Staci Baker VS Jock Nalty Baker

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NOT DESIGNATED FOR PUBLICATION STATE OF LQUISIANA COURI OF AP EAL FIRST i JTT IRC NO 201 CA 09i1 STACI BAKER VERSUS JOCK NALTY BAKER udgment rendered April 26 2013 I Appealed from the Family Court in and for the Parish of East Baton Rouge Louisiana Trial Court No 122 047 Honorable Lisa Woodruff Judge White KEITH B NORDYKE AITORNEYS FOR BATON ROUGE LA APPELLEE PLAINTIFF STACI BAKER McKENZIE SCOTT P GASPARD S ATTORNE FOR APPELIANT DEFENDANT BATON ROUGE LA OCK NALTY BAKER BEFORE KUHN PETTIGREW AND McDONALD J PETTIGREW J In this child support action a father s to anne ught la college tuition provision contained in an earlier stipulated audgmer ton the ound that said clause is vague and ambiguous and therefore unenforceable Following the family court maintenance of s various peremptory exceptions filed on behalf of the mother the father has appealed We reverse in part afFirm in part and remand for further proceedings FACTS The record in this matter reflects that Staci Baker now McKenzie and lock Nalty Baker were married in East Baton Rouge Parish in September of 1993 Of this marriage one child was born namely Ruby Baker whose date of birth is March 16 1994 The parties thereafter separated on October 27 1995 Ms Baker later filed a petition for divorce based upon having lived separate and apart for six months pursuant to the former provisions of La Civ Code art 103 In her petition Ms Baker stated that neither party was seeking alimony and that the parties agreed Ms Baker would have sole custody of the minor child and receive child support of 00 600 per month The petition further stated that Mr Baker would further assume all tuition expenses incurred as a result of the child schooling from kindergarten through s college Mr Baker subsequently executed a waiver of seroice and citation and both parties signed notarized affidavits attesting to the truth of the facts set forth in Ms Baker petition s The family court after considering the pleadings and the affidavits filed by the parties confirmed a previously default jadgment and granted a divorce by entered judgment dated November 26 1996 In 2005 Mr Baker filed a rule seeking oint custody with increased visitation Ms Baker responded with a demand for increased child support Thereafter the parties entered into a stipulated judgment providing for increased visitation In addition Mr Baker agreed to pay a total of 2 in child support each month with 2 00 475 00 000 as Mr Baker base child support obligation and 475 as Mr Baker 75 share s 00 s percent of inedical and dental insurance bus fees before and after care resource fees lunch 2 fees and orthodontic services Lastly Mr aker agreed to pay 75 of college tuition fees for Ruby Baker payable when duE and to the colleg or university which Ruby Baker chooses hereinafter kno as the collpge tu provision n xion Said judgment was approved as to substance and f y eaeh parEy m surney and si by the judge on ned December 14 2005 On January 26 2011 Mr Baker filed a Ru9e to Modify Custodial and Financial Obligations Related to Minor Child alleging thak the child admission to a substance s abuse facility in Utah constituted a change f circumstances justifying a modification of the previously child support award retroactive to the date of his filing of the rule ordered Mr Baker further claimed that the legal presumption requiring child support should be overcome by his payments to the treatment facility which provides all material needs of the minor child i On June 2 2011 Mr Baker filed a Petition For Nullity of Judgment wherein he claimed that the college tuition provision in the 2005 stipulated judgment was unenforceable and should be annulled for the reason that it is vague ambiguous and contains a never suspensive condition no extinctive term and no determined ending object In response vario peremptory excepkions were filed on behalf of Ms Baker s Specifically Ms Baker filed peremptory exceptions raising objections of prescription peremption no cause of action res juc ar estoppel icata d In addition Ms Baker set forth a demand for reasonable aktorney fees in eonnection with her defense of this action to annul pursuant to La Code Civ P art 2004tC At the conclusion of a hearing on August 16 2011 the family court sustained Ms Baker peremptory exceptions objecting to prescription peremption res judicata no s cause of action and estoppei and