Christopher B. Nash v. Stephanie Nash

Judgment rendered August 28, 2024.
Application for rehearing may be filed
within the delay allowed by Art. 2166,
La. C.C.P.

No. 55,848-CA

COURT OF APPEAL
SECOND CIRCUIT
STATE OF LOUISIANA

*****

CHRISTOPHER B. NASH Plaintiff-Appellee

versus

STEPHANIE NASH Defendant-Appellant

*****

Appealed from the
First Judicial District Court for the
Parish of Caddo, Louisiana
Trial Court No. 610,891

Honorable Edwin Henry Byrd, III, Judge

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WALTER F. JOHNSON, III Counsel for Appellant

LAW OFFICES OF J. DHU THOMPSON Counsel for Appellee
By: J. Dhu Thompson

*****

Before PITMAN, THOMPSON, and MARCOTTE, JJ.

THOMPSON, J., concurs with written reasons.

MARCOTTE, J., concurs in the result.

PITMAN, C. J.

Defendant-Appellant Stephanie Nash appeals the denial of a motion to

annul a consent judgment because of error as to cause. For the following

reasons, we affirm in part and reverse in part the judgment of the trial court

but remand for further findings consistent with this opinion.

FACTS

Plaintiff-Appellee Christopher B. Nash and Stephanie were married

and are the parents of two daughters. The parties separated and divorced in

Caddo Parish. In 2018, when both children were minors, a custody decree

was entered whereby Christopher was ordered to pay child support in the

amount of $1,252.92 per month retroactive to September 2018. Stephanie

filed a rule for contempt against Christopher for nonpayment of child

support and arrearages; however, the award of arrearages was not considered

for years.1

In May 2022, the trial court issued a 20-page partition judgment

relating to community assets, expenses and obligations. Pursuant to a

detailed descriptive list, the trial court determined the cash available to the

parties in various bank, 401(K), annuity and trade accounts, as well as some

refund checks due to them, equaled $69,416.94. It also valued property each

party had in his/her possession and determined that Stephanie’s value was

$3,474 and Chrisotpher’s was $2,090. The equity in their family home was

$10,977.64. The gross value of community assets was determined to be

$88,948.88.2

1
These arrearages will be discussed later in this opinion.
2
There is a discrepancy between what the trial court determined the value to be
and what this court has calculated it to be. One-half of $88,948.88 is $44,474.44.

The trial court also determined that Christopher had reimbursement

claims of $23,506.88 for his agreement to pay certain community debts,

which Stephanie could not afford to pay. Stephanie was awarded possession

of movables worth $7,589. The family home had already been sold; the

equity in the home was $10,977.64, which the parties agreed to split equally

at $5,488.82.

Also at issue in these proceedings was the value of a fifth-wheel RV,

referred to by the judge as a camper, which was owned by the couple and

was mortgaged. The partition judgment provided that the trial court had not

assigned any value to the camper because it only represented a possible

offset against the debt encumbering it. The camper was not listed in the

detailed descriptive list, but the trial court ordered it to be sold and the sale

proceeds applied to the $35,727.43 outstanding debt and, further, that the

parties should continue to pay the note until the debt was extinguished.3

The decretal language of the partition judgment states as follows:

[T]he court rules that Stephanie Nash is entitled to $44,474.31
representing her half of the gross community, less the $7589
she has been awarded in corporeal movables, for a net interest
in the remainder of the gross community of $36,885.31. This
must also be offset by the $23,506.88 she owes Christopher
Nash in reimbursement claims. This leaves Stephanie with a
pre-debt claim on the gross value of the community of
$13,378.43. A disbursement to her of her half of the equity (in
the house) will further reduce this interest, hereinafter referred
to as the Residual Interest, to $7,889.61. (1/2 of equity is
$5,488.82).

After finding the amount of gross community, Christopher’s

entitlement to reimbursement for payments of community debts of

$23,506.88, deductions for movables in his possession and disbursement of

3
This court has not been informed of the ultimate disposition of the camper.
2

the funds for equity in the family home, the trial court determined his

residual interest in the community to be $60,127.37.

