Jo Ellen Cohen Versus Michael Baruch Cohen

JO ELLEN COHEN NO. 20-CA-352 C/W
21-CA-187
VERSUS
FIFTH CIRCUIT
MICHAEL BARUCH COHEN
COURT OF APPEAL

STATE OF LOUISIANA

ON APPEAL FROM THE TWENTY-FOURTH JUDICIAL DISTRICT COURT
PARISH OF JEFFERSON, STATE OF LOUISIANA
NO. 432-567, DIVISION "C"
HONORABLE JUNE B. DARENSBURG, JUDGE PRESIDING

October 13, 2021

HANS J. LILJEBERG
JUDGE

Panel composed of Judges Marc E. Johnson,
Stephen J. Windhorst, and Hans J. Liljeberg

JUDGMENT VACATED AND REMANDED
HJL
MEJ

WINDHORST, J., DISSENTS WITH REASONS
SJW

COUNSEL FOR PLAINTIFF/APPELLEE,
JO ELLEN COHEN
Yvette A. D'Aunoy
Marianne Garvey

COUNSEL FOR DEFENDANT/APPELLANT,
MICHAEL BARUCH COHEN
Alexandra E. Faia
Steven J. Lane

LILJEBERG, J.

Dr. Michael Cohen seeks review of the trial court’s judgment denying his

motion to terminate or, in the alternative, to reduce the amount of the death benefit

on a life insurance policy he agreed to maintain as part of his divorce settlement

with his former spouse, Ms. Jo Ellen Cohen. He also seeks review of the

judgment granting the rule for contempt and damages filed by Ms. Cohen. As part

of their divorce proceedings in January 1994, the parties agreed that Dr. Cohen

would “maintain and [would] not cancel the $1.3 million dollar death benefit on

his life insurance policy.” The irrevocable beneficiaries of the insurance policy at

issue are Dr. Cohen’s adult children, Zachary and Joshua Cohen,1 as well as Ms.

Cohen. In addition to denying Dr. Cohen’s request to terminate or reduce the

amount of the death benefit, the trial court also ordered that if Dr. Cohen did not

maintain the $1.3 million dollar life insurance policy, he was required to provide

his former spouse and adult children with assets valued at $1.3 million. The trial

court also granted Ms. Cohen’s rule for contempt and awarded her damages in the

form of the attorney fees and court costs she incurred due to Dr. Cohen’s failure to

maintain the insurance policy as agreed to by the parties.

Upon our review of the record on appeal, we find that the parties’ children,

Zachary and Joshua Cohen — who are no longer minors — must be joined as

parties to these proceedings, because as irrevocable beneficiaries of the life

insurance policy, they have an interest in the policy and are needed to adjudicate

complete relief among the parties as contemplated under La. C.C.P. art. 641.2

Accordingly, we raise the peremptory exception of nonjoinder of a party under La.

C.C.P. art. 641, vacate the trial court’s February 1, 2021 judgment, and remand this

1
At the time Dr. Cohen and Ms. Cohen entered into this agreement in 1994, their children were
approximately 13 and 9 years old. According to Dr. Cohen, at the time of the hearing of this matter on
November 26, 2019, Zachary and Joshua were 38 and 34 years old, respectively.
2
As discussed more fully below, the life insurance policy at issue requires the written consent of the
irrevocable beneficiary in order to change the beneficiary.

20-CA-352 C/W 21-CA-187 1

matter to the trial court for joinder of Zachary Cohen and Joshua Cohen as parties

to these proceedings.

FACTUAL AND PROCEDURAL BACKGROUND

On April 27, 1992, Ms. Cohen filed a Petition for Divorce in the 24 th Judicial

District Court, which the trial court granted on January 10, 1994. On that same

date, the parties entered into a “Consent Judgment of Partition of Community

Property” (“Partition Judgment”) and a Judgment of Child Custody, Spousal

Support and Child Support (“Support Judgment”). In the Partition Judgment, Dr.

Cohen agreed to maintain a life insurance policy with Ms. Cohen and his children

as irrevocable beneficiaries as follows:

Michael B. Cohen will maintain and will not cancel the $1.3 million
dollar death benefit on his insurance policy. Michael B. Cohen will
irrevocably name the plaintiff, Jo Ellen Cohen as sole beneficiary to
one-half of the death benefit and to irrevocably name the children as
the only beneficiaries to the other one-half of the death benefit. Jo Ellen
Cohen will remain as beneficiary to one-half of the death benefit, if she
remarries, only if she executes a Prenuptial Agreement or a Declaration
of Separateness declaring the funds from the insurance policy to be her
separate property.

On November 15, 1996, Dr. Cohen filed a motion seeking to clarify the

paragraph cited above in the Partition Judgment. Dr. Cohen argued that this

paragraph was “unclear, ambiguous and would lead to absurd consequences,”

because it failed to provide a time period within which the provision would remain

in effect. He argued that the policy at issue was originally purchased as an estate

planning tool to be placed in trust for Ms. Cohen and the children and the trust was

to terminate when the children reached the age of 26. He argued the policy was

intended to provide for his children’s support and education in the event he died,

and that after they reached 26 years of age, there would have been no need for the

policy. The record does not contain any indication that the trial court ever heard or

ruled on Dr. Cohen’s motion to clarify the terms of the Partition Judgment.

20-CA-352 C/W 21-CA-187 2

Over twenty years later, on January 29, 2019, Dr. Cohen filed the motion to

terminate or, in the alternative, to reduce the amount of the death benefit he must

maintain on a life insurance policy. In his motion, Dr. Cohen alleged that his

obligation to maintain the $1.3 million dollar death benefit was part of his support

obligations to his former spouse and children. He argued that the Partition and

Support Judgments must be read and applied together as they both addressed his

support obligations. He explained that in the Support Judgment, the parties agreed

that his support obligations were premised on his ability to work, and that if he

became disabled, this would constitute a change in circumstances that would

entitle him to a modification of any spousal and child support he was obligated to

pay.

