Kirchberg v. Feenstra

• Decision Date: 12 December 1979
• Docket Number: No. 77-1991,77-1991
• Citation: 609 F.2d 727
• Parties: Karl J. KIRCHBERG, Plaintiff-Third Party Defendant-Appellee, v. Joan Paillot FEENSTRA, Defendant-Third Party Plaintiff-Appellant, v. Edwin W. EDWARDS and State of Louisiana, Third Party Defendants-Appellees.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 727

609 F.2d 727

Karl J. KIRCHBERG, Plaintiff-Third Party Defendant-Appellee, v. Joan Paillot FEENSTRA, Defendant-Third Party Plaintiff-Appellant, v. Edwin W. EDWARDS and State of Louisiana, Third Party

Defendants-Appellees.

No. 77-1991.

United States Court of Appeals Fifth Circuit.

Dec. 12, 1979.

Barbara Hausman-Smith, White River Junction, Vermont, Va., George M. Strickler, Jr., New Orleans, La., for defendant-third party plaintiff-appellant.

Cynthia Samuel, Asst. Professor of Law, Tulane Univ. School of Law, New Orleans, La., for amicus curiae.

William J. Guste, Jr., Atty. Gen., Dept. of Justice, State of La., Louis M. Jones, Asst. Atty. Gen., Ronald C. Davis, Staff Atty., Alan F. Schoenberger, New Orleans, La., for third party defendants-appellees.

William R. Brough, New Orleans, La., for Kirchberg.

Appeal from the United States District Court for the Eastern District of Louisiana.

Before TUTTLE, GOLDBERG and RANDALL, Circuit Judges.

RANDALL, Circuit Judge:

We consider in this case the constitutionality of article 2404 ¹ of the Louisiana Civil Code, which establishes the husband as the head and master of the community estate and gives him the power to alienate the community estate without the consent of the wife.

I

In February 1966, Joan and Harold Feenstra purchased a house in Orleans Parish, Louisiana. In October 1974, Mrs. Feenstra filed a state criminal charge on an unrelated matter against her husband. Mr. Feenstra was incarcerated on the charge, and while in prison he retained Karl J. Kirchberg to represent him in connection with the charge. Mr. Feenstra executed and delivered to Mr. Kirchberg a promissory note in the principal amount of $3,000, bearing interest at 8% Per year, in payment of his legal fees. A few days later, Mr. Feenstra executed a mortgage on the Feenstras' family home as security for the payment of the promissory note. The home was the community property of the Feenstras and title was held in the name of both spouses. Mrs. Feenstra eventually dropped the charges against her husband, and upon his release from jail Mr. Feenstra moved into his own quarters. Subsequently, the Feenstras were legally separated and Mr. Feenstra moved out of Louisiana. After the separation, Mr. Kirchberg demanded payment of the note from Mrs. Feenstra and threatened seizure of her home. In February 1976, with the note remaining unpaid, Mr. Kirchberg petitioned for a mortgage foreclosure by executory process in state court. An order for executory process was issued directing the Civil Sheriff for the Parish of Orleans to seize and sell Mrs. Feenstra's home.

This action began in federal court in March 1976 when Mr. Kirchberg filed a petition for a declaratory judgment against Mrs. Feenstra, seeking a declaration that he was not a creditor under the Truth-in-Lending Act, 15 U.S.C. § 1635(a), and therefore was not liable for any disclosure violation under that Act with respect to the mortgage of the home. Mrs. Feenstra answered the complaint and asserted two counterclaims. In the first, she sought rescission of the mortgage for Truth-in-Lending disclosure violations. In the second, she sought a declaration that article 2334 ² of the Louisiana Civil Code (which restricts the husband's power to alienate community immovables standing in the name of both spouses) was unconstitutional because it violated the equal protection and due process clauses of the fourteenth amendment. Mrs. Feenstra's second counterclaim was asserted against Edwin W. Edwards (the Governor of the State of Louisiana) and the State of Louisiana, as well as against Mr. Kirchberg. The State of Louisiana moved for summary judgment on Mrs. Feenstra's second counterclaim, and Mr. Kirchberg adopted that motion as his own. After oral argument was heard and supplemental memoranda were filed, the district court granted the motion for summary judgment against Mrs. Feenstra, and Mrs. Feenstra appealed to this court. Mr. Kirchberg and Mrs. Feenstra subsequently dismissed their claim and counterclaim against each other on the Truth-in-Lending issue.

