SONIA DEVI ELLIS VERSUS TIMOTHY J. HEINZEN Vs.
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STATE OF LOUISIANA COURT OF APPEAL, THIRD CIRCUIT 22-67 SONIA DEVI ELLIS VERSUS TIMOTHY J. HEINZEN Pickett, dissents. The basis of this appeal is the trial court’s judgment dated August 14, 2020, which followed a hearing held July 24, 2020. In her appeal, Ms. Ellis argues that her intent at the July 24, 2020 hearing was to waive her right of reimbursement of payments she made on the parties’ separate debt until the date of the divorce, not until the separate property secured by that debt was partitioned. She appeals the inclusion of the phrase “pending partition of that property” in the provision of the judgment that reads, she “waives her right to seek reimbursement from [Mr. Heinzen] for her payments of the monthly mortgage note secured by the former family home pending partition of that property.” The majority determines a provision of the parties’ marital agreement which reads, in part: “It is the intention of each party to this agreement that neither will have an economic claim on the other at the termination of this marriage[,]” governs the determination of whether or not Ms. Ellis waived her right to reimbursement of payments she made on the separate debt incurred by the parties during the marriage after the parties divorced but before the property securing the debt was partitioned. At the outset of the July 24, 2020 hearing, the parties disputed whether a March 2020 email by Ms. Ellis’ counsel to Mr. Heinzen’s counsel settled the issues before the court. The trial court initially ruled it did. However, the trial court, counsel, and the parties then engaged in discussions off the record about Ms. Ellis’ sole occupancy of the family home and payment of the mortgage during her occupancy and Mr. Heinzen’s waiver of rent during her occupancy. The parties indicated they had reached an agreement, and the trial court had them sworn and questioned them as to their agreement on the issues presented. During their testimony, the parties agreed that Ms. Ellis would have exclusive use of the home and pay the monthly mortgage and that Mr. Heinzen would waive his rental reimbursement. As evidenced by the excerpt quoted by the majority, the trial court did not ask either party how long they intended the agreement to remain in force. Specifically, the trial court did not ask Ms. Ellis if she intended to waive reimbursement of the mortgage payments she made on the property until the property was partitioned, and she did not indicate in her testimony that she intended to waive reimbursement of those payments until the property was partitioned. Nonetheless, the judgment the trial court signed following the hearing includes the phrase “pending partition of that property.” Ms. Ellis contends the trial court erred in both finding that the March 27, 2020 email represented a “settlement” by the parties and signing a judgment that includes the phrase “pending partition of that property” when the parties did not stipulate to that provision in the email or in their testimony. She argues the parties did not agree or stipulate to include that phrase in the judgment, and it should not be enforced. Mr. Heinzen counters the judgment cannot be modified on appeal because it documents a stipulation made on the record by the parties. He further cites La.Code Civ.P. art. 2085 to argue that because Ms. Ellis’ attorney signed the 2 judgment below the phrase “APPROVED AS TO FORM AND CONTENT” it constitutes a judicial confession that cannot be appealed. Louisiana Code of Civil Procedure Article 2085 states, in part: “An appeal cannot be taken by a party who confessed judgment in the proceedings in the trial court or who voluntarily and unconditionally acquiesced in a judgment rendered against him.” Appeals are favored, and the party seeking to enforce a judgment has a heavy burden to show that a party the challenging the judgment acquiesced in it for purposes of La.Code Civ.P. art. 2085. Succession of Franz, 238 La. 608, 116 So.2d 267 (1959). Acquiescence in a judgment that would preclude an appeal “‘is never presumed and must be established by evidence that leaves no doubt of the required intent.’” Tatney v. City of Deridder, 16-395, p. 4 (La.App. 3 Cir. 11/16/16), 206 So.3d 1207, 1210 (quoting Vincent v. State Farm Mut. Auto. Ins. Co., 95-1538, p. 3 (La.App. 3 