Dr. Cohen further argued that in the 25 years since the parties entered into

these judgments, several changes in circumstances justified the termination of his

obligation to maintain life insurance in favor of his former spouse and children,

including: 1) the deterioration of his health which caused him to be physically

unable to work as an obstetrician-gynecologist thereby resulting in a substantial

reduction in his income; 2) the extinguishment of his obligation to pay child

support after his children became adults; 3) the obligation to maintain the policy in

favor of Ms. Cohen was part of her spousal support and no longer payable due to

the change in circumstances with Dr. Cohen’s health; and 4) Dr. Cohen’s financial

inability to maintain the insurance policy as the premium was anticipated to

increase from $2,500.00 to approximately $72,000.00 annually.

Ms. Cohen opposed Dr. Cohen’s motion to terminate or reduce the death

benefit by arguing that Dr. Cohen’s agreement to maintain the life insurance policy

was not part of his support obligations. Rather, she argued that she waived several

of her community property interests, including her interests in Dr. Cohen’s medical

practice, in exchange for his agreement to maintain the death benefit on his life

20-CA-352 C/W 21-CA-187 3

insurance policy. She argued that a community property partition could not be

altered 25 years later based on an alleged change in circumstances. Ms. Cohen

also stated in her opposition that if the trial court granted Dr. Cohen’s request, it

could potentially alter the rights of their children and therefore, they needed to be

joined as parties to the proceedings.3 She further explained in her testimony at the

hearing that the parties intended for the life insurance policy to be an inheritance

for their children. She stated that she did not retain or obtain her own life

insurance policy because she believed the children would receive the proceeds

from the life insurance policy at issue.

Ms. Cohen also included a motion for contempt and for damages with her

opposition to Dr. Cohen’s motion to terminate the life insurance policy. She

alleged that Dr. Cohen was in contempt because he did not maintain the life

insurance policy with a death benefit of $1.3 million. She further argued at the

hearing that Dr. Cohen violated the terms of the Partition Judgment because it

required him to maintain a universal whole life policy acquired during the

marriage, but he terminated the policy without her permission or the permission of

the trial court and obtained a term life policy with a lower death benefit.4 Ms.

Cohen sought damages due to Dr. Cohen’s alleged violation of the terms of the

Partition Judgment, as well as separate attorney fees and costs associated with the

motion for contempt and for damages.

Following an evidentiary hearing on November 26, 2019, the trial court

issued a written judgment on February 3, 2020, denying Dr. Cohen’s motion to

terminate or reduce the death benefit, and further ordering Dr. Cohen to maintain a

life insurance policy with a $1.3 million dollar death benefit with Ms. Cohen and

3
The record does not contain any indication that Ms. Cohen pursued, or that the trial court addressed, her
argument regarding the joinder of their adult children as parties.
4
The policy entered into evidence at the hearing provides a $1,000,000 death benefit.

20-CA-352 C/W 21-CA-187 4

their children as irrevocable beneficiaries in accordance with the terms of the

parties’ Partition Judgment. The trial court alternatively ordered that if Dr. Cohen

did not maintain the $1.3 million dollar benefit on his insurance policy, he would

have to provide assets of an equivalent value to Ms. Cohen and their two children.

The trial court judgment also granted Ms. Cohen’s motion for contempt and

awarded Ms. Cohen attorney fees and court costs as damages.

Dr. Cohen filed a suspensive appeal and this Court remanded the matter for

the trial court to establish the amount of the attorney fees and court costs the trial

court intended to award as damages for the contempt of court. On February 1,

2021, the trial court issued an amended judgment that awarded Ms. Cohen

$7,446.20 for attorney fees, $195.00 for court costs, and $3.60 for mailing costs.

Dr. Cohen filed a second suspensive appeal from the amended judgment, which we

consolidated with his first appeal.

LAW AND DISCUSSION

On appeal, Dr. Cohen contends the trial court erred in denying his motion to

terminate or reduce the amount of the death benefit and by granting Ms. Cohen’s

rule for contempt and damages. Dr. Cohen also argues that the trial court exceeded

the scope of its authority and changed the terms of the Partition Judgment by

granting rights to the children, who are not parties to the lawsuit, with an award of

$650,000 in assets if he does not maintain a $1,300,000 death benefit on his life

insurance policy. He contends the only issue before the trial court was to

determine whether he could terminate the life insurance policy or reduce the

amount of the death benefit. Dr. Cohen asks this Court to reverse the trial court’s

rulings and grant his request to terminate his obligation to maintain the $1.3

million dollar death benefit in favor of his former spouse and children. Prior to

considering the merits of Dr. Cohen’s arguments on appeal, however, we must

consider whether this Court can address the relief requested by Dr. Cohen in the

20-CA-352 C/W 21-CA-187 5

absence of his adult children, who are currently irrevocable beneficiaries of the life

insurance policy at issue. Furthermore, the judgment issued by the trial court

requires Dr. Cohen to provide them with $650,000 in assets if he does not maintain

the life insurance policy.

It is axiomatic that courts are without power to adjudicate the rights of a

person who is not a party to the litigation or appropriately represented. State

Through Dep’t of Highways v. Lamar Advert. Co. of Louisiana, 279 So.2d 671,

675 (La. 1973). La. C.C.P. art. 645 provides that the “failure to join a party to an

action may be pleaded in the peremptory exception, or may be noticed by the trial

or appellate court on its own motions.” See also La. C.C.P. art. 927(B) (a trial or

appellate court may notice an exception of nonjoinder of a party under La. C.C.P.

arts. 641 and 642 on its own motion.) As discussed more fully below, as

irrevocable beneficiaries, we find Zachary and Joshua Cohen are parties needed for

the just adjudication of Dr. Cohen’s motion based on their interests in the life

insurance policy at issue and due to our inability to consider the relief requested by

Dr. Cohen in their absence.

