Michael Hindelang, III v. Regina Louviere Hindelang

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

12-1031

MICHAEL HINDELANG, III

VERSUS

REGINA LOUVIERE HINDELANG

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APPEAL FROM THE
FIFTEENTH JUDICIAL DISTRICT COURT
PARISH OF LAFAYETTE, NO. C-2008-1114, Div. “D”
HONORABLE EDWARD D. RUBIN, DISTRICT JUDGE

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ELIZABETH A. PICKETT
JUDGE

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Court composed of Sylvia R. Cooks, John D. Saunders, Elizabeth A. Pickett,
James T. Genovese, and Shannon J. Gremillion, Judges.

Gremillion, J., dissents and assigns written reasons.
Saunders, J., dissents for the reasons assigned by Judge Gremillion.

REVERSED AND REMANDED.

Diane A. Sorola
Attorney at Law
402 W. Convent St.
Lafayette, LA 70501
(337) 234-2355
COUNSEL FOR DEFENDANT/APPELLANT:
Regina Louviere Hindelang

Charles G. Fitzgerald
Cox Fitzgerald, L.L.C.
113 West Convent Street
Lafayette, LA 70501
(337) 233-9743
COUNSEL FOR PLAINTIFF/APPELLEE:
Michael Hindelang, III

PICKETT, Judge.

The defendant, Regina Louviere Hindelang, appeals the trial court’s

judgment granting the exception of res judicata filed by the plaintiff, Michael

Hindelang III.

FACTUAL AND PROCEDURAL BACKGROUND

The Hindelangs were divorced on October 16, 2008. Regina filed a Rule to

Establish Final Periodic Support in October 2008 based on her claim of medical

disability. Following a hearing on December 7, 2009, the trial court ordered

Michael to pay Regina periodic final support of $3,500.00 per month for twelve

months, retroactive to the date of judicial demand. On appeal, we found that the

trial court erred in limiting that period to one year; however, the supreme court

reinstated the trial court’s one-year term. See Hindelang v. Hindelang, 10-397

(La.App. 3 Cir. 11/3/10), 49 So.3d 1065, writ granted in part, 10-2701 (La. 3/4/11),

58 So.3d 464.1

On February 1, 2012, Regina filed a Rule for Final Periodic Spousal Support,

claiming that she “is disabled and unable to work and is, therefore, in need of, and

entitled to final periodic spousal support.” Michael filed a Peremptory Exception

Pleading Res Judicata. On February 29, 2012, Regina filed an Amended Rule For

Final Periodic Support, urging that there had been a material change in

circumstances since December 2009; namely that she has developed an

“incapacitating bipolar disorder with depression, which over time, has become

more and more debilitating.” Following a March 5, 2012 hearing, the trial court

granted Michael’s exception of res judicata and dismissed Regina’s rule, finding

that “those issues were litigated.”

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The supreme court affirmed that portion of the appellate judgment that ordered the
award to be paid retroactive to the date of judgment. The effective date began on December 7,
2009.

Regina now appeals.

ASSIGNMENT OF ERROR

Regina asserts one assignment of error:

The trial court erred in granting appellee’s exception
of res judicata and in denying appellant the opportunity to
present facts contained in her original and amended rule to
show cause which support her need for continued final
periodic spousal support, due to a change in circumstances
which occurred after the December 2009 trial and judgment.

DISCUSSION

The Louisiana Civil Code authorizes a trial court, in its discretion, to award

the payment of final periodic support to a spouse in need who has not been at fault

in the breakup of the marriage. La.Civ.Code arts. 111 and 112. Article 112

provides numerous factors the court may consider in awarding final periodic

support. Periodic support awards may be modified when the spouse in need shows

a material change in circumstance. La.Civ.Code art. 114.

Res judicata is addressed in La.R.S. 13:4231 which states in pertinent part:

Except as otherwise provided by law, a valid and final
judgment is conclusive between the same parties, except on appeal or
other direct review, to the following extent:

....

(3) A judgment in favor of either the plaintiff or the defendant
is conclusive, in any subsequent action between them, with respect to
any issue actually litigated and determined if its determination was
essential to that judgment.

Exceptions to the general rule of res judicata are found in La.R.S. 13:4232,

which states in part:

B. In an action for divorce under Civil Code Article 102 or 103,
in an action for determination of incidental matters under Civil Code
Article 105, in an action for contributions to a spouse’s education or
training under Civil Code Article 121, and in an action for partition of
community property and settlement of claims between spouses under
R.S. 9:2801, the judgment has the effect of res judicata only as to
causes of action actually adjudicated.
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“The res judicata effect of a prior judgment is a question of law that is

reviewed de novo.” Fogleman v. Meaux Surface Prot., Inc., 10-1210, p. 2

(La.App. 3 Cir. 3/9/11), 58 So.3d 1057, 1059, writ denied, 11-712 (La. 5/27/11),

63 So.3d 995 (quoting Morales v. Parish of Jefferson, 10-273, p. 6 (La.App. 5 Cir.

11/9/10), 54 So.3d 669, 672). Therefore, we will conduct a de novo review of the

record to determine whether the trial court was legally correct in granting

Michael’s exception of res judicata.