The judgment also states:

IT IS HEREBY ORDERED, ADJUDGED AND DECREED
that once the residual interest of Stephanie is calculated after
sale se (sic) is awarded the remaining amount of her Residual
Interest from the liquid assets of the community up to the full
value. She shall receive funds from each of the following
accounts until they are exhausted in sequence up to the full
amount of her residual interest.
A. Capital One Checking Account #5250
B. Aneca Federal Credit Union checking #7153
C. Nash Systems Checking Account
D. Nash Systems Savings Account
E. The E-Trade account in the name of Christopher Nash
F. Christopher Nash New York Life Annuity Account

IT IS HEREBY ORDERED, ADJUDGED, AND DECREED
that once satisfaction of Stephanie Nash’s Residual Interest has
been satisfied that Christopher Nash is awarded the remainder
of the residual community property as sole owner.

Stephanie filed a motion for a new trial, claiming one was necessary

for several reasons, including the decision regarding the RV, because she

believed the trial court misunderstood the alleged waiver of her rights to

spousal support. In her motion for new trial, she stated that she had

sacrificed interim spousal support because Christopher was able and willing

to pay community debts and she was not. She claimed that this had been

discussed at a pretrial conference with a different trial judge and was not on

the record. She stated that the partitioning judge had mistakenly assumed

she was giving up all claims to spousal support in return for Christopher

paying the house note, which she says is inaccurate.

Yet another judge, sitting pro tempore, found that Stephanie’s remedy

was more properly a motion to amend the partition judgment and so denied

the motion for new trial in August 2022.

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Stephanie filed a “Motion to Reset Hearing to Modify Custody,

Establish Child Support, other Incidental Matters and Set Spousal Support.”

She alleged that the parties met in January 2019 to discuss their financial

status and establish interim spousal support. At that time, the parties agreed

in chambers that since Christopher was paying all the community debts and

obligations, Stephanie was not awarded interim spousal support. She also

alleged that since that time, Christopher never paid any spousal support but,

instead, paid all the community debts and obligations. He has since

requested reimbursement for those same payments. She reinstated her claim

for interim spousal support for the 18 months from the date of Christopher’s

filing of divorce to the final judgment rendered on January 30, 2020.

A rule nisi was issued in which Christopher was ordered to appear and

show cause why he should not be held in contempt for nonpayment of child

support arrearages and extra expenses, why permanent child support should

not be established and why spousal support should not be established from

the date of separation until final judgment of divorce was rendered.

A hearing was held on January 11, 2023, and the last judge who

considered this case signed a consent judgment on March 7, 2023, granting

custody of the remaining minor child to Stephanie and awarding her child

support in the amount of $973.79 per month, payable biweekly, and payment

of medical and dental bills. The parties also agreed that the amount of child

support in arrears and other incidental expenses totaled $12,611.92.

While conveying the parties’ consent to the agreement, Christopher’s

attorney stated:

The arrears and any underpaid medical and extracurricular
which totals $12,611.92, this compromise will be---a credit will

4

be given by Christopher to Stephanie against the community
debt that is the subject of another judgment.

Stephanie’s attorney addressed the issue and stated:

The arrears that are tallied at $12,611.92 that have been asserted
and agreed upon here today represent the child support arrears,
the medical out-of-pocket arrears and the extracurricular
arrears. So as of today’s agreement, there will be no further
arrears as to anything going forward on those issues, and the
parties going prospective on the child support. This is credited
against the property judgment that tallies around $55,000. . . .
And I believe with regards to the spousal support issues, those
are deemed moot as part of this agreement.

The consent judgment signed by the trial court restated the terms that

the amount of $12,611.92 “shall be credited by Christopher B. Nash to

Stephanie Nash against the community debt that is the subject of the

community property settlement.” The consent judgment also states that

any/all spousal support issues are deemed moot as part of this agreement.

