ROBSHAL MONTGOMERY v. DONELLE MCFADDEN SR (2026)

This case evolves from Relator's motion to modify custody. Relator, Robshal Montgomery (“Ms. Montgomery”) pro se, seeks review of the trial court's September 30, 2026 Ex Proprio Motu Order to Reset Motion to Modify Custody (“Reset Order”). It is the continuance of the motion to modify and the trial court's decision to not act on the merits of the motion that Ms. Montgomery assigns as error. For the reasons that follow, we grant Ms. Montgomery's writ application, however, deny relief and request for a stay of the trial court's proceedings.

FACTS

Ms. Montgomery, through counsel, filed the motion to modify on June 9, 2026. The motion to modify alleged, in part, that an August 8, 2023 Texas decree which granted custody to Defendant, Donelle McFadden, Sr. (“Mr. McFadden”), is void; and as a result, an April 2024 Orleans Parish district court judgment which adopted the Texas decree is not enforceable.¹ The hearing on the motion to modify judgment was scheduled for September 10, 2026.

On September 30, 2026, the trial court issued the Reset Order to re-schedule the motion to modify hearing until November 9, 2026. Ms. Montgomery objected to the Reset Order and the trial court granted her notice of intent to seek writs.

This timely writ application follows.

DISCUSSION

Ms. Montgomery argues the trial court abused its discretion in not immediately vacating the “void” Texas judgment and delaying a hearing on the motion to modify, disregarding child safety and service evasion issues. Accordingly, Ms. Montgomery requests this Court's intervention to stay the trial court proceedings and rule on the merits of her motion to modify.

Standard of Review

The Reset Order continued the hearing on the motion to modify. “A trial judge has wide discretion in determining whether a motion for continuance should be granted; thus, the standard of review in such cases is abuse of discretion.” Coastal Fire Protection, L.L.C. v. Custom Drywall & Painting, L.L.C., 2025-0081, p. 9 (La. App. 4 Cir. 9/16/25), 421 So.3d 267, 273, quoting Doe v. Lewis, 2020-0320, p. 3 (La. App. 4 Cir. 12/30/20), 312 So.3d 1165, 1169 (citing Jordan v. Cmty. Care Hosp., 2019-0039, 2019-0040, pp. 22-23 (La. App. 4 Cir. 7/24/19), 276 So.3d 564, 582).

Reset Order

Ms. Montgomery alleges and the district court confirms through the Reset Order the difficulty in serving Mr. McFadden. The trial court's Reset Order stated, in relevant part:

By order of the Court, the Custody hearing in the above-captioned case, scheduled to be heard on September 10, 2026 is hereby reset to take place on Monday, November 9, 2026, at 9:30 a.m.

This matter is being reset to allow Ms. Robshal Montgomery to appoint a curator, in order to effectuate service on Defendant in this matter, as Ms. [Montgomery] has been unable to get Mr. McFadden served in this matter.

Pursuant to La. C.C.P art. 6(A)(1), jurisdiction over the person requires “[the service of process on the defendant, or on his agent for the service of process, or the express waiver of citation and service under Article 1201.”² Therefore, inasmuch as Ms. Montgomery acknowledges that Mr. McFadden has not been served and makes no representation that Mr. McFadden waived service, the trial court lacked jurisdiction over Mr. McFadden. Accordingly, we find the trial court did not abuse its discretion or make any error of law in issuing the Reset Order.

Appointment of Curator

Ms. Montgomery alleges Mr. McFadden has engaged in evasive actions to avoid service. However, this allegation does not cure the lack of service and resulting lack of jurisdiction over Mr. McFadden. The proper legal remedy under these circumstances is provided under La. C.C.P. art. 5091(A)(1)(a) which allows for the appointment of an attorney at law to represent an absentee party who has not been served with process, either personally or through an agent for the service of process. The trial court made this remedy available to Ms. Montgomery. The Reset Order specifically allows Ms. Montgomery the opportunity to secure a curator to effectuate service on Mr. McFadden for the November 9, 2026 hearing on the motion to modify.

CONCLUSION/DECREE

We grant Ms. Montgomery's request for expedited consideration of her writ application to seek review of the trial court's September 30, 2026 Reset Order. Notwithstanding, we find the trial court did not abuse its discretion in issuing the Reset Order. Accordingly, we deny relief and Ms. Montgomery's request for a stay.

WRIT GRANTED; RELIEF DENIED; STAY DENIED

FOOTNOTES

1.   Ms. Montgomery attached copies of the Texas decree and the April 2025 Orleans Parish Civil District Court judgment to her writ application.

2.   Louisiana Code of Civil Procedure art. 1201 provides that “[c]itation and service thereof are essential in all civil actions except summary and executory proceedings, divorce actions under Civil Code Article 102, and proceedings under the Children's Code. Without them all proceedings are absolutely null.” See also Go Green Disposal & Recycling, LLC v. MABB Productions, LLC, 2025-0408, pp. 10-11, 430 So.3d 1244, 1250, finding that without “evidence of proper citation and service of process” that “informed[ed] the defendant of the claim against him, in strict compliance of law, all subsequent proceedings are absolutely null.” (citations omitted).

Judge Sandra Cabrina Jenkins

LOBRANO, J., CONCURS IN RESULT.