Kenneth Paul Daigle v. Kimberly Crittenden Daigle

STATE OF LOUISIANA

COURT OF APPEAL, THIRD CIRCUIT

06-346

KENNETH PAUL DAIGLE

VERSUS

KIMBERLY CRITTENDEN DAIGLE

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APPEAL FROM THE
SIXTEENTH JUDICIAL DISTRICT COURT
PARISH OF IBERIA, NO. 99252-G
HONORABLE CHARLES L. PORTER, DISTRICT JUDGE
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GLENN B. GREMILLION
JUDGE

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Court composed of Sylvia R. Cooks, Michael G. Sullivan, and Glenn B. Gremillion,
Judges.

AFFIRMED IN PART
AND RENDERED.

Charles G. Fitzgerald
Ronald D. Cox
D.S. “Terry” Fitzgerald, Jr.
Cox Fitzgerald, L.L.C.
113 West Convent Street
Lafayette, LA 70501
(337) 233-9743
Counsel for Plaintiff/Appellant:
Kenneth Paul Daigle

Helen Popich Harris
321 W. Main St., Suite 2-D
Lafayette, LA 70501
(337) 291-6092
Counsel for Defendant/Appellee:
Kimberly Crittenden Daigle

GREMILLION, Judge.

The plaintiff, Kenneth Paul Daigle (Daigle), appeals the judgment in

favor of the defendant, Kimberly Crittenden Daigle (Crittenden). For the following

reasons, we affirm in part and render.

FACTUAL AND PROCEDURAL BACKGROUND

Daigle and Crittenden were married in 1994, and are the parents of one

minor child. On October 22, 2002, they jointly filed a “Petition for Approval of

Matrimonial Regime of Separation of Property,” which was approved, and a judgment

was rendered that same day.

In March 2005, Crittenden filed for divorce in a separate proceeding.

In that petition, she sought to enforce the “Partition of Community Property

Agreement” confected at the same time as the October 2002 separation of property

matrimonial regime. In April 2005, Daigle filed a “Petition to Annul Partition of

Community Property Agreement” grounded on lesion beyond moiety. In May 2005,

Crittenden filed peremptory exceptions of res judicata, no cause of action, no right

of action, and prescription. A hearing was held in June 2005, at which the trial court

found that the partition agreement was part of the matrimonial agreement and granted

Crittenden’s exceptions of res judicata, no cause of action, and prescription. The trial

court dismissed Daigle’s petition to annul.

Daigle filed a Motion for New Trial in August 2005, pertaining to the

October 2002 hearing, which was denied. Daigle then filed another Motion for New

Trial in September 2005, pertaining to the June 17, 2005 hearing, urging that he be

allowed to amend his petition to annul, which was also denied. He then filed a Notice

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of Intention to Seek Supervisory Writs to this court pertaining to the December 2005

judgment denying his second Motion for New Trial. Daigle now appeals and assigns

as error:

1. The trial court’s failure to find the matrimonial agreement invalid due
to statutory deficiencies in that it does not satisfy the statutory
requirements of La.Civ.Code art. 2329.

2. The trial court erred in not finding the partition agreement invalid due
to statutory deficiencies in that the partition agreement does not meet the
statutory requirements of La.Civ.Code art. 2329.

3. The trial court erred in failing to find the partition agreement void as
against public policy because the agreement unconditionally obligates
Daigle to pay Crittenden final periodic spousal support regardless of
fault, need, or ability to pay.

4. Alternatively, the trial court erred in finding that the partition
agreement was not assailable for lesion and thereby granting
Crittenden’s peremptory exceptions of res judicata, no cause of action,
and prescription.

Crittenden thereafter filed a motion to strike, or alternatively, to

consolidate and supplement, urging that Daigle’s four assignments of error are new

issues that were not asserted in the trial court. We agree that Daigle’s first two

assignments of error are not properly before this court pursuant to Uniform Rules,

Court of Appeal, Rule 1-3. Accordingly, they will not be addressed. We will treat

assignment of error number four as an appeal from the trial court’s grant of

Crittenden’s exception of res judicata, no cause of action, and prescription.

DISCUSSION

Daigle argues that the Partition Agreement was extrajudicial and,

therefore, subject to recision on account of lesion pursuant to La.Civ.Code art. 814.

However, the “Contract for Separation of Property Regime,” approved by the trial

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court, specifically states:

2. Appearers ratify and confirm the Partition of Community
Property executed of even date herewith; the property that was
transferred to Appearer, KENNETH PAUL DAIGLE, shall hereafter be
his separate and paraphernal property under his separate administration
and control and the property that was transferred to Appearer,
KIMBERLY CRITTENDEN DAIGLE, shall hereafter be her separate
and paraphernal property under her separate administration and control.

3. Appearers recognize and acknowledge that each of them is the
owner of separate property, including, but not limited to, the property
listed in the Partition of Community Property[.]

Testimony was presented at the hearing on the motions. Warren Rush,

a practicing attorney for more than forty years, testified that he prepared the lengthy

documents partitioning the community property along with the separation of property

contract. He stated that he appeared before the trial court in chambers on October 22,

2002. Rush said that Daigle was present with his attorney. He testified that Judge

Conery reviewed all of the documents and asked the parties if they agreed to the

documents.

Daigle, who was apparently a very successful stockbroker with Merrill

Lynch, testified that he did not review the partition agreement before he signed it. He

stated that Judge Conery did not ask him any questions and that he just signed the

documents relying on his wife to do the right thing.

