Vaccarella v. Vaccarella
| Decision Date | 17 November 2021 |
| Docket Number | 2021-CA-0115 |
| Citation | 331 So.3d 1006 |
| Parties | John Joseph VACCARELLA v. Lisa Dansflor VACCARELLA |
| Court | Court of Appeal of Louisiana — District of US |
331 So.3d 1006
John Joseph VACCARELLA
v.
Lisa Dansflor VACCARELLA
NO. 2021-CA-0115
Court of Appeal of Louisiana, Fourth Circuit.
NOVEMBER 17, 2021
Walter R. Woodruff, Chehardy, Sherman, Williams, Murray, Recile, Stakelum & Hayes, L.L.P., One Galleria Blvd., Suite 1100, Metairie, LA 70001, COUNSEL FOR PLAINTIFF/APPELLANT
Lorna Perez Turnage, LAW OFFICE OF LORNA TURNAGE, 532 E. Judge Perez Drive, Suite 103, Chalmette, LA 70043, COUNSEL FOR DEFENDANT/APPELLEE
(Court composed of Judge Terri F. Love, Judge Daniel L. Dysart, Judge Sandra Cabrina Jenkins )
Judge Terri F. Love
This case concerns a consent judgment of partition entered into as part of a divorce proceeding between John Joseph Vaccarella and Lisa Dansflor Vaccarella.
That judgment was finalized by the trial court on September 16, 2008. On July 3, 2019, Mr. Vaccarella filed a motion to enforce the terms of the judgment, seeking payment for his share of community interest in the former marital home. Ms. Vaccarella urged a peremptory exception of prescription, arguing that the judgment had prescribed on its face because it was a money judgment. Following a hearing, the trial court issued a judgment granting the exception of prescription filed on behalf of Ms. Vaccarella. Mr. Vaccarella lodged the present appeal of the trial court's judgment, arguing that the consent judgment was not a money judgment but instead a personal action subject to liberative prescription. Upon review, we find that the consent judgment is not a money judgment. The consent judgment is a personal action, but nevertheless it has prescribed on its face by the prescription of ten years. We also find that the appellant did not properly discharge his burden on the issue of prescription. Accordingly, we affirm the judgment of the trial court.
FACTUAL AND PROCEDURAL HISTORY
On November 12, 2004, Mr. Vaccarella and Ms. Vaccarella were divorced. After a lengthy negotiation and delays due to damage to community property sustained during Hurricane Katrina, the parties entered a consent judgment of partition on September 16, 2008. The judgment began by listing the awards to Ms. Vaccarella. The marital home was disposed of first. That section of the judgment read: "IT IS ORDERED, ADJUDGED AND DECREED that LISA DANFLOUS VACCARELLA be and is hereby awarded in full ownership and JOHN JOSEPH VACARELLA, JR. relinquishes all right, title and interest in and to the following assets: (1) 100% ownership interest in 3717 Gallo Drive, Chalmette, Louisiana 70043." In that section, Ms. Vaccarella was also awarded a portion of Mr. Vaccarella's pension/retirement plan with the Louisiana Carpenters Regional Council, to be preserved by a Qualified Domestic Relations Order.
The judgment also addressed awards to Mr. Vaccarella, ordering that "Lisa Danflous Vaccarella should pay from her separate funds, 16,000.00 unto John Vaccarella, Jr. for his ½ share of the property located at 3717 Gallo Drive, Chalmette, Louisiana 70043." Additionally, the consent judgment made provisions to handle different possible outcomes of unresolved issues, and noted that interim alimony to Ms. Vaccarella was "left open." Lastly, the judgment noted that the parties discharged each other from any further accountings. The judgment was immediately recorded in the conveyance and mortgage records of St. Bernard Parish.