In ruling on the motion of the State of Louisiana for summary judgment, the district court correctly considered Mrs. Feenstra's complaint as directed primarily at article 2404 of the Louisiana Civil Code, which designates the husband as the head and master of the community and gives him the exclusive power to administer the community estate, rather than at article 2334, which restricts the husband's power to alienate community immovables standing in the name of both spouses. Article 2404 was the source of Mrs. Feenstra's misfortune; without it Mr. Feenstra would have had no power to encumber the family home without her consent.

We now hold that article 2404 of the Louisiana Civil Code violates the equal protection clause of the fourteenth amendment and we reverse. ³ In so doing, we apply our decision prospectively. ⁴ Further, we note that, effective January 1, 1980, the Louisiana Legislature has completely revised the provisions of the Louisiana Civil Code relating to matrimonial regimes and in so doing has eliminated the head and master concept altogether. ⁵

II

We address first the position asserted by the State of Louisiana to the effect that no case or controversy sufficient to permit the exercise of the judicial power of the United States by this court is presented here and that the issues raised by Mrs. Feenstra are moot. ⁶ The State's position appears to be based in part upon an inaccurate description of the state of the record. The State asserts that Mrs. Feenstra has dismissed her counterclaims against Mr. Kirchberg, that Mr. Kirchberg has dismissed his complaint against Mrs. Feenstra and that the only parties remaining are Mrs. Feenstra, in her capacity as a third party plaintiff, and the third party defendants, Governor Edwards and the State of Louisiana. Our review of the record indicates, to the contrary, that Mrs. Feenstra's second counterclaim, in which Mr. Kirchberg, Governor Edwards and the State of Louisiana are named as defendants, has not been dismissed and that her challenge therein (as viewed by the district court) to the constitutionality of article 2404 of the Louisiana Civil Code is before this court on appeal from the summary judgment entered against her on her second counterclaim by the district court.

The State further asserts that Mrs. Feenstra no longer presents her challenge to article 2404 in the context of a specific live grievance and that Mrs. Feenstra does not indicate that she is faced with a real or immediate threat of injury. The State's position is, again, totally unsupported by the record, and at oral argument we were assured by Mrs. Feenstra's counsel that the mortgage still exists on Mrs. Feenstra's home, that the order directing the Civil Sheriff for the Parish of Orleans to seize and sell the home is still in effect and that the threat of losing her home is, accordingly, a real one. We conclude, therefore, that the controversy between Mrs. Feenstra and Mr. Kirchberg described in Mrs. Feenstra's second counterclaim is neither academic nor moot and that an actual controversy, as required by article III of the Constitution and the Federal Declaratory Judgment Act, exists here, rendering appropriate review by this court of the decision of the district court.

III

Our analysis must begin with a consideration of the nature of the matrimonial regime under Louisiana law.

Article 86 of the Louisiana Civil Code states that: "The law considers marriage in no other view than as a civil contract." ⁷ In order to enter into a marriage contract, the parties must be willing and able to contract; ⁸ they must freely consent; ⁹ and they must contract pursuant to the forms and solemnities prescribed by law. ¹⁰

Insofar as the property of married persons is concerned, article 2334 of the Louisiana Civil Code divides such property into separate and common property. Under article 2334, common property is that which is acquired by the husband and wife during marriage in any manner different from that specified in article 2334 for the acquisition of separate property. However, under articles 2325, 2332 and 2424 ¹¹ of the Code, the parties entering into a marriage contract may, in that contract, modify, limit or entirely reject the regime established by article 2334. In the language of article 2332, "(t)he partnership, or community of aquets or gains, needs not to be stipulated; it exists by operation of law, in all cases where there is no stipulation to the contrary. But the parties may modify or limit it; they may even agree that it shall not exist." ¹²

The management of property that under article 2334 is common property is given by article 2404 of the Louisiana Civil Code to the husband:

The husband is the head and master of the partnership or community of gains; he administers its effects, disposes of the revenues which they produce, and may alienate them by an onerous title, without the consent and permission of his wife.

Finally, article 2334, as it existed in 1974, ¹³ contained a restriction on the right of the husband, under article 2404, to alienate common property without the consent and permission of the wife:

Where the title to immovable property stands in the names of both the husband and wife, it may not be leased, mortgaged or sold by the husband without the wife's written authority or consent where she has made a declaration by authentic act that her authority and consent are required for such lease, sale or mortgage and has filed such declaration in the mortgage and conveyance records of the parish in which the property is situated.

Because of the contractual nature of marriages generally under Louisiana law and because the parties to a marriage contract have the right to alter the community regime, the State of Louisiana argues that the parties to a marriage contract (such as Mr. and Mrs. Feenstra) in which no provision has been made to...