Michael P. Weeks VS Laura P. Weeks
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STATE OF LOUISIANA COURT OF APPEAL FIRST CIRCUIT 2013 CA 0366 W P M VERSUS J u P LW j Judgment Rendered NOV 0 1 2013 Appealed from the 21 Judicial District Court In and far the Parish of Livingston Louisiana Trial Court Number 128 201 Honorable Robert H Morrison III Judge Erik L Bums Denham Mary Springs Attorney for Appellant LA E Heck Barrios Denham Springs LA Plaintiff P MW Attorney for Appellee Defendant P LW BEFORE WHIPPLE C WELCH AND CRAIN JJ J WELCH J W P M appeals a judgment granting a summary judgment and dismissing his petition to annul a stipulated judgment that he previously entered into with his wife P ex L Finding no error in the judgment of the trial court we affirm W FACTUAL AND PROCEDURAL HISTORY W P L and M entered into a covenant marriage on May 4 2004 On W P April 19 2010 M filed a petition seeking a separation from bed and board W P and a divorce During the parties marriage they had two children S who W J was born on October 2 2008 and A who was born on October 18 2010 W E W P L was pregnant with A when the separation and divorce proceedings W E were commenced and she gave birth to the child before the judgment of divorce was granted In Mpetition he sought among other things that he be awarded sole s W P custody of S and child W J support W P L responded by filing an answer and reconventional demand seeking that the parties be awarded joint custody of W J S that she be designated as the child domiciliary parent subject to s reasonable visitation by M and that she be awarded child support and interim W P and periodic spousal support On May 10 2010 the parties entered into a stipulated judgment that among other things awarded the parties joint custody of S designated L as the W J W P s child domiciliary parent and set forth a specific physical custodial schedule The stipulated judgment also provided that each party had the right of first refusal to 1 Due to the confidential nature of an appeal closely related to this appeal also rendered this date In the Matter of B Applying for Intrafamily Adoption of S and A 2013 M L W J W E 0448 La App 1 Cir 11 13 1 3d So the minor children their biological parents and their step are referred to by their initials to preserve their anonymity parent Z M alleged in his petition that S date of birth was October 3 2008 however that W P s W J appeazs to be a mistake as all other pleadings in this matter and the pleadings in In the Matter of M L B Applying for Intrafamily Adoption of S and A 2013 La App 1 W J W E 0448 Cir 13 1 11 So3d state that his date of birth was October 2 2008 3 The stipulated judgment was signed by the trial court on May 14 2010 2 I provide care for S in the absence ofthe other parent other than for daycare or W J school In addition the stipulated judgment provided that pending further orders of the court each party would be responsible for the payment of one of the half daycare expenses for S one of the health insurance premium for S W J half W J and one of the out medical dental and other health care expenses half pocket of for S and for the pregnancy of L Additionally the stipulated judgment W J W P provided that the claims of each party far the payment of child support were reserved for hearing at a future date with a reservation of any award rendered retroactive to the date ofjudicial demand On October 3 2011 almost a year after A birth M filed a s W E W P petition seeking to disavow paternity of A On November 29 2011 the trial W E court signed a judgment of divorce and a trial on the merits of all pending issues was scheduled for January 23 2012 On that date the parties entered into a stipulated judgment that 1 dismissed Mperirion to disavow paternity of s W P W E A 2 terminated the custody and visitation rights of M as to both W P W J S and A and awarded sole custody of both children to L 3 W E W P provided M would promptly execute all documents necessary to effect the W P voluntary surrender of his parental rights to the minor children so as to free them for adoption 4 enjoined M from contacting L or the minor children W P W P 5 provided L would relinquish any claims for support for herself or the W P minar children from M both past and future and that she would waive and W P release her pending claim for support contribution toward daycare medical insurance and medical expenses for either minor child or herself 6 dismissed s W P L pending rule for contempt and 7 partitioned L community s W P 4 Apparently M voluntarily agreed to dismiss the petition to disavow paternity after he W P received the results of a paternity test 3 property and settled their claims between each other that arose from their matrimonial regime P MW never executed a valid surrender of his parental rights as set forth in the stipulated judgment See In the Matter of B Applying for Intrafamily M L Adoption of S