Harold J. Barber VS Deborah Barber
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STATE OF LOUISIANA COURT OF APPEAL FIRST CIRCUIT 2009 CA 0780 HAROLD J BARBER VERSUS DEBORAH BARBER Judgment Rendered MAY 7 2010 4 On Appeal from the TwentySecond Judicial District Court In and for the Parish of Washington State of Louisiana Docket No 94 854 Honorable Raymond Childress Judge Presiding Mark L James Counsel for PlaintiffAppellant Franklinton Louisiana Harold J Barber Robert A Barnett Counsel for DefendantAppellee New Orleans Louisiana Deborah Barber BEFORE DOWNING GAIDRY AND MCCLENDON JJ McCLENDON 7 This is an appeal of a trial court judgment granting a former spouse the right to seek permanent spousal support and reimbursement based on a matrimonial agreement signed by the parties prior to their marriage For the following reasons we amend in part reverse in part and render FACTS AND PROCEDURAL HISTORY Harold J Barber and Deborah Carpenter Barber were married on November 14 1999 and established their matrimonial domicile in Washington Parish No children were born of the marriage The parties separated on November 4 2006 and on November 14 2006 Mr Barber filed a petition for divorce Mr Barber alleged that the parties entered into a separate property agreement on November 12 1999 He further desired exclusive use of the family home in Franklinton asserting that it was his separate property An amending and supplemental petition was filed on May 15 2007 in which Mr Barber sought a divorce based on the parties living separate and apart for more than six months On June 11 2007 Mrs Barber filed a rule for interim periodic spousal support and rental assessment in which she asserted she was in necessitous circumstances and suffering from multiple sclerosis She also asserted that although she had no objection to Mr Barber exclusive use and occupancy of s the family home she requested that Mr Barber be assessed a rental value for his use of the former matrimonial domicile Also on June 11 2007 Mrs Barber filed an answer and reconventional demand matrimonial In her reconventional demand agreement signed on Mrs Barber asserted that the November 12 1999 was invalid and unenforceable as it was improperly perfected signed under duress and signed through misrepresentation and fraud She further contended that she was not In the rule it was alleged that Mrs Barber was suffering from Lou Gerhrig disease but it is s undisputed that she has multiple sclerosis 2 allowed legal representation nor given the opportunity to have the agreement reviewed by anyone As such Mrs Barber requested a declaration that all property acquired during the marriage be deemed community property entitling her to interim spousal support permanent and final support medical insurance coverage reimbursement and credit of funds paid for obligations and debts during the marriage and all fruits revenues and increases of property belonging to the community Mr Barber was granted a judgment of divorce on June 14 2007 On August 5 2008 Mr Barber filed a motion for declaratory judgment seeking a judgment declaring the prenuptial agreement valid motion was held on August 20 2008 A trial on the The trial court determined that the stresses and time limitations that Mrs Barber underwent did not amount to vices of duress or error The trial court also determined that the contract was an authentic act The trial court then stated An examination of the contract reveals that the references to spousal support are contained in paragraph six of the otherwise lawful agreement In the same sentence of that paragraph the parties agree to waive interim and final spousal support As was previously noted the waiver of interim spousal support has been unlawful for thirty years and was unlawful at the time this The court finds the provisions of agreement was written paragraph six of the agreement to be inextricably bound and strikes the entire paragraph In all other regards the contract is found to be lawful Judgment was signed on December 10 2008 allowing Mrs Barber the right to seek interim and permanent spousal support from Mr Barber The judgment also added the following That Deborah Barber is reserved the right to seek reimbursement of contribution to the estate of Harold Barber as per law Mr Barber appealed alleging that the trial court erred in ruling that the waiver of temporary and permanent support were so inextricably bound so as to render the waiver of permanent support unenforceable He also asserts that 3 the trial court erred in ruling that Mrs Barber had not waived her right to seek reimbursement 2 DISCUSSION When parties are bound by a valid contract and material facts are not in conflict the contract application to the case is a matter of law An appellate s review that is not founded upon any factual findings made at the trial court level but is based upon an independent review and analysis of the contract within the four corners of the document is not subject to the manifest error rule of law In such cases appellate review is simply whether the trial court was legally correct Boh Bros Const Co L v State ex rel Dept of Transp and C Development 08 1793 p 3 La 1 Cir 3 9 So 982 984 writ App 09 27 3d denied 090856 La 6 9 So 870 Claitor v Delahoussaye 02 1632 09 5 3d p 11 La 1 Cir 5 858 So 469 478 writ denied 03 1820 La App 03 28 2d 03 17 10 855 So 764 2d Generally legal agreements have the effect of law upon the parties and as they bind themselves they shall be held to a full performance of the obligations flowing therefrom In other words a contract between the parties is the law between them and the courts are obligated to give legal effect to such contracts according to the true intent of the parties LSAC 2045 Boh Bros C Const Co L 08 1793 at p 4 9 So at 984 C 3d The Louisiana Civil Code gives spouses before or during marriage the right to enter into a matrimonial agreement as to all matters that are not prohibited by public policy LSAC art 2329 Loftice v Loftice 071741 p C 11 La 1 Cir 3 985 So 204 211 However the supreme court in App 08 26 2d Holliday v Holliday 358 So 618 620 La 1978 held that prenuptial 2d agreements in which a spouse waives his or her right to alimony pendente lite in the event of separation are null and void as against public policy The public policy the court referred to was that a husband should support and assist his Z We note that these are the only two assignments of error alleged in this matter Although Mrs Barber questions the validity of the matrimonial agreement she did not appeal nor answer Mr s Barber appeal Thus this issue is not before us and we are unable to consider same 0 wife during the existence of the marriage The court determined that this legal obligation of support as well as the fact that the conditions affecting entitlement to alimony pendente lite could not be foreseen at the time prenuptial agreements