Danielle Clark v. Joseph Myer Clark

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

03-0353

DANIELLE CLARK

VERSUS

JOSEPH MYER CLARK

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APPEAL FROM THE
THIRTEENTH JUDICIAL DISTRICT COURT
PARISH OF EVANGELINE, NO. 64202-A
HONORABLE ALLEN BRUCE ROZAS, DISTRICT JUDGE

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OSWALD A. DECUIR
JUDGE

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Court composed of Oswald A. Decuir, Michael G. Sullivan, and Elizabeth A. Pickett,
Judges.

JUDGMENT VACATED AND REMANDED.

Kathy F. Meyers
Attorney at Law
P. O. Drawer 450
Ville Platte, LA 70586
(337) 363-5596
Counsel for Plaintiff/Appellee:
Danielle Clark

Joseph Myer Clark, III
In Proper Person
1569 Fusilier Road
Mamou, LA 70554

DECUIR, Judge.

Joseph Clark, III, who is not a lawyer, represents himself in this case. He

appeals from a default judgment granting his wife a divorce and custody of the minor

children. For the reasons that follow, the judgment of the trial court is vacated, and

the case remanded to the trial court.

FACTS

On August 1, 2002, Danielle Clark filed a petition for divorce and sole custody

of the minor children. On August 26, 2002, personal service was made upon Joseph

at the David Wade Correctional Facility in Homer, Louisiana. By virtue of his

incarceration, Joseph was unable to attend the August 27, 2002, rule to show cause

why custody should not be granted to Danielle. However, on September 3, 2002,

Joseph filed an answer to Danielle’s petition for divorce. This is evidenced by the

answer in the record and a letter from the clerk of court notifying Joseph that the

answer had been filed and that additional fees would be necessary to have it served.

On September 24, 2002, Danielle filed a motion for preliminary default

alleging that Joseph had been served and failed to appear or file pleadings. The

motion was granted by the trial court. On October 29, 2002, the trial court entered

a judgment confirming the default and granting Danielle a divorce.

Joseph filed supervisory writs to this court which were denied because of the

existence of an appealable judgment. Subsequently, Joseph lodged this appeal

seeking reversal of the trial court’s judgment, alleging that the trial court erred in

granting a divorce in favor of Danielle without allowing him to be heard.

DISCUSSION

Louisiana Code of Civil Procedure Article 5051 requires that the articles of the

Code be construed liberally and with due regard for the fact that rules of procedure

implement the substantive law and are not an end in themselves. Likewise, the Code

provides that the appellate court is to render any judgment which is just, legal, and

proper upon the record on appeal. La.Code Civ.P. art. 2164. Accordingly, we

construe Joseph’s appeal as a request to have the judgment declared an absolute

nullity.

The basis for finding a judgment absolutely null is found in La.Code Civ.P. art.

2002, which reads:

A. A final judgment shall be annulled if it is rendered:

(1) Against an incompetent person not represented as required by
law.

(2) Against a defendant who has not been served with process as
required by law and who has not waived objection to jurisdiction,
or against whom a valid judgment by default has not been taken.

(3) By a court which does not have jurisdiction over the subject
matter of the suit.

B. Except as otherwise provided in Article 2003, an action to annul a
judgment on the grounds listed in this Article may be brought at any
time.

(Emphasis added)

This court in American Bank & Trust Co. v. Marbane Invs., Inc., 337 So.2d

1209 (La.App. 3 Cir.1976), stated that if the nullity of a judgment is patent on the

face of the record, a party attacking the judgment is not required to bring a direct

action to obtain the declaration of nullity.

In the present case, Joseph filed an answer to Danielle’s petition. Joseph’s

appellate brief asserts that his answer had been filed and the record contains the

answer and the date of its filing. Louisiana Code of Civil Procedure Article 1701

allows entry of a judgment by default only against a defendant who has failed to

answer. Joseph filed his answer on September 3, 2002. The confirmation of default

was taken on October 29, 2002. Article 2002(A)(2) states that a final judgment may

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be annulled if it is taken against a defendant against whom a valid judgment by

default has not been taken. The judgment by default that Article 2002(A)(2) refers

to is the Article 1701 judgment by default, not the Article 1702 confirmation of

default. A final default judgment obtained without a valid preliminary default is an

absolute nullity. Livingston Parish Police Jury v. Patterson, 589 So.2d 9 (La.App.

1 Cir. 1991).

When Danielle confirmed the default on October 29, 2002, a valid judgment

by default had not been taken against Joseph; therefore, the confirmation of default

judgment was absolutely null under Article 2002(A)(2). The invalidity is patent on

the face of the record.

For the above reasons, we vacate the judgment of the trial court. The case is

remanded to the trial court for further proceedings. All costs of these proceedings are

taxed to appellee, Danielle Clark.

JUDGMENT VACATED AND REMANDED.

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