Steve Burtner v. Margaret Burtner

NOT DESIGNATED FOR PUBLICATION

STATE OF LOUISIANA

COURT OF APPEAL

FIRST CIRCUIT

2019 CA 0175

STEVE BURTNER

VERSUS

MARGARET BURTNER

Judgment rendered: ocT 0 12019

Appealed from the Twenty -First Judicial District Court
In and for the Parish of Livingston
State of Louisiana
No. 146161, Div. "J"

The Honorable Jeffrey C. Cashe, Judge Presiding

Colt J. Fore Attorneys for Plaintiff/Appellee
D. Blayne Honeycutt Steve Burtner
Denham Springs, Louisiana

J. Andrew Murrell Attorney for Defendant/Appellant
Baton Rouge, Louisiana Margaret Burtner

BEFORE: McCLENDON, WELCH, AND HOLDRIDGE, JJ.

HOLDRIDGE, J.

This is an appeal from a declaratory judgment, wherein the trial court

determined that a pre -marital contract was valid and enforceable. For the

following reasons, we affirm the trial court' s judgment.

FACTUAL AND PROCEDURAL HISTORY

Steve Burtner and Margaret Burtner were married on October 12, 2002. On

October 9, 2002, the parties entered into an agreement titled " Marriage Contract,"

which was signed by both parties before a notary public and two witnesses. The

pre -martial contract provided the following:

I.

The [ parties] shall be separate in property and do hereby renounce the
legal regime established by the Louisiana Civil Code which

establishes a community of acquets and gains.

II.

All property and effects of the [ parties], whether owned by him or her
at the time of the celebration of said intended marriage, or acquired
during said marriage, are hereby declared to be separate property, and
they and each of them do hereby expressly reserve to themselves
individually the entire administration of their respective particular
movable and immovable property, and the respective free enjoyment
of each of their revenues.

III.

The parties hereto waive any rights that they may have to the property
of the other on the dissolution of the marriage by death or otherwise,
with the exception of any dispositions that either party may make
evidencing an express donative intent including transfers by last will
and testament.

IV.

The parties acknowledge that they have freely and voluntarily entered
into this agreement, that both parties understand that they are
renouncing the community property laws of the State of Louisiana,
that both parties have received their own legal counsel outside the
presence of each other, and that they wish to proceed with the
execution of this Marriage Contract.

Steve filed a petition for divorce on August 25, 2014. The trial court granted

the parties a divorce on November 4, 2015. On March 6, 2018, Margaret filed a

petition for declaratory judgment, seeking a judgment declaring the parties' pre -

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martial contract invalid due to fraud, duress, and/ or misrepresentation. Margaret

attached a copy of the parties' pre -martial contract to her petition. In her petition,

Margaret alleged the following, in pertinent part:

3.
On Wednesday, October 9, 2002, Steven [ sic] told Margaret he was
taking her to a lawyer' s office to execute a prenuptial agreement and
that if she did not sign, he would not marry her and she, and her minor
child, would have to move out of his home.

4.

On Wednesday, October 9, 2002, while under fraud, duress, and/ or
misrepresentation, Margaret entered into a Matrimonial Agreement
with Steven [ sic]
whereby renouncing the legal regime of the
community of acquets and gains. A copy of the purported

Matrimonial Agreement [ was] attached hereto as Exhibit I.

5.
Margaret was under duress when she was told she would be forced to
move out if she did not execute the Matrimonial Agreement prior to
the marriage. In addition, Margaret was involved, and Steven [ sic]
was aware, in a contentious custody battle and living with an
unrelated houseguest of a romantic nature would have been
detrimental to her custody battle.

6.

At no point in time was Margaret provided a copy of the proposed
agreement prior to the date of execution. In fact, she only saw the
proposed Matrimonial Agreement when she arrived at the lawyer' s
office on the date of execution.

7.
At no point in time was Margaret permitted sufficient time to have
independent counsel review the agreement. In fact, Steven [ sic] was
aware that Margaret' s attorney was out of town that week.