Michael argues that any issues related to Regina’s inability to work because

of mental illness were fully litigated at the December 2009 hearing. Therefore, she

is barred from re-litigating that issue now. We disagree.

In her February 29, 2012, amended rule, Regina alleged a material change in

circumstances entitling her to final periodic support. Barring extinguishment of

the obligation for spousal support pursuant to La.Civ.Code art. 115, Regina may

seek a modification by showing a material change in circumstances pursuant to

La.Civ.Code art. 114. By granting the exception of res judicata, the trial court

denied Regina an opportunity to show a material change in circumstances. See

Guillory v. Guillory, 09-988, p. 7 (La.App. 3 Cir. 2/3/10), 29 So.3d 1288, 1293

(Genovese, J., concurring in the result)(“because the issue of spousal support is

never final, notwithstanding an extinguishment of the obligation pursuant to

La.Civ.Code art. 115, [the obligee] may bring a new or separate rule for support

alleging a change in factual circumstances.”).

CONCLUSION

The trial court erred by granting the exception of res judicata, as it denied

Regina the opportunity to show a material change in circumstances. The judgment

of the trial court is reversed, and the matter is remanded for further proceedings

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consistent with this opinion. Costs of this appeal are assessed to Michael

Hindelang III.

REVERSED AND REMANDED.

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STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

12-1031

MICHAEL HINDELANG, III

VERSUS

REGINA LOUVIERE HINDELANG

GREMILLION, Judge, dissents and assigns written reasons.

While La.R.S. 13:4232 does not bar a subsequent action for modification

based on a material change of circumstances pursuant to Article 114, res judicata is

still applicable if the factual circumstance has already been litigated. Based on my

comparison of Regina’s testimony from the December 2009 hearing to the claim

she is currently making, the trial court did not err in finding that her action is

barred by res judicata since the claims are identical.

At the 2009 hearing, Regina argued that an assortment of medical problems,

including bipolar disorder, prevented her from working. She testified regarding

her bipolar disorder numerous times at the hearing:

Q. Okay. What actual treatment are you currently receiving from her?

A. Treatment for mood disorder; as well – specifically Bipolar Type 2;
as well as –

The trial court was well aware of Regina’s bipolar illness:

THE COURT: . . . Did that doctor prescribe any medication at all for
you, ma’am, for depression?

....

THE WITNESS: Cymbalta, Wellbutrin, and I also take Tegretol as a
mood stabilizer.

THE COURT: Okay. For your depression.

THE WINTESS: That’s for the bipolar disorder.

THE COURT: Bipolar disorder.

A vocational rehabilitation expert testified as to Regina’s employment

potential and the following exchange occurred between the trial judge and the

expert witness:

THE COURT: Dr. Orazio -- There was some testimony that she was
being treated by Dr. Orazio who obviously, apparently, was a major
healthcare provider for her –

THE WINTESS: Right.

THE COURT: -- because of her mental health illness.

THE WITNESS: Yes, sir[.]

THE COURT: And at no point in time were you told that Dr. Orazio
was treating this lady?

THE WITNESS: That’s correct.

THE COURT: Notwithstanding the fact that this is a major --
obviously a major illness.

The trial court again mentioned Regina’s “underlying mental illness” as

having initiated when she was a teenager. Further, the deposition of Regina’s

treating doctor, Dr. William A. Dupon, was submitted into evidence. Dr. Dupon

treated Regina for depression since 2004. Her history of depression and mood

disorder medications are noted throughout the record, along with notations of

bipolar disorder. In brief, Regina claims that her “disabling bipolar disorder with

depression could not have been litigated in December, 2009, because it did not

exist in December, 2009.” This allegation is plainly contradicted by the record and

Regina’s own testimony.

It is clear from my review of the record that the trial court was fully aware of

Regina’s mental illness, including her diagnosis of bipolar disorder, at the

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December 2009 hearing. The substance of the 2009 hearing was that Regina could

not work due to her various physical and mental conditions, including bipolar

disorder. The current pleadings offer no new claims or change of circumstances.

Under the majority’s interpretation, there are scarcely any circumstances

under La.R.S. 13:4232(B) in which res judicata would apply. According to the

majority’s reasoning, a former spouse need only utter the phrase “a material

change of circumstances,” like a talisman, in order to be afforded a full hearing

regardless of whether the claim has already been litigated. This is contrary to the

exception noted by the plain language of La.R.S. 13:4232(B). Accordingly, I

respectfully dissent from the majority’s opinion.

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