Callender v. Callender
Callender v. Callender
Opinion of the Court
12The Plaintiff, Helen B. Callender (Mrs. Callender), appeals from the ruling of the trial court denying numerous motions which she most recently filed following the 1992 judgment that partitioned the community which previously existed between her and her ex-husband, the Defendant, Joseph Callender (Mr. Callender). For the reasons which follow, we dismiss the appeal.
The parties were divorced on March 14, 1991. On September 3, 1991, a petition to partition the community property was filed by Mr. Callender. A judgment partitioning the community property was signed by the trial court on June 10, 1992. Following a timely motion for partial new trial, the trial court, on December 8, 1992, modified the earlier judgment on a relatively minor point. Mrs. Callender appealed the lower court judgments. This Court ren
Thereafter, on July 14, 2004, the trial court denied several motions subsequently filed by Mrs. Callender.
In response, Mr. Callender filed a Motion to Dismiss the Appeal. He noted that the motion for appeal does not reference which lower court judgments or issues are being appealed. Also, it is noted that no appeal lies from the denial of lower court motions which are not final judgments. Moreover, Mr. Callender argues that since all of the issues raised by Mrs. Callender relate to the 1992 trial court judgments that were considered on appeal and are final, this second attempt to raise issues in relation to those judgments is improper. The motion to dismiss was referred to the merits.
Upon consideration of the case, we find that the appeal must be dismissed. An appeal is the exercise of the right to have a judgment of a lower court revised, modified, set aside or reversed by an appellate court. La. C.C.P. art. 2082. An |4appeal . may only be taken from a final judgment, an interlocutory judgment which may cause irreparable injury, or a judgment reformed in accordance with a remittitur or additur under La. C.C.P. art. 1814. La. C.C.P. art. 2083.
Applying these rules to this case, we find no issues presented by Mrs. Callender that are appealable. Upon reviewing the
Mrs. Callender’s arguments that the 1992 judgments are not final lack merit. The basis of her argument is that some community property items were omitted from the 1992 partition judgments. While we make no determination as to the merit of Mrs. Callender’s claims regarding omitted items, we note that in such circumstances a party to a partition in which items have been omitted may file a petition for a supplemental partition of those items. Ortiz v. Ortiz, 01-1252 (La.App. 5th Cir.5/15/02), 821 So.2d 35. This, of course, would not include arguments relating to disagreement with valuations in the previous partition, but would only apply to property that was completely omitted from consideration in the earlier proceeding. Otherwise, her arguments relating to her dissatisfaction with the 1992 judgments can not be reconsidered because the judgment is final and the claims are prescribed. Ortiz, supra: Zeringue v. Zeringue, 442 So.2d 1211 (La.App. 5th Cir. 1983), writs denied, 445 So.2d 1229 (La. 1984).
Accordingly, for the reasons stated above, this appeal from a non-appealable judgment, assigning errors relating to a final judgment, is dismissed. Costs of appeal are assessed to Mrs. Callender.
APPEAL DISMISSED.
. The following motions were considered and denied by the trial court: “Motion for Pres-cheduling Order and for $67,000 Performance and $25,000 Recognizance Bonds; Preliminary Hearing on Exceptions, Defenses and Questions; Motion to Reverse Denial of Motion and Memorandum of Support for Partial New Trial; Motion and Order to Rescind Judgment of June 10, 1992; Motion to Be Permitted to Supplement or Amend Motion to Rescind; Request for Answers, Interrogatories, and Production of Documents; and Sanctions and Damages for Violation of Preliminary and Joint Permanent Injunctions; Failure to Comply with Order to Compel Discovery of March 17, 1992; Obtaining Judgment of June 5, 1992, By Fraud or Ill Practices; Obtaining an Ex Parte Order Based on Ungrounded Facts and Law; Premature or Wrongful Seizure of 401K Boeing Retirement Plan; Abandonment of Cross-Appeal by Joseph Callender; and Reimbursement of Attorneys’ Fees, Court Costs, and All Other Costs filed by the Plaintiff, Helen Callender."
. This was the law at the time this appeal was taken. It should be noted that La.C.C.P. art 2083 was amended by Act No. 205 of the 2005 Regular Session and no longer authorizes the appeal of interlocutory judgments which may cause irreparable harm.
Reference
- Full Case Name
- Helen Barrios CALLENDER v. Joseph I. CALLENDER
- Cited By
- 1 case
- Status
- Published