M.P.W. v. L.P.W.

• Decision Date: 01 November 2013
• Docket Number: No. 2013 CA 0366.,2013 CA 0366.
• Citation: 136 So.3d 37
• Parties: M.P.W. v. L.P.W.
• Court: Court of Appeal of Louisiana — District of US

136 So.3d 37

M.P.W.

v.L.P.W.

No. 2013 CA 0366.

Court of Appeal of Louisiana,First Circuit.

Nov. 1, 2013.

Erik L. Burns, Denham Springs, LA, for Appellant Plaintiff—M.P.W.

Mary E. Heck Barrios, Denham Springs, LA, for Appellee Defendant—L.P.W.

Before WHIPPLE, C.J., WELCH, and CRAIN, JJ.

WELCH, J.

M.P.W. appeals a judgment granting a summary judgment and dismissing his petition to annul a stipulated judgment that he previously entered into with his ex-wife, L.P.W.¹ Finding no error in the judgment of the trial court, we affirm.

FACTUAL AND PROCEDURAL HISTORY

L.P.W. and M.P.W. entered into a covenant marriage on May 4, 2004. On April 19, 2010, M.P.W. filed a petition seeking a separation from bed and board and a divorce. During the parties' marriage, they had two children: S.J.W., who was born on October 2, 2008,² and A.E.W., who was born on October 18, 2010. L.P.W. was pregnant with A.E.W. when the separation and divorce proceedings were commenced, and she gave birth to the child before the judgment of divorce was granted.

In M.P.W.'s petition, he sought, among other things, that he be awarded sole custody of S.J.W. and child support. L.P.W. responded by filing an answer and reconventional demand, seeking that the parties be awarded joint custody of S.J.W., that she be designated as the child's domiciliary parent, subject to reasonable visitation by M.P.W., and that she be awarded child support and interim and periodic spousal support.

On May 10, 2010,³ the parties entered into a stipulated judgment that, among other things, awarded the parties joint custody of S.J.W., designated L.P.W. as the child's domiciliary parent, and set forth a specific physical custodial schedule. The stipulated judgment also provided that each party had the right of first refusal to provide care for S.J.W. in the absence of the other parent (other than for daycare or school). In addition, the stipulated judgment provided that pending further orders of the court, each party would be responsible for the payment of one-half of the daycare expenses for S.J.W., one-half of the health insurance premium for S.J.W., and one-half of the out-of-pocket medical, dental and other health care expenses for S.J.W. and for the pregnancy of L.P.W. Additionally, the stipulated judgment provided that the claims of each party for the payment of child support were reserved for hearing at a future date, with a reservation of any award rendered retroactive to the date of judicial demand.

On October 3, 2011, almost a year after A.E.W.'s birth, M.P.W. filed a petition seeking to disavow paternity of A.E.W. On November 29, 2011, the trial court signed a judgment of divorce, and a trial on the merits of all pending issues was scheduled for January 23, 2012. On that date, the parties entered into a stipulated judgment that: (1) dismissed M.P.W.'s petition to disavow paternity of A.E.W.; ⁴ (2) terminatedthe custody and visitation rights of M.P.W. as to both S.J.W. and A.E.W. and awarded sole custody of both children to L.P.W.; (3) provided M.P.W. would promptly execute all documents necessary to effect the voluntary surrender of his parental rights to the minor children so as to free them for adoption; (4) enjoined M.P.W. from contacting L.P.W. or the minor children; (5) provided L.P.W. would relinquish any claims for support for herself or the minor children from M.P.W. (both past and future) and that she would waive and release her pending claim for support, contribution toward daycare, medical insurance, and medical expenses for either minor child or herself; (6) dismissed L.P.W.'s pending rule for contempt; and (7) partitioned L.P.W.'s community property and settled their claims between each other that arose from their matrimonial regime.

M.P.W. never executed a valid surrender of his parental rights, as set forth in the stipulated judgment. See In the Matter of B.L.M. Applying for Intrafamily Adoption of S.J.W. and A.E.W., 2013–0448, pp. 2–3 (La.App. 1st Cir. 11/1/13), 136 So.3d 5, 6–7, 2013 WL 5872022. Instead, on June 22, 2012, he filed a petition to annul the January 23, 2012 stipulated judgment. In this petition, M.P.W. asserted that the provision in the stipulated judgment that “require[d him] to surrender his parental rights and sign a [v]oluntary [a]ct of [s]urrender [was] an absolute nullity in that at the time of the execution of said [j]udgment[,] there was no adoption proceeding pending and therefore [,] no ability to execute a valid surrender as there was no proceeding in which to file the surrender into[,] which is a statutory requirement associated with the signing of a surrender.” In the petition, M.P.W. also asserted that the judgment was null because it was obtained by “ill practices [that] constituted a deprivation of the legal rights of [M.P.W.] to adequately prepare for the [c]ourt hearing and further[,] that the enforcement of the [j]udgment would be inequitable and unjust.”