and A 2013 pp La App l Cir 11 W J W E 0448 2 3 13 1 So3d Instead on June 22 2012 he filed a petition to annul the January 23 2012 stipulated judgment In this petition M asserted that the W P provision in the stipulated judgment that require dhim to surrender his parental rights and sign a a of swas an absolute nullity in that at oluntary vct urrender the time of the execution of said j was no adoption proceeding udgment there pending and therefore no ability to execute a valid surrender as there was no proceeding in which to file the surrender into which is a statutory requirement associated with the signing of a sunender In the petition M also asserted W P that the judgment was null because it was obtained by ill practices that constituted a deprivation of the legal rights of M to adequately prepare for W P the c hearing and further that the enforcement of the j be ourt udgment would inequitable and unjust Specifically M claimed that the judgment should be annulled because W P 1 immediately prior to the January 23 2012 judgment he shared custody of W J S 2 although there was a pending rule for contempt regarding the payment of support and other financial sums and questions related to the right of first refusal provision there were no allegations as to inadequate parenting and no pending action seeking to modify custody 3 although he ultimately consented to the entry of the judgment on January 23 2012 the terms of that judgment lead to an unconscionable result and he had no idea going into c that he would be asked ourt to forfeit his rights of custody as to his minor children and 4 the judgment contained provisions that resulted in a complete resolution of the community 4 property between the parties despite the fact that no action to partition property had been filed and there is nothing in the record that supports the reasonableness of the partition Accordingly M requested that the January 23 2012 judgment be W P annulled in its entirety ar alternatively that those provisions of the judgment that serve as a termination of his parental rights and required him to sign a voluntary act of surrender for the minor children be rendered null and void On October 15 2012 L filed a motion for summary judgment seeking W P the dismissal of the petition to nullify the January 23 2012 stipulated judgment By judgment signed on November 2 2012 the trial court granted Lmotion s W P for summary judgment and dismissed M petition to annul the January 23 s W P 2012 stipulated judgment with prejudice and it is from this judgment that M W P now appeals LAW AND DISCUSSION Summary Judgment Law A motion for summary judgment is a procedural device used to avoid a full scale trial when there is no genuine issue of material fact and the summary judgment procedure is favored and designed to secure the just speedy and inexpensive detertnination of every action La C art 966 Power P 2 A Marketing Direct Inc v Foster 2005 La 9938 So 662 668 A 2023 06 6 2d motion for summary judgment will be granted if the pleadings depositions answers to interrogatories and admissions together with affidavits if any show 5 Afrer M filed the petition to annul the Januazy 23 2012 stipulated judgment B W P M L s W P L current husband and step to the two minor children filed a petition for father intrafamily adoption The juvenile court subsequently granted the adoption pursuant to La C Ch art 1245 and M appealed In a decision also rendered this date In the Matter of W P M L B Applying for Intrafamily Adoption of S and A 2013 La App l W J W E 0448 Cir 13 1 11 3d So this court affirmed the final decree of adoption 6 In response to the petition to annul the January 23 2012 stipulated judgment L initially W P filed a dilatory exception raising the objection of improper cumulation of actions and a peremption exception raising the objections of no cause and no xight of action according to the trial court minutes L W ultimately withdrew the objections P 5 However that there is no genuine issue of material fact and that the mover is entitled to judgment as a matter of law Id La C art 966 P 2 B The mover has the burden of proof that he is entitled to summary judgment See La C art 966 If the mover will not bear the burden of proof at P 2 C trial on the subject matter of the motion he need only demonstrate the absence of factual support for one or more essential elements of his opponent claim action s or defense Id If the moving party points out that there is an absence of factual support for one or more elements essential to the adverse party claim action or s defense then the non party must produce factual support sufficient to moving satisfy his evidentiary burden at trial Id If the mover has put forth supporting proof through affidavits or otherwise the adverse party may not rest on the mere allegations or denials of his pleading but his response by affidavits or otherwise must set forth specific facts