La. C.C.P. art. 641, entitled “Joinder of parties needed for just adjudication,”

provides as follows:

A person shall be joined as a party in the action when either:

(1) In his absence complete relief cannot be accorded among those
already parties.

(2) He claims an interest relating to the subject matter of the action
and is so situated that the adjudication of the action in his absence
may either:

(a) As a practical matter, impair or impede his ability to protect
that interest.

(b) Leave any of the persons already parties subject to a
substantial risk of incurring multiple or inconsistent obligations.

20-CA-352 C/W 21-CA-187 6

Parties needed for just adjudication in an action are those who have an

interest relating to the subject matter of the action and are so situated that a

complete and equitable adjudication of the controversy cannot be made unless they

are joined in the action. Lowe’s Home Const., LLC v. Lips, 10-762 (La. App. 5

Cir. 1/25/11), 61 So.3d 12, 16, writ denied, 11-371 (La. 4/25/11), 62 So.3d 89. A

person should be deemed to be needed for just adjudication only when absolutely

necessary to protect substantial rights. Branch v. Young, 13-686 (La. App. 5 Cir.

2/26/14), 136 So.3d 343, 350. Courts are to determine whether a party should be

joined by a factual analysis of all the interests involved. Id.

By using the word “shall,” the article makes mandatory the joinder of the

person described in La. C.C.P. art. 641 as a party to the suit. Two Canal Street

Investors, Inc. v. New Orleans Building Corporation, 16-825 (La. App. 4 Cir.

9/23/16), 202 So.3d 1003, 1012. An adjudication made without making a person

described in the article a party to the litigation is an absolute nullity. Miller v.

Larre, 19-208 (La. App. 5 Cir. 12/11/19), 284 So.3d 1284, 1287; Terrebonne

Parish Sch. Bd. v. Bass Enterprises Prod. Co., 02-2119 (La. App. 1 Cir. 8/8/03),

852 So.2d 541, writs denied, 03-2786 (La. 1/9/04), 862 So.2d 984, 03-2873 (La.

1/9/04), 862 So.2d 985. Moreover, the burden is placed on those already parties to

the litigation to join parties needed for just adjudication, not upon the nonparties to

intervene in actions to which they are required to be joined pursuant to La. C.C.P.

art. 641. Stephenson v. Nations Credit Financial Services Corp., 98-1688 (La.

App. 1 Cir. 9/24/99), 754 So.2d 1011, 1021.

Furthermore, in the instant action, Dr. Cohen seeks a determination or

declaration that he does not have to maintain the life insurance policy pursuant to

the terms of the Partition and Support Judgments. When declaratory relief is

sought, Louisiana law mandates that “all persons shall be made parties who have

or claim any interest which would be affected by the declaration, and no

20-CA-352 C/W 21-CA-187 7

declaration shall prejudice the rights of persons not parties to the proceeding.” La.

C.C.P. art. 1880. An affected, interested person must be cited in a declaratory

judgment action when his existence and claim are evident. Fewell v. City of

Monroe, 43,281 (La. App. 2 Cir. 6/11/08), 987 So.2d 323, 326, writ denied, 08-

2172 (La. 11/14/08), 996 So.2d 1093.

When an appellate court recognizes that joinder of parties is required for

proper adjudication of the matter, the appropriate course of action is to set aside the

judgment at issue and remand the matter to the trial court for joinder of the absent

parties and a retrial of the case. Succession of Pedescleaux, 19-250 (La. App. 5

Cir. 2/7/20), 290 So.3d 749, 752; Rourke v. Est. of Dretar, 17-672 (La. App. 5 Cir.

5/23/18), 248 So.3d 653, 659.

The Partition Judgment states that Dr. Cohen will “irrevocably name the

children as the only beneficiaries to the other one-half of the death benefit.” The

term “irrevocable” is defined in Black’s Law Dictionary (11 th ed. 2019) as

“unalterable; committed beyond recall.” While this Court does not speak to the

merits of the issue of whether Dr. Cohen must maintain the life insurance policy at

issue, the use of the term irrevocable indicates that the parties intended for the

children to remain beneficiaries of one-half of the death benefit for as long as the

life insurance policy remained in existence.

The life insurance policy at issue also provides that a “Beneficiary

designated irrevocably may not be changed without the written consent of that

Beneficiary.” The policy defines a “Beneficiary” as “the person to whom we will

pay the death benefit if the insured dies.” As irrevocable beneficiaries of the life

insurance policy that Dr. Cohen seeks to terminate, Zachary and Joshua Cohen

have an interest in the life insurance policy at issue as it does not allow Dr. Cohen

to remove them as beneficiaries without their written consent. Furthermore, the

judgment rendered by the trial court requires Dr. Cohen to provide Zachary and

20-CA-352 C/W 21-CA-187 8

Joshua Cohen with $650,000 in assets if Dr. Cohen does not maintain a life

insurance policy with a $1.3 million dollar death benefit in accordance with the

terms of the Partition Judgment.

Louisiana courts have found that beneficiaries in various capacities must be

joined as parties to afford complete relief to all parties pursuant to La. C.C.P. art.

641, when they have an interest in the subject matter of the litigation and

adjudication in their absence may impair or impede their ability to protect that

interest. Milton v. Pilgrim Life Insurance Co. of America, 500 So.2d 434 (La. App.

1st Cir. 1986), is most similar to the present matter as it concerned an issue of

joinder of an irrevocable beneficiary.5 In conjunction with his purchase of a pick-

up truck, the plaintiff in Milton purchased credit life and disability insurance

policies from the defendant insurer, Pilgrim Life Insurance Co. of America. The

lender who financed the plaintiff’s purchase of the pick-up truck, GMAC, was

named the irrevocable primary beneficiary of the policies. The plaintiff became

disabled and Pilgrim paid disability benefits under the policy for a period of time,

but then discontinued payments. The plaintiff sued Pilgrim and Pilgrim filed an

exception of nonjoinder arguing that GMAC must be joined as a party pursuant to

La. C.C.P. art. 641. The trial court denied the exception and entered a judgment

awarding the plaintiff the proceeds payable under the credit disability policy.

