Preview:

KATHERINE MARIE                                                               *                    NO. 2009-CA-0642
PHILLIPS ULYANOV
                                                                              *
VERSUS                                                                                             COURT OF APPEAL
*
SERGEY MICHAEL                                                                FOURTH CIRCUIT
ULYANOV                                                                       *
                                                                              STATE OF LOUISIANA
                                                                              *
APPEAL FROM
CIVIL DISTRICT COURT, ORLEANS PARISH
NO. 2008-7547, DIVISION “F”
Honorable Christopher J. Bruno, Judge
Judge Max N. Tobias, Jr.
(Court composed of Chief Judge Joan Bernard Armstrong, Judge Max N. Tobias,
Jr., Judge Paul A. Bonin)
Mark Moreau
SOUTHEAST LOUISIANA LEGAL SERVICES
1010 Common Street, Suite 1400 A
New Orleans, LA 70112
-AND-
Lawrence J. Pichler
920 Poeyfarre Street, Suite 420
New Orleans, LA 70130
COUNSEL FOR PLAINTIFF/APPELLANT
REVERSED IN PART; AFFIRMED IN PART; RENDERED.
SEPTEMBER 23, 2009




Katherine Marie Phillips Ulyanov (“Katherine”) appeals a trial court
judgment assessing her court costs.  On appeal, she contends the trial court erred in
assessing court costs against her.  For the reasons that follow, we agree that the
trial court erred in assessing court costs against her.
Katherine filed a petition for divorce in which she included a request for
permission to proceed in forma pauperis.  The requisite in forma pauperis
application was completed with supporting financial documentation. Subsequently,
by order of court, she was granted indigent status.  On 8 April 2009, the court
entered a judgment of absolute divorce on Katherine’s motion to confirm the
default entered on 19 February 2009.  The trial court further assessed “the cost for
filing [the] divorce action” against Katherine and ordered Katherine to “pay all
costs within (90) ninety days of the signing of [the] judgment.”  For the following
reasons, we reverse that portion of the order for Katherine to pay all costs for filing
the divorce action and render judgment accordingly.
1




La. C.C.P. art. 5186 states:
An account shall be kept of all costs incurred by a
party who has been permitted to litigate without the
payment of costs, by the public officers to whom these
costs would be payable.   If judgment is rendered in
favor of the indigent party, the party against whom
the judgment is rendered shall be condemned to pay
all costs due such officers, who have a privilege on the
judgment superior to the rights of the indigent party
or his attorney.  If judgment is rendered against the
indigent plaintiff and he is condemned to pay court costs,
an affidavit of the account by an officer to whom costs
are due, recorded in the mortgage records, shall have the
effect of a judgment for the payment due. [Emphasis
supplied.]
The record on appeal is devoid of any evidence that Katherine’s right to
proceed in forma pauperis was ever traversed or rescinded.  La. C.C. P. art. 5184.
We note that, as a general matter, La. C.C.P. art. 1920 gives the trial court
equitable discretion to tax costs against any party.  Specifically, article 1920 states,
in part:
Except as otherwise provided by law, the court may
render judgment for costs, or any part thereof, against
any party, as it may consider equitable. [Emphasis
supplied.]
We find the article 1920 discretion is limited in a pauper case by the more
specific provision found in La. C.C.P. art. 5186, which mandates the assessment of
costs to the party against whom judgment is rendered.  See Holloway v. Holloway,
01-0273, p. 2   (La. App. 3 Cir. 6/6/01), 787 So. 2d 600, 601.  Moreover, pursuant
to La. C.C.P. arts. 1701 and 1702, a judgment confirming a default is entered
against the party who fails to answer the petition and citation of the plaintiff.  In
the case at bar, the judgment entered on Katherine’s motion to confirm the default
was rendered against the defendant, Sergey Michael Ulyanov, and thus, we find he
2




should have been condemned to pay all court costs associated with these
proceedings.  La. C.C.P. art. 5186.   See also Williams v. Williams, 98-2899, pp. 1-2
(La. App. 4. Cir. 4/28/99), 732 So. 2d 1243,   1244; Smith v. Smith, 99-0365, pp. 1-
2 (La. App. 4 Cir. 5/5/99), 733 So. 2d 729, 730.  We conclude the trial court erred
in assessing court costs against Katherine Ulyanov.
Accordingly, we reverse that portion of the trial court judgment assessing
the costs for the filing of the divorce action against Katherine Ulyanov and render
judgment for the payment of court costs against Sergey Michael Ulyanov to be
paid within 90 days.  We affirm the trial court’s ordering Katherine Ulyanov to pay
all other costs (if any), except court costs, associated with these proceedings to be
paid within 90 days.
REVERSED IN PART; AFFIRMED IN PART; RENDERED.
3

Download 238733.pdf

Louisiana Law