FIRST CIRCUIT NO CW 0073 VERSUS CONSOLIDATED WITH NO CW 0074 VERSUS. Judgment Rendered: SEP ' Appealed from the

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1 STATE OF LOUISIANA COURT OF APPEAL FIRST CIRCUIT NO CW 0073 ALYSON BABCOCK VERSUS CHARLES MARTIN CONSOLIDATED WITH NO CW 0074 CHARLES DAVID MARTIN VERSUS ALYSON MARY BABCOCK Judgment Rendered: SEP ' Appealed from the 32nd Judicial District Court In and for the Parish of Terrebonne State of Louisiana Case No. 143,450 c/w 157,528 The Honorable Randall L. Bethancourt, Judge Presiding J. Ogden Middleton, II Alexandria, Louisiana Counsel for Appellant Alyson BabCQck Gregory J. Schwab Houma, Louisiana Counsel for Appellee Charles Martin BEF?AE: HIGGINBOTHAM, THERIOT, AND CHUTZ, JJ. 4-\ t~ IJb-lft(CUll- I ~. ~ WAS.

2 THERIOT,J. The appellant, Alyson Babcock, appeals a judgment rendered by the Thirty-Second Judicial District Court, granting a dilatory exception of prematurity in favor of the appellee, Charles Martin. For the following reasons, we convert this appeal to an application for supervisory writ; grant the application for supervisory writ; reverse the trial court's judgment; and remand this matter for further proceedings. FACTS AND PROCEDURAL BACKGROUND The instant appeal is part of an ongoing child custody dispute with a long-standing factual and procedural background. 1 Ms. Babcock and Mr. Martin were never married, but had one child together, A.G.M., 2 born on September 20, Following the birth of A.G.M., Ms. Babcock and Mr. Martin became embroiled in litigation regarding, inter alia, filiation, custody, visitation, and child support. During the course of these proceedings, Ms. Babcock was diagnosed with a factitious disorder known as Munchausen Syndrome by Proxy ( MSbP). 3 The trial court accepted evaluations, reports, and recommendations from two expert witnesses, Michael Chafetz, Ph.D., APBB, and Jeanne Robertson, Ph.D., LPC, with respect to Ms. Babcock's diagnosis and the best interests of A.G.M. On December 1, 2008, the trial court signed a consent judgment granting Mr. Martin sole legal and physical custody of A.G.M. The consent judgment decreed that Ms. Babcock was to 1 Ms. Babcock and Mr. Martin previously appeared before this court litigating an order of protection issued against Ms. Babcock by the trial court in May of2011. See Babcock v. Martin, ( La. App. 1 Cir. 12/31112), 2012 WL ( unpublished) Babcock I"). 2 In the interest of consistency, we identify the minor child by the initials used in Babcock I, notwithstanding that the minor child's name has since been legally changed. 3 MSbP is a mental illness in which a caregiver, usually a mother, intentionally produces or feigns illness or injury in a person under her care in order to assume the role of a parent who is suffering the hardship ofhaving a sick child. 2

3 have supervised visitation of A.G.M. upon complying with the following conditions: 1) Ms. Babcock shall begin and maintain active therapy with a psychologist or psychiatrist who understands MSbP; 2) the mental health professional shall be approved by the trial court and report on a monthly basis to the trial court; 3) the visitation of Ms. Babcock shall be supervised by a registered nurse who is acceptable to the trial court and to the parties; and 4) the trial court shall set the frequency and times of the visitation periods upon compliance with the conditions and recommendations of A.G.M. 's therapist and Ms. Babcock's therapist. On July 27, 2009, along with several other motions and exceptions that are not at issue on this appeal, Ms. Babcock filed a " Rule[ ] [ f]or Appointment of Treating Psychologist for Mother." Ms. Babcock requested the trial court reconsider certain mental health provisions of the consent judgment and appoint James " Randy" Logan, Ph.D., as the court-appointed psychologist to provide her with the necessary therapy. The rule came before the trial court for a hearing on February 1, The trial court signed an order denying Ms. Babcock's request to have Dr. Logan appointed as her treating psychologist on May 23, The trial court ordered that the Department of Psychiatry at the LSU Health Science Services in Shreveport, Louisiana, ( LSU-S) be approved and appointed as Ms. Babcock's treating therapist. The trial court further ordered that counsel for Ms. Babcock would endeavor to make an appointment for Ms. Babcock with LSU-S, would seek to procure the names of professional treating psychiatrists, and would provide such names to counsel for Mr. Martin. Fallowing a significant period of dormancy in the proceedings, on January 14, 2015, Ms. Babcock filed a " Rule to Enforce Monetary Relief and Modify Judgment." In relevant part, Ms. Babcock requested the trial 3