Steve filed an answer to Margaret' s petition, denying the majority of the

allegations. On April 17, 2018, Steve filed a reconventional demand, arguing that

the parties' pre -martial contract was valid and enforceable. Steve attached a copy

of the parties' pre -marital contract to his reconventional demand. In his

reconventional demand, Steve stated the following, in pertinent part:

5.

The Marriage Contract was executed by [ the parties] ... in front of
Attorney Steven Covell who [ was] also a Notary and two witnesses ...
on October 9, 2002, therefore the document [ was] an authentic act in
proper form[.]

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6.]
The parties [ were] bound by the valid contract and the contract' s
application to the case is a matter of law. Margaret ... was fully

aware of and read the contract prior to signing the same[.]

7.
Margaret ... knew the purpose of and was given a copy of the
Marriage Contract more than two weeks prior to the date of

execution[.]

On August 8, 2018, the trial court held a hearing on Margaret' s petition for

declaratory judgment.' Several witnesses testified at the hearing, including the

parties' themselves and the attorney who drafted the parties' pre -marital contract,

Stephen Covell. Mr. Covell testified that he was present when the pre -marital

agreement was executed in his office in front of the parties and two witnesses. Mr.

Covell testified that all parties and witnesses were present in his office at the time

the pre -marital contract was executed. Mr. Covell further testified that his office

recommended that Margaret seek the advice of independent counsel regarding the

parties' pre -marital contract, but she declined. When Steve' s counsel submitted

the copy of the parties' pre -marital contract into evidence at the hearing,

Margaret' s counsel objected to its admission, stating that it had not been

authenticated. The trial court allowed the copy of the pre -martial contract to be

submitted into evidence, noting that it was attached to Margaret' s petition as an

exhibit.

In support of her argument, Margaret provided testimony that she allegedly

signed the pre -marital contract under duress. According to Margaret, she did not

receive a copy of the pre -marital contract before signing it on October 9, 2002,

three days prior to their wedding. Margaret testified that she did not have an

opportunity to seek counsel because her attorney was out of town. She further

testified that she was never left alone to review the pre -marital contract during its

1 A petition for a declaratory judgment is an ordinary proceeding, not a summary proceeding.
La. C. C. P. arts. 1879 and 2592. In this case, the parties tried the matter by summary proceeding.
Since no party objected, this judgment is a final judgment, and the parties have waived their right
to object. See Boyd v. Boyd, 499 So. 2d 164, 165 ( La. App. 2 Cir, 1986).
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execution.
Margaret stated that she did not recall Mr. Covell advising her to seek

independent counsel at the time the parties executed their pre -marital contract.

Steve countered Margaret' s testimony, testifying that he obtained the

parties' pre -marital contract from Mr. Covell' s office on October 8, 2002, the day

before the contract' s execution, and gave it to Margaret to review. Steve

corroborated Mr. Covell' s testimony, stating that Mr. Covell suggested to Margaret

that she seek independent counsel and she replied, " I don' t need to, it' s no big

deal." According to Steve, Margaret " knew way in advance that there was going

to be a [ pre -marital contract] ... she knew about [ it] for months[.]"

After considering the testimony from multiple witnesses and the evidence

submitted by the parties, the trial court made an oral ruling finding that the facts of

this case did not support a finding of duress and that the parties' pre -martial

contract was valid and enforceable. The trial court signed a judgment on

September, 19, 2018 in accordance with its oral ruling. Subsequently, Margaret

devolutively appealed the trial court' s judgment. The trial court signed an order on

October 29, 2018, granting Margaret a devolutive appeal.

On March 27, 2019, Steve filed a motion to supplement the record, stating

that "[ t]he original Marriage Contract was not located until March 19, 2019."

