Brenda Joyce Williams VS Ronnie L. Williams

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NOT DESIGNATED FOR PUBLICATION STATE OF LOUISIANA COURT OF APPEAL FIRST CIRCUIT NUMBER 2006 CA 0358 BRENDA JOYCE WILLIAMS VERSUS RONNIE L WILLIAMS Judgment Rendered February In and for Appealed from the Family Court the Parish of East Baton Rouge 9 2007 Louisiana Docket Number 152 733 Honorable Luke A La V ergne Judge Presiding Marcus T Foote Counsel for Plaintiff Appellant G Bruce Kuehne Brenda Rouge Baton Joyce Williams LA Counsel for Defendant Mark D Plaisance Harry Baton Rouge Appellee Ronnie L Williams W Ezim Jr LA And Michael H Aaron Baton Rouge LA BEFORE CARTER C J C C j WHIPPLE AND McDONALD JJ o WHIPPLE J This is an appeal from judgment of the Family a Court for East Baton Rouge Parish maintaining defendant s peremptory exception of no dismissing plaintiff s petition action and For the declaratory judgment 2005 judgment maintaining judgment awarding attorney following the reasons and exception and nullify judgment to cause of for affirm the October 18 we vacate the October 25 2005 fees s FACTS AND PROCEDURAL HISTORY The parties were during the parties married December 26 marriage and prior to 1971 On October 22 filing of the a divorce Brenda J Williams and defendant Ronnie L Williams plaintiff agreement purporting community of acquet s The agreement parties undivided in Baton one any and all claims each may have to settle gains that exist and provided that the or parties in the 30 000 00 and monthly payments of waive d for recovery of any and all further claims parties divorced were a 1 500 00 alimony child suppOli and the to at petition signed or lump by an the against between the each retain 280 an Englewood The furnishings contained therein agreement further provided that based upon Subsequently were half interest in immovable property located Rouge Louisiana and Williams has existed 1999 payment of sum Mr Williams against Ronnie Mrs L Williams community property claims by judgment signed February 25 2000 Almost four years later petition the for parties parties judicial partition had partitioned on of some had not been able to community property November 10 2004 Mrs Williams filed community property contending movable property amicably agree to while by mutual agreement a partition which she contended in her detailed 2 that of a the remaining descriptive list was valued in have the court excess of 10 000 000 00 Thus Mrs Williams to sought in accordance judicially partition the community property with LSA R S 9 2801 Mr Williams responded by filing Cause Rule to Show a Why Peremptory Exception of No Cause of Action Should Not Be Granted the Alternative Why the Plaintiffs Petition Should In his Dismissed for Lack of Merit the pleading by mutual agreement parties Not Be or Involuntarily Mr Williams contended that the compromised and divided had in community property that existed between them had reduced the agreement to and had recorded the writing agreement with the clerk of Williams further contended that he had lump sum paid Mrs Williams the as agreed to 30 000 00 1 500 00 per month since payment and had consistently paid her December 1999 Mr court by the parties in the community propeliy settlement agreement Thus Mr Williams contended Mrs Williams had failed of action in that all to state a cause community propeliy previously agreement and consent In the alternative Mr Williams for on an requested sic judicial partition be involuntary Mr Williams also frivolity requested attorney purpose and motive in humiliate Mr Williams and A hearing According to the counsel and on to Mr Williams to accordance with those an needlessly minute entry agreed that Mrs Williams a rule s fees petition attempt expenses and for judicial to harass was held was by the parties and the on partition for embalTass and December 14 2004 entered into the record by judgment in court rendered Additionally according 3 costs increase the cost of litigation stipulation stipulations petition dismissed for lack of merit and the basis that Mrs Williams had filed the improper mutual partitioned by been existing between the parties had already to the minute entry counsel for Mr Williams then moved for attorney costs and the attorney fees s rendered court fees and Williams court to pay 8 000 00 and court amount of defense counsel in the to Mrs judgment ordering s costs judgment signed by The provided that based upon the stipulation of the pmiies of exception Williams 1999 agreement judgment pmiition the On Notably Nullify Judgment on Rule and for the December 17 2004 the October 22 petition the Mrs Williams decreeing fees of alleged nor was constitute sustaining was a Mr valid and a petition for judicial The December 17 8 250 00 to 2004 court paid by be the Mrs appeal this judgment Williams filed Mrs a Petition Declaratory Judgment seeking She attached signed by many bases signed during the that the October 22 as to Exhibit A to her as to the right In her that the October 22 to not tenninate partition community absolute property and that any such effort would be an because the October 22 1999 agreement had illegal object an nullify why the prior judgment marriage could waiver of the to petition her and Mr Williams including the following allegations agreement which community judgment 1999 agreement should be annulled 1999 s however 2005 follows as 2004 evidence and law Mrs Williams Mrs Williams did not 11 August December 17 upon motion of defense counsel defense counsel attorney 1 on community property dismissing judgment further provided that Williams rendered community property with prejudice of awarded was of action no cause enforceable agreement and Family Comi pleadings applicable partition to the nullity that the December I We note that the amount of attorneys fees awarded in the judgment differs from the amount shown in the minute entry ofthe December 14 2004 hearing Where there is See generally Williams v Cooper such a discrepancy the judgment should prevail 2005 2360 La 2d 553 554 n 3 App 1st Cir 10 6 06 La 1st Cir App So 2d and Camp v writ denied 587 So 2d 693 La 1991 4 Camp 580 So I7 2004 consent judgment actions 2004 was procured by fraud judgment represented she her by such not consent to she gave to the that agreement that the based on the absolutely Mrs judgment resulted of preparation and advice prayed fees s from duress due to fraud alleged and or or the to any consent ill practices of sanctions and total lack by plaintiff s counsel Based that the December 17 on was proceedings of attorney imposition lawful no based prejudice and that with petition for patiition alleged Williams understand the imposition various the December 