Grey v. Grey
| Decision Date | 08 October 1985 |
| Docket Number | No. 85,85 |
| Citation | 476 So.2d 1003 |
| Parties | Royce G. GREY v. Earnestine Long GREY. CA 0567. |
| Court | Court of Appeal of Louisiana — District of US |
Joseph H. Simpson, Amite, for plaintiff-appellee Royce G. Grey.
Charles M. Reid, Amtie, for defendant-appellant Earnestine Long Grey.
Before EDWARDS, LANIER and JOHN S. COVINGTON, JJ.
Plaintiff was granted a divorce based on his and defendant's voluntarily living separate and apart for a period of time in excess of the statutorily required minimum. The curator ad hoc for the absentee defendant wife suspensively appealed the judgment dated February 1, 1985.
The petition for divorce, filed on January 11, 1985, alleged, inter alia, that defendant wife was an absentee and the court appointed a curator ad hoc who accepted service and waived citation on January 11, 1985. The court minutes for January 31, 1985 reflect that:
This day this matter came up by consent of counsel in the nature of a confirmation. Plaintiff was represented by Joseph J. Simpson, defendant represented by Charles M. Reid, attorney ad hoc. The matter was taken up and heard, testimony adduced, offerings made and Court rendered judgment as prayed for.
Judgment was signed in favor of plaintiff and against defendant decreeing a divorce a vinculo matrimonii.
The judgment states in part that "This cause came on this day to be tried" and further that judgment was read, rendered and signed "on this 1st day of February, 1985" although the date "January 31, 1985" is written in longhand in the space provided opposite the word "filed" and before the signature of the deputy clerk of court. We point out the above discrepancies in the judgment and the minute entry but conclude the judgment was rendered on January 31 but read and signed on February 1. The motion for appeal states the judgment appealed was "rendered on February 1, 1985."
After plaintiff-appellee and his corroborating witness testified regarding date and place of marriage, domicile in Tangipahoa Parish, and defendant's leaving plaintiff in December, 1983 and relocating to Florida, the attorney appointed to represent the absentee defendant stated for the record, but not under oath from the witness stand, that he had "filed an answer in the nature of a general denial" and had written "a certified letter to the defendant, certified return receipt, and I've gotton no response from it." The court's response to the foregoing statement of the curator ad hoc was "All right" and plaintiff's counsel immediately asked for judgment and stated that "when he [curator ad hoc] does get the certified receipt back I ask that it be entered in the record." The court stated "judgment as prayed for" and the proceedings were closed.
In the colloquy between the court and counsel, neither the court nor plaintiff's counsel asked the curator ad hoc what date he mailed the certified letter to defendant and whether he mailed a copy of the petition for divorce to her, informing her of the delays allowed for filing an answer or other responsive pleadings. The curator ad hoc did not volunteer the answers to the foregoing.
The entire record of this case, consisting of sixteen pages, does not contain either a copy of the curator's letter to defendant or the certified receipt which plaintiff's counsel requested be entered in the record which was certified as complete by a deputy clerk of court on April 26, 1985.
Defendant-appellant assigns as reversible errors the trial court's granting a judgment of divorce (1) when no answer had been filed on the date of the trial and (2) without adequate notice to the defendant of the pendency of the proceedings.
The two issues presented in this appeal are:
1. Did the trial court commit reversible error by permitting plaintiff to present his case at a hearing in the nature of a confirmation in the absence of an answer by the curator ad hoc?
2. Was the absentee defendant accorded due process of law at the hearing in the nature of a confirmation in the absence of proof that she had received notice of the pendency of the suit and had taken no action to prevent a default judgment from being entered?
The record reflects that the hearing was conducted on January 31, 1985 and that the curator ad hoc acquiesced in it although only twenty days had elapsed since he had accepted the appointment and accepted service. The curator's appellate brief states that his letter to the absentee defendant "is dated January 18, 1985" but does not state when the letter was mailed. However, the brief cannot supplement the record. The record does reflect that the curator's answer was filed February 1, 1985; it also reflects he stated at the hearing that he had filed an answer in the nature of a general denial and that he had received no response to his certified letter, the mailing date of which was not stated.
La.C.C.P. art. 5095 mandates the curator ad hoc, except in executory proceedings, to file an answer in time to prevent a default from being rendered and permits the curator to prosecute appeal from an adverse judgment.
In the instant case, the curator ad hoc clearly did not file his answer as required by law; therefore, the holding of the hearing in the nature of a confirmation was improper. Thus, the judgment rendered at that hearing was without legal effect.
Even if the curator had performed his statutorily mandated duty by filing a timely answer, the hearing was nevertheless devoid of due process.
Neither appellee's brief nor appellant's brief has any value in resolving the substantial due process issue presented by this appeal.
We reiterate that the record contains nothing to establish that defendant had been placed on notice that she was being sued for divorce. Plaintiff did not introduce into evidence a copy of the curator's letter, stated by the curator at the hearing to have been sent by certified mail, return receipt requested. Thus, the record does not reflect the date of mailing, although it had to be no earlier than January 11, 1985, the date on which he accepted the appointment and service of the petition. Accepting as true for purposes of this discussion the statement in the curator's brief in this court that his letter was "dated January 18, 1985", the letter was written thirteen days before the hearing on January 31. We reiterate that the record does not reflect the date the letter was written or the date it was mailed.
"An elementary and fundamental requirement of due process in any proceeding which is to be accorded finality is notice reasonably calculated, under all the circumstances, to apprise interested parties of the pendency of the action and afford them an opportunity to...
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