Although the judgment was favorable to GMAC, as an irrevocable beneficiary of

the policy, and the interests of the plaintiff and GMAC were aligned with respect

to recovering proceeds due under the policy, the First Circuit vacated the judgment

and remanded for joinder of GMAC as a party. The court reasoned that as an

5
Though its decision predates the 1995 amendments, the Milton court followed State, Dep’t of Highways
v. Lamar Advertising Co. of La., 279 So.2d 671 (La. 1973), in reaching its decision to vacate the
judgment and remand for the joinder of the irrevocable beneficiary. The 1995 Official Revision
Comment to La. C.C.P. art. 641 explains that the amendments to this article and other related articles
codify the holding in Lamar, supra, requiring a factual analysis of all interests involved.

20-CA-352 C/W 21-CA-187 9

irrevocable beneficiary of the policy, GMAC had a direct interest in the outcome

of the litigation and could be directly affected by the judgment. Id. at 436.

In Succession of Treadaway, 782 So.2d 1142, 1144 (La. App. 4 Cir. 3/7/01),

the appellate court found that beneficiaries of a trust, the decedent’s grandchildren,

were parties required for just adjudication under La. C.C.P. art. 641, in litigation

seeking to invalidate a will which created the trusts:

Unquestionably, the beneficiaries in this case claim an interest
related to the subject matter of the action, since they have an interest
in the will and trust the plaintiffs seek to invalidate. That is, since the
plaintiffs seek to invalidate the testament and inherit the decedent's
estate by intestacy or pursuant to an earlier testament (the record
being silent on this point), their interest is adverse to that of their
children as the successor income and principal residual beneficiaries
established by the contested testament. Moreover, adjudication of the
action in their absence may, as a practical matter, impair or impede
their ability to protect their interest in the will and trust. Accordingly,
their joinder is needed for a just adjudication of the controversy and is
required by La. C.C.P. art. 641.

See also Vision Aviation, LLC v. Airport Authority for Airport Dist. No. 1 of

Calcasieu Parish, 09-974, 09-975, 09-1107 (La. App. 3 Cir. 3/10/10), 33 So.3d

423 (finding that third party beneficiary of contract must be joined as a party

pursuant to La. C.C.P. art. 641 in litigation seeking to terminate the contracts;

pursuant to La. C.C. art. 1978, a contract cannot be dissolved without the third

party beneficiary’s agreement); Neson v. Prudential Life Ins. Co. of America, 491

So.2d 427, 429 (La. App. 1st Cir. 1986) (beneficiary of life insurance proceeds

assigned proceeds to the insured’s mother after the insured’s death, but then sought

a determination that the assignment was void; the appellate court found that the

assignee was a party required for complete adjudication of whether the assignment

was valid).

Based on the foregoing, we find that the parties’ adult children, Zachary and

Joshua Cohen, are parties needed for just adjudication due to their interests as

irrevocable beneficiaries in the life insurance policy, as well as their interests in the

20-CA-352 C/W 21-CA-187 10

judgment rendered by the trial court. Dr. Cohen asked the trial court, and now asks

this Court, to terminate his adult children’s interests in the life insurance policy.

Dr. Cohen also asks this Court to reverse the trial court’s alternate ruling that he

provide his children with $650,000 in assets if he does not maintain them as

irrevocable beneficiaries on a life insurance policy in accordance with the terms of

the Partition Judgment. Because the children have an interest to protect in the

policy and the requested amendment or reversal of the trial court’s judgment would

certainly impair or impede their ability to protect that interest, we find that Zachary

and Joshua Cohen are parties needed for just adjudication. Unquestionably, a

complete and equitable adjudication of the controversy cannot be made unless

Zachary and Joshua Cohen are joined as parties pursuant to La. C.C.P. art. 641.

Accordingly, having determined that the parties’ children, Zachary and

Joshua Cohen, are parties needed for adjudication as contemplated under La.

C.C.P. art. 641, we vacate the trial court’s February 1, 2021 judgment and remand

this matter for further proceedings consistent with this opinion.

JUDGMENT VACATED AND REMANDED

20-CA-352 C/W 21-CA-187 11

JO ELLEN COHEN No. 20-CA-352 c/w 21-CA-187

VERSUS FIFTH CIRCUIT

MICHAEL BARUCH COHEN COURT OF APPEAL

STATE OF LOUISIANA

WINDHORST, J., DISSENTS WITH REASONS

I respectfully disagree with the majority. I would not vacate the trial

court’s judgment or require joinder of the adult Cohen children, which is not

required by law. We should therefore address the merits of this appeal.

Facts and Procedural History

The parties, Ms. Jo Ellen Cohen and Dr. Michael Cohen, obtained a

divorce, and after considerable negotiation, entered the Consent Judgment of

Partition of Community Property on January 10, 1994. The consent judgment

provided that Dr. Cohen would maintain a life insurance policy naming as

irrevocable beneficiaries Ms. Cohen, and sons Zachary, 39, and Joshua, 35,

(“the Cohen children”) as follows:

Michael B. Cohen will maintain and will not cancel the
$1.3 million dollar death benefit on his insurance policy.
Michael B. Cohen will irrevocably name the plaintiff, Jo
Ellen Cohen as sole beneficiary to one-half of the death
benefit and to irrevocably name the children as the only
beneficiaries to the other one-half of the death benefit. Jo
Ellen Cohen will remain as beneficiary to one-half of the
death benefit, if she remarries, only if she executes a
Prenuptial Agreement or a Declaration of Separateness
declaring the funds from the insurance policy to be her
separate property.

