STATE OF LOUISIANA COURT OF APPEAL FIRST CIRCUIT 2009 CU 0873 EDNA ELIZABETH SPRING VERSUS. DATE OFJUDGMENT DEe 72009

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1 NOT DESIGNATED FOR PUBLICA non STATE OF LOUISIANA COURT OF APPEAL FIRST CIRCUIT 2009 CU 0873 EDNA ELIZABETH SPRING VERSUS CHRISTOPHER J EDWARDS DATE OFJUDGMENT DEe ON APPEAL FROM THE TWENTY FIRST JUDICIAL DISTRICT COLin NUMBER DIV D PARISII OF TANG 1 1 loa STATE OF LOUISIANA HONORABLE M DOUGLAS HUGHES JUDGE D Mark Valentine Charles V Genco Amite Louisiana Counsel f li PlaintiiT Appellce Edna Spring Ilell per Brenda Braud Counsel f lr Defcnclanl Loranger Louisiana Edwards Christopher i ppcllant BEFORE PARRa KUHN AND McDONALD I Disposition RLLE TO SHOW CAUSE GRA TED APPEAL DISMISSIW t9n k J v6 0 a ZL

2 KUHN J Christopher Edwards appealed a judgment that sets forth a supervised visitation schedule in his favor Upon lodging ofthe appeal a show cause rule was issued by this court to determine the viability of the appeal We conclude that the trial court s judgment amounted to a substantive amendment of the final and definitive judgment that had already established an unsupervised visitation schedule and therefore it is null Thus we grant the rule to show cause and dismiss the appeal This litigation commenced when Edna Spring now Harper petitioned the trial court for protection from abuse pursuant to La R S et seq averring that Edwards had stalked her had threatened her with bodily harm and death and had threatened to kidnap their infant son On July the trial court approved the parties consent judgment which ordered protection of Harper granted her temporary custody of the parties child awarded her child support and dismissed her petition for protection from abuse Edwards subsequently filed rules seeking among other things custody designation as domiciliary parent and unsupervised visitation After a hearing the trial court issued a judgment on September which awarded joint custody to the parties with Harper designated as domiciliary parent and set forth a detailed unsupervised visitation schedule in favor of Edwards I On September I The judgment also designated a procedure for exchanging the child ordered the parties to refrain from smoking or drinking in the presence of the child required the parties to share information about the child with each other and to refrain from speaking negatively about the other parent in the child s presence awarded child support in tavor of Harper established a method for tax exemption claims and decreed that neither party could remove permanently the child from the court s jurisdiction without prior court approval 2

3 See note 2 supra 3 Harper filed a motion for new trial On September the trial judge of Division E recused herself from the proceeding and the matter was transferred to Division D On October a hearing was held before the trial judge for Division D Among the matters before the court was Harper s entitlement to a new trial The trial court issued a verbal ruling from the bench which reinstated supervised visitation for Edwards Then on January the trial court signed a judgment that denied Harper s motion for new trial Thereafter on February the trial court signed a judgment rendered in conformity with its October verbal ruling ordering reinstatement of supervised visitation for Edwards 3 Edwards appealed the February judgment which is thejudgment presently before us The September judgment rendered by the trial judge of Division E and for which the trial judge of Division D subsequently denied Harper s motion for new trial in a written judgment on January was a judgment from which no timely appeal was taken by either party Thus it became a final and definitive judgment See Batson v So Louisiana Med Ctr p 10 La App 1st Cir So 2d writ denied La So 2d 945 a final judgment becomes final and definitive and acquires the authority of the thing adjudged if no further review is sought within the time fixed by law 2 In his rules Edwards sought relief for allegations of contempt Although the contempt rules were before the trial court at the October hearing those matters were pending the decision on the m otion for n ew t rial held over 3 The February judgment expressly held open pending further orders of the court Edwards contempt rules which had been before the trial court at the October hearing

4 The law provides for only limited amendment of final judgments Specifically La C cp art 1951 states A final judgment may be amended by the trial court at any time with or without notice on its own motion or on motion of any party substance or I To alter the phraseology of the judgment but not the 2 To correct errors of calculation Emphasis added Article 1951 contemplates the correction of a clerical error in a final judgment but does not authorize substantive amendments Bourgeois v Kost p 5 La So 2d Thus a judgment may be amended by the court only when the amendment takes nothing from or adds nothing to the original judgment Id An amendment to a judgment which adds to subtracts from or in any way affects the substance of the judgment is considered a substantive amendment Frisard v Autin La App 1st Cir So 2d writ denied La So 2d 1145 Once a judgment is signed it can be affected substantively by a new trial La C C P art 1971 et seq an action for nullity La C cp art 2001 et seq or a timely appeal See Bourgeois v Kost at p So 2d at 695 and Wooley v AmCare Health Plans p 16 La App 1st Cir So 2d Because the September judgment addressed matters related to child custody visitation and support the law grants courts continuing jurisdiction for modification of prior awards by use of summary proceedings See La C C P art see also Dupuy v Dupuy p 5 La App 1st Cir So 2d Although Harper sought a new trial of the 4

5 September judgment the trial court denied that relief on January and no timely appeal was taken after the denial See La ccp art 3943 And the trial court had before it no viable pleadings urging entitlement by a party to modification of the September judgment on the basis of a subsequent change in custody visitation and support 4 Substantive amendments to judgments made without recourse to the proper procedures are absolute nullities Wooley at p So 2d at 730 The September judgment which set forth a detailed schedule of unrestricted visitation in favor of Edwards was not properly altered amended or revised by a new trial an action of nullity in the trial court or the filing of a summary proceeding pleading The February judgment substantively amended the September judgment by revisiting the issue of visitation imposing supervised visitation and detailing a schedule different from that of the earlier rendered judgment Thus the substantive amendment of the February judgment without recourse to proper procedures rendered it an absolute nullity See Starnes v Asplundh Tree Expert Co p 6 La App 1st Cir So 2d There is no valid basis for an appeal of an absolutely null judgment Id 4 On December Harper filed amotion to revoke and or restrict visitation for contempt and to increase child support alleging violations by Edwards of the September judgment and the October verbal ruling of the trial court Although that pleading was filed before the February judgment was rendered it was not set for a hearing until February at which the trial court found both parties in contempt ofcourt set a schedule of supervised visitation for Edwards and denied Harper s request for increased child support A written judgment was signed on March which Edwards timely appealed See Spring v Edwards La App 1st Cir an unpublished opinion also rendered this day S

6 For these reasons the rule to show cause is granted and this appeal is hereby dismissed Appeal costs are assessed against Christopher Edwards RULE TO SHOW CAUSE GRANTED APPEAL DISMISSED 6