showing that there is a genuine issue for trial La P C art 967 B Summary judgments are reviewed on appeal de novo with the appellate court using the same criteria that govern the trial court determination of whether s summary judgment is appropriate whether there is any genuine issue of material fact and whether the mover is entitled to judgment as a matter of law Power Marketing Direct Inc 938 So at 669 Therefore in the present case our de 2d novo review will examine whether there are any genuine issues of material fact and whether Lwas entitled to judgment as a matter of law W P The anuary 23 2012 Judgment Initially we note that the January 23 2012 judgment is a stipulated judgment A consent or a stipulated judgment is a bilateral contract by which the parties adjust their differences by mutual consent with each party balancing his hope of gain against his fear of loss Leonard v Reeves 20ll La App l Cir 1009 12 12 1 82 So 1250 1261 see also La C arts 3071 and 3072 Its binding 3d 6 force arises from the voluntary acquiescence of the parties rather than the adjudication by the court Id Generally there is no right to appeal a stipulated or consent judgment See Mill Creek Homeowners Association Inc v Manuel 2004 La App 1 1385 5 Cir 6916 So 268 270 That is because a appeal cannot be taken by OS 10 2d n a party who confessed judgment in the proceedings in the trial court or who voluntarily and unconditionally acquiesced in a judgment rendered against him La C art 2085 P Thus in this case as between M and L the W P W P January 23 2012 stipulated judgment was a final judgment and was not appealable See Guidry v Sothern 98 La App 1i Cir 5 734 1152 5 99 14 2d So 928 930 931 Nullity ofJudgments The only remedy available to a party seeking to set aside a final judgment is an action in nullity Guidry 2d 734 So at 930 The nullity of a final judgment may be demanded for vices of either form or substance La C art 2001 P Louisiana Code of Civil Procedure article 2002 lists specific vices of form that render a judgment absolutely null and it provides in pertinent part that a final judgment shall be annulled if it is rendered 1 aan incompetent person not gainst represented as required by law 2 aa defendant who has not been served gainst with process as required by law and who has not waived objection to jurisdiction or against whom a valid judgment by default has not been taken and 3 b a y court which does not have jurisdiction over the subject matter of the suit The grounds for absolute nullity based on vices of form listed in La C art 2002 P are exclusive Hebert v Hebert 96 La App l Cir 9 700 So 2155 97 19 2d 958 959 With regard to vices of substance the jurisprudence of our state recognizes that a judgment may also be absolutely null or void ab initio if it contains a 7 condition that is contra bonos mores Id see also La C arts 2030 and 3082 Additionally Louisiana Code of Civil Procedure article 2004 provides that a final judgment obtained by fraud ill or practices may be annulled Our jurisprudence outlines two criteria for this determination 1 when the circumstances under which the judgment was rendered show the deprivation of the legal rights of the litigant who seeks relief and 2 when enforcement of the judgment would be unconscionable and inequitable Belle Pass Terminal Inc v Jolin Inc 2001 La 10 800 So 762 766 0149 O1 16 2d The legal right of which a litigant must be deprived to have a judgment annulled includes as the right to appear and assert a defense and the right to a fair and impartial triaL Id Not every fraud or ill practice constitutes grounds to annul a judgment Ward v Pennington 523 Sa2d 1286 1289 La 1988 There must be a causal relationship between fraud or ill practice and obtaining of the judgment Id The party seeking annulment of a judgment must demonstrate how he was prevented ar excused from asserting any defenses he may have had i e that he was deprived of the knowledge of the knowledge of the existence of the defense relied on or of the opportunity to present it by some fraud or ill practice on the part of the other party State Through Department of Health and Human Res Office of Family Sec In Interest of Brown v Beauchamp 473 2d So 323 327 La App l Cir writ denied 477 So 1125 La 1985 2d Additionally a stipulated judgment as opposed to other final judgments rendered against a party without their consent being a bilateral contract may also be annulled pursuant to La C art 1948 for vices of consent i 1 error of fact e or of the principal cause of the agreement La C arts 1949 1950 and 1967 2 fraud La C arts 1953 and 1955 or 3 duress La C art 1959 See also La C art 3082 Stroscher v Stroscher 2001 La App l Cir 2769 2003 14 2 845 So 518 524 Leonard 82 So at 1261 Baker v Baker 2d 3d 8 0911 7 2012 p La App l Cir 4 unpublishec writ denied 2013 13 26 1218 La 9 13 13 3d So City of Baton Rouge v Douglas 2007 La 1153 App l Cir 2 984 So 746 749 writ denied 2008 La 6 08 8 2d 0939 08 20 983 So 1284 and Hoover v Boucvalt 99 La App 4 Cir 11 2d 0867 99 24 747 So 1227 1230 writ denied 99 La 2754 So 969 2d 3610 00 18 2d Consent is vitiated when it has been obtained by duress of such a nature as to cause a reasonable fear of unjust and considerable injury to a party person s property or reputation La C art 1959 Consent is vitiated even when duress has been exerted by a third person La C art 1961 Generally as in the present case duress means a threat of harm made to compel a person to do something against his or her will or judgment or more specifically a wrongful threat made by one person to compel a manifestation of seeking assent by another person to a transaction without real volition Leonard 82 So3d at 1261 citin Black Law s Dictionary 542 8 ed 2004 Emphasis added Duress of imprisonment is defined as t wrongful confining of a person to force the person to do he something Id Emphasis added see also La C art 1959 comment b The Evidence on the Motion for Summary Judgment In L motion for summary judgment she claimed that the allegations s W P of of M petition when talcen as a whole failed to warrant the nullification s W P of the January 23 2012 stipulated judgment which was acknowledged under oath on the record and in open court by the parties Essentially in support of her motion L relied on the transcript of the January 23 2012 stipulation The W P transcript provides in pertinent part as follows BY COUNSEL FOR L W P The parties have agreed that M will promptly execute a W P surrender of parental rights as to both S whose date of birth is W J October the 2 2008 and A whose date of birth is October W E the 18 2010 9 We are immediately terminating any custodial or visitation rights that he may have as to either child W P M will be absolved of any responsibility for payment of any of the contributory expenses that were previously ordered by the c ourt any claim for child support past or future for either of the children In other words those that he was ordered to pay and didn pay t Those are going to be relinquished as well as any daycare future daycare obligations W P L is going to waive any claims for going to s she dismiss her pending rule for contempt and waive any future claims for contempt arising from his failure to abide by priar orders of the ourt c Both L and M then swore under oath that they each heard the W P W P terms and conditions of the stipulation or agreement that they each understood those terms and conditions and that they each agreed to abide by those terms and conditions The trial court then accepted the stipulation and then ordered that a written judgment in accordance with that stipulation be prepared Further the stipulated judgment signed by the trial court conforms to the stipulation dictated into the record and there is no dispute over the terms of the stipulation dictated on the record and the judgment signed in conformity with that stipulation In opposition to the motion far summary judgment essentially M W P contended that the entire judgment was an absolute nullity because 1 the provision wherein L relinquished her right to child support from M was W P W P contra bonos mores against public policy and 2the provision that required him to sign a voluntary act of surrender before an adoption proceeding was pending violated Louisana law and therefare was also against public policy He also claimed that the judgment was null based on La C art 2004 because it was P obtained by fraud or ill practices Essentially he claims that is he is being deprived of his legal rights to his children that the enforcement of the judgment 10 would be unconscionable and the judgment encompassed issues that were not pending befare the court In opposition to the motion for summary judgment M relied on his W P own affidavit which provided On January 23 2012 I appeared in court on a scheduled rule My attorney at the time had communicated with me very little about what was going on prior to that time On that day my attorney conferred with me a number oftimes and advised me ofnew contempt charges for failing to comply with prior court orders He told me that opposing counsel would likely see me face jail time for contempt unless I was willing to surrender the rights to both of my children free them for adoption agree to an injunction agree to a resolution of the community property with me keeping only what was in my possession and giving to L everything else including all equity in the W P house I was told that the disparity in the property would cover my past child support and they would not pursue contempt charges relieving me of the likelihood of going to jail but at the same time forever severing myself from the lives of L and my two W P children S and A I was unable to comprehend all that W J W E was taking place on this day as I had no idea that custody much less the termination of the rights to