JOHN HEBERT JR v. JUDY PELLEGRINI HEBERT (2026)

Appellant, Judy Pellegrini Hebert (“Ms. Hebert”), appeals the district court's November 17, 2025 ruling denying her “Petition to Vacate and/or Annul Judgment, in the Alternative for Motion for New Trial and To Reset Child Support Hearing.” For the following reasons, we dismiss the appeal in part, convert the remaining portion to a supervisory writ, and deny writ.

FACTUAL AND PROCEDURAL HISTORY

This appeal arises from divorce proceedings between Ms. Hebert and the Appellee, John Hebert, Jr. (“Mr. Hebert”). On April 9, 2020, Mr. Hebert filed for divorce, and, on May 19, 2020, Ms. Hebert filed an answer and reconventional demand, wherein she requested a judgment for child support in her favor. By judgment dated November 30, 2020, the parties were legally divorced. Thereafter, the parties continued to litigate ancillary matters, including outstanding protective orders and the custody of their then minor child. Pursuant to a May 3, 2021 consent judgment, the parties agreed to joint custody and to have all issues regarding child support be continued until reset by the parties.

In January 2022, Ms. Hebert filed a “Motion to Set Rule” (herein “Rule for Child Support”), requesting the district court order child support in her favor. The motion was reset multiple times throughout 2022, with the last hearing date being set for October 4, 2022. The minute entry for that hearing provides, “On the parties’ unopposed motion the Court continued Rule for Contempt and Rule for Child Support and Motion to Compel Responses to Interrgatories [sic] and Request for Production of Documents, to be reset by the parties.”

No further action took place on the Rule for Child Support until June 11, 2025, when Ms. Hebert filed to reset the child support hearing.¹ The district court set the hearing for August 5, 2025. In response, Mr. Hebert filed an “Ex Parte Motion to Dismiss for Abandonment Pursuant to Louisiana Code of Civil Procedure” (“Motion to Dismiss”), arguing that the issue of child support was abandoned by operation of law.²

Although the record indicates the parties agreed to reset the hearing on the child support issue ³ , the district court granted Mr. Hebert's Motion to Dismiss on August 14, 2025, and ordered that “any and all claims pertaining child support [sic] ․ are hereby dismissed for abandonment by operation of law, retroactive to January 4, 2025 ․”

On October 14, 2025, Ms. Hebert timely filed for a devolutive appeal of the district court's order dismissing her claim for child support, which the district court granted the next day.⁴ Thereafter, Ms. Hebert filed a “Petition to Vacate and/or Annul Judgment, in the Alternative for Motion for New Trial and to Reset Child Support Hearing” (collectively “Petition to Vacate/Motion for New Trial;” separately, “Petition to Vacate” and “Motion for New Trial”) on November 4, 2025. The district court summarily denied her request to set the Petition to Vacate/Motion for New Trial for hearing on November 17, 2025. This timely appeal followed.

ASSIGNMENTS OF ERROR

Ms. Hebert raises two assignments of error on appeal:

1. The district court erred in summarily denying the Petition to Vacate without setting a contradictory hearing because Mr. Hebert was not clearly entitled to the relief and is required to provide proof of entitlement to relief.

2. The district court erred in summarily denying the Motion for New Trial without a contradictory hearing because the motion included new facts and law that would have changed the outcome of the matter and precluded Ms. Hebert from having a fair hearing on the matter.

For this opinion, we will address Ms. Hebert's second assigned error first.