accordingly dismissed Mr 6aker Petition for Nullity of s Judgment at his costs A judgment to this effect was ater signed by the family court on September 2 201L 1 Mr Baker alleged therein that the Utah substance abuse faciliLy to which Ms Baker admitted the couple s minor child provided room and board as well as a full academic curriculum Mr Baker claimed that the time cost of said facility is approximately 12 a month 00 000 3 Mr Baker thereafter appiied fc esv lts frorri this courk seeking review of ru sory the s family court September 2 I CJ Thl court nent judg subsequently granted Mr Baker writ application for he rra purpas o r matker to the family s ced nding mthis court with ns instructi t rant d ker t a i app From the family court s September 2 2011 judgment Mr Bak naiAe a r pea9s ERRORS ASSIGNED ON APPEAL In connection with his appeal in this matter Mr Baker claims the family court erred in the following respects 1 By failing t apply the correct legal principles in its analysis of the December 14 2005 judgment which orders payment of college tuition beyond the time allowed by statutory law 2 By sustaining a peremptory exception as to no cause of action 3 By sustaining a peremptory exception as to res judicata 4 By sustaining a peremptory exception as to prescription 5 By sustaining a peremptory exception as to peremption and 6 By sustaining an exception as to estoppel LAW AND ANALYSIS Initially we note that the family court judgment of September 2 2011 only s addressed the peremptory exceptions raised by Ms Baker in response to Mr Baker s Petition for Nullity of Judgment The judgment of September 2 2011 did not address the issues raised by Mr s Baker earlier Rule to Niodify Custodial Financial Obligations Related to Minor Child due to material ehanges in circumstances According to the record the rule to modiP is still endinG b he family count ard this opinion does not fore address any issues concerning same because said issues are not before this court We further note the family court gave no ora9 r writt reasons why it sustained all of n Ms Baker peremptory exceptions s The initial error assigned by Mr Baker is that the family court failed to apply the correct legal principles in analyzing the stipulaked judgment a issue in this case Z Staci Baker v Jock Nalty Baker 2011CW1706 La App 1 Cir 12 11 19 4 i In Louisiana fathers ancl mothers by the verv act f marrying contract together the obligation of supporting maintainir gand educating their children The obligation is conjoint upon the parents and each must contributE n roportion to his or her resources La Civ Code art 227 Stogr v Stc A999 p 5 7 739 So er gner 3c La 99 44 2d 762 766 This obligation may k n e ed n erro or set aside Richardson v Richardson 2002 p 7 App 1 Cir 7 8S9 So 81 90 Gaidry J 2415 La 03 2d concurring and quoting Megison v Megison 1994 p 4 App 5 Cir 9 152 La 14j94 642 So 885 888 A parent generally has no legal duty to support his or her c 2d ildren beyond the age of 18 See La Civ Code arts 227 and 230 Some financiafiy able parents willingly assist their adult children in obtaining a higher education any duty to do so is a moral rather than a Jegal one absen a binding wntractual agreement by the parent to pay such support Miller v Miller 44 pp 2 La App 2 Cir 1 163 3 09 14 1 So 815 817 3d As a complement to the child support obligation La R 9 provides a S 315 15 315 detailed set of guidelines that the courts are mandated to follow in setting the amount of support in any proceeding to establisF or modify child support filed on or after October 1 1989 La R 9 Stogner 1998 at p 5 73 So at 766 These S 315 A 1 3044 6 9 2d child support guidelines are intended to fairly appor between t parents the mutual ian he financial obligation they owe their children n an efficient cor and adequate stEnt s manner Id at 766 67 The judgment in this matter is not merely a judicial iecree but a consent judgment reached by the parties fYie court may review and approve a stipulation between the parties entered into follbwing khe enactment of said guidelines as to the amount of child support to be paid La R 9 Therefore regardless of S 315 D 1 language in a consent judgment to the contrary child support judgments are always reviewable where a material change of circumstances has been shown Thus an exception raising the objection of no cause of action or res judicat in response to a rule to reduce child support or set child support where a material cnange