my children would be an issue On that day I was under extreme duress brought about by the likelihood of being incarcerated a threat to my personal freedom and this caused a brief lapse in self and so I agreed to anything and control everything I ultimately signed the judgment that was drawn up following the January 23 2012 court appearance because I was told that I had no choice but to do so since that was the judgment or order of the court entered in open court Once I was able to absorb all that transpired and after seeing a counselor to cope with the possible loss of my children I felt that I would rather go to jail then give up the rights to my children and i feel that way today Absolute Nullity In this case there is nothing in the record to suggest that there were any vices of form that would render the January 23 2012 stipulated judgment absolutely null as set forth in La C art 2002 With regard to whether the P January 23 2012 stipulated judgment is an absolute nullity for vices of substance since the material facts with regard to these issues are not in dispute we look solely to the legal question presented by the motion for summary judgment i e whether the provisions wherein L agreed to relinquish her claim for child W P support against M and wherein M agreed to sign a voluntary act of W P W P 11 surrender and free the children far adoption proceedings were against public policy and therefore absolutely null as a matter of law See Power Marketing Direct Inc 938 Sa2d at 669 Parents have a legal duty to provide support to their children Dubroc v 2d Dubroc 388 So 377 380 La 1980 renounced or suspended Id This duty cannot be permanently Thus the courts of our state have long recognized that a judgment wherein a parent is permanently relieved of his obligation to support his minar children is an absolute nullity because it contravenes the public policy of this state Hebert 700 So at 960 see also Walder v Walder 159 2d La 231 105 So 300 1925 Dubroc 388 So at 380 Pierce v Pierce 397 2d 2d So 62 64 La App 2 Cir 1981 Richardson v Richardson 427 So 518 2d La App 3 Cir writ denied 433 So 182 520 La 1983 Macaluso v 2d Macaluso 509 So 201 202 La App 1 Cir 1987 The public policy 2d 203 behind a parent duty of support is to ensure both for the sake of the child and the s sake of the general public that might otherwise have to provide his support that each child receives support sufficient far his maintenance and upbringing Macaluso 509 So at 202 Nevertheless the parents of a child may mutually 2d agree to modify a support judgment in certain respects however in order for such an agreement to be enforceable it must be in the child best interest and must not s interrupt his maintenance and upbringing Id In this case child support was never set According to the May 10 2010 stipulated judgment both L and M agreed that they would each be W P W P responsible for the payment of one of the daycare expenses for S one half W J half of the health insurance premium for S and one of the out W J half pocket of medical dental and other health care expenses for S and that their claims for W J See Diamond B Construction Company Inc v City of Plaquemine 95 La App 1 1979 Cir 4673 So 636 640 when a contract is to be interpreted by the court as a matter of 96 30 2d law a motion for summary judgment is a proper procedural vehicle to present the question to the court 12 child support were reserved for hearing at a future date According to the January 23 2012 stipulated judgment L relinquished any claims she had for the W P support of the minor children past and future M and she both from P W waived and released her pending claim for M failure to contribute toward s W P the daycare medical insurance and medical expenses for either child or herself Although this agreement may appear to permanently relieve M of his W P obligation to support his children we note that this agreement was in conjunction with another agreement that M custodial and visitation rights would be s W P terminated and that M would promptly execute a voluntary act of surrender W P of his parental rights to the minor children so as to free them for adoption 9 The execution of a voluntary act of surrender of parental rights and the subsequent adoption of a child effectually terminates the parental rights and obligations of the surrendering parent including the surrendering parent obligation to support the s child and the adopting parent becomes the parent of the child for all purposes See La C arts 199 and 227 and La Ch arts 1101 ll23 and 1193 Therefore C we do not find that the agreement that L would relinquish her claim for child W P support against Mtogether with the agreement that M would execute a W P W P voluntary surrender of his parental rights so that the children could be adopted violates the public policy of this state because the adopting parent would be assuming the legal obligation to financially