DISCUSSION

Assignment of Error No. 2: Whether the district court erred in denying the Motion for New Trial

Before addressing the merits of Ms. Hebert's second assigned error, we have a duty to determine whether our jurisdiction over this issue has been properly invoked. CDW Servs., LLC v. City of New Orleans, 2024-0152, p. 2 (La. App. 4 Cir. 9/24/24), 399 So. 3d 796, 799 (citing Succession of Hickman, 2022-0730, p. 5 (La. App. 4 Cir. 3/15/23), 359 So. 3d 584, 589). A district court's ruling on a motion for new trial is an interlocutory judgment that invokes the appellate court's supervisory jurisdiction. See 9029 Jefferson Highway, L.L.C. v. S&D Roofing, L.L.C., 2015-686, p. 4 (La. App. 5 Cir. 2/24/16), 187 So. 3d 522, 524 (citation omitted); see also La. C.C.P. art. 1841. The denial of a motion for new trial is not a final judgment that can be separately appealed. See Everett v. Air Prods. and Chems., Inc., 2022-0539, p. 7 (La. App. 4. Cir. 5/2/23), 382 So. 3d 216, 222 (quoting New Orleans Fire Fighters Pension and Relief Fund v. City of New Orleans, 2017-0320, p. 5 (La. App. 4 Cir. 3/21/18), 242 So.3d 682, 688 n.12). The denial of a motion for new trial may only be considered as part of an unrestricted appeal from a final judgment on the merits of the ruling that formed the basis for the motion for new trial. See CDW Servs., LLC, 2024-0154, p. 3, 399 So. 3d at 799 (“[A]n appellate court construes an appeal of a judgment denying a new trial as an appeal of the judgment of the merits of the case where the appellant's brief makes clear that the appellant intended to appeal the merits of the case.”)(Citations omitted).

Here, we do not have the appellate jurisdiction to consider the district court's denial of Ms. Hebert's Motion for New Trial. Ms. Hebert is bringing this appeal outside of the merits of the underlying motion on which the Motion for New Trial is based. Ms. Hebert has separately appealed the merits of the Motion to Dismiss. While we may consider the merits of the Motion for New Trial under our supervisory jurisdiction, we decline to do so in this case. An appellate court may choose to convert an improper appeal into a supervisory writ if the “circumstances indicate that an immediate decision of the issue sought to be appealed is necessary to ensure fundamental fairness and judicial efficiency ․” CDW Services, LLC, 2024-0152, p. 4, 399 So. 3d at 799-800 (quoting McGinn v. Crescent City Connection Bridge Auth., 2015-0165, pp. 4-5 (La. App. 4 Cir. 7/22/15), 174 So. 3d 145, 148). As Ms. Hebert has a separate appeal on the underlying merits of the Motion to Dismiss, a review of the Motion for New Trial is not necessary to ensure fundamental fairness and would not be judicially efficient. Therefore, we decline to consider the merits of the Motion for New Trial and dismiss this portion of the appeal.

Assignment of Error No. 1: Whether the district court erred in denying the Petition to Vacate

We now turn to Ms. Hebert's first assignment of error regarding the district court's denial of the show cause order setting her Petition to Vacate for a contradictory hearing. Ms. Hebert filed her Petition to Vacate pursuant to La. C.C.P. art. 2004, alleging that the district court's judgment on the Motion to Dismiss was obtained through the ill practice of Mr. Hebert's counsel. As an initial matter, we note that we review the district court's ruling on the petition for an abuse of discretion. See generally, Loughlin v. United Services Auto. Ass'n, 2017-0109, p. 21 (La. App. 4 Cir. 12/20/17), 233 So. 3d 132, 146 (citation omitted). Additionally, for the reasons we will discuss below, we do not construe the denial of the show cause order on the Petition to Vacate as a valid, final judgment because it did not determine the merits of Ms. Hebert's action. See La. C.C.P. art. 1841. However, as Ms. Hebert filed her appeal within the delay to apply for a supervisory writ, and because an immediate decision of this issue is necessary to ensure fundamental fairness and judicial efficiency, we exercise our supervisory jurisdiction over this issue.

