Liebendorfer v. Gayle

• Decision Date: 18 June 1968
• Docket Number: No. 2351,2351
• Citation: 217 So.2d 37
• Parties: Mrs. Renee G. LIEBENDORFER, Plaintiff-Appellant, v. James F. GAYLE, Defendant-Appellee.
• Court: Court of Appeal of Louisiana — District of US

Page 37

217 So.2d 37

Mrs. Renee G. LIEBENDORFER, Plaintiff-Appellant, v. James F. GAYLE, Defendant-Appellee.

No. 2351.

Court of Appeal of Louisiana, Third Circuit.

June 18, 1968.

On Rehearing Oct. 3, 1968.

Rehearing Denied Nov. 20, 1968.

Writ Refused Feb. 24, 1969.

John Sheldon Toomer, Lake Charles, for plaintiff-appellant.

Hall, Raggio, Farrar & Barnett, by, Louis D. Bufkin, Lake Charles, for defendant-appellee.

Before CULPEPPER, HOOD, and LEAR, JJ.

LEAR, Judge.

This is another chapter in the unfortunate history of these party litigants. See Liebendorfer v. Gayle, La.App., 210 So.2d 120.

In this proceeding, plaintiff, ex-wife of defendant and mother of his four minor children, again alleges the judicial separation of 1959 and the 'settlement of community' of March 23, 1960, entered into between the parties herein.

In this proceeding, however, petitioner complains of the status of certain shares of stock in the Texas Fund, Inc., which she alleges is being held by defendant as sole trustee for three of the four minor children, and which she alleges should be returned to the community mass and partitioned between her and her ex-husband for two reasons: First, that the Louisiana law prohibits a trust settlor from being the sole trustee under a trust agreement, and, secondly, that defendant had agreed to equalize this stock amongst all four children, which he has failed and refused to do.

She next asserts that defendant obtained recognition of his individual ownership in certain stock in that corporation known as Open A--1 Ranch, Inc., through fraud and deception practiced upon her, and that therefore the entire settlement of community agreement should be declared null and void.

Insofar as the shares of Texas Fund, Inc., are concerned, the record clearly shows that said shares have been equalized among the four children, and we feel that the district court has correctly disposed of this issue, as follows:

'The evidence reflects that the shares of stock have been registered in accordance with the Louisiana Gifts to Minors Act, R.S . 9:735 et seq. The court is of the opinion that the intent of Mr. Gayle and Mrs. Liebendorfer, as reflected by the documentary evidence, was to donate the securities in question to the minors and for Mr. Gayle to hold them as custodian. While it is true that he has only recently caused the shares to be registered property, the court has absolutely no doubt that he has been holding the shares on behalf of the minors as custodian and that there has been no improper conduct on his part * * *.

'There is no suggestion and no proof that Mr. Gayle has in any way disposed of, misused, or otherwise improperly handled the shares belonging to the minors. The only justified criticism of his conduct would be with reference to the delay in having the shares registered in correct form, and no damage or prejudice to the minors has resulted. Otherwise, the shares have been kept safe for the minor owners.'

We now consider whether the trial court correctly sustained the exception of res judicata as to the plaintiff's attack on the community property settlement. The learned trial judge stated:

'The exceptor urges res judicata in bar of the present suit. His contention, the facts of which are established by the evidence presented, is that the community property settlement between the two parties here was incorporated in an Arkansas proceeding, which was entitled 'Renee Gayle v. James F. Gayle', Number 32,982 on the docket of the Chancery Court of Garland County, Arkansas.'

The plaintiff, who is the same person as the present plaintiff, Mrs. Liebendorfer, obtained the divorce in Arkansas and had the community property settlement incorporated in the Arkansas decree on June 1, 1960. Therein the court specifically recognized and approved the agreement.

The trial court noted the pronouncement of the Louisiana Supreme Court in Sheard v. Green, 219 La. 199, 52 So.2d 714, wherein an exception of no cause or right of action was upheld in an almost identical situation. The basis of such holding was that the attack was a collateral attack on a judgment of a sister state and the court could consider only the question of jurisdictional requirements of domicile.

In our opinion, the law has now been changed. See Boudreaux v. Welch, 249 La. 983, 192 So.2d 356 (1966), followed by this court in Gay v. Gay, 203 So.2d 379. In Gay v. Gay we said:

'A collateral attack may be entertained here if the rendering state would permit such an attack.'

In the instant case, plaintiff alleges fraud on the part of her husband in the original community property settlement which she later incorporated into the Arkansas decree. Plaintiff is entitled to show that such an attack is permissible in Arkansas (which is likely the case).

