Day v. Day

• Decision Date: 28 May 2003
• Docket Number: No. 2002 CA 0431.,2002 CA 0431.
• Citation: 858 So.2d 483
• Parties: Shelby R. DAY v. Rosie Nell Laborde DAY.
• Court: Court of Appeal of Louisiana — District of US

858 So.2d 483

Shelby R. DAY v. Rosie Nell Laborde DAY.

No. .

Court of Appeal of Louisiana, First Circuit.

May 28, 2003.

Writ Denied November 7, 2003.

Kreig A. Breaux, New Iberia, for Defendant-in-Rule/Appellee Shelby R. Day.

Tommy K. Cryer, Shreveport, for Plaintiff-in-Rule/Appellant Rosie Nell Laborde Day.

Before: PARRO, McDONALD, and CLAIBORNE,¹ JJ.

PARRO, J.

Rosie Nell Laborde Day appeals a judgment that dismissed her claims against her former husband, Shelby R. Day, for certain support payments and for community property interests in his military and civilian retirement plans. We amend and affirm as amended.

FACTUAL AND PROCEDURAL BACKGROUND

Rosie Nell Laborde Day and Shelby R. Day were married October 17, 1964, and divorced October 10, 1991. In the divorce judgment, Mrs. Day was awarded permanent alimony in the amount of $400 per month, payable $200 on the 1st and $200 on the 15th of each month. On March 18, 1992, the parties executed a community property settlement agreement (the agreement), which stated, in pertinent part:

Shelby R. Day, as a further consideration of the transfers herein made, agrees to pay to Rosie Nell Laborde Day the sum of $400.00 per month as alimony and support, which support shall be paid on the first day of each month hereafter and shall continue until Rosie Nell Laborde Day reaches her 62nd birthday, at which time the parties agree that all alimony and support shall cease and terminate. The parties agree not to modify said amount by increase or decrease, however, said amount shall terminate upon the remarriage of Rosie Nell Laborde Day.

Shelby R. Day and Rosie Nell Laborde Day agreed that each shall be entitled to and received (sic) 50% each of all 401K savings and stock invested with or issued in either of the (sic) names with Honeywell, Inc. as of October 16, 1991, Shelby R. Day agrees to pay all penalties for early withdrawal of any sums of money withdrawn therefrom. Rosie Nell Laborde Day agrees to pay all taxes due on any sums of money received by her therefrom.

* * *

The parties hereto declare that the property described in the foregoing transfers constitutes all of the property belonging to the community formerly existing between them and that they do hereby relieve and release each other from any further accounting for the property herein described.

The agreement does not discuss Mr. Day's military retirement benefits.

Mrs. Day's petition to enforce the agreement and to make support arrearages executory was filed February 16, 2000; it stated Mr. Day had not paid alimony awarded by the court in the divorce judgment and had not paid $400 per month as specified in the agreement. Mrs. Day also claimed he had refused to release and/or deliver to her 50% of the 401(k) savings and stock invested with Honeywell, Inc., and asked that he be required to pay her the value in those accounts as of October 16, 1991, together with any later-deposited dividends and interest. Finally, she claimed the partition agreement was silent as to her community interest in Mr. Day's military retirement benefits² and as to any retirement benefits from his employment with Honeywell, and asked the court to recognize her ownership interest in those retirement plans.

In April 2000, a hearing was held on past-due court-ordered alimony, after which the court ordered Mr. Day to pay $24,600 plus legal interest from the date each payment was due until paid, continuing payments as they accrued, attorney fees, and court costs.³ Mr. Day was also found in contempt of court and sentenced to 90 days in jail; execution of the sentence was deferred 120 days, during which time he could pay all that was due and have his sentence set aside. Mr. Day stated in a deposition that he had paid all the arrearages and interest required by this judgment and had kept the payments current.

After a trial, the court ruled that the $400 "as alimony and support" in the agreement was "merely an adoption of the alimony order in the judgment of divorce" and dismissed Mrs. Day's claim for an additional $400 per month contractual support. The court also found that the language in the agreement regarding the 401 (k) account did not require Mr. Day to withdraw 50% of the funds and give them to Mrs. Day. Rather, the court interpreted the agreement as recognizing Mrs. Day's 50% ownership interest in whatever was in the account, which she could claim at any time by executing a Qualified Domestic Relations Order (QDRO) and submitting it to Honeywell. Finally, the court ruled Mrs. Day had waived her rights to Mr. Day's military retirement benefits. The judgment was signed July 13, 2001. Mrs. Day's motion for new trial was denied on October 25, 2001, and she appealed.⁴

ISSUES ON APPEAL

Mrs. Day contends that the agreement is not ambiguous, and therefore, parol evidence should not have been admitted by the trial court. However, should this court conclude that the agreement is not clear, she argues that any ambiguities should be interpreted against Mr. Day, because it was prepared at his direction by his attorney.