17 consent to although not because of threats of sanctions actual Mrs Williams practices that consent that she did attorney dismissal of her on effectively without legal counsel was did specifically ill or based void because she received was for not be that Mrs Williams by defense counsel consideration elTors judgment could 2004 on these judgment allegations be vacated or annulled petition In response to Mrs Williams again filed Williams an the December 14 2004 to Mrs filed in response exception hearing of on Williams to no cause the first nullify of action of exception for judicial petition the Mr judgment contending that no cause patiition at of action both patiies acknowledged that they had previously patiitioned their community property and both consented parties of action filed by to a judgment granting the exception of no dismissing Mr Williams and judicial partition with prejudice December 17 2004 consent Williams could that while judgment not Mrs and judgment Williams petition distOlied to the valid nullify pleadings filed by his counsel 5 judgment and Moreover facts petition Williams contended Mr was a collaterally attack it intentionally proceedings Thus Mrs Williams cause the that Mrs Mr Williams asserted the December and for 17 mischaracterized 2004 the it nonetheless did not state any factual which allegations nullification of the warrant to annul a hearing a judgment dated October 18 of action and cause a valid signed Williams attOlney s fm1her judgment judgment signed maintaining 2005 petition a fees in the amount of provided on the 18th that a exception of to nullify the October 25 2005 Mrs Williams to pay Mr ordering second judgment a on signed court Mr Williams Williams Mrs dismissing the trial exception the on 1 000 00 The October 25 2005 Judgment herein supplements the the day of October 2005 and both From the October 18 2005 remain in full force and effect Williams to procedure through which to judgment and for declaratOlY judgment Subsequently the trial com1 practices judgment Following no not was ill or Mr Williams also contended that judgment petition for declaratory judgment seek to the level of fraud rose judgments shall Mrs judgment appeals alleging sixteen assignments of error EXCEPTION OF NO CAUSE OF ACTION objection of The no cause of action is properly raised by peremptory exception and questions whether the law extends anyone under the factual exception of no cause of action is petition Richardson 3 28 01 808 maintaining So an The 544 a de of novo to determine the Depot USA 2000 In 546 no cause review sufficiency 0393 reviewing of action the Knight v remedy to The purpose of the petition a La trial in law of the 1st Cir App court appellate ruling s court should Magee 2001 2041 La App 835 So 2d 636 638 exception of no cause of action is triable solely petition and Cangelosi 2d exception subject the case to 1 st Cir 9 27 02 Home v of the allegations a the any annexed documents 94 2604 La App Woodland 1st Cir 10 6 95 6 on the face of the Ridge Association 671 So 2d 508 510 v For purposes of determining the issues raised by facts in the petition the law affords must plaintiff may be introduced to a be support court must under those facts evidence pleadings 845 So Stroscher 2d 518 Any that v is true controveli or the no objection Stroscher 2001 2769 La comi 14 2 03 doubts are resolved in favor of in the sufficiency light of action for relief If two of the petition most favorable to the or more causes plaintiff states any petition of action are The valid based upon separate and distinct operative facts patiial grants of the exception of of action may be rendered while Stroscher 845 So 2d When the other causes If the plaintiff fails at 523 of no cause of action by amendment of the petition the judgment maintaining dismissed grounds of to no of action exception shall order such amendment within the delay allowed by court the objection cannot comply with the order LSA C C P art 934 Thus in the instant case pleaded facts in the petition as to be so amend removed or the if the the action shall be The decision to allow amendment is within the sound discretion of the trial in preserving grounds of the peremptOlY exception may be removed the to 523 and with every doubt resolved in her behalf the cause a enlarge the to 1st Cir App evidence However exception this rule allows the to admitted without question therefore is whether cause determine if Generally as jurisprudentially recognized exception consider exception the well pleaded The accepted remedy the comi Richardson 808 So 2d at 547 the question is whether accepting the well true the law affords Mrs Williams a nullity under those facts 7 remedy ACTION OF NULLITY Louisiana law theories relevant herein article is limited not sufficiently broad rendered First pursuant may be annulled if it judgment through to to some prove claims to LSA C C P obtained all actions for prevent injustice that trials and appeals determining whether criteria for two through fraud or ill practices and is whether circumstances under which the of deprivation legal rights enforcement of the or of legal right a of the subject judgment but IS judgment a on IS fraud ill or to The purpose of an cOlTected 800 So The Ill 2d at 766 even through new 2001 0149 La to right Redeeming legal right of which a fair and 689 is a nullification a relief or and 2001 1837 is any to App bilateral to contract annulment of a consent be a litigant deprived to a defense Inc Building 16 10 1st Cir v 02 836 So 2d 46 judgment between the parties which 8 Belle improper deplive must Morton La whether inequitable practice litigant 2 to appear and assert trial 1 are rendered showed the writ denied 2002 2733 La 1 24 03 Secondly with regard judgment impartial Word of Life Church 835 So 2d 685 to judgment has been innocently judgment annulled includes the right and the a was litigant seeking procedure which operates practice have This practices second chances or as judgment would be unconscionable TerminaL Inc some final a 800 So 2d 762 766 The Pass 2004 Comis must review Jolin Inc v under several practices nullity based Belle Pass Terminal Inc rendered ill wherein cannot be to 01 or previously denied for failure of proof nullity is art ill or appeals action for 16 10 fraud procedure or substitutes for as by situations improper practice as judgments of actual fraud encompass intended not are was cases petitions for nullity closely practices annulment of provides for must be a consent based on consent Thus rendered against error of fact arts 1950 and La party without his a or error as 1967 and TranspOliation judgment consent a to the plincipal Stroscher Development provisions fact which Code prior citing 2d at 307 to amendment by 2d at 524 So 2d 625 La making the was related to State Under the cited 1981 contract 331 to error as a where the other K G Farms cause of the Louisiana Civil provisions Acts 1984 No of 402 So 2d 304 307 principal the an LSA C C Department invalidated for unilateral for cause should have known it or 402 So contract may be principal was a party knew Inc a of the agreement K G Farms Inc v judgments may be annulled for consent cause 845 So App 1st Cir writ denied 406 codal her or other final to opposed as effective 1 S January 1 1985 Thirdly this prejudice is based court upon a has held that where Bass nullity judgment of dismissal with compromise agreement judgment of dismissal is likewise action for a an absolutely null the nullity and thus subject absolute Laporte 95 0867 v that is La App So 2d 138 141 142 writ denied 97 0646 La 4 25 97 1st Cir 14 2 to 97 an 691 692 So 2d 1088 DISCUSSION through various assignments of error Mrs Williams asserts petition to judgment annulling principal nullify stated a a the December 17 cause judgment cause as i fraud e it relates She contends that the trial no cause judgment and for declaratory of action under all three bases listed above for to judgment of dismissal based exception of 2004 that her a or consent on an court of action ill practices error or as judgment and absolute nullity absolutely null thus erred in to of a compromise agreement maintaining She further asserts other 9 of fact Mr Williams alleged errors in the trial cOUli and dismissal of her for nullity petition Fraud these trial court erred in set forth as of assignments 2 on She petition alleged misrepresentations least two of fact and law to exception of no cause of action filed of the December 17 2004 articles trial or governing cOUli erred in ill entirety not summary failing to of her court and was actually conclude that these a patiies marriage misrepresented in or ill counsel made For ease filed on that pleading only we five allegations constituted fraud petition alleged to other events the Mrs specifically alleged Williams that no cause when in fact it had of action was was falsely signed after signed during the alleged in her petition that defense counsel exception ofdiscussion at original of no cause of action that the agreement of the parties provided that all claims against the community 2 on practices exception of She further the practices disguised motion for agreement between the parties was to Mrs Williams contends that the judgments in his first petition for divorce ill opposing counsel legal counsel which conhibuted that the 1999 or of action comply with the Code of Civil Procedure petition for nullity defense counsel represented defense fixing of a hearing of which constitute fraud In the the basis of fraud Mrs Williams fmiher contends that the practices incompetence the filed did cause Mr Williams which led to rendition by judgment summary judgment and that the was a Mrs Williams fmiher argues that the separate occasions days after it the 15 to state judgment the of action Mrs Williams contends that the error concluding that she failed that no cause below of Error Nos 6 amlul the December 17 2004 contends of exception III Practices or Assignments Through the judgment maintaining s address her 10 assignments out oforder 1999 were settled fact on a statement a In the the first which she contended Mrs Williams petition exception legal issue to the of no cause and court Mr Williams for use of the Even cOUl1 ill Williams i With practices that not state regard as the Williams we find hearing misrepresented indebted was no error of action for nullity based on alleged misrepresentation of fact parties was signed we her as petition Mrs to note that acknowledged in her petition that she had discussed the disclose how such deprive or fraud underlying agreement in detail with her attorney several months prior filing to in the trial misstatements alleged these a cause to hue when the underlying agreement between the Mrs that she e at the family home conclusion misrepresentations did or of action defense counsel to Mrs of law and misrepresentation additionally alleged that accepting these allegations obvious s was a for a partition Accordingly misstatement Williams of any the instant petition fails to by defense counsel could have operated legal right where she was aware to to of the circumstances and date of the agreement and could have raised this issue when the legal effect of the agreement was placed and before the court in the healing action 440 So 2d 906 911 Cf Wood wherein the v Wood determined court misrepresentations on to the the first that wife that he had legal right to appear annulment of a default Moreover effect of the Williams for exception of La the no pleading cause of App 2nd Cir 1983 husband an material s attorney deprived the wife and defend the suit and thus were grounds for judgment against the wife regarding the of the family as to the indebtedness to Mr alleged legal misrepresentations underlying agreement and use issue in his dropped his separation suit and that it would be unnecessary for her to retain of the at home Mrs Williams we 11 likewise find no error in the tlialt court ill s obvious conclusion that these Even practices facts did not constitute fraud alleged ignoring the fact that the portions of the December 17 2004 judgment declaring the 1999 agreement between the parties and dismissing stipulation the law or App L if done Lieber of the petition for partition parties we erroneously can that note in 2000 748 So cert Thus that defense counsel that the trial court had in for a defense or 2d 587 591 410 So 2d 837 on consideration of s ill accepting ill as an way relied An action for 148 petition s assuming misrepresentations in conclude that this cannot cannot be nullity Meldean timely appeal s Inc writ denied 414 So App 3rd Cir La 840 or a we 121 S Ct 306 law and further those on 2000 0561 the instant true as misrepresented the practices writ denied denied 531 U S 928 even some the merits on court be valid based were way be construed no rendering the December 17 2004 judgment constitutes fraud a to Caddo Levee District Board of Commissioners 32 551 v 759 So 2d 763 Ed 2d 246 allegation Williams 2nd Cir 12 8 99 7 4 00 La consent even practice La Mrs or substituted v Rivers 2d 376 La 1982 Also of no cause regarding Mrs Williams contentions that the of action filed by Mr Williams for summary judgment and that the not comply with note that Mrs the on acknowledged the summary procedure utilized not continuance Moreover to the extent that her of no cause sets forth of action a was to in fact conclusion of law a disguised this 12 disguised motion