in circumstances 5 has been pled cannot be properly ned mainta e S La k 9 See also S 311 A Richardson 2002 at p 7 35 S at Q rGaidry J concurring Since child 2415 Z support can circumstance always be reviewed it was error for thE tria c if th is a materia change in t re ily far cour t r he objHCtions a to res judicata or estoppel the latter being a law octr which is not favored in Louisiana r asnm e Bunge North America Inc v Board of Coenmerce Industry and Louisiana Department of Economic Development 2007 La App 1 Cir 5 991 1746 08 2 2d So 511 writ denied 2008 La 11 996 So 1106 1594 08 21 2d In addition the family court granted Ms Baker peremptory exception that raised s the objection as to peremption Ms Baker evidently filed this exception in the mistaken belief that Mr Baker was seeking to annul the stipulated judgment at issue on grounds of fraud or ill practices pursuant to La Code Civ P art 2004 fhe pleadings in the record reveal that Mr Baker has not alleged fraud or ill practices but seeks instead to annul the stipulated judgment based upon an error of fa tLa Civ Code art 1950 formerly La Civ Code art 1841 or of the principal cause of the agreement La Civ Code arts 1950 and 1967 formerly La Civ Code art 1824 et seq Stroscher v Stroscher 2001 2769 p 5 App 1 Cir 2 845 So 518 524 citina State Department of La 03 14 2d Transportation and Development v K Farms Inc 402 So 304 307 La App G 2d 1 Cir writ denied 406 So 625 La 1981 Inasmuci as Mr Baker is not seeking to 2d annul the stipulated judgment on grounds of fraud or ill practice the peremptive period 3 La R S A 311 9 was amended pursuant to Acts 2001 No 1082 1 ta insert material preceding change in circumstances Sedion 2 of the same act inserted materially preceding change in La Civ Code art 142 These amendments legislatively overruled the nolding in Stogner 1898 at pp 10 3044 13 739 So at 769 that 2d 770 change in circumsrances is sufficient tn justify modification of child support La R 9311 Comment a The amendments implicitly rest the validity of prior appellate S 2001 red jurisprudence requiring that a change i circumsiances justifying modification of child support be substantial The latter Eerm used in the pre jurisprudence should therefore for ail practical Stogner purposes be considered synonymous with the term material in the statute Apart from the holding legislatively overruled the other holdings in tlhe Stogner decision remain valid Richardson 20 at 2415 2 p 2 859 So at 87 Gaidry J cancurringj 2d 4 Louisiana Civil Code articles 1950 an 1967 became effective or Jan 1 1 fnllowing the arcoendment 85 and reenactment of the articles on Obligations pursuant to Acts 1984 No 331 2 According to the Disposition Table mntained within the 6cpose des Motifs said articles contain tne subjed matter found in former La Civ Code arts 1841 and 1824 In this court 2003 opinion in Stroscher we incorrectly 1874 s cited former La Civ Code arts 1841 and 1824 et seq Said articles were pre code articles 1870 revision cited in our earlier 1981 decision in KG Farms 6 set forth in La Code Civ P a 2004 daes not appiy The family court erred in granting t Ms Baker peremptory exception which raised the objeckion as to peremption s The family court also granted Ms Baker peremptory exception that raised the s objection of no cause af actior The objeckion of nc cause of acti is properly raised by n the peremptory exception and questions wneih the law ctends a remedy to anyone r under the factual allegations of the pet Stroscher 2001 at p 3 845 So at tion 2769 2d 523 citin Richardson v Home Depot USA 2000 p 3 App 1 Cir 3 0393 La Ol 28 808 So 544 546 2d Having previously determined that Mr Baker seeks to ann lthe stipulated judgment based upon an error of fact La Civ Code art 1950 formerly La Civ Code art 1841 or of the principal cause of the agreement La Civ Code arts 1450 and 1967 formerly La Civ Code art 1824 et seq we find on first examination that Mr Baker may have stated a cause of action however this does not end our inquiry We must further scrutinize the allegations that form the basis of his petition to annul In particular Mr Baker alieges that the college tuition provision is vague as to the elements of the obligation Additionally Mr Baker alleges that the college tuition provision is vague and ambiguous as it contains a never suspensive ondition no extinctive term ending and no determined object It is well settled that a consent stipulated judgment is a