Therefore, Steve requested that the trial court allow the parties' original pre -marital

contract to be supplemented into the record. On May 8, 2019, the trial court

granted Steve' s motion to supplement the record.2

2 Although the trial court had the authority to supplement the record on appeal, normally this
court cannot review documents or rulings pertaining to matters that occurred after the appeal was
granted. Thibodeaux v. Rental Ins. Services, Inc., 2013- 1947 ( La. App. 1 Cir. 4/ 24/ 15), 2015
WL 1882456, at * 6, writ denied, 2015- 1213 ( La. 9/ 25/ 15), 178 So. 3d 567. However, in this
case, Margaret attached as an exhibit to her petition a copy of the pre -marital contract, which is a
copy of the original, and which has now been supplemented into the record by order of the trial
court.

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APPLICABLE LAW

A court' s determination about whether to issue a declaratory judgment is

subject to the abuse of discretion standard; however, the judgment itself is still

subject to the appropriate standard of review -questions of law are reviewed de

novo and questions of fact are subject to the manifest error/clearly wrong standard

of review. Robert v. Robert, 2015- 0313 ( La. App. 1 Cir. 2/ 25/ 16), 2016 WL

763881, at * I ( unpublished).

A trial court' s factual findings and credibility determinations may not be

set aside unless it is manifestly erroneous or clearly wrong. Berthelot v. Berthelot,

2017- 1055 ( La. App. 1 Cir. 7/ 18/ 18), 254 So. 3d 800, 806; McDaniel v. McDanie

35, 833 ( La. App. 2 Cir. 4/ 03/ 02), 813 So. 2d 1232, 1235. Moreover, an appellate

court should not disturb reasonable factual findings when there is conflict in the

testimony. Charles v. Price, 52, 688 ( La. App. 2 Cir. 5/ 22/ 19), 273 So. 3d 567, 572.

Where there is conflict in the testimony about factual matters, reasonable

evaluations of credibility and reasonable inferences of fact, the determination of

the trial court should not be disturbed upon review, even though the appellate court

may feel that its own evaluations and inferences are as reasonable. Berthelot, 254

So. 3d at 806- 07.

DISCUSSION

Validity of the Pre -Marital Contract

In her first two assignments of error, Margaret argues that the trial court

erred in allowing the introduction of a copy of the parties' pre -martial contract at

the hearing because it was not in authentic form. Specifically, Margaret argues

that the copy of the pre -martial contract was not admissible into evidence under

La. C.E. art. 1004 because Steve failed to timely produce the original pre -marital

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contract, and the two witnesses who signed the pre -martial contract did not offer

testimony at the hearing acknowledging their signatures. 3

As the party attacking the validity of the copy of the pre -martial contract,

Margaret bears the burden of providing evidence to invalidate it. See Estate of

Riggs v. Way -Jo, L.L.C., 2011- 1651 ( La. App. 1 Cir. 12/ 28/ 12), writs denied,

2013- 0239, 2013- 0246, 2013- 0253 ( La. 4/ 1/ 13), 110 So. 3d 5837. We must

determine whether the evidence presented by Margaret constitutes strong and

convincing proof that the copy of the parties' pre -martial contract was not

authentic. The record reveals that neither party contested the validity of their

signatures on the copy of the pre -marital contract. The record further reveals that

both parties offered into evidence a copy of the parties' pre -marital contract to

support their position and the original contract has been supplemented into the

record. If both parties offer identical copies of documents, indicating that there is

agreement between them as to their authenticity, the court may accept them. See

Boland v. West Feliciana Parish Police Jury, 2003- 1297 ( La. App. 1 Cir. 6/ 25/ 04),

878 So. 2d 808, 814, writ denied, 2004- 2286 ( La. 11/ 24/ 04), 888 So. 2d 231.

Because both parties submitted a copy of the pre -marital contract into evidence,

and the trial court allowed the record to be supplemented with the original, we find

3 Louisiana Code of Evidence article 1004 provides:

The original is not required, and other evidence of the contents of a writing,
recording, or photograph is admissible if:

1) Originals lost or destroyed. All originals are lost or have been destroyed,
unless the proponent lost or destroyed them in bad faith;
2) Original not obtainable. No original can be obtained by any available
judicial process or procedure;
3) Original in possession of opponent. At a time when an original was under
the control of the party against whom offered, he was put on notice, by the
pleadings or otherwise, that the contents would be a subject of proof at the
hearing, and he does not produce the original at the hearing;
4) Collateral matters. The writing, recording, or photograph is not closely
related to a controlling issue; or
5) Impracticality of producing original. The original, because of its location,
permanent fixture, or otherwise, cannot as a practical matter be produced in court;
or the cost or other consideration to be incurred in securing the original is
prohibitive and it appears that a copy will serve the evidentiary purpose.
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no error by the trial court in allowing the supplementation. See Id. Therefore,

Margaret' s assignments of error as to the pre -marital contract' s authenticity is
without merit.
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Consent to the Pre -Marital Contract

In her remaining assignments of error, Margaret argues that her consent to

the pre -marital contract was vitiated by fraud, duress, and/ or misrepresentation.

Therefore, Margaret argues that the pre -marital contract should be rescinded.

Margaret argues that the trial court erred in determining that the pre -marital

contract was valid and enforceable because Steve committed fraud and duress

when he failed to present a copy of the pre -marital contract to Margaret for review

prior to its execution. Specifically, Margaret argues that the trial court erred in

determining that duress was not present when Steve told her three days before their

wedding that she had to execute the pre -marital contract or their wedding would be

called off.
According to Margaret, she was not permitted sufficient time to have

independent counsel review the pre -marital contract. Margaret further argues that

she was under duress when signing the pre -marital contract due to her living

situation at that time and her ongoing custody dispute for her minor child with her

previous husband. Margaret alleges that she was forced to sign the pre -marital

contract because it was " detrimental to her custody battle" for her minor child.

A contract is formed by the consent of the parties. La. C. C. art. 1927; Perot

v. Perot, 46,431 ( La. App. 2 Cir. 8/ 10/ 11), 71 So. 3d 1123, 1125, writ denied, 2011-

2263 ( La. 11/ 23/ 11), 76 So. 3d 435. A contract has the effect of law for the parties

and may be dissolved only through the consent of the parties or on grounds

provided by law. La. C. C. art. 1983. Consent may be vitiated by error, fraud, or

duress. La. C. C. art. 1948. Consent is vitiated when it has been obtained by duress

of such a nature as to cause a reasonable fear of unjust and considerable injury to a

party' s person, property, or reputation. La. C. C. art. 1959. Age, health,

disposition, and other personal circumstances of a party must be taken into account

in determining reasonableness of the fear. La. C. C. art. 1959. Thus, under article

1959, duress is determined by using a subjective as well as objective standard. See

Averette v. Industrial Concepts, Inc., 95- 1286 ( La. App. 1 Cir. 4/ 30/ 96), 673 So. 2d

642, 644, writ denied, 96- 1510 ( La. 9/ 20/ 96), 679 So. 2d 442. A person' s personal

reaction to circumstances is the subjective element, while the reasonableness of the

fear and the unjustness of the injury based on how reasonable persons would react

to the circumstances make up the objective element. See Id.

The testimony of the parties revealed that the parties signed the pre -marital

contract three days before their wedding. While the record contains conflicting

testimony on when Margaret received a copy of the pre -marital contract to review,

the testimony and the evidence establishes that the pre -marital contract was

properly executed before a notary public and two witnesses. The record further

contains conflicting testimony as to whether Margaret was advised or given an

opportunity to seek independent counsel before signing the pre -marital contract.

Steve corroborated Mr. Covell' s testimony that Margaret was advised to seek

independent counsel before signing the pre -marital contract, but declined, while

Margaret testified that she was not advised to seek independent counsel.' After

hearing the conflicting testimony and evidence presented, the trial court concluded

that the pre -marital contract was valid and enforceable.

