Vincent v. Vincent

• Decision Date: 30 May 2012
• Docket Number: No. 2011–CA–1822.,2011–CA–1822.
• Citation: 95 So.3d 1152
• Parties: Scott G. VINCENT v. Janet P. VINCENT.
• Court: Court of Appeal of Louisiana — District of US

95 So.3d 1152

Scott G. VINCENT

v.Janet P. VINCENT.

No. 2011–CA–1822.

Court of Appeal of Louisiana, Fourth Circuit.

May 30, 2012.

Nancy K. Durant, Metairie, LA, for Plaintiff/Appellee.

Rita K. Akehurst, II, Sugar Land, TX, for Defendant/Appellant.

(Court composed of Judge TERRI F. LOVE, Judge DANIEL L. DYSART, Judge ROSEMARY LEDET).

ROSEMARY LEDET, Judge.

[4 Cir. 1]This is a post-divorce matter. This is the third appeal in this case. Vincent v. Vincent, 05–1175 (La.App. 4 Cir. 1/10/07), 949 So.2d 535 (“Vincent I ”); Vincent v. Vincent, 10–0539 (La.App. 4 Cir. 10/13/10) (unpub.) (“ Vincent II ”). Defendant, Janet P. Vincent (“Ms. Vincent”), appeals the trial court's judgment granting Scott G. Vincent's (“Mr. Vincent”) motion for entry of final judgment, sustaining his exception of no cause of action and dismissing with prejudice Ms. Vincent's amended motion to extend final spousal support for life. For reasons set forth below, we affirm.

FACTUAL AND PROCEDURAL BACKGROUND

The parties were divorced December 21, 2004. The trial court noted in its April 2005 reasons for judgment that at the time of the divorce “Ms. Vincent had a debilitating illness, and a serious head-on automobile collision which compounded her health problems.” The trial court awarded Ms. Vincent final spousal support in the amount of $7,275.20 per month for a period of five years from the date of divorce. In its reasons for judgment, the trial court noted that “[a] great part of the [4 Cir. 2]award for final support consists of Mrs. Vincent's monthly medical bills. If Mrs. Vincent is eligible for Medicare, and the benefit can be applied to her medical treatments, then this Court will be willing to entertain a subsequent motion to modify the award for final support at that time.”

Mr. Vincent filed a timely appeal of the trial court's judgment of spousal support. In Vincent I, this Court reduced the monthly spousal support award to $3,000, but maintained the five-year time period. The five-year obligation to pay final spousal support expired in December 2009.

On April 14, 2009, Ms. Vincent filed a motion to extend final spousal support for the duration of her life. Ms. Vincent asserted in her motion that her disability resulting from brain surgery, which she underwent several years before the divorce, continued to prevent her from working; therefore, she asserted that the support award should continue in effect for the remainder of her life. In response, Mr. Vincent, on May 6, 2009, filed exceptions of lack of subject matter jurisdiction, no cause of action, res judicata, prematurity, and prescription.

On December 10, 2009, the trial court rendered judgment denying Ms. Vincent's motion to extend spousal support; granting Mr. Vincent's exceptions of no cause of action and prematurity; and denying Mr. Vincent's exceptions of res judicata, lack of subject matter jurisdiction and prescription. On Ms. Vincent's appeal this Court in Vincent II found that the trial court properly granted the exception of no cause of action. However, because Ms. Vincent asserted that she was able to provide factual support for her allegation that her circumstances have [4 Cir. 3]materially changed, this Court remanded the matter to the trial court to allow her to amend her motion pursuant to La. C.C.P. art. 934.

On November 19, 2010, Ms. Vincent filed an amended motion to extend final spousal support. The amended motion added the following seven allegations: 1) since the time the trial court initially awarded final spousal support, Ms. Vincent's medical condition had worsened; 2) she is now unable to care for herself on a day-to-day basis; 3) she is unable to prepare meals for herself; 4) she is unable to drive; 5) she requires daily care in her home; 6) she is unable to live by herself; and 7) she incurs short term memory loss.

In response, on January 21, 2011, Mr. Vincent filed exceptions of lack of subject matter jurisdiction, no cause of action, res judicata, vagueness and prescription. The vagueness exception was based on the assertion that Ms. Vincent failed to specify the parties' current financial condition. The no cause of action exception was based on the assertion that Ms. Vincent failed to allege a material change in circumstances.