In his opposition brief, Mr. Hebert argues that the district court did not err in denying to set the Petition to Vacate for hearing because it was divested of jurisdiction over the Motion to Dismiss when Ms. Hebert filed her original appeal. This is incorrect. Louisiana Code of Civil Procedure article 2005 maintains that a “judgment may be annulled prior to or pending an appeal therefrom” and that an “action for nullity does not affect the right to appeal.” (Emphasis added). Our jurisprudence holds that one may simultaneously seek to appeal a judgment and have it annulled in certain circumstances. See Assensoh v. Diamond Nails, 2004-1130, pp. 5-6 (La. App. 4 Cir. 2/16/05), 897 So. 2d 806, 810 (citation omitted) (noting that an action for nullity must be brought when the basis for the nullity of the judgment does not appear in the record and cannot be corrected on appeal). As Ms. Hebert alleges ill practice as the basis for her petition, the district court was not stripped of its jurisdiction to consider the nullity action.

Nevertheless, contrary to Ms. Hebert's argument, we do not find the district court abused its discretion in refusing to set the petition for a contradictory hearing. Ms. Hebert argues that La. C.C.P. art. 963 required the district court to set her petition for a contradictory hearing. Article 963 falls under Book II, Title I, Chapter 4 of the Louisiana Code of Civil Procedure, which governs the disposition of motions. However, Ms. Hebert filed a petition—not a motion. A petition to vacate and annul a judgment institutes an ordinary action that is governed by specific procedures. Ezzell v. Miranne, 2013-349, p. 5 (La. App. 5 Cir. 12/30/13), 131 So. 3d 1093, 1096 (citations omitted)  ⁵ ; but see, La. C.C.P. art. 2592 (listing types of actions that may be conducted through a summary proceeding). As the Petition to Vacate constitutes an ordinary action, it requires citation and service on the opposing party as well as a lapse of time to allow the opposing party to file an answer to the allegations and raise any applicable exceptions. See generally La. C.C.P. art. 921; La. C.C.P. art. 1001. Taking all this into account, we do not find that the district court abused its discretion in denying Ms. Hebert's request to set the Petition to Vacate for a contradictory hearing via a rule to show cause in contravention to the procedures governing ordinary proceedings.

Finally, we note that a pleading's nature is to be construed by its substance and not its caption. Jones v. Boot Bar & Grill, 2022-0154, p. 16 (La. App. 4 Cir. 10/5/22), 350 So. 3d 968, 980 (citations omitted); see also La. C.C.P. art. 865. Although Ms. Hebert titles her pleading as a Petition to Vacate, the majority of the pleading relates to her request for a new trial instead of the allegation of fraud and ill practice. To the extent Ms. Hebert's Petition to Vacate can be construed as a Motion for New Trial, we decline to consider the issue for the reasons outlined earlier in this opinion.

DECREE

For the foregoing reasons, we dismiss Ms. Hebert's appeal relating to the Motion for New Trial, convert her appeal on the Petition to Vacate into a supervisory writ, and deny writ.

DISMISSED IN PART; CONVERTED TO SUPERVISORY WRIT; WRIT DENIED

FOOTNOTES

1.   Other motions unrelated to the child support issue were filed in 2024.

2.   On July 25, 2025, Ms. Hebert filed a “Rule to Establish Child Support” to re-assert her claim for child support “in an abundance of caution[.]”

3.   The minute entry from August 5, 2025, provides, “On the parties unopposed motion the Rule to Reset Child Support Hearing ․ is continued to be reset upon filing of a formal motion.”

4.   Our opinion in 2025-CA-0792, John C. Hebert, Jr. v. Judy Pellegrini Hebert, addresses the merits of the district court's judgment on the Motion to Dismiss.

5.   “An action for nullity of a final judgment alleging fraud or ill practice pursuant to La. C.C.P. art. 2004 must be brought in an ordinary proceeding, rather than in a summary proceeding. There is no authority in law to bring such an action in a summary proceeding. An action for nullity alleging fraud is a relative nullity that must be asserted in a direct action filed in the court that rendered the judgment, and the adverse party must be cited to appear as in ordinary suits.” Ezzell, 2013-349, p. 5, 131 So. 3d at 1096 (internal citations omitted).

Judge Nakisha Ervin-Knott