to preside over the instant matter ended on that date; no

continuing jurisdiction remained with that judge. Regarding this assignment of

error, we do not have authority to divest the judge pro tempore of his appointment.

His appointment was made by the Louisiana Supreme Court and as such, we find

that only the Louisiana Supreme Court has the authority to end the appointment.

DECREE

For the aforementioned reasons, we GRANT Relator’s writ and hold that

the review hearing was inappropriate and in contravention to this Court’s March

13, 2020 opinion in which this Court amended the trial court’s judgment deleting

7

the order setting the review hearing. Further, regarding the jurisdiction of the judge

pro tempore, we GRANT the writ, but DENY relief, because we do not have

jurisdiction to divest the judge pro tempore of his appointment that was rendered

by the Louisiana Supreme Court; we find that authority is reserved solely to the

Louisiana Supreme Court.

WRIT GRANTED; RELIEF DENIED

8

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.

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