Mildred Ellen Methvin v. James Thomas McManus

NOT DESIGNATED FOR PUBLICATION

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

10-1371

MILDRED ELLEN METHVIN

VERSUS

JAMES THOMAS MCMANUS

**********

APPEAL FROM THE
FIFTEENTH JUDICIAL DISTRICT COURT
PARISH OF LAFAYETTE, NO. C-2005-5234
HONORABLE PHYLLIS M. KEATY, DISTRICT JUDGE

**********

ELIZABETH A. PICKETT
JUDGE

**********

Court composed of Oswald A. Decuir, Elizabeth A. Pickett, and Shannon J.
Gremillion, Judges.

AFFIRMED.

Katherine P. Martin
Gretchen Heider Mayard
Martin Mayard, L.L.C.
P. O. Box 81338
Lafayette, LA 70598-1338
(337) 291-2440
Counsel for Defendant/Appellee:
James Thomas McManus

Bradley L. Drell
Michael J. Floyd
B. Gene Taylor III
Gold, Weems, Bruser, Sues & Rundell
P. O. Box 6118
Alexandria, LA 71307
(318) 445-6471
Counsel for Plaintiff/Appellant:
Mildred Ellen Methvin

PICKETT, Judge.

Ex-wife appeals judgment denying her motion to reform community property

settlement entered into by her and her ex-husband. We affirm the judgment.

FACTS

Mildred Methvin and James McManus were married January 2, 1988. Prior to

their marriage in December 1987, the couple executed a marriage contract in which

they renounced the community property regime provided for by Louisiana law and

contracted for a separate property regime. Ten years later, on March 18, 1998,

Mildred and James terminated their separate property regime and established a legal

regime of community property from that date forward. That same date, they each

transferred separate property they owned individually to the newly-established

community of acquets and gains.

Mildred filed for divorce in October 2005. On March 17, 2006, she and James

entered into a Stipulated Community Property Settlement (Settlement) in which they

divided the community property accumulated after they established the community

of acquets and gains. Subsequently, on March 30, 2006, a judgment of divorce,

which provided that the divorce terminated the community of acquets and gains

retroactive to October 7, 2005, and that each party was to retain the property set forth

in the Stipulated Community Property Settlement, was signed by the trial court.

In October 2009, James filed a Motion to Enforce Stipulated Community

Property Settlement Regarding Petitioner’s Federal Retirement Benefits, seeking to

enforce a provision of the Settlement that entitled each party to a portion of their

former spouse’s Civil Service Retirement System retirement benefits. The retirement

benefits provision reads:

1

The parties further agree that each is entitled to a portion of the
former spouse’s CSRS retirement benefits. The parties agree to timely
submit to the court, prior to their respective retirement dates, a mutually-
agreed court order for each party, directing the United States Office of
Personnel Management (OPM) to pay the former spouse’s share of the
retirement benefits directly to the former spouse in accordance with a
formula in accordance with Louisiana law. For purposes of the
computation, the parties agree that the community lasted 17.75 years,
from January 2, 1988, until October 7, 2005.

The Settlement then outlined in a footnote the formula espoused by the supreme court

in Sims v. Sims, 358 So.2d 919 (La.1978), for partitioning retirement benefits.

Mildred opposed James’s Motion, urging that the retirement benefits provision

contained an error that rendered it unenforceable as written. She asserted that

because the retirement benefits provision stated the community property regime

existed for 17.75 years, the number of years they had been married, rather than the

7.56 years it actually existed, it contained an error of fact that required it to be

reformed to reflect the community property regime existed for 7.56 years, not 17.75

years.

After a hearing, the trial court rendered judgment in favor of James. Mildred

appealed.

ISSUES FOR REVIEW

Mildred assigns three errors with the trial court’s judgment which present the

following issues for our consideration:

1. Whether a stipulation containing a known error of fact
entitles a party to an opportunity to retract or rescind the
stipulation.

2. Whether a stipulation containing an error of fact made
through ignorance of or a misapprehension of the true facts
entitles a party to an opportunity to retract the stipulation.

2

3. Whether the trial court erred in refusing to admit parol
evidence to allow appellant to demonstrate error that
vitiated consent as to the stipulation.

4. Whether the trial court erred in relying on the incorrect fact
that appellant drafted the community property partition in
making its decision to not allow parol evidence to prove
error that vitiated consent.

DISCUSSION

Error of Fact

Mildred contends the Settlement contains a known error of fact which was

included through ignorance of or misapprehension of the true facts; therefore, she is

entitled to retract the stipulation. She relies on La.Civ.Code art. 1853 as support for

her argument. Article 1853 provides:

A judicial confession is a declaration made by a party in a judicial
proceeding. That confession constitutes full proof against the party who
made it.

A judicial confession is indivisible and it may be revoked only on
the ground of error of fact.