are entered into overrides the premarital anticipatory waiver of alimony Holliday 358 So at 620 Loftice 071741 at p 11 985 So at 211 2d 2d Thus alimony pendente lite or what is now known as interim spousal support is based on the statutorily imposed duty of the spouses to support each other during marriage LSAC art 98 Loftice 071741 at p 11 985 So C 2d at 211 See also McAlpine v McAlpine 941594 p 9 La 9 679 So 96 5 2d 85 90 However there is no corresponding statutory duty of support mandating permanent spousal support between former spouses See McAlpine 94 1594 at p 9 679 So at 90 The court in McAlpine determined that permanent 2d spousal support unlike interim support is not a law enacted for the public interest but rather was enacted to protect individuals Therefore there is no prohibition against the waiver of post divorce permanent spousal support McAlpine 941594 at p 16 679 So at 93 2d Relative to the nullity of a provision of an agreement LSAC art 2034 C provides Nullity of a provision does not render the whole contract null unless from the nature of the provision or the intention of the parties it can be presumed that the contract would not have been made without the null provision According to the 1984 Revision Comments the above article directs the court to consider the totality of the parties intentions before annulling the agreement when only a portion of it is null LSA C art 2034 1984 Revision Comment Accordingly like other questions 3 See LSAC art 7 which provides that C of contract interpretation whether an ersons p may not by their juridical acts derogate from laws enacted for the protection of the public interest Any act in derogation of such laws is an absolute nullity 4 Louisiana Civil Code article 98 which provides that m persons owe each other fidelity arried support and assistance was enacted by La Acts 1987 No 886 1 and reproduces the source provision of LSAC art 119 1870 almost verbatim and does not change the law See LSA C C art 98 1987 Revision Comment a Comment e also states that t he spouses duties under this Article as a general rule are matters of public order from which they may not derogate by contract E agreement is severable is controlled generally by the intent of the parties as expressed by the contract terms andor language Hudson v City of Bossier City 05 0351 p 20 La 4 930 So 881 894 See also Lebouef v 06 17 2d Liner 396 So 376 378 La 1 Cir 1981 2d App In its judgment the trial court found the provisions of Paragraph 6 concerning interim and permanent spousal support inextricably bound and struck the entire paragraph The judgment also included the reservation of Mrs s Barber right to seek reimbursement Except for these exclusions the matrimonial agreement was held to be valid and enforceable as an authentic act While we agree with the trial court that the waiver of interim spousal support is against public policy and must be stricken from the agreement we cannot say that the entire paragraph must be stricken Paragraph 6 of the matrimonial agreement specifically provides The appearers do further hereby expressly waive one from the other any and all entitlement to interim spousal support final spousal support or any support payments of whatsoever kind character or nature each of said appearers declaring that they are not and would not be entitled to any such alimony or support in the event of a dissolution of the marriage Although the agreement regarding interim spousal support and final spousal support are in the same sentence they are two distinct provisions with different interests and different requirements It does not appear that the portion of the sentence regarding interim support is so entangled or tied up with the rest of the sentence that it cannot be deleted without striking the entire paragraph Accordingly despite the difficult circumstances presented we must reverse in part the judgment of the trial court insofar as it struck the entire paragraph regarding spousal support and we amend the judgment to strike only that portion of Paragraph 6 as it concerns interim spousal support Mr Barber also argues that the trial court erred in ruling that Ms Barber had not waived her right to seek reimbursement He asserts that Paragraph 4 of 5 The term inextricable has been is defined as forming a maze or tangle from which it is impossible to get free and incapable of being disentangled or untied Webster New Collegiate s Dictionary 590 1974 11 the matrimonial agreement contains a mutual waiver of the parties respective rights of reimbursement Thus according to Mr Barber the inclusion of the reservation in the judgment that contradicted the trial court written reasons s finding all provisions of the agreement valid except the waiver of support was error Paragraph 4 of the matrimonial agreement provides Any increase or improvement of separate property of either appearer as separate property as set forth in this agreement arising or made during the marriage as the result of common labor expense or industry of the appearers shall not create any right to a reward in favor of that appearer or the legal representative of that appearer to whom the property which has been increased or improved does not belong As previously stated a contract between the parties is the law between them and the courts are obligated to give legal effect to such contracts according to the true intent of the parties LSAC art 2045 Boh Bros C Const Co L 08 1793 at p 4 9 So at 984 Thus when the words of a C 3d contract are clear and explicit and lead to no absurd consequences no further interpretation may be made in search of the parties intent LSAC art 2046 C Also to determine the meaning of words used in a contract a court should give them their generally prevailing meaning LSAC art 2047 C By the plain and clear words of Paragraph 4 of the matrimonial agreement Mrs Barber waived her right to reimbursement Thus it was error for the trial court to reserve to her those rights 6 CONCLUSION For the above reasons we reverse in part the December 10 2008 judgment of the trial court insofar as it strikes the entire Paragraph 6 of the matrimonial agreement and amend the judgment to only strike that portion regarding the waiver of any interim spousal support Further we reverse that portion of the judgment reserving to Ms Barber the right to seek reimbursement 6 We further note that in its written reasons the trial court stated that with the exception of Paragraph 6 regarding spousal support the prenuptial agreement was an otherwise lawful agreement and that i all other regards the contract is found to be lawful Thus the court n clearly found Paragraph 4 to be a lawful provision 7 of contribution to the estate of Mr Barber as per law All costs of this appeal are assessed to Deborah Barber REVERSED IN PART AMENDED IN PART AND RENDERED m
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