Less than a month later, Stephanie filed another “Rule to Show Cause

for Consent Judgment to be Annulled and Other Matters.” She claimed

there had been a misunderstanding and error surrounding the application of

the $12,611.92 child support judgment to the alleged debt she owed

Christopher for paying off community debts. Further, she claimed he was

supposed to pay her the residual interest of $7,889.61 from their joint

accounts and keep the rest for himself. She also claimed that she and her

attorney “misunderstood” the consent judgment and that the money she

allegedly owed him was already in the bank accounts in Christopher’s

possession, which included community funds.

Stephanie prayed that a hearing be held and that the consent judgment

be annulled, that a new trial on child support arrearages and extra expenses

be held, that a judgment be rendered against Christopher for the money

5

owed to her under the judgment for child support arrearages and that an

order for payment to her for her residual interest in the community property

in the amount of $7,889.61 be rendered and enforced pursuant to the original

partition judgment.

A hearing was held on June 15, 2023, before the same judge who had

signed the consent judgment. The trial court considered whether the error in

the judgment was a unilateral or a bilateral error. Stephanie testified that she

had believed she owed Christopher money, but later realized she did not.

Christopher testified that he also believed Stepanie owed him money.

Despite this confusion, the trial court denied Stephanie’s rule to show cause.

Stephanie appeals the judgment of the trial court.

DISCUSSION

Stephanie appeals the judgment rendered in January 2023 on the basis

that a bilateral error and misunderstanding of the facts produced a failure of

consent and cause. She argues that a consent judgment is a contract between

the parties and, as such, may be annulled for error of fact or of the principal

cause of the agreement. The basic principles of contract interpretation

apply, including the determination of the common intent of the parties in

forming the contract.

She argues that on the date the matter was heard in January, she did

not expect any issues other than custody, child support and other expenses to

be addressed. She did not have a copy of the original partition judgment

with her; and when Christopher’s attorney began asserting that she owed

Christopher $55,000, she became confused. She stated that it was only

because she was unaware that she did not owe him any money that she

agreed to the allocation of the $12,611 to the alleged debt. For this reason,
6

she contends that the cause of the consent judgment was to reduce some of

the debt she erroneously assumed she owed to Christopher, which she later

realized was incorrect, and that Christopher actually owed her money. The

error as to principal cause became apparent and the annulment of the consent

agreement became necessary. She asserts that error vitiates consent when it

concerns a cause without which the obligation would not have been

incurred.

She further argues she would not have agreed to reimburse

Christopher for anything she did not actually owe to him, including crediting

child support arrearages he had never paid. She contends that while

unilateral error is enough to vitiate this contract, there was actually bilateral

error, because Christopher also believed she owed him money, but she did

not. She claims that Christopher’s interpretation is not borne out by a

reading of the community partition judgment rendered in May 2022.

Christopher argues that there is no basis upon which this consent

judgment should be annulled. He contends that the purpose of the hearing

on January 11, 2023, was to discuss custody and support of the parties’

minor children. He claims that Stephanie’s attorney advised the court that

the parties had reached an agreement on all matters pending before it and

that the agreement included child support in the amount of $973.39 per

month and that Stehpanie had agreed to a “compromise” giving him credit

for the full amount of child support arrearages and related expenses in the

amount of $12,611.92 to offset the community debt she owed to him. He

also argued that his attorney confirmed the agreement and made it clear that

it extinguished any alleged arrearages in exchange for a credit in the same

7

amount toward the approximately $55,000 owed to him as ordered in the

partition judgment.

Christopher further argues that compromise agreements with the

purpose of avoiding litigation are favored in the law and should not be held

void without a clear showing that the agreement violates good morals or the

public interest. For these reasons, he contends the trial court correctly

denied the motion to annul the consent judgment.

A husband and wife’s agreement to partition community property is a

transaction and compromise as contemplated by La. C.C. art. 3071. Branton

v. Branton, 52,570 (La. App. 2 Cir. 5/22/19), 273 So. 3d 666. A

compromise is a contract whereby the parties, through concessions made by

one or more of them, settle a dispute or an uncertainty concerning an

obligation or other legal relationship. La. C.C. art. 3071. A compromise

shall be made in writing or recited in open court, in which case the recitation

shall be susceptible of being transcribed from the record of the proceedings.