bilateral contract wherein the parties adjust their differe by mutual cansent and thereby put an end to a lawsuit nces with each party balancing the hope of gain against the fe loss Stogn i998a3044 rof er at p 9 739 So 2d at 768 Leonard Reeves 2911 p 16 La App 1 Cir 09 1 12 12 3d 182 So i250 1261 See aiso La Civ Code ark 3071 Its binding force arises from the voluntary acquiescence of the parties rather than the adjud by the court cation Leonard 2011 at p 16 82 So at 1261 ThuS a consent judgment as opposed 1009 3d to other final judgments rendered against a parry without their consent may be annulled or rescinded for an error of fact or error of the principle cause of the agreement La Civ Code arts 1950 and 1967 Stroscher 2001 at p 5 845 So at 524 2769 Zd Consent to a contract may be vitiated by error fraud or duress La Civ Code art 1948 Error vitiates consent only when it concerns a cause without which the obligation 7 would not have been incurred and kl ca vas kno r shouid have been known to at se ri the other party La Civ Code art 7Q49 Errar may concern a cause when it bears on the thing that is the contra obj ar a s qu of thai thing wa Civ Code art al ct t ntia b lity 1950 Caus is defirieci as the re uti a party brigates o La C Cade art scl y nseff v 1967 Horrigan v 7 3 Horrigars 2C1Q s La A 1 Clr 6 70 So 11 14 3d 111 115 writ denied 2011 La 10 1596 7llj 71 So 325 3d Interpretation of a consent judgment i a contract between parties is a e determination of the common intent of the parties each provision in the contract is interpreted in light of other provisions so that each is given meaning suggested by the contract as a whole and when the words of the contract are clear and explicit and lead to no absurd consequences the intent of the parties is to be determined by the words of the contract Richardson 2002 at p 4 859 So at 84 see also La Civ Code 2415 2d 85 arts 2045 and 2Q46 Such intent is to be determiraed in accordance with the plain ordinary and popular sense of the language used and by construong the entiret of the document on a practical reasonable and fair basis McMoran Freeport Inc v Transcontinental Gas Pipe Cine Corp 2p94 p 7 App 1 Cir 10 D031r La 05 14 924 So 207 212 writ denied 2005 f 3 925 So 1256 Although a 2d 2358 a 31 06 2d contract is worded in general terms it must be interpreted to cover only those things it appears the parties intended to include La Civ Co art 205L e The applicable standard of review for contractual interpretation was set forth by this court in Borden Inc v Gulf States Utilities Company 543 So 924 928 2d La App 1 Cir 1989 writ denied S45 5o 1041 La i989 2d Whether a contract is ambiguous or not os a qu2stican of law Where factual findings are eninent to the interpretation of a contract those factu lfindings are not to be iis unless marnfest error is urbed shown However when appellate review ds not premised upon any factual findings made at the triai level but is i based upon an stead independent rev and examinatian of the contract on its face the ew manifest error rule does not apply In su cases appellate review of h questions of aw is simp wh tne r eour vas legaily correct or y ther sal legally incorrect Citations omitted 8 Thus the thr issue in thos rriakk is vhetY the ter of the contract are shold er ns explicit or ambiguous If the san f the c pr is determined to be uage l io tractu vi r s explicit and unambiguous nc additionai evid may be considered nce There was no nearing in c4nne with the initia9 1996 divorce decree wfhich was tian rendered through a confirmation of defauit based upon Mr Baker waiver of citation and s affidavits from both parties In his notarized affidavit Mr Baker attested to the truth of the facts set forth in Ms Baker previously petition and expressly stated s filed Both parties have agreed to child support for the minor child sic shall be SIX HUNDRED AND NO 600 DOLLARS per month and 100 00 defendant will also assume all tuition e incurred as a of the cpenses result s child schooling from kindergarten through college Thereafter in 2005 the parties entered into d stipulated judgiment providing for increased visitation and increased child support The court minutes from August 23 2005 state A stipulation was entered into the record by counsel and agreed to by both parties The court after considering the stipulations read into the record by counsel and agreed to by the parties sic The court rendered judgment in accordance with the