a on that pleading did judgments in the instant attOlney did object actually fixing of a hearing delays for hearings Williams was original exception nor we petition that her did he request a allegation that the exception motion for summary comi initially is not bound to judgment accept the correctness of that asseliion Commission 588 So 595 So 2d 654 3 LSA C C P 2d 1154 La 1159 moving party action in Kyle v Civil Service 1991 App 1st Cir writ denied note that the attorney is s constitute fraud events to improper representation not Stroscher nullity prior attorney Mrs Williams contentions that her incompetence also combined with other we 891 La 1992 Finally regarding practices art a or 2d at 524 Thus ill misconduct of the or legally recognized basis for granting 845 So s we find no an merit to this argument either Based upon trial erred in comi nullity on our review of the petition we finding that the petition fails to the basis of fraud or conclude that the cannot state a cause of action for ill practices Nullity of a Consent Judgment Assignments of Error Nos Mrs Williams further contended in her not give her consent agreement to averred in her to the continuing absolutely petition dismissing that any consent made explicit representations the civil action and no to her 3With regard petition for nullity that she did petition she gave her that everything lawful consideration for any Mrs Williams 11 December 17 2004 judgment be valid and petition 7 8 9 alleged for was she had to lose consent declaring partition based on nothing the 1999 She also implicit to and gain by and that she received Additionally in her that she did not consent to dismissal of her allegation in her petition that the trial court incorrectly considered evidence at the hearing on the original exception of no cause of action we further note that judgments rendered contrary to law are subject to reversal on appeal but are not thereby subject to an action for nullity Levy v Stelly 254 So 2d 665 667 La App 4th Cir 1971 wlit denied 260 La 403 256 So 2d 289 1972 to Mrs Williams 13 petition for and did not partition with prejudice even know what that tenn 4 meant On Mrs Williams asserts that because the December 17 2004 appeal judgment consent was a judgment it depended entirely validity and it is subject its principal consideration principal alleged in her petition constitute as cause subjecting the consent As stated above because between the parties which must of fact an enol to or enol as a judgment consent be based the counsel of record is assumed settlement principal writ denied 97 0182 La speaks through attorney is held Corporation Landry 273 cause v to Landry or be 364 So Accordingly stipulation at 14 3 1321 524 La App Mrs LSA party a to engage s s in claim CIBA GEIGY 2d 1159 1160 Nonetheless because Singleton v 4th Cir 1978 4th Cir 11 25 98 attorney appears in open a the contract any statement made where an v 684 So La App bilateral Generally Grimes by the client 1325 to nullity settle his client 97 1839 the terms of 40n appeal comi a or as it may be annulled for 689 So 2d 1384 admission an of the or of the agreement to consent attorney in her 2d 97 action for by his client 1st Cir 12 20 96 App La an consent negotiations but is without authOlity Corporation 96 0494 client to be authorized to without his client s clear and express a on of fact errors judgment is 1950 and 1967 Stroscher 845 So 2d C C arts of fact enor for her lack of consent and the lack of she argues Thus cause nullification for to contract law on 724 So by the Bunge see also 2d 271 court and agrees to settlement recited in open court the Williams further contends that she did not a client is her attorney and in fact could not have given her consent give to dismiss her case with prejudice due to her attorney being totally unprepared and unable to give her advice However as stated above the improper representation or misconduct of the moving party s attorney is not a legally recognized basis for granting an action in nullity Stroscher 845 So 2d at authority 524 14 bound by that stipulation judicial confession or So Singleton 364 2d at 1325 Notably in her petition counsel did provision with not to state the time of action to no stipulations for petition pmiition stipulations Mrs Williams is bound a cause These the at of the terms in the judgment that her Accordingly fails understand the prejudice Williams makes Mrs specifically the or would be dismissed were nullify the resulting in recited the statements of her by that her allegation consent court attorney and judgment 5 assignments lack merit Absolute Nullity of Underlying Agreement Rendering Consent Judgment Absolutelv Null Assignments In these elTed in assignments of elTor finding that she failed underlying October the basis rendering of the 22 a absolute in the where a an an absolute petition was that is an community property but then nullity absolute thus nullity as well of dismissal with absolutely prejudice null the to IS judgment of an action for 142 alleged that the 1999 agreement nullity because it stated that each pmiy retained and nullity where the parties which formed nullity and thus subject Mrs Williams community home 12 of action in absolute judgment compromise agreement Bass 691 So 2d at 141 In her a cause judgment of dismissal dismissal is likewise 10 Mrs Williams argues that the trial comi to state the judgment of dismissal based upon 2 3 4 5 1999 agreement between the As stated above nullity of Error Nos thus by purported 5 a one half interest its express terms did not to include a was an paliition waiver of the parties Any dispute Mrs Williams has as to her communications with her attorney regarding the pOliions ofthe judgment rendered by consent would have to be resolved in a separate action by Mrs Williams against her attorney See Singleton 364 So 2d at 1325 15 right Mrs Williams also contended in her to agreement purported between the parties form the basis ofa On instead agreement had consent during that were 118 118 the 1999 that pursuant to LSA C C art must itself be which an or and a to LSA C C matrimonial finding by the understand the was but signed agreement and the Mrs Williams asserts created was to waive her was an and that right absolute asserts that the an terminated in to nullity December 17 absolutely null agreement Thus Mrs Williams contends the trial nullity dismissed her agreement embodies petition in nullity community property regime art 2336 spouses may enter into a parties still owned in spouses may in approval voluntarily partition the community property in palt terminates the was not was 18 2000 She further implicitly the existence of the COUlt provides that 2369 8 absolute court