La. C.C. art. 3072. It settles only those differences that the parties clearly

intended to settle, including the necessary consequences of what they

express and precludes the parties from bringing a subsequent action based

upon the matter that was compromised. La. C.C. art. 3076; La. C.C.

art. 3080. A compromise agreement, like other contracts, is the law between

the parties and must be interpreted according to the parties’ true intent.

Suire v. Lafayette City-Par. Consol. Gov’t, 04-1459 (La. 4/12/05),

907 So. 2d 37; McCartney v. McCartney, 52,209 (La. App. 2 Cir. 8/15/18),

256 So. 3d 1101.

8

A consent judgment is a bilateral contract wherein the parties adjust

their differences by mutual consent and thereby put an end to a lawsuit with

each party balancing the hope of gain against the fear of loss. Williams v.

Williams, 586 So. 2d 658 (La. App. 2 Cir. 1991). A consent judgment has

binding force from the acquiescence of the parties and not from the

adjudication of the court. Id. Thus, consent judgments, as opposed to other

final judgments which are rendered against a party without consent, may be

annulled for error of fact or of the principal cause of the agreement. Id.

A contract may be invalidated for unilateral error as to a fact which

was a principal cause for making the contract, where the other party knew or

should have known it was the principal cause. Williams, supra. However, a

consent judgment needs no other cause or consideration than an adjustment

of differences and a desire to set at rest all possibility of litigation. Id.

Consent to a contract may be vitiated by error, fraud or duress. La.

C.C. art. 1948; Haygood v. Haygood, 52,435 (La. App. 2 Cir. 1/16/19),

264 So. 3d 1226. Error vitiates consent only when it concerns a cause

without which the obligation would not have been incurred and that cause

was known or should have been known to the other party. La. C.C.

art. 1949. Cause is a reason why a party obligates himself. La. C.C.

art. 1967. Thus, there are three elements that a party claiming error must

prove to obtain relief from the contract: (1) that he was in error, (2) the error

concerned a “cause” and (3) the other party knew or should have known of

that cause. Haygood, supra.

The requirement that the party seeking enforcement of the contract

have actual or constructive knowledge of the errant party’s affected cause

creates an objective standard for establishing consent to a contract.
9

Haygood, supra. The mere lack of a subjective meeting of the minds does

not prevent formation of an enforceable contract. Id.

While only one party’s reason or cause for the contract is wrongly

expressed in his consent to the contract, that error alone will not allow for

rescission of the contract unless the other party can be said to be responsible

for his knowledge, actual or constructive, of the mistaken reason of the first

party. Saul Litvinoff, “Error” in the Civil Law, Essays on the Civil Law of

Obligations (J. Dainow ed. 1969), (where under the subcaption “The

Problem of Mutual Error,” Professor Litvinoff reviews the source article to

Article 1949, former Article 1826); Revision Comment (d), La. C.C.

art. 1949. While not the same as mutual mistake affecting the cause of both

parties’ obligations, the sharing of mistake addressed in article 1949 makes

neither party innocent of the error, thus invalidating the expression of mutual

intent in their contract. Litvinoff, supra. Rescission, or partial rescission in

the case of reformation, applies. Id.

Even where the elements of vitiation of consent as it relates to cause

are proven by a party, Louisiana courts refuse to grant relief to the errant

party if the error is deemed “inexcusable.” Peironnet v. Matador Res. Co.,

12-2292 (La. 6/28/13), 144 So. 3d 791, citing Saul Litvinoff, Vices of

Consent, Error, Fraud, Duress and an Epilogue on Lesion, 50 La. L. Rev. 1

(1989). Excusable error is one in which the party in error did not fail to take

elementary precautions that would have avoided his falling into error, such

as making certain that he was reasonably informed. Id. Otherwise, the error

is regarded as inexcusable, in which case the party does not obtain relief. Id.