After reviewing the record, we find that the trial court' s factual findings in

this case are based largely on credibility determinations. We have determined that

the trial court correctly found that Margaret failed to prove her claim for fraud,

duress, and/ or misrepresentation to rescind the parties' pre -marital contract. The

trial court heard the testimony from all of the parties and witnesses and found the

4 A person signing a written contract is presumed to know its contents and cannot avoid its
obligations by contending that he did not read it, that no person explained it to him, or that he did
not understand it. Dulin v. Levis Mitsubishi, Inc., 2001- 2457 ( La. App. 1 Cir. 12/ 20/ 02), 836
So. 2d 340, 345, writ denied, 2003- 0218 ( La. 3/ 28/ 03), 840 So. 2d 576.

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testimony of Steve and Mr. Covell more credible than Margaret' s. See Patterson v.

Patterson, 51, 929 ( La. App. 2 Cir. 5/ 23/ 18), 247 So. 3d 1148, 1157- 58. The trial

court is in the best position to weigh the credibility of the witnesses, and we will

not disturb that credibility call. See Charles, 273 So.3d at 572. Although Margaret

alleged that her consent in signing the pre -marital contract was vitiated because of

duress, the record unequivocally established that there was no error in the cause of

the contract and the alleged duress was not of the type sufficient to vitiate her

consent. Therefore, we find that Margaret' s claim of duress as to the timeliness of

receiving the pre -marital contract and not having the ability to obtain independent

counsel have no merit.

Additionally, we find that Margaret' s allegation that she was under duress

when executing the pre -marital contract due to her " living situation" and pending

custody dispute irrelevant. Taking into account Margaret' s personal circumstances

at the time, in assessing the fear she might have been under, we find that the trial

court did not err in failing to find duress sufficient to vitiate her consent to the pre-

marital contract.
See Autin v. Autin, 617 So.2d 229, 234 ( La. App. 5 Cir. 1993),

writ denied, 620 So. 2d 846 ( La. 1993). Therefore, we do not find any error with

the trial court' s finding that Margaret' s claim of duress due to her personal

circumstances was not associated with Steve.

Lastly, we address Margaret' s allegation that she was under duress when

signing the pre -marital contract because of Steve' s position that he would not

marry her unless she signed the pre -marital contract. We find that the trial court

was not manifestly erroneous in finding that Steve' s position does not rise to the

level of duress -inducing threats sufficient to vitiate her consent. See La. C. C. art.

1959. A threat of doing a lawful act or a threat of exercising a right does not

constitute duress. La. C. C. art. 1962; Perque Carpet & Drapery, Ltd. v.

Boudreaux, 2010- 620 ( La. App. 5 Cir. 6/ 14/ 11), 70 So. 3d 930, 936. Thus,

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Margaret' s assertion that she agreed to sign the pre -marital contract because Steve

would not otherwise marry her does not amount to duress. See Vogt v. Vogt,

2002- 0066 ( La. App. 5 Cir. 10/ 29/ 02), 831 So.2d 428, 433, writ denied, 2002- 2894

La. 2/ 14/ 03), 836 So. 2d 120 ( wherein the trial court found that the defendant

agreeing to the pre -marital contract because the plaintiff would not marry him

otherwise to not be a cause of duress due to the contract being mutually

beneficially to both parties since they desired to marry.)

Accordingly, we agree with the trial court that Margaret failed to establish

that she signed the pre -marital contract under fraud, duress, and/ or

misrepresentation to vitiate her consent to the pre -marital contract. Lacking any

evidence that the consent of either party was vitiated by fraud, duress, and/ or

misrepresentation, we find no error in the trial court' s recognition of the validity of

the parties' pre -marital contract. See La. C. C. art. 1948. Margaret' s remaining

assignments of error have no merit.

CONCLUSION

For the foregoing reasons, we affirm the trial court' s September 19, 2018

judgment in favor of Steve Burtner and against Margaret Burtner. All costs of this

appeal are assessed to Margaret Burtner.

AFFIRMED.

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