4 court modify the custody and psychiatric care provisions ofthe December 1, 2008 consent judgment and May 23, 2011 order on her rule to appoint a treating psychiatrist, so as to provide her with greater access to her minor child. Ms. Babcock claimed that it was in the best interests of A.G.M. for the consent judgment to be vacated. She further requested the trial court revise the order on her rule to appoint a treating psychiatrist, arguing that LSU-S did not have expert psychiatric doctors or psychologists on its staff capable ofproviding therapy for MSbP. Mr. Martin responded to Ms. Babcock's rule seeking modification of the trial court's prior judgments by filing dilatory exceptions of prematurity and improper use of summary procedure, declinatory exceptions of lis pendens and lack of subject matter jurisdiction, and peremptory exceptions of res judicata and no cause of action. These several exceptions came for a hearing before the trial court on July 8, The trial court signed a judgment denying the exceptions of improper use of summary proceedings, lis pendens, lack of subject matter jurisdiction, and res judicata on October 26, However, the trial court granted the dilatory exception of prematurity, reasoning that Ms. Babcock " has not yet begun to meet the court-ordered conditions for her to reclaim visitation rights." It is from this judgment that Ms. Babcock now appeals. ASSIGNMENTS OF ERROR Ms. Babcock presents the following assignments oferror: 1. The trial court committed legal error granting the dilatory exception of prematurity, giving rise to a de nova review on appeal. 4 The trial court pretermitted consideration of the peremptory exception of no cause of action. In addition, the trial court denied as moot the declinatory exception of lis pendens, which pertained to an unsatisfied money judgment not at issue in this appeal, because counsel for Ms. Babcock acknowledged that the money judgment was satisfied and all sums due were paid. 4

5 2. The trial court's ruling below, which effectively denies Ms. Babcock access to a summary proceeding, is manifestly erroneous and should be reversed. 3. The trial court committed manifest error and/or legally erred in holding that Mr. Martin carried his burden ofproof as the exceptor on the exception ofprematurity. 4. The trial court committed legal error when it refused to accept the allegations ofthe rule to modify judgment as true. STANDARD OF REVIEW Ordinarily, the manifest error standard of review applies to a judgment sustaining a dilatory exception of prematurity and ordering the dismissal of a cause of action on that basis. See Pinegar v. Harris, La. App. 1 Cir. 6/12/09), 20 So.3d 1081, However, because the facts are not disputed with respect to the instant appeal, the issue before this court is whether the trial court correctly interpreted and applied the law. The standard of review for questions of law is simply a review of whether the trial court was legally correct or incorrect. See Dunn v. Bryant, La. App. 1 Cir. 9/19/97), 701 So.2d 696, , writ denied, (La. 2/13/98), 709 So.2d 752. See also Gordon v. Pointe Coupee Health Service Dist. One, ( La. App. 1 Cir. 8/11/10), 47 So.3d 565, 568, writ denied, (La. 11/12/10), 49 So.3d 894. DISCUSSION Subject Matter Jurisdiction We begin our discussion by addressing the finality of the trial court's judgment granting the dilatory exception of prematurity in order to determine whether this case is properly before us on appeal. Appellate courts have a duty to examine subject matter jurisdiction sua sponte, even when the parties do not raise the issue. Texas Gas Exploration Corp. v. Lafourche Realty Co., Inc., ( La. App. 1 Cir. 11/9/11 ), 79 So.3d 5

