JOHN HEBERT JR v. JUDY PELLEGRINI HEBERT (2026)

This is an abandonment action. Appellant, Judy Pellegrini Hebert, (“Appellant”) appeals the trial court's August 14, 2025 order dismissing her child support claim against Appellee, John C. Hebert, Jr., (“Appellee”) due to abandonment. For the following reasons, we reverse the trial court's August 14, 2025 order and remand this matter to the trial court for further proceedings consistent with this opinion.

FACTS AND PROCEDURAL HISTORY

On April 9, 2020, Appellee filed a Petition for Divorce pursuant to La. C.C.P. art. 102, seeking child custody, child support and other incidental matters. Appellant filed an Answer and Reconventional Demand on May 19, 2020, also seeking custody and child support, and filed a motion to continue the matters set for hearing on June 2, 2020, including child support. The trial court granted the Judgment of Divorce on November 30, 2020. The parties entered into a Consent Judgment on May 3, 2021, regarding child custody, and continued the hearing on the issue of child support.

For the next year, the parties appeared in court several times for hearings on child support and other domestic matters. On January 3, 2022, Appellant filed a motion to set a Rule for Child Support, which was set for hearing on February 1, 2022. Appellee filed an unopposed motion to continue the rule for child support, and the matter was reset for hearing on April 5, 2022. On May 5, 2022 Appellee filed a Motion to Reset the Rule for Child Support; the matter was reset for hearing on June 30, 2022. On July 6, 2022, the trial court signed a judgment ordering responses to discovery and re-setting Appellant's Rule for Child Support to September 6, 2022. According to the minutes of the Court, the parties filed an unopposed motion to continue the Rule for Child Support and other pending matters until October 4, 2022. In October, by joint motion of the parties, the Rule for Child Support was continued without date. On June 11, 2025, Appellant filed her rule to reset child support and other incidental matters, stating that the parties never litigated her claim of child support initially filed in 2020.

On July 24, 2025, Appellee filed an Ex Parte Motion to Dismiss for Abandonment, accompanied by an affidavit, attesting that Appellant had not taken any action to move her child support claim forward after the filing of her January 3, 2022 motion to reset the hearing. The trial court signed the Order on August 14, 2025 dismissing Appellant's child support claims for abandonment retroactive to January 4, 2025. On October 14, 2025, Appellant filed a Motion for Devolutive Appeal. Shortly thereafter, she filed a Motion to Designate Judgment as Final and Appealable under Louisiana Code of Civil Procedure Article 1915(B).

MOTION TO DISMISS

Before addressing the merits, we first consider Appellee's Motion to Dismiss Appeal as Untimely. In his motion, Appellee argues that an appeal from a judgment awarding, modifying or denying child support can only be taken within the delays provided by La. C.C.P. art. 3942 ¹ , “․within thirty [30] days from the applicable date provided in Article 2087(A).”² La. C.C.P. art. 561(A)(4) provides that “[a]n appeal of an order of dismissal may be taken only within sixty days of the date of the sheriff's service of the order of dismissal.”

“As a general rule of statutory construction, a specific statute controls over a broader, more general statute.” Treas v. Koerner, 20-0050, p. 8 (La. App. 4 Cir. 7/15/20), 364 So.3d 285, 290 (citing Channelside Servs., LLC v. Chrysochoos Grp., Inc., 15-0064, p. 17 (La. App. 4 Cir. 5/13/16), 194 So.3d 751, 761). “Accordingly, where two statutes deal with the same subject matter, in the event of a conflict, the specific statute prevails over the statute more general in nature.” Id. See Channelside, 15-0064, pp. 17-18, 194 So.3d at 761.

The pleadings in the trial court reflect that Appellant's counsel of record was served by the Sheriff with the order of dismissal on August 22, 2025. Pursuant to La. C.C.P. art. 561(4), the Appellant had sixty days from the service of the order by the Sheriff to appeal. She filed her devolutive appeal on October 14, 2025, in accordance with the mandates of La. C.C.P. art 561, the more specific statute. Therefore, her appeal was timely. As a result, Appellee's Motion to Dismiss Appeal as Untimely is DENIED.