erred when it During agreement by its Drive community agreement attempted community property judgment or Englewood day period community property paltition whole on February on could not See LSA C C alt 2329 between the date of the days community to the extent that 2004 and thus illegal object when the agreement between the 1999 that there without judgment that to the extent that the 1999 community regime that existed an She contends that the termination of the that terminate the establishes that the home community October the petition Mrs Williams contends that the 1999 appeal tenns own in violation of LSA C C art 2369 8 partition community propelty to court a However LSA C C serves upon joint petition their best interests and that Thus the governing principles and lules whether the 1999 agreement constituted 16 2329 matrimonial agreement that modifies regime during marriage only that this alt a they question arises voluntalY partition of as the community propeIiy or an attempt terminate the to community property regime without comi approval The the language of 1999 at agreement herein Issue provides as follows Appearing Hardy herein are Ronnie L Williams and Brenda Williams who enter into this agreement Joyce in settlement of any and all claims each may have against the community of acqest sic and gains that exist sic or has existed between them In contemplation of parties hereby agree 1 title settlement of the community the that Ronnie L Williams will maintain in interest and Englewood undivided property located Rouge Louisiana Baton contained therein immovable on interest each in the well as each paIiy is this date of the 280 furnishings as to rights at maintain an forgoing propeIiy that Ronnie L Williams shall pay as a lump sum settlement in addition to transfer of the ownership interest in the 2 30 000 00 payable in above referenced immovable propeIiy 10 000 00 three installments as follows November 24 1999 March 30 2000 3 10 000 00 10 000 00 June 30 2000 forgoing transfers and payments Williams agrees to pay to Brenda Joyce Hardy 1 500 00 per month beginning December 12 1999 In addition to the Ronnie L Williams and each month thereafter In exchange for the above transfers and or payments Brenda Joyce Hardy Williams waives any and all further claims against Ronnie L Williams for recovery of alimony child support andor community property claims Brenda Joyce Hardy Williams hereby acknowledges that she understands the agreement same executed without v any to duress be or fair and has other undo Emphasis added encouragement In Biondo believes it Biondo 99 0890 La App 1st Cir 7 31 00 769 So 94 100 102 this comi addressed in the parties had orally agreed during the existence of their maITiage the proceeds from the sale of certain community property community expenses a paIiition proceeding The wife contended that the oral the spouses constituted a partial partition of their a situation where after 17 to divide payment of agreement between community property monthly basis and that the portion of the income she received separate property 2d on a was her However this comi concluded that that the do to attempted than more in fact intended for their agreement parties This clearly permissible but only requiring the execution of approval execution of agreement attempting Biondo 769 So to in modification of the legal regime thus mi 2329 comi 358 So 2d 649 they violate 2329 the regime during ratified by the parties subsequent absolutely null An order as when the be confirmed a made contract this A or did relatively null to null and void La 1st Cir App malTiage are nullities in that may be although null one A which violates is illicit or a rule of immoral and it may relatively null contract on protection of private parties give free consent at contract as LSA C C art opposed 2031 public the other as the time the to an not when a contract absolutely null By its holding in Clay clearly determined that agreements between husband and wife which alter the matrimonial the proper is contract not was the oral same divorce mi 2030 may be confinned court to rule intended for the party lacked capacity 651 such agreements contract object of the LSA C C hand violates was art of approval agreements between husband and wife that while which alter the matrimonial LSA C C the absence of the given regime judicial to subject 6 n Clay v Thus the matrimonial modify Clay court held this sharing of income matrimonial agreement a 2d at 101 102 However 1978 as a and a matrimonial agreement and a pmiies community affect to noted that such comi fOlih in LSA C C set as the simply partition existing community funds funds received in the future was by their oral agreement regime during the malTiage without following requirements of LSA confirmation or ratification C C mi 2329 Clay are relative nullities 358 So 2d at 651 18 subject According 1999 agreement without the the to the was of the allegations petition obtaining or language of the agreement indicates also tenninate the Williams has Mrs at Moreover by the parties to not the time of execution of the Under legal regime during marriage facts to demonstrate that the alleged nullity Biondo 769 So 2d court 101 102 n holding in Clay this agreement s was divorce pmiies the court Clay 358 So 2d through her counsel to the enforceable and subject 651 to ratification for this subsequent stipulated of the December 17 petition to a Ratification of the 1999 declaring the agreement her dismissing Nonetheless pursuant 6 at was agreement when Mrs Williams terms annulled herein to be sought at at the very least agreement occurred pmiition 1004 to with in open judgment be valid and prejudice See 358 So 2d at 651 Clay Accordingly failed on approval allegations of the petition and given the language of the agreement itself the to comi clear intent a only partition community property existing to the case signed during the existence of the pmiies marriage parties petitioning for agreement but in the instant to allege a cause this stated basis i e nullity constrained to conclude that Mrs Williams has we are of action that the nullify the December to 1999 underlying 17 2004 agreement judgment absolute was an for violation of LSA C C art 2329 and that the December 17 judgment was thus likewise absolutely null 2004 6 6 dUling We note that the Third Circuit has affinned the nullification of agreements made the marriage which attempt to tenninate the legal regime when the issue was raised La by App Ducote 439 a petition 442 So a nullify final the 2d 1299 1301 1302 However the judgment agreement writ denied 3rd Cir 1993 La 1984 nullify to which Poirier v Poirier 626 So 2d 868 869 870 11 3 94 634 So 2d 389 Ducote v 3rd Cir 