The judgment of the trial court insofar as Texas Fund, Inc., is concerned is affirmed; insofar as that portion regarding Open A--1 Ranch, inc., is concerned, the judgment of the trial court is reversed and the matter remanded to the trial court.

Affirmed in part, reversed in part, and remanded.

On Rehearing.

En Banc.

CULPEPPER, Judge.

We granted a rehearing to reconsider whether the lower court judgment, sustaining defendant's exception of res judicata, must be affirmed. In our original decision we concluded that, under Gay v. Gay, 203 So.2d 379 (3rd Cir. 1967) and the authorities cited therein, the plaintiff can collaterally attack in the courts of Louisiana the Arkansas judgment ratifying the community property settlement, if Arkansas would permit an attack on the judgment in its courts. We remanded the case to allow plaintiff an opportunity 'to show that such an attack is permissible in Arkansas.'

In his application for a rehearing, the defendant points out that, under the provisions of LSA-C.C.P. Article 1391, we must take judicial notice of the laws of Arkansas. Defendant contends that under the laws of Arkansas a judgment can be set aside for extrinsic fraud but not for intrinsic fraud; and since no extrinsic fraud has been alleged or proved this judgment could not be annulled in the courts of Arkansas, hence cannot be collaterally attacked in the courts of Louisiana and must be given full faith and credit.

We find the applicable law of Arkansas is set forth in the recent case of Hardin v. Hardin, 237 Ark. 237, 372 S.W.2d 260 (1963). There the former wife petitioned the court to set aside a divorce decree on the grounds that it was procured by fraud practiced on the court. Essentially, the allegations were that through connivance with her husband a certain witness forced plaintiff to make love, during which they were 'discovered' by the defendant and a lawyer; that she thought the paper she signed was to give a divorce to her husband, but in fact it was a petition for her to secure a divorce from him. The Supreme Court of Arkansas found the allegations of fraud insufficient to permit an attack on the judgment and stated the law as follows:

'In our opinion the trial court was correct in sustaining appellee's motion to dismiss the above petition. Appellant very properly admits that her petition was based on Ark.Stat.Ann. § 29--506 (Repl.1962). This section, in all parts pertinent to the facts in this case, provides:

"The court in which a judgment or final order has been rendered or made, shall have power, after the expiration of the term, to vacate or modify such judgment or order,

* * *

* * *

"Fourth. For fraud practiced by the successful party in the obtaining of the judgment or order.'

'(2) Few of our statutes have better withstood the test of time or have been more uniformly interpreted than the section above quoted. Without any change in wording it appears in the Civil Code (as § 571), Gantt's Digest (as § 3596), in Kirby's Digest (as § 4431), in Crawford & Moses Digest (as § 6290), in Pope's Digest (as § 8246), and, of course, in Ark.Stat.Ann. as § 29--506. The statute has been considered by this Court with reference to each of the above designations, and each interpretation has been consistent and harmonious. In no case has it been construed in language with more clarity than in an opinion written by Justice Butler in Hendrickson v. Farmers' Bank & Trust Company, 189 Ark. 423, 73 S.W.2d 725. It was there said:

"The fraud for which a decree will be canceled must consist in its procurement and not merely in the original cause of action. It is not sufficient to show that the court reached its conclusion upon false or incompetent evidence or without any evidence at all, but it must be shown that some fraud or imposition was practiced upon the court in the procurement of the decree, and this must be something more than false or fraudulent acts or testimony the truth of which was, or might have been, in issue in the proceeding before the court which resulted in the decree assailed. James v. Gibson, 73 Ark. 440, 84 S.W. 485; Johnson v. Johnson, 169 Ark. 1151, 277 S.W. 535; Boynton v. Ashabranner, 75 Ark. 415, 88 S.W. 566, 1011, 91 S.W. 20."¹

Arkansas law, as set forth above, follows the general rule that equitable relief from a judgment may be obtained for extrinsic but not intrinsic fraud. The rationale of this distinction is that an issue which has been, or with due diligence should have been, tried and passed upon in the original action should not be retried in an action for equitable relief against the judgment, otherwise litigation would never end. 30A Am.Jur. 722, et seq.; 49 C.J.S. Judgments § 372, p. 738 et seq.²

A brief review of the facts in the present case shows that the parties were married in Louisiana in 1947 and separated from bed and board by judgment of the district court for Calcasieu Parish, Louisiana, on September 29, 1959. In the separation proceedings and the settlement of community property which followed thereafter, Mrs. Gayle (the present Mrs. Liebendorfer) was represented by Mr. Joe J. Tritico and Mr. Gayle was represented by Mr. Thomas L. Raggio, both...