Sheard v. Green
| Decision Date | 23 April 1951 |
| Docket Number | No. 39490,39490 |
| Citation | 219 La. 199,52 So.2d 714 |
| Parties | SHEARD v. GREEN. |
| Court | Louisiana Supreme Court |
Frank S. Kennedy, Shreveport, for plaintiff and appellant.
Smith, Hunter, Risinger & Shuey, Shreveport, for appellee.
The plaintiff herein is seeking to have an alleged separation agreement between herself and her divorced husband set aside on the grounds of fraud and to have herself recognized as to owner of one-half interest in all the community property as of the date of their divorce and that she further be recognized as the owner of one-half of all the rents, revenues, and increase derived from said property since that time.
The facts of the case as recited in her petition are briefly these: Plaintiff and defendant were married on or about the 2nd day of January, 1929 in Jasper Texas; that shortly thereafter they moved to Shreveport, Louisiana, where they continued to live until 1936 at which time they moved to New Orleans, Louisiana; that they lived in New Orleans until 1945, at which time they moved back to Shreveport, Louisiana, and established their domicile. Shortly after their return to Shreveport, plaintiff, because of defendant's actions, was foreced to leave the matrimonial domicile. She moved to Garland County, Arkansas, established the necessary residence, and filed suit for divorce, which was granted on October 30, 1945.
Prior to the granting of the divorce, on October 26, 1945, plaintiff and defendant entered into the contract or agreement, which is the subject of the present suit, whereby plaintiff agreed to relinquish all her rights for maintenance, alimony, or dowry, and all of her claims against defendant in consideration of about $950.00 in war bonds, a 1938 Plymouth car and the sum of $2,000.00, represented by two notes, of $1,000.00 each, of the defendant, together with $150.00 per month alimony, beginning November 1, 1945 until the plaintiff remarried.
Plaintiff now avers that this agreement is invalid and should be set aside because of the fraud practiced on her by defendant in that he told her at the time of the agreement that the community was worth approximately $5,000.00 whereas, she now alleges that she is informed that it was more than $25,000.00.
In the alternative, plaintiff alleges that defendant's payment of one of the $1,000.00 notes is past due and prayed for judgment accordingly.
Defendant filed an exception of no cause or right of action which was sutained by the trial judge as to the main demand but reserved to plaintiff her right to pursue her alternative demand.
On October 22, 1947 defendant, through his counsel, admitted owing the plaintiff the $1,000.00 plus six percent interest and deposited with the clerk of court the sum of $1,078.84, which tender was refused by plaintiff.
Defendant's exception of no cause or right of action is based on the contention that the so-called agreement or contract sued on by plaintiff was incorporated in and made part of the judgment of divorce of the Arkansas court, and therefore cannot be collaterally attacked in this proceeding.
Plaintiff contends that under the law of Arkansas, as interpreted in several cases, a property settlement is a matter of contract, even though it is incorporated in a judgment of...
To continue reading
Request your trial
-
Liebendorfer v. Gayle
...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 th......
-
Valvoline Oil Co. v. Krauss
...as aforesaid contained language approving, confirming and making the provisions of such agreement a part of the decree. In Sheard v. Green, 219 La. 199, 52 So.2d 714, pg. 716, (La.1951) the Supreme Court in referring to the effect of an agreement such as that involved in the instant matter ......
-
Delta Equipment & Const. Co. v. Cook
...material and relevant fact otherwise the laws of such other state shall be presumed to be the same as those of this state. Sheard v. Green, 219 La. 199, 52 So.2d 714; Welch v. Jacobsmeyer, 216 La. 333, 43 So.2d Since the alleged sale of June 12, 1956 must be interpreted in the light of Miss......
-
Holliday v. Holliday
...their favor, when the renunciation does not affect the rights of others, and is not contrary to the public good."6 In Sheard v. Green, 219 La. 199, 52 So.2d 714 (1951) and Russo v. Russo, 280 La. 17, 22 So.2d 671 (1945) this Court was confronted with contracts containing similar waivers of ......