With this in mind, she asserts that the agreement clearly provides for support payments to her of $400 per month and does not say those payments are in lieu of or instead of the court-ordered alimony; any perceived ambiguity in the provision should be interpreted against Mr. Day, whose attorney drafted the agreement. She further argues that even if this court agrees with the trial court that the monthly support in the agreement was a reiteration or adoption of the court-awarded alimony, its inclusion in the agreement makes it contractual, such that it can be enforced for up to ten years, rather than the five-year enforcement limitation applicable to alimony arrearages.

With reference to the 401(k) plan, Mrs. Day argues that the judgment of the trial court writes out of the agreement the parties' clear statement that Mr. Day agreed to pay any early withdrawal penalties, because if she withdraws funds from her own portion after executing a QDRO, she will have to pay those penalties. She claims this language shows the parties intended for Mr. Day to withdraw those funds and pay them to her at that time and with the valuation as of October 16, 1991. She says this intent is also reflected in the use of the word "received" in the agreement, suggesting actual payment was intended.⁵

Finally, Mrs. Day maintains that when a community property partition is silent as to the division of pension benefits, that silence is not a waiver of the spouse's ownership rights, and the benefits can be partitioned in a later act or by the court. She claims that the release language, which is restricted to "property herein described," provides further support for her position, since the military retirement benefits are not described anywhere in the agreement.⁶

PAROL EVIDENCE

When the court is asked to interpret an authentic act, the admission of parol evidence is governed by Louisiana Civil Code article 1848, which states:

Testimonial or other evidence may not be admitted to negate or vary the contents of an authentic act or an act under private signature. Nevertheless, in the interest of justice, that evidence may be admitted to prove such circumstances as a vice of consent, or a simulation, or to prove that the written act was modified by a subsequent and valid oral agreement.

Although parol evidence is generally not admissible to vary or contradict the terms of an authentic act, in the interest of justice, it may be admitted under certain circumstances. Sonnier v. Boudreaux, 95-2127 (La.App. 1st Cir.5/10/96), 673 So.2d 713, 718. Between two parties to an instrument, parol evidence is admissible to show fraud, mistake, illegality, want or failure of consideration, or to explain an ambiguity when such explanation is not inconsistent with the written terms. Scafidi v. Johnson, 420 So.2d 1113, 1115 (La. 1982). In First State Bank & Trust Co. v. Seven Gables, Inc., 501 So.2d 280, 285-86 (La.App. 1st Cir.1986), writ denied, 502 So.2d 103 (La.1987), this court allowed parol evidence in a dispute over a guaranty agreement—an authentic act—when a date reference was clearly incorrect. Also, this court recently affirmed the admission of parol evidence to explain the commencement date for alimony payments; the authentic act providing for those payments was ambiguous, because the day and date used in the document did not exist. Holliday v. Holliday, 00-0533 (La.App. 1st Cir.8/17/01), 795 So.2d 423, 428, amended on rehearing on other grounds, 00-0533 (La.App. 1st Cir.9/28/02), 797 So.2d 774. In McCarroll v. McCarroll, 96-2700 (La.10/21/97), 701 So.2d 1280, 1286, parol evidence was allowed to clarify an ambiguity in an authentic act, namely, whether retirement benefits were contemplated by the parties when they used the term, "movable property" in that act.

Unlike those cases, neither party in this case seeks to negate or vary the contents of the agreement, which is an authentic act. Nor do they contend that the agreement itself is ambiguous or that there was some mutual mistake in its drafting or confection. Rather, the issue involves the relationship between two documents—the judgment of the trial court awarding Mrs. Day $400 per month alimony and the later agreement confected by the parties in which they agreed to the same amount of alimony. This relationship cannot be determined from the two documents themselves, as neither references the other. Mrs. Day argues that because the later-signed agreement did not say that the $400 per month alimony was "in lieu of" or "the same as" that awarded in the judgment, it must be an additional amount. Conversely, Mr. Day contends that because the agreement did not say that the $400 per month alimony was "in addition to" that awarded in the judgment, it must be a reiteration of that award. Because the parties are not trying to vary the terms of the agreement, but are attempting to explain the relationship...