1983 writ denied 445 So 2d App distinguishable in that Mrs Williams seeks to 94 0161 La La cases are upheld an underlying agreement We also note that in Bass 691 So 2d at 141 142 this cOUli specifically held that where a compromise agreement which purpOlied to release the father of a minor from all future support obligations for the payment of a lump sum was executed without the set forth in LSA C C mi 3072 requiring court authorization for court approval required compromises affecting minors and for a purpose 19 contrary to good morals and law with Additionally regard to Mrs Williams contention that the 1999 agreement and resulting December 17 2004 judgment violated LSA C C mi 2369 8 and thus were Williams has failed absolute nullities to state a demand of partition 2 9 01 776 So 785 So 2d 823 parties that former fifteen years As to Although the thus a v from that on spouse has the at any time and that a Minvielle 2000 1039 1225 court a nullity found an shall not be basis right to contrary La App 2000 3421 writ denied La agreement between the subject to for partition nullity forth above however the 1999 agreement did not partitioning community property terminate the matrimonial was attempt but to rather regime existing between the parties agreement violated LSA C C nullity the agreement stipulated 2d 1223 wherein the absolute prevent the parties attempted Minvielle community property was an set provides that community property agreement is absolutely null 5th Cir 11 15 00 of action in cause Louisiana Civil Code article 2369 8 also conclude that Mrs we art 2329 in that respect and subsequently ratified when after her divorce and in open court as to its was Mrs Williams See validity Clay 358 So 2d at 651 Moreover also we reject agreement provided that the home community but then attempted community property in violation in the petition and on to Mrs on Williams Englewood Drive was the still owned in prevent the pmiies from partitioning that of LSA C C art 2369 8 appeal do that contention not constitute These allegations allegations of fact that the the agreement was an absolute nullity as was the resulting dismissal with prejudice which was based on the compromise agreement In the instant case the agreement at issue also purports to constitute a waiver of Mr Williams future obligation of child support in that it provides Brenda Joyce Hardy Williams waives any and all further claims against Ronnie L Williams for recovery of alimony child support and or community propeliy petition allege claims However neither the the existence of any minor children 20 petition for pmiition nor the divorce comi is required to accept of action no cause as Rather as such the conclusions of law Corporation luling on an they constitute assertions of law effect of the agreement and plaintiff s of true for purposes Elnaggar 468 So 2d 803 806 Pursuant to LSA C C La is court not legal accept the to Moran Construction 1st Cir 1985 App voluntarily patiition 2336 when spouses art to the as required Fred H v exception of community propeliy during the existence of the community property regime the things that each Fargerson 593 659 agreement In at acquires 2d 454 456 La So 1992 La spouse see contemplation Fargerson App 2nd Cir writ denied also LSA C C issue herein separate property are 2341 1 2341 atis specifically provided of settlement of the 595 So The v 2d 1999 follows as community the patiies hereby agree 1 Ronnie L Williams will maintain and interest in immovable Baton therein Rouge on this date each patiy is interest each in the The agreement further and or 280 Englewood became art owners provided i that in settlement of the of a attempt subject settle the to ratification an n exchange undivided for the above transfers community property claims to patiition a community Thus spouse has the to the extent the and 7 agreement thereby rendered 21 we to to LSA C C conclude that LSA demand partition of nullity as an community regime it was may have been stipulated thus each parties pursuant right tenninate the which occuned when the the home located at and the community interest in the home which providing that As noted above to maintain foregoing propeliy agreement clearly intended 7 was to 2336 became their separate propeliy C C art 2369 8 as Mrs Williams waived any payments Thus this well as rights title Englewood furnishings contained located at 280 property Louisiana of the a December 17 2004 judgment at any community property LSA C C C C mi 2369 8 apply Accordingly state a basis that the These former to applicable herein not s See also community property until a pmiition likewise conclude that Mrs Williams has failed we of action cause simply providing that the following articles including LSA 1 2369 mi time is nullify the December to 17 underlying 1999 agreement violated 2004 judgment LSA C C on to the 2369 8 mi arguments also lack merit Consideration of Evidence in Ruling on Exception of No Cause of Action Assignments of Error Nos In these Williams filed assignments prior cause enor Mrs 13 Williams contends that improperly supported his first exception of to the December 17 violated LSA C C P no of 1 art 931 of action relied inadmissible but also was judgment She further on not 2004 the even no of action with evidence asselis that the 1999 agreement cause first which Mr which exception of was not only in the record Mrs Williams further contends that Mr Williams used similar tactics in the exception of exception no cause full of factual of action at issue herein in that this second allegations that the trial court relied upon in rendering judgment maintaining the exception She also contends that the was 8In further support of the contention that the parties still own the home in community Mrs Williams contends in assignment of enor number twelve that the 2005 judgment incon ectly decided that conveyance language was not necessary in the 1999 agreement in order to convey that immovable propeliy In assignment of enor number two Mrs Williams contends that the trial cOUli s ruling ignored several letters by defense counsel which were attached to her petition in nullity She asselis that in those letters Mr Williams through defense counsel demanded that she cooperate in the pmiition of the community prope1iy thereby making an admission against interest that community propeliy still existed between the pmiies A review of those letters which are properly considered in that they were attached to the petition indicates that the propeliy sought to be partitioned was the fonner community home These arguments are also based on legal assertions as to the effect of the 1999 agreement which the court is not required to accept as true for purposes of