support the children Accordingly 8 Since A had not yet been born this May 10 2010 stipulated judgment was silent with W E respect to that child 9 Since a stipulated judgment is a bilateral contract its provisions must be interpreted in light of the other provisions so that each is given the meaning suggested by the contract in its entirety See La C art 205Q lo Although M never signed a valid voluntary act of surrender the minor children were W P ultimately adopted by their step without M consent pursuant to La Ch art father s W P C 2 C 1245 and this court affirmed the final decree of adoption See In the Matter of B M L Applying for Intrafamily Adoption of S and A 2013 La App 1 Cir W J W E 0448 13 1 11 So3d 13 we find no merit to M claim that this provision of the January 23 2012 s W P stipulated judgment is an absolute nullity We likewise find no merit to M contention that the provision in the s W P January 23 2012 stipulated judgment wherein he agreed to sign a voluntary act of surrender before an adoption proceeding was pending was against public policy W P M essentially argues that the requirements set forth in La Ch art C 4 A 1122 and 5 1 for a voluntary act of surrender could not be met at the time of the January 23 2012 stipulated judgment because there was no adoption proceeding pending there was no court in which to file the surrender and no ability to provide the name and address of the individual or agency to whom the surrender was being made Therefore he claims that at the time ofthe January 23 2012 stipulated judgment it was impossible to have a valid act of surrender and thus any agreement that he execute such a sunender at the time the stipulated judgment was entered into was a violation of Louisiana law and against public policy Notably deficiencies in or the inadequacy of a voluntary act of surrender executed under La Ch art 1122 only renders the surrender invalid See In Re C P A C 573 So 214 216 La App l Cir writs denied 566 So 964 La 2d 2d 1990 Such deficiencies do not render the surrender unlawful Therefore we 11 Louisiana Children Code article 1122 provides in pertinent part s A Every a of sshall contain the following information ct urrender r I and address of the person agency surrender is made 4 The name or representative to whom the 5 The court in which the surrender is to be filed as required by La Ch art C 1131 We note that In Re C 573 So at 216 addressed inadequacies of a voluntazy act of P A 2d surrender executed pursuant to former La R 9 which provisions are now set forth in S 422 A 6 La Ch art 1122 See La Ch art 1122 comment b C A C 14 cannot say that this provision of the January 23 2012 stipulated judgment was against public policy See La C art 2030 Furthermore the January 23 2012 stipulated judgment and the transcript of the stipulation indicate an agreement that M would promptly execute all W P documents necessary to effect the voluntary surrender of his parental rights to the minor children so that the children could be adopted the judgment did not require him to execute a sunender at the same time the stipulated judgment was entered into or otherwise before an adoption proceeding was commenced Interestingly W P M never executed a valid voluntary act of surrender and L never sought W P to enforce this provision of the January 23 2012 stipulated judgment as a final decree of adoption of the minor children was ultimately rendered without s W P M consent pursuant to La Ch art 1245 See In the Matter of C 2 C M L B Applying for Intrafamily Adoption of S and A 2013 W J W E 0448 La App 1 Cir 11 13 1 So3d Accardingly we find that the provisions of the January 23 2012 stipulated judgment wherein L relinquished her claim for child support against M W P W P with the agreement that M would execute a voluntary act of surrender and W P free the children for adoption were not against public policy and were not absolutely null Thus the trial court properly dismissed those claims Relative Nullity and Vices of Consent With regard to whether the January 23 2012 stipulated judgment should be nullified as having been obtained by fraud or ill practices or because of a vice of consent M would bear the burden of proof at trial W P Therefore L s W P burden on the motion for summary judgment was to point out that there was an absence of factual support for one or mare elements essential to M claim s W P t3 See for e La Ch art C D 1131 providing that the court can refuse to accept an act of surrender that fails to comply with the legal requirements until the defects in the surrender aze remedied 15 I thereafter M was required to produce factual support sufficient to establish W P that he would be able to satisfy his evidentiary burden of proof at trial See La P C art 966 His failure to do so would mandate granting the motion See 2 C La C art 966 P 2 C As previously noted in support of Lmotion for summary judgment s W P she relied on the