LAW AND ANALYSIS

Appellant asserts six assignments of error: (1) the trial court erred in dismissing Appellant's rule to establish child support for abandonment; (2) the trial court misapplied La. C.C.P. art. 561 by failing to note steps in the prosecution of the child support claim; (3) the trial court failed to apply Louisiana Supreme Court precedent regarding joint continuances interrupting abandonment (4) the trial court erred in issuing an ex parte dismissal without mailing Notice of Judgment pursuant to La. C.C.P. art. 1913; (5) the ex parte dismissal deprived Appellant of due process by extinguishing a substantive right without notice or a hearing; and (6) the trial court erred in dismissing the Appellant's claim for child support when Appellee's own actions constituted waiver under Louisiana law.

Assignments of error one, two and three

The dispositive issue in this case is whether the trial court's granting of Appellee's Ex Parte Motion to Dismiss for Abandonment Appellant's Rule to Establish Child Support ³ was proper. Pursuant to La. C.C.P. art. 561(A)(1), an action is deemed abandoned when the parties fail to take any step in its prosecution or defense in the trial court for three years. “[A]bandonment is self-executing, occurring automatically upon the passing of three years without a step being taken by either party and is effective without court order.” Sylvester v. Santone, 24-0310, p. 3 (La. App. 4 Cir 7/16/24), 399 So.3d 26, 28 (citation omitted). Pursuant to La. C.C.P. art. 561(A)(2):

This provision shall be operative without formal order, but on ex parte motion of any party or other interested person by affidavit that states that no step has been timely taken in the prosecution or defense of the action, the trial court shall enter a formal order of dismissal as of the date of its abandonment.

The issue of whether a lawsuit is abandoned is a question of law subject to de novo review. Bd. of Supervisors of La. State Univ. & Agric. & Mech. Coll. v. Bickham, 23-01364, p. 5 (La. 10/25/24), 395 So.3d 792, 798 (citing Felo v. Ochsner Med.Ctr.-Westbank, LLC, 15-459, p. 5 (La. App. 5 Cir. 12/23/15), 182 So.3d 417, 420.)

In order for Appellant to prevent the abandonment of her suit, she must have taken a “step” in the proceedings, or take a formal action before the court “to hasten the suit toward judgment․.” Sylvester, 24-0310, p. 4, 399 So.3d at 28-29 (quoting Clark v. State Farm Mut. Auto. Ins. Co., 00-3010, p. 6 (La. 5/15/01), 785 So.2d 779, 784.) Neither party disputes that Appellant's Rule for Child Support had been set and reset for hearing many times due to filing of several motions to continue. A threshold issue before us is whether the various motions to continue filed in the trial court were “steps” in the prosecution of Appellant's claim. The Louisiana Supreme Court discussed this same issue in Bickham and determined that “motions to continue trial, accompanied by orders to reset trial dates and/or schedule conferences with the court, evidence the intent to advance a lawsuit and are ‘steps’ as contemplated by Article 561.” Bickham, 23-01364, p. 7, 395 So.3d at 799.

The Louisiana Supreme Court also considered whether motions to continue without date could be deemed a “step” in the prosecution and held “that a motion to continue trial without date is not a ‘step’ in the prosecution or defense of a case as contemplated by Article 561; it does not interrupt the tolling of the abandonment period as it is the cessation of progress.” Id., 23-01364, p.10, 395 So.2d at 801 (Emphasis added). The Louisiana Supreme Court made the similar distinction between joint motions to continue trial accompanied by an order to set a date versus joint motions to continue trial without date, finding that a joint motion to continue without a date “merely evidences that neither party is hastening the matter toward judgment.” Id., 23-01364, p. 13, 395 So.3d at 803 (citing Reed v. Finkelstein, 01-1015, p. 6 (La. App. 4 Cir. 1/16/02), 807 So.2d 1032, 1035 (Emphasis added).