On March 30, 2011, the trial court rendered judgment denying Mr. Vincent's exceptions of res judicata, lack of subject matter jurisdiction, and prescription, but granting his exception of vagueness. In its reasons for judgment, the trial court explained that although Ms. Vincent alleges a worsening of her condition she has failed to allege with particularity how her condition had deteriorated and how the progression of her condition has affected her financially in accordance with La. R.S. 9:311. The court cited [4 Cir. 4]Guillory v. Guillory, 09–988 (La.App. 3 Cir. 2/3/10), 29 So.3d 1288, in which “an award of final support was extended based upon a finding of plaintiff's worsening health condition and her increased medical expenses.” The trial court ordered Ms. Vincent to cure her defective pleading within thirty days of the signing of judgment. The trial court deferredruling on the Mr. Vincent's exception of no cause of action.

Ms. Vincent did not amend her motion as ordered by the trial court. Ms. Vincent asserts that she believed that an amendment was unnecessary and would trigger Mr. Vincent to file a third set of exceptions. Instead, on May 2, 2011, Ms. Vincent filed a motion to file writ from the trial court's ruling granting the exception of vagueness. On May 6, 2011, Mr. Vincent filed a motion for entry of final judgment to dismiss Ms. Vincent's amended motion to extend final spousal support for life. He sought the entry of judgment based on Ms. Vincent's failure to comply with the trial court's March 30, 2011 judgment, which required she file a supplemental amended motion to extend final support for life. The trial court initially set Mr. Vincent's motion for hearing on August 4, 2011.

Ms. Vincent subsequently filed in the trial court a motion to stay proceedings due to her alleged pending writ seeking review of the trial court's March 30, 2011 judgment. On August 2, 2011, the trial court granted Ms. Vincent's ex parte motion for stay “until the Court of Appeals makes a ruling on the Writ Application filed by Janet Vincent on May 2, 2011.”

On August 3, 2011, Mr. Vincent filed an objection to granting the motion to stay and request for reconsideration. Mr. Vincent's motion noted that Ms. Vincent, [4 Cir. 5]contrary to her representation, had not filed an application for supervisory writ with this court. The trial court vacated its stay and set an expedited hearing on Mr. Vincent's motion for entry of final judgment for August 17, 2011.

On August 12, 2011, Ms. Vincent filed her application for supervisory writ seeking review of the trial court's March 30, 2011 judgment. This Court issued an order requiring Ms. Vincent show cause why her writ should not be dismissed as untimely. Instead, on August 18, 2011 (after the trial court's ruling at issue on appeal) she filed a request to withdraw her writ application. By order dated August 24, 2011, this Court granted that request.

The motion for entry for final judgment was heard by the trial court on August 17, 2011. However, neither Ms. Vincent nor her counsel appeared. Mr. Vincent's counsel filed into the record a certificate of service of his motion. His counsel explained in open court that his motion was sent via facsimile transmission and certified mail to Ms. Vincent through her attorney of record. After making an apparent determination that Ms. Vincent was properly served, the trial court moved forward with the hearing and granted Mr. Vincent's motion for entry of final judgment. The trial court also sustained Mr. Vincent's exception of no cause of action, rejecting and dismissing the amended motion to extend final spousal support for life filed by Ms. Vincent. Mr. Vincent was also awarded $241.00 in costs and $1000.00 in attorney's fees.

This appeal followed. Although Ms. Vincent argues on appeal that the trial court erred in sustaining Mr. Vincent's exception of vagueness, this Court granted [4 Cir. 6]Mr. Vincent's motion to limit the scope of this appeal to the review of the trial court's August 17, 2011 judgment. Therefore, the trial court's March 30, 2011 ruling sustaining Mr. Vincent's exception of vagueness is not before us. As to the trial court's August 17, 2011 judgment, Ms. Vincent raises two issues: 1) whether Ms. Vincent was not timely served; and 2) whether the trial court erred in granting Mr. Vincent's exception of no cause of action. Answering the appeal, Mr. Vincent asserts that the trial court erred in denying his exception of res judicata; and he also requests frivolous appeal damages, including attorney's fees.

STANDARD OF REVIEW

The principal issue on appeal is whether the trial court erred in granting the motion for entry of final judgment and sustaining the exception of no cause of action, thereby dismissing the amended motion to extend final spousal support for life with prejudice. In addressing this issue, the following three-tiered standard of review applies:

First, we must determine whether the trial judge correctly applied the proper legal standard or standards. We do not defer to the discretion or judgment of the trial judge on issues of law. Second, we must examine the trial judge's findings of fact. We will not overturn the trial judge's factual determinations unless, in light of the record taken as a whole, they are manifestly erroneous (or clearly wrong). Third, we must examine the propriety of the alimony award. If it is within legal limits and based on facts supported by the record, we will not alter the amount of the award in the absence of an abuse of the trial judge's great discretion to set such awards.

Williams v. Poore, 10–1087, p. 8 (La.App. 4 Cir. 1/12/11), 55 So.3d 953, 958 (citing Baggett v. Baggett, 96–453, ...