6 1054, 1059, writ denied, (La. 4/9/12), 85 So.3d 698. Our appellate jurisdiction extends to " final judgments." See La. C.C.P. art In relevant part, a final appealable judgment "must contain appropriate decretal language disposing of or dismissing claims in the case." State in Interest of J.C., (La. App. 1 Cir. 6/3/16), 196 So.3d 102, ---. In this case, the trial court signed its judgment granting the dilatory exception of prematurity on October 26, The trial court's judgment, which was styled as an " Order on Exceptions," states, in pertinent part, as follows: " IT IS FURTHER ORDERED, ADJUDGED AND DECREED that the Dilatory Exception of Prematurity [ is] GRANTED." Louisiana Code of Civil Procedure art. 933(A) dictates that if the dilatory exception of prematurity is sustained, the premature action, claim, demand, issue, or theory " shall be dismissed." Though the trial court granted the exception of prematurity, the trial court failed to include the necessary decretal language ordering the dismissal of Ms. Babcock's rule seeking modification of the custody arrangement. Because the trial court's October 26, 2015 judgment lacks decretal language ordering the dismissal of Ms. Babcock's rule, the trial court's judgment is an interlocutory judgment. See State in Interest of J.C., 196 So.3d at---. The proper procedural vehicle to contest an interlocutory judgment is an application for supervisory writ. Id. (citing La. C.C.P. art. 2201; Alex v. Rayne Concrete Service, ( La. 1/26/07), 951 So.2d 138, 144). However, we have authority to exercise our supervisory jurisdiction and treat an appeal taken from an interlocutory judgment as an application for a supervisory writ. See State ex rel. Dept. of Social Services v. Howard, ( La. App. 1 Cir. 12/30/04), 898 So.2d 443, 444 n. l. In the case at hand, Ms. Babcock's appeal would be properly before us if the trial court 6

7 had included the appropriate decretal language in its judgment granting the exception of prematurity. Therefore, in the interest ofjudicial economy, we elect to exercise our discretion to convert this appeal to an application for supervisory writ, which we grant in order to review the merits of the trial court's judgment. See State in Interest ofj.c., 196 So.3d at---. Exception ofprematurity The dilatory exception of prematurity provided by La. C.C.P. art. 926(A)(l) questions whether the cause of action has matured to the point that it is ripe for judicial determination. Williamson v. Hospital Service Dist. No. 1 of Jefferson, ( La. 12/1/04), 888 So.2d 782, 785. The exception of prematurity contemplates that the plaintiff has filed his action prior to some procedure or assigned time, and it is usually utilized in cases in which applicable law or contract provides a procedure for one aggrieved by a decision to seek administrative relief before resorting to judicial action. Dailey v. Travis, ( La. App. 1 Cir. 2/23/04), 872 So.2d 1104, 1108, affd, (La. 1/19/05), 892 So.2d 17. Prematurity is determined by the facts existing at the time the suit is filed. Gordon, 47 So.3d at 568. The party raising the objection of prematurity bears the burden of showing that an administrative remedy is available, by reason of which the judicial action is premature. If the exceptor satisfies his burden of proving the existence of an administrative remedy, the burden then shifts to the plaintiff to show that the specified administrative remedy or procedure has been exhausted, or that the present situation is one of the exceptional circumstances in which the plaintiff is entitled to judicial relief because the administrative remedy is irreparably inadequate. Dailey, 872 So.2d at

8 In the case at bar, we find that the trial court legally erred by granting the dilatory exception of prematurity in favor of Mr. Martin. Simply put, Mr. Martin did not bear his burden of proving the existence of an unfulfilled prerequisite condition; rather, he submitted that Ms. Babcock's rule was premature because she had not satisfied the conditions contained in the December 1, 2008 consent judgment and the May 23, 2011 judgment on Ms. Babcock's rule for appointment of a treating psychiatrist. The trial court committed reversible error by accepting this position, conflating the courtordered conditions relative to Ms. Babcock's visitation rights with the existence of an available administrative remedy rendering her rule premature. Therefore, the trial court's judgment granting the dilatory exception of prematurity must be set aside and this case is remanded for further proceedings. 5 DECREE For the foregoing reasons, we convert this appeal to an application for supervisory writ; grant the application for supervisory writ; reverse the judgment of the Thirty-Second Judicial District Court granting the dilatory exception of prematurity; and remand this case to the trial court for further proceedings in accordance with this opinion. All costs of this appeal are assessed against the appellee, Charles Martin. APPEAL CONVERTED TO SUPERVISORY WRIT; WRIT GRANTED; REVERSED; REMANDED. 5 Having found that the trial court legally erred in granting the dilatory exception of prematurity, we pretermit discussion ofms. Babcock's alternative assignments oferror. 8