On January 29, 2019, Dr. Cohen filed a motion to terminate his

obligation to maintain the life insurance policy, or alternatively, to reduce the

amount of the death benefit. After an evidentiary hearing on November 26,

2019, the trial court issued a written judgment dated February 3, 2020 in favor

20-CA-352 C/W 21-CA-187 1

of Ms. Cohen, denying Dr. Cohen’s motion, and ordering Dr. Cohen to

maintain a life insurance policy with a $1.3 million dollar death benefit

naming Ms. Cohen and their children as irrevocable beneficiaries in

accordance with the terms of the consent judgment. The trial court further

alternatively ordered that if Dr. Cohen does not maintain the $1.3 million

dollar benefit on his insurance policy, he would have to provide assets of an

equivalent value to Ms. Cohen and the Cohen children.

In awarding complete maintenance of the life policy and full death

benefits to both Ms. Cohen and the Cohen children, the trial court precisely

tracked the relevant language of the Consent Judgment of Partition of

Community Property, as follows:

IT IS FURTHER ORDERED, ADJUDGED AND DECREED that
Defendant Michael Cohen will maintain and will not cancel the $1.3
million dollar death benefit on his insurance policy. Michael B. Cohen
will irrevocably name the plaintiff, Jo Ellen Cohen, as sole beneficiary
to one-half of the death benefit ($650,000.00), and will irrevocably
name the children as the only beneficiaries to the other one-half of the
death benefit ($650,000.00), to be paid upon the death of defendant,
Michael Cohen, as provided in the original Consent Judgment of
Partition of Community Property dated January 10, 1994.
IT IS FURTHER ORDERED, ADJUDGED AND DECREED that, in
the alternative that Defendant Michael Cohen does not maintain the
$1.3 million dollar death benefit on his insurance policy, he shall
provide assets of equivalent value to the amount of $1.3 million dollars
($1,300,000.00) to plaintiff Jo Ellen Cohen as sole beneficiary to one-
half of these assets ($650,000.00) and to the children as the only
beneficiaries to the other one-half of these assets ($650,000.00).

Thus, the trial judge awarded Ms. Cohen and the Cohen children everything

to which they could have been entitled had they been named parties and

prevailed. The trial court judgment also granted Ms. Cohen’s motion for

contempt and awarded Ms. Cohen attorney fees and court costs as damages.

Dr. Cohen filed a suspensive appeal, and this Court remanded the case

to allow the trial court to determine the amount of attorney fees and court costs

20-CA-352 C/W 21-CA-187 2

to be awarded. On February 1, 2021, the trial court issued an amended

judgment that awarded Ms. Cohen $7,446.20 for attorney fees, $195.00 for

court costs, and $3.60 for mailing costs. Dr. Cohen filed a second suspensive

appeal from the amended judgment, which we consolidated with his first

appeal.

The majority concludes that this Court cannot review this case on the

merits because the Cohen children should have been joined as parties in order

to protect their interest. As a result, the majority opinion vacates the judgment

in favor of the children, and remands the case to the trial court to pointlessly

repeat the proceeding in which their interest was thoroughly protected. This

is a misapplication of La. C.C.P. art. 641.

Joinder of the Cohen Children is Not Required by La. C.C.P. art. 641

Joinder of the Cohen children as parties to this dispute is not required

because they are not “needed for just adjudication” as defined by La. C.C.P.

art. 641. La. C.C.P. art. 641 provides:

Art. 641. Joinder of parties needed for just adjudication
A person shall be joined as a party in the action when either:
(1) In his absence complete relief cannot be accorded among
those already parties.
(2) He claims an interest relating to the subject matter of the
action and is so situated that the adjudication of the action in his
absence may either:
(a) As a practical matter, impair or impede his ability to
protect that interest.
(b) Leave any of the persons already parties subject to a
substantial risk of incurring multiple or inconsistent
obligations.

There was no assignment of error or any claim that the Cohen children

were “needed for just adjudication” and should have been joined as parties.

Non-joinder of the Cohen children was raised by the majority sua sponte. The

20-CA-352 C/W 21-CA-187 3

majority concludes that La. C.C.P. art. 641 requires that the Cohen children

be joined as parties to re-litigate this case. I strongly disagree.

First, La. C.C.P. art. 641(2) applies only to a person who “claims an

interest” related to the subject matter of the case. That the absent party

“claims an interest” is the threshold question and prerequisite to consideration

of whether La. C.C.P. art. 641 (2)(a) or (2)(b) apply. It is not disputed that

the Cohen children have an interest; nonetheless, they have not in any manner

claimed an interest related to this case since it was filed over two years ago.

Second, when an absent person claims an interest, La. C.C.P. art.

641(2)(a) further requires that “as a practical matter,” the person’s absence

impairs or impedes his ability to protect the interest he claims. The term “as

a practical matter” means in practice, action, or in reality, as opposed to in

theory, ideas, or speculation.1 By using the term “as a practical matter,” the

legislature decided that a party must be joined only when in reality—not

simply theoretically—the absent persons’ interests are not, or were not,

actually protected. The 1995 addition of “as a practical matter” affords courts

flexibility in the determination of whether an absent person’s interest will

actually be impaired or impeded in reality, rather than just conceivably.

Here, “as a practical matter,” the Cohen children’s interests were, in

practice and in reality, protected at all times by Ms. Cohen, whose interests

were congruent with the children’s interests. The resulting judgment awarded

the Cohen children everything to which they could have possibly been entitled.

Furthermore, it was, albeit vigorously contested, a complete adjudication for all

parties, satisfying La. C.C.P. art. 641(1).

