POLITZ v. POLITZ

• Decision Date: 27 January 2010
• Docket Number: No. 44,885-CA.,44
• Citation: 31 So.3d 552
• Parties: Nyle Anthony POLITZ, Plaintiff-Appellee, v. Alice Catherine Bordelon POLITZ, Defendant-Appellant.
• Court: Court of Appeal of Louisiana — District of US

31 So.3d 552

Nyle Anthony POLITZ, Plaintiff-Appellee,
v.
Alice Catherine Bordelon POLITZ, Defendant-Appellant.

No. 44,885-CA.

Court of Appeal of Louisiana, Second Circuit.

January 27, 2010.

31 So.3d 553

David C. Hesser, Steven L. Prejean, Alexandria, for Appellant.

Gary A. Bowers, for Appellee.

Before BROWN, WILLIAMS, DREW, MOORE, and BODDIE (Ad Hoc), JJ.

BROWN, Chief Judge.

Defendant, Alice Catherine Bordelon Politz, appeals the judgment of the trial court granting an exception of res judicata filed by plaintiff, Nyle Anthony Politz. For the following reasons, we reverse and remand.

Facts and Procedural Background

Catherine Politz filed for final periodic spousal support on February 28, 2003. In response, Nyle Politz filed a petition for rule nisi to deny final spousal support on July 19, 2004. The trial court signed a judgment on April 26, 2005, awarding "final periodic spousal support in the amount of $658.00 monthly ... until the mortgage debt on the house and lot previously owned by the community in which Catherine Politz resides is paid in full." Catherine appealed the judgment of the trial court, and the matter was heard by the First Circuit Court of Appeal.¹

During the pendency of the appeal, Nyle Politz filed a rule and obtained an order terminating Catherine's exclusive use of the former matrimonial domicile and authorizing him to market and sell the property. On August 30, 2006, while the property was still on the market and the appeal pending, Catherine filed for an increase in final periodic spousal support. On December 14, 2006, the former matrimonial domicile in which Catherine had been living was sold for the sum of $290,000, and the mortgage indebtedness was extinguished. On December 15, 2006, the trial court ordered that from the net sale proceeds Ms. Politz would receive an advance in the amount of $15,000. The judgment further deemed Ms. Politz's request for an increase in final periodic support to be moot and dismissed it without prejudice; however, it reserved the parties' rights to "a determination as to the amount of final periodic spousal support (if any) and any other issue conceivably germane to a determination of final periodic spousal support."

31 So.3d 554

The ruling of the First Circuit Court of Appeal was handed down on August 1, 2007.² In its ruling, the court affirmed the trial court's finding of entitlement to final periodic support, but amended the trial court's award of $658 a month to $1,300, "due and payable monthly until such time as the mortgage debt on the house and lot previously owned by the community, in which Mrs. Politz resides, is paid in full." Ms. Politz's subsequent writ to the Louisiana Supreme Court was denied on January 7, 2008.

On October 24, 2007, Ms. Politz filed a rule to show cause why spousal support should not be increased, which was later supplemented and amended to include, in the alternative, a rule to show cause why spousal support should not be awarded. In response, Mr. Politz filed a peremptory exception of res judicata, which the trial court granted in a signed judgment on January 15, 2009.³ From this judgment, Ms. Politz appeals.

Discussion

An award of periodic spousal support may be modified, waived, or ended if the circumstances of either party materially change. La. C.C. art. 114; La. C.C. art. 116; Mizell v. Mizell, 41,487 (La.App.2d Cir.11/03/06), 942 So.2d 1191, writ denied, 06-2884 (La.03/09/07), 949 So.2d 440. The ability to modify a periodic award includes the ability to have a fixed-duration award extended. La. C.C. art. 114, Revision Comment (b).⁴ The party seeking the modification of support carries the burden of proving that circumstances have changed since the original award. Gibbs v. Gibbs, 33,169 (La.App.2d Cir.06/21/00), 764 So.2d 261.

On appeal, Ms. Politz contends that the trial court erred in granting Mr. Politz's exception of res judicata because a support award is always subject to modification and the basis for the modification sought in the present case has never been litigated. Mr. Politz argues, however, that the issue of duration has been adjudicated, decided by the trial court and affirmed by the First Circuit Court of Appeal. Thus, Mr. Politz asserts, the trial court was correct to find that Ms. Politz was barred by the exception of res judicata from trying to relitigate the issue again.

The doctrine of res judicata is to be strictly construed, and any doubt as to its applicability is to be resolved in favor of maintaining plaintiff's action. Thurston v. Thurston, 31,895 (La.App.2d Cir.08/20/99), 740 So.2d 268. Res...