Opinion
NUMBER 2012 CA 0526
11-02-2012
AARON MELVIN v. TAWANNA B. MELVIN
Joni M. Buquoi Gonzales, LA Counsel for Plaintiff/Appellee, Aaron Melvin Richard Ducote Pittsburgh, PA Brian J. Prendergast Baton Rouge, LA Counsel for Defendant/Appellant, Tawanna B. Melvin Counsel for Defendant/Appellee, Aaron Melvin
NOT DESIGNATED FOR PUBLICATION
Appealed from the
Twenty-Third Judicial District Court
In and for the Parish of Ascension
State of Louisiana
Docket Number 80,879
The Honorable John Peytavin , Judge Pro Temp
Joni M. Buquoi
Gonzales, LA
Counsel for Plaintiff/Appellee,
Aaron Melvin
Richard Ducote
Pittsburgh, PA
Brian J. Prendergast
Baton Rouge, LA
Counsel for Defendant/Appellant,
Tawanna B. Melvin
Counsel for Defendant/Appellee,
Aaron Melvin
BEFORE: WHIPPLE, McCLENDON, AND HIGGINBOTHAM, JJ.
WHIPPLE, J.
In this protracted custody dispute, Tawanna B. Melvin (Purpera) appeals from a judgment of the trial court assessing costs of the underlying proceedings to her. For the following reasons, the judgment of the trial court is affirmed.
Tawanna Melvin remarried during the course of these proceedings and was subsequently referred to in the record below as Tawanna Purpera or Lynn Purpera. Accordingly, we refer to her herein as "Mrs. Purpera" in this opinion.
FACTS AND PROCEDURAL HISTORY
Aaron Melvin and Mrs. Purpera were married in 1995 and subsequently divorced on March 6, 2006. Two children were born of the marriage. On March 30, 2009, the parties entered into a consent judgment wherein they were awarded joint custody of the children, with Mr. Melvin designated as the primary domiciliary parent subject to visitation in favor of Mrs. Purpera every other weekend during the school year. Pursuant to the judgment, during the summer time, Mrs. Purpera exercised visitation for the first two week period and the last two week period of the summer. The parties alternated weekly visitation for the remaining weeks of the summer.
On January 21, 2011, Mrs. Purpera filed a motion to modify custody and visitation and for an appointed attorney for the children. Therein, Mrs. Purpera sought sole custody of the children and requested that Mr. Melvin be awarded "limited professionally supervised visitation." The matter was ultimately set for trial and heard on July 5, 7, and 29, 2011. On August 4, 2011, the trial court signed a judgment in favor of Mr. Melvin denying Mrs. Purpera's request for sole custody, awarding the parties joint custody of the children, naming Mr. Melvin as the primary domiciliary parent, and setting forth a visitation schedule for the parties. The trial court also: found Mrs. Purpera in contempt of court for her failure to pay court ordered extracurricular expenses and medical expenses in the amount of $262.41 and sentenced her to 7 days in the parish jail, which sentence was suspended upon her paying the amount due within 30 days of the judgment; found Mrs. Purpera to owe outstanding extracurricular expenses and medical expenses in the amount of $713.22 to be paid within 30 days of the judgment; fixed the children's attorney's fees at $12,000.00 and assessed such fees as court costs; and cast Mrs. Purpera with all costs of the proceedings.
Mrs. Purpera requested that Mr. Melvin's visitation with the children be restricted to supervised visitation conditioned upon his completion of a specialized treatment program for abusive parents, as Mrs. Purpera alleged that his home was "extremely abusive, neglectful, and intolerable for the children."
In response, Mrs. Purpera filed a motion for traversal and reduction of estimated costs for appeal, while Mr. Melvin filed a motion for reimbursement of costs, seeking reimbursement for costs he incurred, including clerk-of-court fees for both Ascension and East Baton Rouge Parishes, expert witness fees, deposition fees, evaluation fees, and the court-appointed attorney's fees. Both motions were heard by the trial court on November 28, 2011. After hearing the matters, the trial court rendered judgment on January 19, 2012, ordering Mrs. Purpera to reimburse Mr. Melvin for costs in the amount of $14,528.45 pursuant to the trial court's August 4, 2011 judgment, which the trial court made executory.
Mrs. Purpera filed a motion for appeal of the August 4, 2011 judgment, which was subsequently dismissed pursuant to her motion to dismiss appeal filed January 4, 2012.
Mrs. Purpera now appeals, contending that the trial court erred in assessing her with 100% of all court costs.
A "costs" judgment against a defendant is a separately appealable judgment where the amount of expert fees taxed as costs are substantial and where, following a judgment on the merits, the trial court takes the matter of costs under advisement and conducts additional hearings on such matter. Hoyt v. State Farm Mutual Automobile Insurance Company 623 So. 2d 651, 664 (La. App. 1st Cir.), writ denied, 629 So. 2d 1179 (La. 1993).
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DISCUSSION
The trial court may render judgment for costs against any party as it may consider equitable. LSA-C.C.P. art. 1920. However, as a general rule, the party cast in judgment should be taxed with costs. Morrison v. Gonzalez, 602 So. 2d 1104, 1107 (La. App. 1st Cir. 1992). On review, a trial court's assessment of costs will not be disturbed unless there is an abuse of discretion. State, Department of Transportation and Development v. Restructure Partners, L.L.C., 2007-1745 (La. App. 1st Cir. 3/26/08), 985 So. 2d 212, 234, writ denied, 2008-1269 (La. 9/19/08), 992 So. 2d 937. The prevailing party is not taxed with costs unless in some way he incurred additional costs pointlessly or engaged in other conduct, which justifies an assessment of costs against that litigant. Laughlin v. Breaux, 515 So. 2d 480, 485 (La. App. 1st Cir. 1987).
Given the ruling of the trial court in its August 4, 2011 judgment denying Mrs. Purpera's request for sole custody of the children, Mr. Melvin was clearly the prevailing party. To the extent that Mrs. Purpera argues that she was forced to bring this rule to "protect" her children, we note that the trial court, after listening to three days of expert and lay testimony in this matter, essentially rejected her claims as meritless. Moreover, the trial court ordered that the parties not participate in any conversation regarding the allegations she made, as the "children would benefit from putting the allegations ... behind them."
On review, there is no showing in the record that Mr. Melvin caused costs to be incurred pointlessly or engaged in other conduct, which would justify an assessment of costs against him under the circumstances presented herein. Considering the record before us and the above legal precepts, we find no abuse of discretion in the trial court's assessment of costs herein.
Accordingly, we find no merit to this assignment of error.
CONCLUSION
For the above and foregoing reasons, the January 19, 2012 judgment of the trial court is hereby affirmed. Costs of this appeal are assessed to the Defendant/Appellant, Tawanna B. Melvin Purpera.
AFFIRMED.