Poitevent v. Poitevent
| Decision Date | 01 April 1963 |
| Docket Number | No. 1012,1012 |
| Citation | 152 So.2d 256 |
| Parties | Eads POITEVENT, Jr. v. Mrs. Elizabeth SCHRAM, Wife of Eads POITEVENT, Jr. |
| Court | Court of Appeal of Louisiana — District of US |
Drury, Lozes & Dodge, James F. Quaid, Sylvia Roberts and James H. Drury, New Orleans, for plaintiff and appellant.
Jones, Walker, Waechter, Poitevent, Carrere & Denegre, Harry McEnerny, Jr., and Sydney J. Parlongue, New Orleans, for defendant and appellee.
Before McBRIDE, REGAN and YARRUT, JJ.
Plaintiff, Elizabeth Schram Poitevent, instituted this action endeavoring to nullify a judgment of separation from bed and board, predicated on abandonment, which was obtained by the defendant, Eads Poitevent, Jr., by default, that is, his wife's failure to answer the suit. Plaintiff insists that the suit was filed when she was too mentally incompetent to provide a defense therefor, which constitutes a vice as to form entitling her to have the judgment emanating therefrom annulled. She also asserted that the judgment was procured through fraud and ill practice by virtue of her husband's failure to disclose to the court that she was mentally ill when the abandonment occurred.
Defendant, in conformity with the terms of the judgment of separation, also acquired the permanent custody of their three minor children. Following the institution of this action to nullify the judgment of separation, the plaintiff, as an alternative thereto, filed a rule which ordered the defendant to show cause why she should not be awarded the custody of the children.
The defendant answered the action in nullity, denying that vices existed with respect to either the form or the substance of the judgment. He asserted that the plaintiff was fully competent when she abandoned the matrimonial domicile and when the suit for separation was served upon her and ultimately tried. The defendant also pleaded that the plaintiff was estopped from attacking the judgment in view of the fact that she voluntarily entered into a community property settlement pursuant to the judgment which she now seeks to annul, or more concisely, she fully acquiesced therein.
Then, assuming the position of plaintiff in reconvention, Poitevent asserted that in the event the court should pronounce that the judgment was a nullity, then the plaintiff, his wife, was indebted unto the community in the amount of $30,121.80, which she received in the partition of their property.
From a judgment dismissing both plaintiff's action in nullity and her petition for custody of their children, she has prosecuted this appeal.
Chronologically, the record reveals that the plaintiff and the defendant were married on August 4, 1944, and as a result thereof three male children were born who are now approximately 10, 12, and 15 years of age.
Between the years of 1957 and 1961, plaintiff was a patient of Dr. Conrad Wall, a psychiatrist, and during this interval she was hospitalized on innumerable occasions. When so confined, she usually, except on rare occasions, one of which we shall refer to hereinafter, enjoyed the privileges of an out-patient, which permitted her to leave the hospital and return thereto at her pleasure.
On August 4, 1961, Mrs. Poitevent was taken to DePaul Sanitarium on the advice of Dr. James Brown, a psychiatrist, who had been treating her for approximately six weeks prior to this time. She had been transferred to Dr. Brown by Dr. Wall, who expressed the opinion, as we understand it, that another doctor may enjoy more rapport with the patient.
On August 9, 1961, plaintiff escaped from DePaul by scaling the brick wall which encloses the grounds thereof. Thereafter she obtained cash from a local pawn shop in exchange for her jewelry, part of which she used to purchase bus transportation to Los Angeles. She traveled as far as either Dallas or Waco, Texas. In any event, upon arrival, she telephoned friends who resided in Waco, who agreed to meet her at the bus station and bring her to their home.
While awaiting their arrival, she telephoned her husband to inform him that she intended to leave him and the children for their own good and to begin a new life for herself in the City of Los Angeles. The foregoing is the defendant's version of the telephone conversation which plaintiff does not dispute; however, she insists that she does not remember what she said during the course thereof.
When she had terminated the foregoing conversation, she decided, for reasons which are unimportant, not to visit with her friends, instead she boarded a bus whose destination was New Orleans and upon arrival here, she went to the home of her parents, where she resided until the spring of the following year. She has never returned to the matrimonial domicile.
On September 22, 1961, the defendant filed suit to obtain a separation from bed and board. The evidence inscribed in the record, although disputed, convinces us that the plaintiff was personally served with citation at the home of her mother and father on the following day.
On October 10, 1961, since no answer was filed thereto by the plaintiff, a preliminary default was entered. On October 16, 1961, the default was confirmed and a judgment of separation was awarded the defendant, wherein he also obtained the custody of their three children.
On January 10, 1962, plaintiff entered into a voluntary settlement of the community effects, which was consummated by a notarial act passed, for convenience, in her home. In addition, her paraphernal property was returned, and her husband agreed to pay alimony in the amount of $350.00 per month for as long as she needed it.
On May 3, 1962, which was almost four months after the community settlement, the plaintiff instituted this suit to nullify the judgment of separation.
Counsel initially asserts that the judgment is defective as to form since she was mentally incompetent when the suit was instituted and could not stand in judgment and, in addition thereto, she was not properly cited to appear to defend the suit. 1
Plaintiff's prayer for nullity is predicated on LSA-C.C.P. Art. 2002, which reads in part:
'A final judgment shall be annulled if it is rendered:
'(1) Against an incompetent person not represented as required by law;
'(2) Against a defendant who has...
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