Holland v. Holland
| Decision Date | 11 December 2013 |
| Docket Number | No. 13–636.,13–636. |
| Citation | 129 So.3d 844 |
| Parties | Kathryn Elizabeth HOLLAND v. Paul Scott HOLLAND. |
| Court | Court of Appeal of Louisiana — District of US |
OPINION TEXT STARTS HERE
W. Mitchell Redd, Attorney at Law, Lake Charles, LA, for Defendant/Appellee: Paul Scott Holland.
Jamie Blair Bice, Veron, Bice, Palermo & Wilson, L.L.C., Lake Charles, LA, for Plaintiff/Appellee: Kathryn Elizabeth Holland.
Donald Carl Hodge, Jr., Attorney at Law, Baton Rouge, LA, for Intervenors/Appellants: Donald Carl Hodge, Jr., Evia Hodge, Rachel Hodge, Chance DeRamus.
Court composed of JOHN D. SAUNDERS, SHANNON J. GREMILLION, and PHYLLIS M. KEATY, Judges.
The Creditors, Chance DeRamus, Evia Hodge, Donald Hodge, and Rachel Hodge (collectively referred to as the Creditors or Interveners), appeal the judgment of the trial court sustaining Kathryn Elizabeth Holland and Paul Scott Holland's exception of no cause of action and exception of no right of action. For the following reasons, we reverse and remand.
On August 22, 2005, the Creditors filed civil suits in the Thirty–Eighth Judicial District Court against Paul S. Holland for sexual battery and molestation of a juvenile. In November 2006, Holland was sentenced to twenty-two years in prison after pleading guilty to three counts of sexual battery. In December 2006, Kathryn filed for divorce from Paul in the Fourteenth Judicial District Court. The December 2006 judgment purported that Kathryn and Paul had terminated their community property regime in a “Petition to Terminate Legal Matrimonial Regime and Enter into Separation of Property Agreement.”
In December 2010, the Estate of David Craig Hodge and DeRamus each secured a $100,000 judgment against Paul.1 In August 2012, the Creditors filed in the divorce proceeding a “Motion to Intervene by Creditors and Judicial Partition of the Community Regime.” Kathryn filed exceptions of no cause of action and no right of action in October 2012.2 The trial court sustained the Hollands' exceptions and the Creditors now appeal, assigning as error:
1. The trial court erred in sustaining the Exception of No Cause of Action when Interveners were attempting to assert their rights against the Community of Acquets and Gains as a creditor when no partition currently exists.
2. The trial court erred in sustaining the Exception of No Right of Action when Interveners have an interest in the Community of Acquets and Gains as creditors.
On appeal, we review an exception of no cause of action de novo by reviewing the petition and accepting the allegations as true to determine whether a remedy exists under the law based on the facts alleged in the petition. Vermilion Hosp., Inc. v. Patout, 05–82 (La.App. 3 Cir. 6/8/05), 906 So.2d 688,Gardes Directional Drilling, Inc. v. Bennett, 01–80 (La.App. 3 Cir. 6/6/01), 787 So.2d 1201,writ denied,01–1991 (La.10/26/01), 799 So.2d 1154.
The Creditors sought to intervene in the Hollands' divorce proceedings to assert claims as creditors of the community of acquets and gains for the two $100,000 judgments, urging that the trial court had not issued a final judgment on the partition of the community property. The Creditors' Motion to Intervene stated in part:
1.
Kathryn Elizabeth Holland and Paul Scott Holland had a community of acquets and gains during their marriage. The community of acquets and gains ended upon the filing of the above-captioned case on December 12, 2006.
....
5.
Paul Scott Holland and Kathryn Elizabeth Holland knew of the existence of the civil lawsuits pending against Paul Scott Holland in the 38th Judicial District Court at the time of the divorce and upon information and belief, began to sell and donate assets and also fraudulently sold the community home in an attempt to avoid payment of the specific creditors, David Craig Hodge and Chance Earl DeRamus, to their detriment.
6.
The court has not issued a final judgment on the partition of the community of acquets and gains as of the date of the filing of this Motion. Movers are therefore entitled to intervene in these proceedings and assert a claim as creditors on the community of acquets and gains which existed during the marriage of Paul Scott Holland and Kathryn Elizabeth Holland.
Kathryn's December 21, 2006 petition for divorce states in part:
16.
The parties hereto have already terminated their community property regime by way of a “Petition to Terminate Legal Matrimonial Regime, and Enter into Separation of Property Agreement” filed in proceedings of this Court entitled “In Re: Paul Scott Holland and Kathryn Elizabeth Anderson Holland,” with the Judgment confirming the modification of the regime having been signed on December 11, 2006.3
17.
It is believed that counsel for Defendant is preparing a Community Property Settlement Agreement to formally partition the former community of acquets and gains of the marriage. In the event an agreement cannot amicably be reached on such, Petitioner reserves her rights to formally partition such as provided by law.
A judgment of final divorce was signed on March 28, 2007. The judgment terminated the legal regime of the community of acquets and gains, retroactive to the date of judicial demand.
There are no pending proceedings to partition former community property nor were any ever filed in conjunction with the divorce judgment. The divorce judgment was filed on March 28, 2007. The trial court found that because no partition was pending, there was nothing in which the Creditors could intervene. We agree, however, the Creditors have stated a cause of action as discussed below.
Louisiana Code of Civil Procedure Article 1091 provides (emphasis added):
A third person having an interest therein may intervene in a pending action to enforce a right related to or connected with the object of the pending action against one or more of the parties thereto by:
(1) Joining with plaintiff in demanding the same or similar relief against the defendant;
(2) Uniting with defendant in resisting the plaintiff's demand; or
(3) Opposing both plaintiff and defendant.
Pursuant to La.Civ.Code art. 2376, a creditor does have certain rights in relation to a spouse's attempt to terminate a community property regime (emphasis added):
The creditors of a spouse, by intervention in the proceeding, may object to the separation of property or modification of their matrimonial regime as being in fraud of their rights. They also may sue to annul a judgment of separation of property within one year from the date of the rendition of the final judgment. After execution of the judgment, they may assert nullity only to the extent that they have been prejudiced.
The Creditors argue that this was an impossibility because the judgment in their favor was not rendered until December 2010, nearly four years after the community property...
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