Sullivan v. Sullivan

• Decision Date: 13 February 2008
• Docket Number: No. 42,923-CA.,42,923-CA.
• Citation: 976 So.2d 329
• Parties: Diane SULLIVAN, nee Bonnett, Plaintiff-Appellant v. John SULLIVAN, Defendant-Appellee.
• Court: Court of Appeal of Louisiana — District of US

976 So.2d 329

Diane SULLIVAN, nee Bonnett, Plaintiff-Appellant v. John SULLIVAN, Defendant-Appellee.

No. 42,923-CA.

Court of Appeal of Louisiana, Second Circuit.

February 13, 2008.

Rehearing Denied March 13, 2008.

[976 So.2d 331

Harold A. Murry, Lafayette, Victoria Reed Murry, Alexandria, for Appellant.

Donald L. Kneipp, Monroe, for Appellee.

Before WILLIAMS, CARAWAY and PEATROSS, JJ.

CARAWAY, J.

In settlement of claims arising from their divorce, a husband and wife entered into stipulated judgments regarding division of community property and spousal support in February 2001. The wife now seeks to rescind the parties' agreement for "contractual spousal support" and to annul, or alternatively, to supplement the community property partition. The trial court granted the husband's exceptions of prescription as to both the claim for rescission of the alimony agreement and annulment of the community property partition. The court allowed the wife to proceed with the supplemental community property action for items of property omitted from the partition upon amendment of her petition. The wife appeals the judgment sustaining the prescription exceptions. For the following reasons, we affirm the dismissal of these claims.

Facts and Procedural History

John and Diane Sullivan were divorced on March 21, 2001. On January 9, 2001, the parties orally agreed to division of community property and alimony. Two written stipulated judgments memorialized the agreements on February 22, 2001. In relevant part, the community property division agreement awarded full ownership of the matrimonial domicile to Diane. John agreed to pay the mortgage on the home in full within three years of the agreement. John received full ownership of the couple's interest in Bamburg Steel Buildings, Inc.¹ A second steel-related corporation, Steel Erections, Inc., which is now subject to this dispute was not listed in the partition. The parties agreed that the partition constituted a compromise of the parties' claims and waived any action in lesion.

The stipulated alimony agreement ordered John to pay Diane contractual spousal support as follows:

a. Beginning January 10, 2001, the sum of Five Thousand and No/100 ($5,000.00) Dollars each month for six (6) months; and,

b. Beginning July 10, 2001, the sum of One Thousand and No/100 ($1,000.00) Dollars each month for six (6) months, at which time this obligation shall cease and plaintiff will no longer be entitled to any spousal support of any nature by virtue of her waiving and relinquishing any and all rights thereto pursuant to the stipulation agreed to herein; provided, however, that said waiver and relinquishment is rescinded if defendant, JOHN SULLIVAN, fails to discharge and/or declares bankruptcy on any part of the indebtedness described in the companion Stipulated Judgment entered into contemporaneously with this Stipulated Judgment.

The terms of John's obligation to retire the home mortgage indebtedness were set forth in the other stipulated judgment as follows:

IT IS FURTHER ORDERED, ADJUDGED AND DECREED that defendant, JOHN SULLIVAN, shall continue to pay the mortgage indebtedness on the former matrimonial domicile and shall have said mortgage indebtedness paid in full within three (3) years. Further, defendant, JOHN SULLIVAN, shall continue to pay the taxes and insurance on the former matrimonial domicile.

On March 31, 2005, Diane filed a rule for contempt against John. She alleged that John "failed to comply with his obligation to `have said mortgage indebtedness paid in full within three (3) years.'" Based upon John's "non-compliance with the obligation imposed upon him to pay off the mortgage within three years," Diane prayed that John be found guilty of contempt. Following a contempt hearing on February 8, 2006, the court found John in contempt of court and ordered that he pay the remaining $82,026.66 obligation on the matrimonial domicile by February 21, 2006, or serve 90 days in jail and pay $5,000 in attorney's fees.

On July 5, 2006, Diane filed separate petitions seeking to set aside both stipulated judgments. These petitions, which were dismissed in response to peremptory exceptions, are the subject of this appeal.

Petition for Rescission of Alimony Agreement

Diane sought to enforce the rescission clause of the spousal support agreement based upon John's failure to pay off the matrimonial domicile mortgage indebtedness within the required three years. Specifically, Diane sought to rescind her waiver and relinquishment of her right to permanent alimony.