1 Merriam-Webster.com; Google.com (Oxford Languages); Collinsdictionary.com;

Yourdictionary.com; Dictionary.Cambridge.org, et al (definitions of “practical”)

20-CA-352 C/W 21-CA-187 4

The phrase “as a practical matter” was not inserted into this statute

accidentally. It was meant to have purpose. It was intended for circumstances

as this, so that La. C.C.P. art. 641(2)(a) would not be interpreted so rigidly as

to lead to absurd consequences. It gives courts the flexibility to determine

whether, in reality, an absent person’s interest is or will be impaired unless

joined in the case. The majority’s misapplication of La. C.C.P. art. 641(2)(a)

is that in order to “protect” the interests of the Cohen children, the judgment

in their favor must be vacated and the case remanded to the trial court so that

the children can be served and made parties to this contentious case between

their parents. With the judgment vacated, this case must be re-litigated,

probably reaching the same conclusion, but with the children joined as parties.

The Cohen children will either be forced to take a side, which they have thus

far avoided, or they may remain neutral by stating no claim and taking no part

in the case, leaving Dr. and Ms. Cohen to re-litigate on the same evidence

without them. All of this emphasizes the pointlessness of the majority’s

decision. Thus, the majority’s misinterpretation and rigid misapplication of

La. C.C.P. art. 641 will needlessly result in absurd consequences.

Joinder Is Not Feasible under La. C.C.P. art. 642

When the legislature amended La. C.C.P. art. 641 by Act 662, §1 of

1995 as provided above, it further provided and made clear that there are

circumstances under which the trial court should proceed with the case when

“a person described in Article 641 cannot be made a party.” It did so in this

same legislative act by amending La. C.C.P. art. 642 to provide that the trial

court should determine whether to proceed with only the parties already

before it, and providing an illustrative list of factors that the trial court should

consider in deciding whether to proceed.

20-CA-352 C/W 21-CA-187 5

La. C.C.P. art. 642 provides:

Art. 642. Determination by court whenever joinder not feasible

If a person described in Article 641 cannot be made a party, the
court shall determine whether the action should proceed among the
parties before it, or should be dismissed. The factors to be considered
by the court include:
(1) To what extent a judgment rendered in the person's absence
might be prejudicial to him or those already present.
(2) The extent to which the prejudice can be lessened or avoided
by protective provisions in the judgment, by the shaping of
relief, or by other measures.
(3) Whether a judgment rendered in the person's absence will be
adequate.
(4) Whether the plaintiff will have an adequate remedy if the
action is dismissed for nonjoinder.

Although this issue was not specifically raised in the trial court, all four of the

illustrative factors enumerated in La. C.C.P. art. 642 clearly weigh in favor of

the trial judge in this case having proceeded without joinder. Regarding

factors (1) and (2), the Cohen children were not prejudiced, and there was no

prejudice to be lessened or corrective measures needed. Regarding factors (3)

and (4), the judgment rendered was more than simply “adequate.” The Cohen

children’s interests were protected and the judgment was completely

favorable to them in their absence. As a practical matter, if the judgment is

vacated, they stand less likely to benefit from any policy.

Joinder must be “Absolutely Necessary”

It is well settled in Louisiana that a person should be deemed needed

for just adjudication only when absolutely necessary to protect substantial

rights. Industrial Companies v. Durbin, 2002-0665 (La. 1/28/03), 837 So.2d

1207, 1217; Pecoraro v. The Napoleon Room, Inc., 95-00511, p. 6 (La. App.

5 Cir. 12/13/95), 666 So.2d 1151, 1154, citing State Dept. of Highways v.

Lamar Advertising Co. of Louisiana, 279 So.2d 671 (La. 1973); Branch v.

Young, 13-686 (La. App. 5 Cir. 2/26/14), 136 So.3d 343, 350; Two Canal

20-CA-352 C/W 21-CA-187 6

Street Investors, Inc. v. New Orleans Building Corporation, 2016-0825 (La.

App. 4 Cir. 9/23/16), 202 So.3d 1003, 1012. “A party shall be deemed

necessary for just adjudication when that party’s presence is absolutely

necessary to protect its substantial rights.” [Emphasis added.] Avoyelles

Parish School Board v. Bordelon, 2011-126 (La. App. 3 Cir. 10/5/11), 77

So.3d 985, citing Shamieh v. Liquid Transp. Corp., 07–1282, (La. App. 3 Cir.

1/30/08), 975 So.2d 161, 164. A party is indispensable only when the facts

clearly establish that no complete and equitable adjudication of the

controversy can be made in his absence. Goodwin v. Louisiana Department

of Health, 2018-1405 (La. App. 1 Cir. 5/31/19), 277 So.3d 816, citing Carter

v. Baton Rouge City-Parish Employees' Retirement System, 612 So.2d 765,

767 (La. App. 1st Cir. 1992).

In the instant case, it is clearly not “absolutely necessary” that the

Cohen children be joined as parties in order to protect substantial rights. To

the contrary, if the judgment is vacated, the Cohen children will be in a worse

position. Nor do the facts of this case clearly establish that no complete and

equitable adjudication can be made in their absence. The facts and the record

establish the opposite: a complete and equitable adjudication was achieved in

their absence.

Addressing and Distinguishing Cases Cited by the Majority

The cases on which the majority opinion relies involved absent parties

who were obviously indispensable parties because they were, or were about

to be, actually prejudiced or at risk of losing their interest as the cases from

which they were excluded were litigated in their absence. Further, the cited

cases involved a party or parties who were legally adverse to the absent

indispensable parties, leaving the interests of the absent parties unprotected.

20-CA-352 C/W 21-CA-187 7

Thus, the cases cited by the majority are so factually distinguishable and

dissimilar that they are irrelevant to the present case.

None of the facts of the cases on which the majority relies would pass

the tests of La. C.C.P. arts. 641 and 642 without joinder. But when the

provisions of these articles are applied to the completely different facts of this

case, the result is that joinder of the Cohen children was never necessary under

Article 641; and further, under Article 642, the trial judge was well within her

sound discretion to have proceeded without joinder of the Cohen children.