Over a decade later, Mr. Vaccarella and Ms. Vaccarella were discussing the topic of his retirement during a family activity. Mr. Vaccarella states during that conversation, he was surprised to learn that his former spouse was entitled to a portion of his pension. Mr. Vaccarella avers that he assumed that he was awarded his full pension in exchange for Ms. Vaccarella being awarded the marital home. He claims that he then checked the paperwork from the consent judgment and realized he was owed payment for his share of the marital home. Mr. Vaccarella subsequently filed a motion to enforce the consent judgment on July 3, 2019. In response, Ms. Vaccarella urged an exception of prescription, arguing that Mr. Vaccarella was attempting to enforce a money judgment that had prescribed on its face. Following a hearing, the trial court granted the exception of prescription and dismissed Mr. Vaccarella's motion to enforce settlement, with the finding that his action was prescribed by the prescription of ten years. Mr. Vaccarella
filed this timely appeal of the trial court's judgment.
DISCUSSION
Standard of Review
In evaluating a trial court judgment granting a peremptory exception of prescription, the appropriate standard of review hinges on whether evidence is introduced. Russ v. City of New Orleans , 19-0579, p. 2 (La. App. 4 Cir. 8/28/19), 279 So. 3d 1006, 1008 (citing Wells Fargo Financial Louisiana, Inc. v. Galloway , 17-0413, pp. 7-8 (La. App. 4 Cir. 11/15/17), 231 So. 3d 793, 800 ). "If evidence is introduced, the trial court's factual findings are reviewed for manifest error." Russ , 19-0579, p. 2, 279 So. 3d at 1008 (citing Galloway , 17-0413, p. 8, 231 So. 3d at 800 ). "When no evidence is introduced, the decision is purely legal and requires a de novo review." Russ , 19-0579, p. 2, 279 So. 3d at 1008 (citing Galloway , 17-0413, p. 8, 231 So. 3d at 800 ). However, if "evidence is introduced but the case involves no dispute regarding material facts, only the determination of a legal issue, an appellate court must review the issue de novo , giving no deference to the trial court's legal determination." Galloway , 17-0413, p. 8, 231 So. 3d at 800. "The burden of proof on the prescription issue lies with the party asserting it unless the plaintiff's claim is barred on its face, in which case the burden shifts to the plaintiff." Mallett v. McNeal , 05-2289, 05-2322, p. 5 (La. 10/17/06), 939 So. 2d 1254, 1258.
In the instant matter, evidence has been introduced but there is no dispute of material facts, therefore, the judgment is reviewed de novo .
Assignment of Error
Appellant's sole assignment of error is that the trial court erred when it granted Appellee's peremptory exception of prescription because it diverged from binding Louisiana Supreme Court precedent in Madere v. Madere , 95-1635, (La. 10/16/95), 660 So. 2d 1205.
In Madere , the dispute centered on whether a consent judgment of partition was a money judgment and thus capable of being executed by writ of fieri facias . "A money judgment is one which orders the payment of a sum of money and which may be executed under a writ of fieri facias ." Succession of Moody , 306 So. 2d 869 (La. App. 1 Cir.1974). "The applicable prescriptive period is determined by the character of the action pled in the petition." Galloway , 17-0413, pp. 9-10, 231 So. 3d at 801 (citing Starns v. Emmons , 538 So. 2d 275, 277 (La. 1989) ). Pursuant to La. C.C. art 3501, a "money judgment rendered by a trial court of this state is prescribed by the lapse of ten years from its signing." The running of prescription on a money judgment may only be forestalled through the filing a motion to revive the judgment. General Financial Services, Inc. v. Dean , 99-1798, p.6 (La. App. 4 Cir. 12/15/99), 761 So. 2d 569, 572 ; La. C.C.P. art. 2031(A). La. R.S. 9:2801(A)(4)(d) governs the partition of community property and the creation of a money judgment for that purpose, stating that "[i]n the event that the allocation of assets and liabilities results in an unequal net distribution, the court shall order the payment of an equalizing sum of money, either cash or deferred, secured or unsecured, upon such terms and conditions as the court shall direct."
The appellate...
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