Mildred’s argument fails for two reasons. First, the provision in the Settlement

concerning the length of time the community property regime existed was not a

judicial confession. Judicial confession is defined as “a party’s admission, or

concession, in a judicial proceeding of an adverse factual element, waiving evidence

as to the subject of the admission.” Jackson v. Gulf Ins. Co., 199 So.2d 886, 891, 250

La. 819, 832 (La. 1967). See also Leday v. Safeway Ins. Co. of La., 04-610 (La.App.

3 Cir. 11/17/04), 888 So.2d 1084. The length of time the community property regime

existed was known by Mildred and James. Therefore, it was not an issue in the

proceeding and was not an admission or concession of an adverse factual element as

contemplated by La.Civ.Code art. 1853.

3

Second, the “error” of which Mildred complains was made either through her

lack of diligence or negligence, not ignorance or misapprehension of the true facts,

or it was negotiated by her and James, as James argues. Mildred would not be

entitled to relief under either scenario. If the provision was negotiated, it was not an

“error” but a negotiated term of the Settlement. If it was an “error” made through

lack of diligence or negligence, Mildred would not be entitled to relief even if the

Settlement provision was a judicial confession. See Ubas for Use and Benefit of

Ubas v. La. Farm Bureau Mut. Ins. Co., 434 So.2d 199 (La.App. 4 Cir. 1983).

In Ubas, an insurer sought to invalidate a settlement on the basis of lack of

consent, urging that its agent’s error as to the limits of the policy it issued to its

insured constituted an error sufficient to vitiate its consent to the settlement. The

court rejected the argument, holding the insurer and its agent had a duty to know the

limits of the policy and the agent’s failure to fulfill that duty precluded the insurer

from claiming error on that basis. We acknowledge the insurer in Uba urged that its

consent to the settlement was vitiated by error, as provided in La.Civ. Code art. 1948,

but find the court’s reasoning applicable to Mildred’s argument under Article 1853.

See also Watkins v. Cawthon, 33 La.Ann. 1194 (1881); Nestor v. La. State Univ.

Health Sci. Ctr. in Shreveport, 40,378 (La.App. 2 Cir. 12/30/05), 917 So.2d 1273,

writ denied, 06-221 (La. 4/14/06), 926 So.2d 551, which indicate that only newly

discovered information which has a prejudicial impact on an adverse party warrants

application of Article 1853. For these reasons, we reject Mildred’s argument that the

Settlement contains a judicial confession made through an error of fact which justifies

revocation of the confession.

4

Parol Evidence

Mildred next argues the trial court erred in refusing to allow parol evidence to

correct the length of time the community property regime existed. She argues:

1) parol evidence should have been allowed to establish that the retirement benefits

provision contains an error that vitiates her consent to it and 2) it was error for the

trial court to interpret the retirement benefits provision against her because she did

not draft the Settlement.

As discussed above, Mildred’s first argument has no merit. Ubas, 434 So.2d

199 (La.App. 4 Cir. 1983). With regard to her second argument, La.Civ.Code art.

1848 prohibits the admission of testimony or other evidence to contradict the contents

of an authentic act except where it is used to prove vice of consent, simulation, or that

the written act was modified by a subsequent and valid oral agreement. The Civil

Code instructs that interpretation of a contract is the determination of the common

intent of the parties, La.Civ.Code art. 2045, then prohibits interpretation of a contract

when its words are clear and explicit and lead to no absurd consequences.

La.Civ.Code art. 2046. Thus, jurisprudence interpreting Article 1848 holds that

unless a contract is ambiguous, parol evidence is generally inadmissible to vary the

terms of the written contract. Ortego v. State, Dep’t of Trans. & Dev., 96-1322 (La.

2/25/97), 689 So.2d 1358.

The trial court did state in oral reasons that Mildred admitted she drafted the

Settlement; therefore, it had to be construed against her. We need not address this

comment, however, because Article 2056, the basis of the trial court’s comment,

applies only when there is doubt that cannot be resolved. Kenner Fire Fighters Ass’n

Local No. 1427, I.A.F.F. v. City of Kenner, 09-129 (La.App. 5 Cir. 9/29/09), 25 So.3d

5

147, writ denied, 09-2362 (La. 1/8/10), 24 So.3d 870. Neither the retirement benefits

provision nor the Settlement in its entirety is ambiguous as written; they are clear and

explicit. Accordingly, there is no doubt as to the meaning of the retirement benefits

provision, and the trial court did not err in refusing to allow parol evidence

concerning the length of time the community property regimes existed. Furthermore,

we find merit in James’s argument that it was unnecessary to specifically state the

number of years and the dates during which the community existed if he and Mildred

intended to partition her retirement benefits according to the formula provided in

Sims, 358 So.2d 919.

DISPOSITION

For these reasons, the judgment of the trial court is affirmed. All costs are

assessed to Mildred Methvin.

AFFIRMED.

6