The majority opinion relies heavily on Milton v. Pilgrim Life Insurance

Co. of America, 500 So.2d 434 (La. App. 1 Cir. 1986), which it describes as

“most similar” to the present case. In Milton, the plaintiff, Mr. Milton, obtained

a loan from GMAC by naming GMAC as his primary irrevocable beneficiary

in Milton’s credit life and credit disability insurance policies. When Milton

became disabled, the insurer, Pilgrim Life, paid benefits for a while, including

payments to GMAC, and then discontinued payments, claiming that Milton

was no longer disabled. Milton sued Pilgrim Life seeking the balance due on

the credit disability policy, penalties, and damages for harm to his credit record,

which the trial court ultimately awarded to Milton on the merits. (GMAC, to

whom the benefits were due, was not made a party and later received nothing

in the trial court judgment.)

Pilgrim Life filed an exception of non-joinder of an indispensable party,

primary beneficiary and creditor GMAC, which was overruled by the trial

court. In GMAC’s absence, the trial court later awarded judgment to Milton

for the balance due on the credit disability policy, instead of to GMAC, to whom

the benefits for loan payments were owed directly and primarily under the credit

policy. Unlike the present case, GMAC had an interest that was not protected in

any manner by Milton, who was legally adverse to GMAC. The result was a

20-CA-352 C/W 21-CA-187 8

judgment in favor of Milton, awarding him the benefits actually due GMAC

under the policy. This left GMAC having to pursue the loan repayment from

Milton. GMAC’s interest was clearly prejudiced, and the exclusion of GMAC

as a party in Milton therefore required reversal. Obviously, the facts of Milton

are dramatically different from this case.

The majority mischaracterizes the outcome in Milton by incorrectly

claiming that “the judgment was favorable to GMAC,” although it clearly was

not. The judgment in Milton was in favor of Milton, the debtor, awarding him

benefits which were due to GMAC as creditor. Milton had successfully

opposed joinder of GMAC. Had GMAC been a party, it could have enforced

its interest in benefits for repayment of the loan. Thus, the interests of Milton

and GMAC were not “aligned,” as the majority claims—they were adverse.

The First Circuit Court of Appeal made clear that creditor GMAC had a direct

interest in the case adverse to debtor Milton, and GMAC was therefore found

to be an indispensable party on appeal.

Unlike GMAC in Milton, the Cohen children are not adverse to

Ms. Cohen, and are not her creditor. She has fully protected their interest.

Ms. Cohen’s interest and that of the Cohen children are not merely

“aligned,” as the majority claims. Their interests are precisely the same.

The majority also relies heavily on Succession of Treadaway, 01-C-80

(La. App. 4 Cir. 3/7/01), 782 So.2d 1142, a writ disposition which like the

others cited, is completely different from the facts in this case. In Treadaway,

the decedent left the bulk of his estate to his grandchildren as beneficiaries of

a testamentary trust. His children (the grandchildren’s parents) filed a petition

to invalidate the probated will on the ground of incompetency, but they failed

to name the grandchildren (their children), despite being completely adverse

to them. The executor filed an exception of failure to join necessary parties,

20-CA-352 C/W 21-CA-187 9

arguing that the grandchildren had a claim as beneficiaries of the trusts and

should be named defendants pursuant to La. C.C.P. arts. 641, 642, 645 and

2931, which the trial court errantly denied.

Clearly, the facts in Treadaway are completely different from this case,

in which the Cohen children’s interests were completely protected by their

mother, whose interest was identical to theirs, and who first bargained for and

later enforced their benefits under Dr. Cohen’s policy. In contrast, the

Treadaway parents were adverse to their children (the grandchildren).

The Treadaway court stated:

Unquestionably, the beneficiaries in this case claim an
interest related to the subject matter of the action, since they
have an interest in the will and trust the plaintiffs seek to
invalidate. That is, since the plaintiffs seek to invalidate the
testament and inherit the decedent's estate by intestacy or
pursuant to an earlier testament (the record being silent on this
point), their interest is adverse to that of their children as the
successor income and principal residual beneficiaries
established by the contested testament. Moreover,
adjudication of the action in their absence may, as a practical
matter, impair or impede their ability to protect their interest
in the will and trust. Accordingly, their joinder is needed for
a just adjudication of the controversy and is required by La.
C.C.P. art. 641. [Emphasis added.]
Thus, the Treadaway case involved a suit to invalidate the claim of absent

parties, and the Louisiana Fourth Circuit found that their [the plaintiff

parents’] interest to be adverse to that of their non-joined children. No party

in that case had the same interest as their children (the grandchildren), which

is in clear contrast to Ms. Cohen, whose interest is the same as that of the

Cohen children. Moreover, the remedies afforded by La. C.C.P. art. 642 to

cases in which judgment has already been rendered did not apply in

Treadaway, but clearly do apply in this case.

20-CA-352 C/W 21-CA-187 10

Treadaway is further distinct in that La. C.C.P. art. 2931 provides that

a probated testament may be annulled only by a direct action brought against

the legatees, residuary heirs, and the executor.

Art. 2931. Annulment of probated testament by direct action;
defendants; summary proceeding
A probated testament may be annulled only by a direct action brought
in the succession proceeding against the legatees, the residuary heir, if
any, and the executor, if he has not been discharged. The action shall
be tried as a summary proceeding. [Emphasis added.]

Therefore, in attempting to annul the probated testament, the parents in

Treadaway were further required by La. C.C.P. art. 2931 to name their

children (the grandchildren) as legatees in a direct action against them.

Likewise, the majority’s reliance on Nesom v. Prudential Life Ins. Co.

of America, 85-0562 (La. App. 1st Cir. 1986) 491 So.2d 427 2 is misplaced. In

Nesom, the plaintiff sued to void an assignment of her rights in a life insurance

policy to the mother of the decedent and to recover the insurance proceeds

paid to mother, without naming the assignee/mother. On appeal, the First

Circuit held that the assignee/mother of the deceased was an indispensable

party, and in her absence, a complete adjudication of the validity of the

assignment could not be had. In the instant case, however, there was a

complete adjudication of the case without any prejudice or unfairness to the

Cohen children, and without, as a practical matter, impairing or impeding their

rights. Therefore, both Milton, Treadaway, and Nesom are inapposite to the

judgment in favor of the Cohen children/beneficiaries in this case.