Cir. 4/3/96), 671 So.2d 1127, 1129). The record shows Ms. Ellis’ in-court stipulations did not include the phrase “pending partition of that property.” Therefore, she did not acquiesce in that phrase being included in the judgment and is not precluded from appealing that portion of the judgment. When part of a judgment does not accurately reflect the intent of the parties as evidenced by the record, that part of the judgment does “not constitute part of the agreement between the [parties] and must be removed to reflect the parties’ intent.” Reon v. Reon, 07-1277, p. 3 (La.App. 3 Cir. 4/2/08), 982 So.2d 210, 212, (citing Conrad v. Conrad, 497 So.2d 22 (La.App. 5 Cir.1986). Accordingly, the phrase, “pending partition of that property” should be removed from the judgment as it pertains to that provision addressing her right to reimbursement. A matrimonial agreement governs the spouses until the marriage is terminated, unless the parties terminate it or replace it with a new one. 3 See La.Civ.Code. arts. 2325 and 2328; see also 16 Andrea Carroll and Richard D. Moreno, Matrimonial Regimes § 8.2, n.8 (5th ed. 2021). As a result, the parties’ matrimonial agreement governed any claims arising from their co-ownership of the property during the marriage, and the laws governing co-ownership govern such claims after the marriage was terminated. The parties’ marital agreement terminated October 26, 2020, the date the parties’ divorce judgment was signed. Thereafter, the laws of co-ownership and solidary obligations govern the parties’ rights and claims against each other with regard to the property. Accordingly, the parties’ separate obligations were governed by the Louisiana Civil Code. The clear wording of the marital agreement provision at issue shows it ended “at the termination of the marriage”; therefore, it did not extend beyond the termination of the marriage as the majority determines. Nonetheless, the majority concludes the marital agreement alone governed the parties’ claims that existed at the time the marriage terminated as well as all claims that arose after the marriage terminated. For these reasons, I disagree with the majority’s determination that Ms. Ellis’ stipulated to waive her right to reimbursement of mortgage payments she paid after the marriage and the marriage contract terminated and until the partition of the property. The trial court’s December 18, 2020 judgment and October 18, 2021 judgment are based on the trial court’s August 14, 2020 judgment. Accordingly, I would also reverse the provisions of those judgments that provide “neither party may seek reimbursement from the other for any mortgage payments” and “the parties shall each receive one-half (½) of the ‘net proceeds’ of that sale” when the property is sold, respectively. 4 Ms. Ellis also assigns error with trial court’s refusal to allow her to proffer evidence of mortgage payments and other expenses for which she claims reimbursement during the hearing held September 28, 2021, and assigning all costs of this proceeding to her. Pursuant to La.Code Civ.P. art. 1636(A), once the trial court refused to allow Ms. Ellis to introduce evidence substantiating her reimbursement claims, the court was required to allow her the option of proffering the evidence or making a statement on the record setting forth the nature of the evidence. A proffer is meant to preserve excluded evidence so appellate courts can review it when a trial court has made an erroneous ruling. Cantrelle v. Lafourche Par. Council, 21-678 (La. App. 1 Cir. 2/1/22), 340 So.3d 1059. For the reasons discussed above, I would find the trial court erred in refusing to allow Ms. Ellis to proffer evidence of all her mortgage payments and other expenses. The trial court has much discretion in assessing costs under La.Code Civ.P. art. 1920, and we will not reverse a judgment assessing court costs unless we find the trial court abused that discretion. Trahan v. Plessala, 14-795 (La.App. 3 Cir. 2/4/15), 158 So.3d 209. Because I believe the majority of Ms. Ellis’ assigned errors have merit and would reverse portions of the trial court’s interlocutory and final judgments as a result of her appeal, I would also find the trial court erred in assessing costs to Ms. Ellis and assess all costs to Mr. Heinzen. For the foregoing reasons, I respectfully dissent. 5
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