stipufations Both parties being personally present and having been duly sworn signified to the Court their understanding af and agreement with the stipulations Judgment to be approved as to the subst and forrn by counsel ance for both parties prior to submission to the Courk for signature As part of this most recent udgment Mr eaker agreed to the college tuition provision at issue which provides that Mr Baker will pay 75 of coilege tuition fees for Ruby Baker payable when due and ta the coilege or university which Ruby Baker chooses Said judgment was approved as to substance and form by each party s attorney and signed by the judge on December 14 2005 Mr Baker now moves to annui the college uition provision on the grounds that it is unenforceable on the basis of vagueness and ambiguity In support of this position Mr Baker cites Miller 44 at pp 7 1 So at 819 in which the second circuit held 163 8 3d that a tuition provision in a joint custody agreement was too vague and ambiguous to b enforceable and had no determinable period 9 In Miller the second circuit fo invalid a provision where the father agreed to nd begin setting funds aside for the minar hildren to attend post education secondary necessary to pay tuitio boo supplies and r a board no to exceed four 4 md t years Miller 4 at p 2 1 So at 817 163 3 e secc circuit stated that the d provision failed to s forth when hcv m an s che fu wer io be placed or t ach here ds invested and more importantly whethe kh father wpuld be solely responsible for the e entire costs of the children education Finding tnat because the tuition rovision faiied s ko clearly and explicitly set forth the parties intent khe second circuit oncluded that it was vague and ambiguous and must be set aside We cannot agree with Mr Baker and conclude that the facts presented by the instant case are not analogous to the facts presented in Miller The pleadings contained within the record in this matter leave no doubt that the parties intended that Mr Baker would pay at least 75 percent of the callege tuitian fees at the college or university chosen by Ruby Baker Mr and Mrs Baker reviewed and signified their assent on multipie occasions that Mr aker wo be primar responsible for Ruby Baker co ald ly s lege tuition fees As the second circuit obsarved ia its opanion n Gray vo Gra 37 p 4 r 884 La App 2 Cir 12 862 Sa 1097 1Q99 jt is r within the purview of khis 03 2d ot court to relieve an able parky suc as Mr 3aKer c his biigation w he fre and h f ich y vofuntarily entered inta absent vi of a vlce of consent e en This court believes a common sense interpretat of coliege t fees is very on ition ciear and very specific it means college tuit fees no more no less The term is not ion vague or ambiguous Mr Baker also claims that the college tuition provision at issue is vague and ambiguous in that it establishes support for Ruby Baker wels beyond the age of majority and for an indeterminate penod We disagree Louisiana Civii Code article 1778 provides A term f9r the performarice of an abligation is a period of time either certain or uncertain It is certain when it is fxe It is uncerkain when it is not fixed but is determinable either by the intent of the parties o by the occurrence of a future and certain event It is also uncertain when it is not 10 determinable in which case the obligation must be performed within a reasonable time The foregoing article makes it plain that Mr Baker obligation to pay 75 percent of s college tuition fees for Ruby Baker is not open but must instead be performed ended within a reasonable time Accordingly we hereby reverse the family court maintenance of the peremptory s exceptions objecting to peremption res judicata and estoppel Under the unique facts of this case we affirm the family court granting of the objection of no cause of action as to s Mr Baker Petition for Nullity of Judgment only We pretermit any discussion of the issue s of prescription and we remand to the family court for further proceedings relative to Mr Baker s pending Rule to Modify Custodial Financial Obligations Related to Minor Child due to material changes in circumstances CONCWSION For the reasons set forth above we hereby reverse in part affirm in part and remand for further proceedings All costs associated with this appeal shall be assessed equally against Jock Nalty Baker and Staci Baker REVERSED IN PART AFFIRMED IN PART AND REMANDED 11

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