The trial court provided extensive written reasons for judgment finding

that res judicata applied to these facts because the parties were identical in both suits,

the prior judgment was rendered by a court of competent jurisdiction, there was a

final judgment on the merits, and the same claim or cause of action was involved in

both cases. See Burguieres v. Pollingue, 02-1385 (La. 2/25/03), 843 So.2d 1049. As

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to the partition of community property, the trial court stated in the instant case:

The Community Partition had an extensive list of moveable and
immovable property designating the party to whom the property
belonged. The judgment specifically states that the parties were entitled
to approval of their Contract for Separation of Property Regime. This
court finds the judgment approving the Separation of Property Contract
(which included the Community Property Partition) is a consent
judgment and became a final judgment. The court sustains the exception
of res judicata.

....

Ken and Kim filed a joint petition to be declared separate property. On
that same date, and at that same time, they executed a community
property partition agreement incorporated into the separation of property
contract which was approved by judgment of the court. This partition
agreement became a judicial partition as opposed to an extra-judicial
partition. Accordingly, the petition of Ken Daigle fails to state a cause
of action.

We agree. Despite Daigle’s claims to the contrary, the Community

Property Partition was part and parcel of the Contract for Separation of Property

Regime. Daigle’s request that the trial court partition the community property merely

asks the trial court to do what was already done in 2002. The partition was not an

extrajudicial partition, but one approved by the trial court in October 2002. Therefore,

the consent judgment was final. See Thibodeaux v. Thibodeaux, 511 So.2d 102

(La.App. 3 Cir. 1987); Allen v. Allen, 01-0213 (La.App. 3 Cir. 6/6/01), 787 So.2d

1226. At that time, Daigle had options available to him to seek reversal of the

judgment. Those options have prescribed and no longer exist.

However, we do note that Exhibit A-1 to the partition of community

property agreement listing Daigle’s liabilities states (emphasis added):

(4) KENNETH PAUL DAIGLE agrees that as further consideration for
KIMBERLY CRITTENDEN DAIGLE executing this Agreement, he
does herewith agree to pay unto KIMBERLY CRITTENDEN DAIGLE

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for the rest of her natural life any and all expenses, costs and amounts
whatsoever expended by KIMBERLY CRITTENDEN DAIGLE for and
on her own behalf and/or pertaining to the child, ANNIE LAURIE
DAIGLE, including, but not limited to, amounts sufficient to provide
properly for the maintenance, support, comfort and welfare of the
according to a living standard similar to that which KIMBERLY
CRITTENDEN DAIGLE and/or ANNIE LAURIE DAIGLE are
presently accustomed and/or for the education (at a private school) or
maintenance, support, comfort, welfare and medical care of KIMBERLY
CRITTENDEN DAIGLE and/or ANNIE LAURIE DAIGLE in the event
of injury, illness, hospitalization or infirmity.

This provision of the agreement is in contravention of public policy as set forth in

Williams v. Williams, 99-1101, pp. 9-10 (La.App. 3 Cir. 4/12/00), 760 So.2d 469,

474-75, writ denied, 00-1929 (La. 10/27/00), 772 So.2d 123, where we stated:

Article 111 provides for an award of final periodic spousal support “to
a party free from fault prior to the filing of a proceeding to terminate the
marriage based on the needs of that party and the ability of the other
party to pay, in accordance with the following Articles.” La.Civ.Code
art. 112 provides certain relevant factors the court must consider “in
determining the entitlement, amount, and duration of final support.”
La.Civ.Code art. 114 provides that an “award of periodic support may
be modified if the circumstances of either party change, and shall be
terminated if it has becomes unnecessary.” In La.Civ.Code art. 115, the
obligation of spousal support is extinguished by, among other things, the
remarriage of the obligee or a judicial determination that the obligee has
cohabited with another person of either sex in the manner of married
persons. Considering the intent of the legislature in the promulgation of
the aforementioned, articles, one could easily conclude that it is against
public policy to allow a spouse to obligate him/herself, by matrimonial
agreement, to pay permanent periodic spousal support, regardless of a
determination of fault, need, or ability to pay. We, therefore, find, as we
did in Boudreaux [v. Boudreaux, 98-791 (La.App. 3 Cir. 6/2/99), 745
So.2d 61], that such an agreement is void as against public policy, and,
accordingly, unenforceable.

Accordingly, we find this provision of the agreement to be an absolute nullity as it

violates a rule of public order and it is, therefore, unenforceable. See La.Civ.Code

art. 2030. An action for annulment of an absolutely null contract does not prescribe.

La.Civ.Code art. 2032. Further, we find this provision is severable from the

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remainder of the rest of the extensive agreement as provided for in the contract for

separation of property regime:

5. If any of the provisions of this Contract for Separation of Property
Regime should be held invalid, such invalidity shall not affect the other
provisions hereof, which can be given effect without the invalid
provisions, and to this end, the parties do hereby declare that the
provisions of this Contract for Separation of Property Regime are
severable.

Finally, we note that Crittendon is protected by state law relative to the

excised provision of the agreement as she may pursue permanent support under

La.Civ.Code arts. 111 et seq. and child support under the existing guidelines found

in La.Civ.Code art. 141 and La.R.S. 9:315 et seq.

CONCLUSION

The judgment of the trial court granting the defendant-appellee,

Kimberly Crittenden Daigle’s, exception of res judicata, no cause of action, and

prescription are affirmed. That portion of the matrimonial agreement awarding

permanent periodic support is null. All costs of this appeal are assessed against the

plaintiff-appellant, Kenneth Paul Daigle.

AFFIRMED IN PART AND RENDERED.

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