The record reflects that the trial court dismissed Appellant's child support claims for abandonment retroactive to January 4, 2025. She argues, however, that multiple steps in the prosecution of her matter occurred within the three years between 2022 and the filing of her rule to reset child support in June 2025. Appellee, in contrast, asserts that last step in the prosecution of Rule on Child Support was on January 3, 2022, arguing that motions to continue do not constitute a “step” as they do not hasten the matter to judgment. We do not agree with Appellee's argument; moreover, the jurisprudence does not support it.

The record reflects that on January 3, 2022, Appellant filed a Motion to Set her Rule for Child Support.⁴ The matter was set for hearing on February 1, 2022. Appellee filed an unopposed motion to continue the Rule for Child Support, and the matter was reset for hearing on April 5, 2022. Appellee filed a subsequent Motion to Reset, and Rule to Show Cause, requesting that the matter be heard on June 30, 2022. According to the minutes of the trial court, at the June hearing the parties agreed to Reset the Rule for Child Support to September 6, 2022. At the September hearing, the parties again agreed to reset the hearing to October. During the October hearing, by consent of the parties the Rule for Child Support was continued without date. In accordance with the above-cited Louisiana Supreme Court precedent, we find that the last “step” in the prosecution of this action was the parties’ unopposed motion to reset the rule for child support on September 6, 2022, resetting the matter for hearing on October 4, 2022 as it hastened this matter towards judgment. Bickham, 23-01364, p. 10, 385 So.3d at 801.

Contrary to the Appellee's assertion, Bickham did not establish a bright line rule that all motions to continue are considered to not be “steps” in the prosecution of an action. Instead, the Louisiana Supreme Court painstakingly reviewed the jurisprudence established by the courts of appeal as to what qualifies as a “step,” and it made a clear distinction between motions to continue accompanied by orders to reset the hearing dates and motions to continue without a date. The Louisiana Supreme Court stated: “[T]he continuance of a trial without a date delays the case, neither advances nor forwards its progress, and does not evidence any intention to hasten the case towards a conclusion. It simply brings the matter to a standstill.” Bickham, 23-01364, p. 10, 385 So.3d at 801. The Appellant is therefore correct that the motions to continue her Rule for Child Support, filed between January 2022 and October 2022, accompanied by orders to reset the hearing dates constituted “steps” in the prosecution that interrupted abandonment of her child support claim.

Pursuant to our de novo review of the record, we find that the trial committed error in granting Appellee's Ex Parte Motion to Dismiss for Abandonment and extinguishing her child support claim. The dismissal was premature as the last step in the prosecution of this matter occurred on September 6, 2022, not January 3, 2022 as attested to by affidavit. As we have found Appellee's motion to dismiss for abandonment was prematurely filed, we pretermit discussion of Appellant's other assignments of errors.

DECREE

For the foregoing reasons, Appellee's Motion to Dismiss Appeal is denied. Further, the trial court's August 14, 2025 order dismissing Appellant's rule for child support is reversed and remanded for further proceedings consistent with this opinion.

REVERSED AND REMANDED

FOOTNOTES

1.   La. C.C.P. art. 3943 provides, in pertinent part: “An appeal from a judgment awarding, modifying, or denying custody, visitation, or support of a person can be taken only within the delay provided in Article 3942.”

2.   La. C.C.P. art. 2087 (A) states:A. Except as otherwise provided in this Article or by other law, an appeal which does not suspend the effect or the execution of an appealable order or judgment may be taken within sixty days of any of the following:(1) The expiration of the delay for applying for a new trial or judgment notwithstanding the verdict, as provided by Article 1974 and Article 1811, if no application has been filed timely.(2) The date of the mailing of notice of the court's refusal to grant a timely application for a new trial or judgment notwithstanding the verdict, as provided under Article 1914.

3.   See La. C.C.P. art. 561, Official Revision Comment (b)-1960. (“The word ‘action’ is used in this article instead of demand in order to make it applicable to the principal as well as to the incidental actions.”). See also James v. Formosa Plastics Corp. of La., 01-2056, p. 4 (La. 4/3/02), 813 So.2d 335, 338 (holding that the word “action” used in La. C.C.P. art. 561 is not limited to the entire lawsuit).

4.   As noted above, Appellant's initial demand for child support was asserted in her Answer and Reconventional demand filed on May 19, 2020.

Judge Monique G. Morial