ruling on an exception of no cause of action As stated above Mrs Williams argument ignores the fact that pmiies may agree to remain co owners in indivision of fonner community property which ownership interests in the propeliy then become pmi of each pmiies separate estate upon pmiition 22 trial court must be cause have accepted the exception of no reversal to nullity Levy on denied 260 La 403 failed to cOUli s accept failed us to state a cause appeal on 1971 the trial petition of action a incorrectly note that in the we pleadings fter review of the for suggest that the accept the well pleaded facts of the petition we as true in note that the correctness of any conclusions of law asserted in Mrs Williams purposes of the art 891 App v on as this on the writ denied court has cause cause a de novo of action 23 was not of action 588 So 595 So 2d 654 conducted the exception of no petition exception of no Civil Service Commission 1 st Cir 1991 inasmuch ruling Kyle ruling judgment to did Additionally trial stated that it found that the trial rendering its judgment in also and nothing reasons that incorrectly there is not writ court Moreover court are action in contentions exceptions specifically in the law to an 4th Cir App Williams the allegations of her court La evidence upon to 2004 1972 in Mr Williams the trial reasons petition true as 667 Mrs to regard allegations and still maintain petition thereby subject not are 256 So 2d 289 no the trial cOUli to nullify relied to 2d 665 rendering the judgment before considered of judgments rendered contrary that note 254 So with Moreover exception an issue herein seeks appeal but Stelly v petition note that to the extent that the December 17 again we at Williams Mrs judgment which subject we of the allegations the deciding simply impossible for was of action cause At the outset inappropriately that it accurate as for purposes of accurate asserting of action accepted as in the legal requirement that facts contained the ignored La conceded for LSA C C P 2d 1154 1992 1159 Moreover review of the trial Knight 835 So La 2d at court s 638 and has concluded that the find no to these merit in fact failed to state petition of action cause Assignment fees in the December 17 2004 s where there investigation evidence She further contends that the trial again awarded attorney in the October 2005 Additionally Mrs Williams contends that the October 25 2005 null in that it substantially changed the October 18 when it judgment judgment is judgment before us 2005 appeal With for the we judgment same error 25 was no the award explanation for or committed the court fees s Fees Mrs Williams contends that there assignment of error was no s of Error No 14 basis for the award of attorney on we arguments Awards of Attorney In this a to Mrs Williams contention that there portion of the December again subject regard note that to reversal a on 17 2004 appeal is immune by or 1245 When an from the action of nullity substantive amendment to alter the to correct Expert Company 94 while mi La amendment to its a art a own phraseology perhaps Hall the October 18 final judgment 24 or v 2005 may be to pursuant but not the substance Starnes v Asplundh 670 So adds to subtracts from judgment 1951 judgment motion App 1st Cir 10 6 95 way affects the substance of the amended under LSA C C P on to 1951 in calculation errors 1647 fees argument that the October 25 2005 the trial court at any time motion of any party judgment a Pursuant to LSA C C P judgment amended as law to s App 5th Cir 1992 We next turn to Mrs Williams judgment is null judgment awarding attorney judgment which is contrary Hall 611 So 2d 173 174 La legal basis was no such judgment The proper vehicle for the of a Tree 2d 1242 or in any may not be a substantive in change Starnes a judgment is 670 So recognized that on rendered without its own a of nullity 691 693 defined are not Roach Knight 1 st Cir v venue attempt parties absolute an the judgment nullity La 571 So to absolute an court for at any 2d 563 nullity in absolutely null delay requirements of the action 1st Cir App Co 2d 628 adjudged may be Nethken 307 So v 10 5 96 566 So 2d 135 La impeach the decree in a proceeding annulling it Roach 673 673 So 2d 137 La App A collateral attack is 1990 and So 2d at instituted for not 693 556 Knight court maintained Mr Williams Thereafter declaratory judgment the court ordered Mrs s fees and supplement Williams court costs ed the dated procedural history by judgment of action and dismissed Mrs Williams attorney has also 137 at and for that it and the Sears Roebuck writ denied as an to October 18 2005 the trial 2005 procedures is Nethken Pearl 95 1573 v of the An amended time and before any at any As stated in the facts cause above collaterally subject the express purpose of So 2d consent A person with interest may show proceedings judgments motion and with the to the Court Supreme absolutely null judgments their nullity 1975 collateral The Louisiana timely appeal or a 1246 at time and may be raised La trial new judgment substantively recourse Starnes 670 So 2d 565 timely motion for 2d at 1246 trial court may amend As to a to petition by judgment to pay Mr The October 25 judgment signed on exception of no nullify judgment dated October 25 1 000 00 in Williams 2005 judgment provided the 18th of October 2005 and both judgments shall remain in full force and effect Amendment of affects the substantive a judgment with regard rights of the pmiies 25 to attorney Watson v s fees Nile 591 or costs So 2d 1343 1344 1345 court render denied La App second a where such amendment Toledo the to 4th Cir 1991 original judgment La 3rd App also see Cir attorney judgment held to substantive amendment to the supplemented be s fees judgment constituted judgment that extent the the October 18 2005 awarding attorney 2005 a and as such an So 25 judgment with absolute substantive a 2d 294 in v 296 a original judgment judgment 2005 substantive provision the October 25 that to the the original to October must conclude we 773 provided as improper amendment an was fees properly was of the exact dollar amounts judgment reasonable Accordingly fees s the Opelousas Authority 12 6 00 representing s to have attempt judgment would have constituted wherein the inclusion in the second was an judgment awarding attorney a 2000 00706 wherein the 2005 18 original October nullity Propriety of Declaratory Judgment Relief Assignment In this her of error Mrs Williams contends that assignment petition for declaratory relief recognize her request for null to be judgment subject to In a a v court ened consent judgment is a Specifically in fact a a matrimonial in dismissing refusing Mrs bilateral Boyer 96 0346 