The Judgment Appealed Is Not Declaratory

The majority attempts to characterize this case as a declaratory action

in which declaratory relief was sought. It is not. “A ‘declaratory judgment’

2 Nesom predated the 1995 amendments to La. C.C.P. art. 641 and was decided under
prior law.

20-CA-352 C/W 21-CA-187 11

is one which simply establishes the rights of the parties or expresses the

opinion of the court on a question of law, without ordering anything to be

done, and its distinctive characteristic is that the declaration stands by itself

with no executory process following as a matter of course, so that it is

distinguished from a direct action in that it does not seek execution or

performance from the defendant or the opposing litigants.” [Emphasis

added] Lemoine v. Baton Rouge Physical Therapy, L.L.P., 13-0404 (La. App.

1 Cir. 12/27/13), 135 So.3d 771; Ark–La–Tex Safety Showers, LLC, v. Tony

Jorio, 48,478 (La. App. 2 Cir. 12/18/13), 132 So.3d 986. The trial court’s

judgment certainly does order performance by the procurance and

maintenance of the insurance policy and assignment of beneficiaries.

Moreover, the relief sought by Dr. Cohen is the amendment or

modification of a direct final judgment of partition by relieving or reducing

Dr. Cohen’s obligation to maintain the insurance policy. The judgment of

partition he seeks to amend is not declaratory; it is a judgment that resolved

an actual dispute between two parties and which requires performance

between them. It is therefore not declaratory, nor this action to amend it

become declaratory. La. C.C.P. art. 1880 therefore does not apply here.

An Unnecessary Bad Effect

The effect of the majority opinion is a bad one. From the record, it

appears that the Cohen children are now 40 and 35 years old. They are surely

aware of the legal battle in which their parents are involved. They have

chosen not to intervene in this case, or to choose between their parents in the

legal dispute. They may file amicus briefs if they choose. Unlike the cases

cited by the majority, neither the Cohen children nor any other party claim

that they were necessary or indispensable. Yet the majority is forcing them to

do so with no legal cause, while vacating the judgment in their favor and

20-CA-352 C/W 21-CA-187 12

causing the Cohen children and Dr. and Ms. Cohen all the great expense,

stress, and time re-litigating this entire case.

Conclusion

As stated at length above, there was a full adjudication in the trial court

and the Cohen children’s rights were vigorously protected by Ms. Cohen,

whose interest was identical to theirs, and she has continued to do so on

appeal. Additionally, the Cohen children, or either of them, could have and

may file amicus briefs on their own volition. La. C.C.P. art. 642 (2) & (3)

clearly contemplate such a tempered, practical result, rather than the

majority’s rigid, impractical application of La. C.C.P. art. 641, despite the

built-in flexibility afforded by the term “as a practical matter,” which limits

required joinder to cases where the rights of the absent party are impaired in

reality, not merely in concept.

Accordingly, I would find that La. C.C.P. art. 641 does not require that

the Cohen children be made parties or that the judgment be vacated, and I

would consider the merits of the appeal.

20-CA-352 C/W 21-CA-187 13

SUSAN M. CHEHARDY CURTIS B. PURSELL

CHIEF JUDGE CLERK OF COURT

NANCY F. VEGA
FREDERICKA H. WICKER
CHIEF DEPUTY CLERK
JUDE G. GRAVOIS
MARC E. JOHNSON
ROBERT A. CHAISSON SUSAN S. BUCHHOLZ
STEPHEN J. WINDHORST
FIRST DEPUTY CLERK
HANS J. LILJEBERG
JOHN J. MOLAISON, JR. FIFTH CIRCUIT
MELISSA C. LEDET
JUDGES 101 DERBIGNY STREET (70053)
DIRECTOR OF CENTRAL STAFF
POST OFFICE BOX 489
GRETNA, LOUISIANA 70054 (504) 376-1400

(504) 376-1498 FAX
www.fifthcircuit.org

NOTICE OF JUDGMENT AND CERTIFICATE OF DELIVERY
I CERTIFY THAT A COPY OF THE OPINION IN THE BELOW-NUMBERED MATTER HAS BEEN DELIVERED
IN ACCORDANCE WITH UNIFORM RULES - COURT OF APPEAL, RULE 2-16.4 AND 2-16.5 THIS DAY
OCTOBER 13, 2021 TO THE TRIAL JUDGE, CLERK OF COURT, COUNSEL OF RECORD AND ALL PARTIES
NOT REPRESENTED BY COUNSEL, AS LISTED BELOW:

20-CA-352
C/W 21-CA-187
E-NOTIFIED
24TH JUDICIAL DISTRICT COURT (CLERK)
HONORABLE JUNE B. DARENSBURG (DISTRICT JUDGE)
BENNETT WOLFF (APPELLEE) LILA M. SAMUEL (APPELLEE) YVETTE A. D'AUNOY (APPELLEE)
ALEXANDRA E. FAIA (APPELLANT)

MAILED
JONATHAN M. RHODES (APPELLEE) EVIAN MUGRABI (APPELLEE) STEVEN J. LANE (APPELLANT)
ATTORNEY AT LAW ATTORNEY AT LAW ATTORNEY AT LAW
300 HUEY P. LONG BOULEVARD 633 MANDEVILLE STREET 820 O'KEEFE AVENUE
SUITE I APARTMENT B NEW ORLEANS, LA 70113
GRETNA, LA 70053 NEW ORLEANS, LA 70117

MARIANNE GARVEY (APPELLEE)
ATTORNEY AT LAW
909 POYDRAS STREET
SUITE 1400
NEW ORLEANS, LA 70112