Personal circumstances of the party in error, such as age, experience and

profession, are to be considered. Id. An error made by a professional person
10

concerning a matter within his field of expertise would no doubt be regarded

as inexcusable. Id.

The trial judge’s findings of fact regarding a party’s error claim are

subject to manifest error review. Haygood, supra. Where there are two

permissible views of the evidence, the trial court’s choice between them can

virtually never be manifestly erroneous or clearly wrong. Rosell v. Esco,

549 So. 2d 840 (La. 1989). Findings based upon evaluations of the

credibility of the parties are not manifestly erroneous and will not be

overturned on appeal. Id.

This was by no means an easy case to try or reconcile; however, we

believe the entire case was flawed by the fact that no less than four trial

judges adjudicated the matter and that it lasted from 2018 until 2023.

Stephanie’s confusion resulting in the error was excusable. Christopher’s

confusion seems less excusable. However, confusion reigned supreme in

this case since no one, not even the trial court, seemed to understand that

Stephanie did not owe Christopher for any further reimbursement pursuant

to the partition.

We find that there was bilateral error in the consent agreement and

mutual error as to cause. As to this consent judgment, we affirm all the

agreements between the parties except those related to the application of

child support arrearages to the reimbursement debt of the partition. We

reverse insofar as it relates to the allocation of the child support arrearages to

Christopher’s claim for reimbursement in the partition. The application of

arrearages in child support and other debts to the claim for reimbursement is

unfair. Stephanie’s portion due to her from the partition had already been

reduced by $23,506.88 when the final partition was signed, which is why
11

Stephanie was only due $7,889.61 from the former matrimonial assets. The

child support arrearages of $12,611.92 were owed to her by Christopher and

should not be applied to reduce the $23,506.88 because that amount had

already been deducted from her portion and that is a final judgment.

Further, Christopher is still in possession of all of the cash accounts from

which he is to pay Stephanie her share.

We are not aware if Christopher has paid Stephanie any portion of the

marital estate to which she is entitled pursuant to the partition, but she is

entitled to payment of her portion of the partition from the cash accounts in

Christopher’s possession. The partition judgment is clear on how the funds

should be distributed, coming from the cash accounts that are in

Christopher’s possession until she is paid, and he retains the remaining funds

to meet the amount he is due.

Because it was improper to apply the child support arrearages to the

alleged debt, pursuant to this decision, Chistopher is liable to Stephanie for

$12,611.92 in child support arrearages.

Accordingly, this assignment of error has merit.

CONCLUSION

For the foregoing reasons, the judgment of the trial court denying the

request of Defendant-Appellant Stephanie Nash to annul the consent

judgment is reversed insofar as it relates to the application of the $12,611.92

child support arrearages to the claim for reimbursement in the partition

judgment. In all other respects, the judgment is affirmed. The matter is

remanded for modification of the consent decree to reflect that the arrearages

in child support are due to Stephanie Nash and are not to be applied to any

alleged debt of the partition agreement. Instead, Plaintiff-Appellee
12

Christopher B. Nash shall pay Stephanie her portion of the partitioned

community, $7,889.61 in accordance with the partition judgment and owes

her $12,611.92 in child support arrearages. Costs of this appeal are assessed

to Christopher B. Nash.

AFFIRMED IN PART, REVERSED IN PART AND

REMANDED WITH INSTRUCTIONS.

13

THOMPSON, J., concurs.

While not directly identified as an assignment of error but potentially

embedded in the matter before the court, an issue is whether we are charged

with revisiting the math in determining the residual interests of the parties.

If we are, I find no language in the partition judgment or the consent

judgment that creates an obligation of the wife to make payment to the

husband of his residual interest of $60,127.37 specified in the partition

judgment. If the wife was under the impression that she was responsible for

funding his residual interest, she was mistaken. The husband was made

whole by assets of the former community, and any additional amount he

might claim to be owed from her would be a windfall. Any lingering

obligations and claims between the former spouses were resolved in the

consent judgment, which established the wife is entitled to a credit of the

child support arrearage of $12,611.92 against her portion camper loan

deficiency.

1