John filed Exceptions of Prescription, No Cause of Action and Res Judicata in response to the claim for rescission of the alimony stipulated judgment. Attached to his memorandum in support of the exceptions was a copy of John's check which paid off the house debt on February 28, 2006, in an apparent response to the contempt judgment and its threatened jail time.

After reviewing the exceptions and memorandum submitted by the parties, the trial court granted John's exception of prescription on the alimony claim without stating the legal grounds for the ruling. The court specifically denied John's exceptions of no cause of action and res judicata. Diane appeals the judgment dismissing her claims for rescission of the agreement on the grounds of prescription.

Petition for Annulment of Community Property Agreement

Diane also filed a petition to annul the stipulated judgment for partition of the community property on the grounds of fraud and ill practices or alternatively, for supplemental partition of the community property. She claimed that John "fraudulently, willfully, and knowingly failed to disclose the existence of a community business enterprise, namely, Steel Erections, Inc., and/or other business interests and/or assets, on his sworn detailed descriptive list." She made no specific allegation concerning Bamburg Steel Buildings, Inc.

John filed Exceptions of Prescription and No Cause of Action relating to the community property partition. Following a hearing, the trial court granted John's prescription exception on the claim for rescission of the partition without stating any legal authority for the ruling. The May 9, 2007 judgment, however, gave Diane fifteen days to amend her petition to more particularly state a cause of action for the supplemental partition of undisclosed community property. Diane appeals the partial judgment dismissing her claims for annulment of the community property partition on the grounds of prescription.²

Discussion

The combined Stipulated Judgments of February 20, 2001, dealt with child support and custody, spousal support, responsibility for community debts, and partition of community assets. Obligations and expected performance under both agreements were interrelated. The "contractual spousal support" provision of the Stipulated Judgment quoted above links its operation to John's obligation under the "companion Stipulated Judgment" for the payment of the home mortgage. All of these various marital matters were compromised by the parties, and their settlement was sanctioned by the court in the form of the two related judgments. Diane's two petitions filed over five years after the compromise seek to unravel the prior complicated resolution of these matters after substantial performance by the parties and the effects of the agreement had been largely realized.

I.

The parties crafted a "contractual spousal support" agreement which Diane now seeks to dissolve. John's performance obligations under this contract required him to first pay $36,000 in periodic payments to Diane throughout 2001 and to also pay the monthly installments on the parties' former home which Diane received in full ownership in the companion partition. After three years of the mortgage payments, John was obligated to pay off the entire mortgage debt by January 2004. His failure to pay this monetary support according to the agreement would result in the reinstatement of Diane's right to seek spousal support.

Diane's petition now claims that John breached this contractual spousal support agreement. John defended with the three peremptory exceptions for no cause of action, res judicata and prescription. The trial court's ruling for dismissal of the action was stated to be based on prescription, although the court did not identify the applicable prescriptive period. Because the prescriptive periods urged by John are unpersuasive to this court,³ we choose to affirm the trial court's dismissal on the basis of the other peremptory exceptions before the trial court.

An exception of no cause of action questions whether the law extends a remedy against the defendant to anyone under the factual allegations of the petition. Badeaux v. Southwest Computer Bureau, Inc., 05-0612 (La.3/17/06), 929 So.2d 1211. The exception is triable on the face of the petition and, to determine the issues raised by the exception, each well-pleaded fact in the petition must be accepted as true. Id. The jurisprudence recognizes an exception to the rule that no evidence may be admitted to support or controvert an exception of no cause of action. The court is allowed to consider evidence which is admitted without objection to enlarge the pleadings. City National Bank of Baton Rouge v. Brown, 599 So.2d 787 (La.App. 1st Cir.1992) writ denied, 604 So.2d 999 (La.1992); Owens v. Book, 02-90 (La.App. 3d Cir.6/5/02), 819 So.2d 484.

In reviewing a district court's ruling sustaining an exception of no cause of action, appellate courts conduct a de novo review because the exception raises a question of law and the district court's decision is based only on the sufficiency of the petition. Badeaux, supra. An exception of no cause of action should be granted only when it appears beyond doubt that the plaintiff can prove no set of facts in support of any claim which would entitle him to relief. Badeaux, supra; Barrie v. V.P. Exterminators, Inc., 625 So.2d...