January 23 2012 stipulated judgment and the transcript of that stipulation The transcript reflects that M was represented by counsel when W P he entered into the January 23 2012 stipulated judgment and that he knowingly and voluntarily agreed under oath to each of the terms set forth in the January 23 2012 stipulated judgment The transcript does not reflect that M was W P deprived of the opportunity to appear or present a defense at the hearing or of any other legal right Nar does the transcript reflect that there was any fraud or ill practices on the part of any of the parties the attorneys or the trial court which led to the January 23 2012 judgment Lastly the transcript does not reflect that W P M agreed to the terms of the January 23 2012 stipulated judgment under threat duress or coercion that he had a mistaken belief as to the terms of the agreement or that his consent to the January 23 2012 stipulated judgment was vitiated in any way As previously noted the only evidence offered by M in opposition to W P the motion for summary judgment was his own affidavit Essentially M W P provides that counsel far L wanted him to face jail time for contempt W P unless he was willing to agree to surrender his rights to both of his children and free them far adoption as well as agree to the other terms of the January 23 2012 stipulated judgment and that he was under extreme duress brought about by the likelihood of being incarcerated However inherent in the definitions of duress and duress of imprisonment previously set forth hereinabove is the element of a lack of legal 16 justification or wrong behind the threat or action If M had any real W P apprehension of incarceration for contempt of court such apprehension could only have been based upon 1 the court inherent authority to enforce its previous s lawful judgments ancLor 2 L s legal right to seek such redress for any W P proven willful violation of such judgments on M part See Leonard 82 s W P 3d So at 1261 This does not by definition constitute duress for purposes of vitiating his consent to the entry of the January 23 2012 stipulated judgment Id A threat of doing a lawful act or a threat of exercising a right does not constitute duress La C art 1962 Leonard 82 So at 1261 3d 1262 Furthermore M affidavit does not establish that there are any s W P genuine issues of material fact as to any fraud ill practices deprivation of a legal right error ar duress on the part of any of the parties the attorneys ar the trial court Rather this affidavit only establishes that M changed his mind after W P he agreed in open court and under oath to the terms of the January 23 2012 stipulated judgment Unfortunately for M a change of heart is not a valid W P ground to nullify a stipulated judgment or otherwise rescind a compromise agreement See City of Baton Rouge 984 So at 750 And while M 2d W P obviously feels he made a bad decision to enter into the January 23 2012 stipulated judgment it is not the province of the courts to relieve a party of a supposed bad bargain See City of Baton Rouge 984 So at 750 River Birch 2d Inc v Robin Associates Inc 2004 La App l Cir 6 906 1561 OS 15 14 Additionally a party cannot claim duress based on the choice between reaching a compromise agreement and going to trial Aoover 747 So at 123 L The expense and uncertainty of trial 2d is the very stuff of which settlements are made Expense and uncertainty may cause stress and pressure but they do not constitute legal duress Without such stress pressure expense and uncertainty there would be no reason to settle Id I 5 Although P M W argues in his bxief that he is being deprived of the legal right to be involved in the lives of his children even though he voluntarily agreed to relinquish his rights the legal right of which a litigant must be deprived to have a judgment annulled has includes the right to appear and assert a defense and the right to a fair and impartial trial See Belle Passe Terminal Inc 800 So at 766 Maffidavit in opposition to the motion for summary judgment 2d s VJ P fails to establish a factual issue as to whether he was deprived of the opportunity to appear and assert a defense at the January 23 2012 hearing 17 I 2d So 729 737 writ denied 2005 La 2 924 2201 06 10 2d So 176 Accordingly we conclude that M failed to establish that there were any W P genuine issues of material fact with regard to his claim to nullify the January 23 2012 stipulated judgment Thus the trial court properly granted L motion s W P for summary judgment and dismissed those claims CONCLUSION For all of the above and foregoing reasons the November 2 2012 judgment of the trial court granting L motion for summary judgment and dismissing s W P s W P M petition to nullify the 7anuary 23 2012 stipulated judgment is affirmed All costs of this appeal are assessed to the plaintiff M appellant P W AFFIRMED 18
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