Specifically, M.P.W. claimed that the judgment should be annulled because: (1) immediately prior to the January 23, 2012 judgment, he shared custody of S.J.W.; (2) although there was a pending rule for contempt regarding the payment of support and other financial sums and questions related to the right of first refusal provision, there were no allegations as to inadequate parenting and no pending action seeking to modify custody; (3) although he ultimately consented to the entry of the judgment on January 23, 2012, the terms of that judgment “lead to an unconscionable result and he had no idea going into [c]ourt that he would be asked to forfeit his rights of custody as to his minor children”; and (4) the judgment contained provisions that resulted in a complete resolution of the community property between the parties despite the fact that no action to partition property had been filed and there is nothing in the record that supports the reasonableness of the partition. Accordingly, M.P.W. requested that the January 23, 2012 judgment be annulled in its entirety, or alternatively, that those provisions of the judgment that “serve as a termination of his parental rights” and required him to sign a voluntary act of surrender for the minor children be rendered null and void.⁵

On October 15, 2012, L.P.W. filed a motion for summary judgment seeking the dismissal of the petition to nullify the January 23, 2012 stipulated judgment.⁶ By judgment signed on November 2, 2012, the trial court granted L.P.W.'s motion for summary judgment and dismissed M.P.W.'s petition to annul the January 23, 2012 stipulated judgment with prejudice, and it is from this judgment that M.P.W. now appeals.

LAW AND DISCUSSION

Summary Judgment Law

A motion for summary judgment is a procedural device used to avoid a full scale trial when there is no genuine issue of material fact, and the summary judgment procedure is favored and designed to secure the just, speedy, and inexpensive determination of every action. La. C.C.P. art. 966(A)(2); Power Marketing Direct, Inc. v. Foster, 2005–2023 (La.9/6/06), 938 So.2d 662, 668. A motion for summary judgment will be granted if the pleadings, depositions, answers to interrogatories, and admissions, together with affidavits, if any, show that there is no genuine issue of material fact and that the mover is entitled to judgment as a matter of law. Id.;La. C.C.P. art. 966(B)(2).

The mover has the burden of proof that he is entitled to summary judgment. SeeLa. C.C.P. art. 966(C)(2). If the mover will not bear the burden of proof at trial on the subject matter of the motion, he need only demonstrate the absence of factual support for one or more essential elements of his opponent's claim, action or defense. Id. If the moving party points out that there is an absence of factual support for one or more elements essential to the adverse party's claim, action, or defense, then the non-moving party must produce factual support sufficient to satisfy his evidentiary burden at trial. Id. If the mover has put forth supporting proof through affidavits or otherwise, the adverse party may not rest on the mere allegations or denials of his pleading, but his response, by affidavits or otherwise, must set forth specific facts showing that there is a genuine issue for trial. La. C.C.P. art. 967(B).

Summary judgments are reviewed on appeal de novo, with the appellate court using the same criteria that govern the trial court's determination of whether summary judgment is appropriate: whether there is any genuine issue of material fact and whether the mover is entitled to judgment as a matter of law. Power Marketing Direct, Inc., 938 So.2d at 669. Therefore, in the present case, our de novo review will examine whether there are any genuine issues of material fact and whether L.P.W. was entitled to judgment as a matter of law.

The January 23, 2012 Judgment

Initially, we note that the January 23, 2012 judgment is a stipulated judgment. A consent or a stipulated judgment is a bilateral contract by which the parties adjust their differences by mutual consent, with each party balancing his hope of gain against his fear of loss. Leonard v. Reeves, 2011–1009 (La.App. 1st Cir. 1/12/12), 82 So.3d 1250, 1261;see alsoLa. C.C. arts. 3071 and 3072. Its binding force arises from the voluntary acquiescence of the parties rather than the adjudication by the court. Id.

Generally, there is no right to appeal a stipulated or consent judgment. See Mill Creek Homeowners Association, Inc. v. Manuel, 2004–1385 (La.App. 1st Cir. 6/10/05), 916 So.2d 268, 270. That is because “[a]n appeal cannot be taken by a party who confessed judgment in the proceedings in the trial court or who voluntarily and unconditionally acquiesced in a judgment rendered against him.” La. C.C.P. art.2085. Thus, in this case, as between M.P.W. and L.P.W., the January 23, 2012 stipulated judgment was a final judgment and was not appealable. See Guidry v. Sothern, 98–1152 (La.App. 1st Cir. 5/14/99), 734 So.2d 928, 930–931...