La App consent Williams it is contract 1st Cir 123 97 petition for declaratory judgment seeking although the wife declaratory judgment her demand should have 26 s 691 So 701 So 2d 984 a a 2d wife declaration that the agreement and partition of community propeliy However this court stated that to petition for declaratory judgment 1234 1243 1244 writ denied 97 1415 La 9 26 97 instituted in declaratory judgment declaring the prior interpretation through Boyer the trial proper form of relief a contends that because of Error No 16 were petition sought as been treated instead null relief a as a suit the matrimonial to annul the contract and agreement a suit to annul the judgment the judgment dissolving the community and granting the parties to execute the permission noted that in Thibodaux 3rd Cir 1987 court Thibodaux 511 So v the Third Circuit held that which terminated the two was was possibly available for judgment to Mrs was a of action declared to was a consent Thus App the trial judgment and in that procedural Boyer 91 annul the judgment to be a Boyer and Thibodaux petition we to have not So the only remedy appeal the December 17 annul the to Moreover declaratory judgment cause parties Williams who did to file the various issues raised a La 15 n Under the rationale in 2004 seek to 104 105 judgment signed by appealed it became final not posture the only remedy 2d at 1244 a 2d 102 this court holding so regime and divided the existing matrimonial a community property between because it In matrimonial agreement judgment for the extensive not reasons petition a addressing conclude that Mrs Williams has failed the December 17 2004 to state judgment nullified or nullity Thus this argument also lacks merit MOTION TO SUPPLEMENT While this motion to matter was pending supplement the record on before us appeal Mrs Williams filed with various documents a She contended that several clerical mistakes had been made in the trial court in that number several According documents to Mrs but the corrections Mrs assigned Williams those were not an errors were made in the incorrect corrected for appeal Judicial was Partition docket by the trial court appellate record Williams further contended in her motion record that after the Petition were to supplement the taken in this matter Mr Williams filed of the 27 Only Remaining Asset a of the One House Located at 280 Community exception of lack of jurisdiction which an by the trial court by the trial court constituted the issues Noting important supplement the appellate record with that the part of the motion portion of the motion to motion to 0358 La to whom the to the appellate record that a record appeal on to if refened LSA C C P Corporation 2003 2034 court cannot evidence appropriate not Lee the the 2d was more this she to properly directed court to the regard denied that portion of the refened the motion cOUli Williams this to Williams 2006 CA v motion pleadings sought to supplement court minutes pleadings 2128 and Lee 17 9 Thus other 04 even the we note transcripts rulings unless Twin Brothers Marine v 897 So Moreover evidence 38 to panel for consideration 1st Cir new at Williams judgments App receive 897 So to 2127 arts La requested that supplement which sought appeal this assigned applicable designated upon supplement the appellate record with of Mrs portion was directly unpublished appeal includes jUlY insttuctions appellate was 1 st Cir 9 5 06 App With supplement supplement that sought Turning that to luling and those documents 2132 and 2088 4 arts documents filed after the order of the panel Mrs Williams denied was pleadings evidence which bear Thus appeal court LSA C C P trial Williams these the record with corrected documents supplement to the in the presented be allowed to to Mrs According Rouge Mrs Williams further contended that she Which Has Not Been Partitioned responded by filing Drive Baton Englewood if 2d 35 37 pleadings are supplementation be included in the appellate An not were record do constitute evidence Additionally of Mrs Williams as noted above this matter is before petition to nullify judgment 28 and for us on the dismissal declaratory judgment on an triable solely of no exception Woodland the face of the on Association Ridge admitted without of action cause objection 523 Accordingly with pleadings filed we to exception petition and 671 So 2d 510 of action is and evidence that is Stroscher 845 So 2d rendered after the rulings cause at supplementation of the appellate record inappropriate in resolving this appeal Thus motion at of no any annexed documents enlarge the pleadings conclude that and An the judgment appeal is on portion of Mrs Williams supplement the appellate record refened to this panel is denied to MOTION TO DISMISS During the pendency appeal Mr Williams also filed in the trial to supplement the appellate record with judgment rendered by the trial comi comi a motion of this remaining to Mr one to asset of the Williams and community supplement the appellate September 25 2006 judicially partitioned the only by awarding sole ownership of the home to pay Mrs ordering him half interest in the home that a The trial court record Williams for her undivided granted Mr Williams and the record has been motion supplemented with that judgment Thereafter Mr Williams filed in this comi Williams appeal September 25 asset Mr 2006 renders this we moot of that in this appeal reject Mr Williams that to dismiss Mrs the rendition Also deprives this of the although the comi of jurisdiction 2006 September 25 and the issue of its finality are considering the issues raised assertion that the 29 September 25 judgment trial court appellate record by order of the judgment court and note that has been included in the propriety contends motion judgment partitioning the only remaining community appeal At the outset Williams a not in this 2006 the before the appeal we judgment rendered this appeal moot Accordingly motion to dismiss Mr Williams the appeal is denied CONCLUSION For the above and dismissing Mrs Williams judgment is affirmed attorney s this denied petition Further reasons to Williams motion panel is denied Costs of this to are and for nullify judgment 2005 judgment declaratory judgment awarding 1 000 00 is vacated as a nullity The supplement the appellate record refelTed Mr Williams appeal the October 18 2005 the October 25 fees in the amount of portion of Mrs to foregoing motion assessed to dismiss the equally against appeal is also Mr Williams and Mrs Williams OCTOBER 18 2005 JUDGMENT 2005 JUDGMENT AFFIRMED VACATED MOTION APPELLATE RECORD DENIED TO OCTOBER 25 SUPPLEMENT MOTION TO DISMISS APPEAL DENIED 30

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