Debra Gail Theriot Aucoin Fleming v. James Bailey Fleming

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

13-22

DEBRA GAIL THERIOT AUCOIN FLEMMING

VERSUS

JAMES BAILEY FLEMMING

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APPEAL FROM THE
SIXTEENTH JUDICIAL DISTRICT COURT
PARISH OF IBERIA, NO. 90176
HONORABLE CHARLES L. PORTER, DISTRICT JUDGE

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JIMMIE C. PETERS
JUDGE

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Court composed of Sylvia R. Cooks, Jimmie C. Peters, and Billy Howard Ezell,
Judges.

REVERSED AND RENDERED.

Natalie B. Broussard
Attorney at Law
203 West Main St., Suite 200
New Iberia, LA 70560
(337) 365-9000
COUNSEL FOR PLAINTIFF/APPELLANT:
Debra Gail Theriot Aucoin Flemming

Elizabeth Anne Long
Attorney at Law
600 Jefferson Street, Suite 504
Lafayette, LA 70501
(337) 266-2180
COUNSEL FOR DEFENDANT/APPELLEE:
James Bailey Flemming

PETERS, J.

Debra Gail Theriot Aucoin Flemming appeals a trial court judgment

nullifying a previous judgment of monthly spousal support rendered against her

former husband, James Bailey Flemming. For the follow reasons, we reverse the

trial court judgment and render judgment reinstating the previous judgment in its

entirety, except as that judgment was modified by a subsequent judgment rendered

on June 24, 2011.

DISCUSSION OF THE RECORD

Debra Gail Theriot Flemming (Debra) and James Bailey Flemming (James)

were married on December 31, 1996; physically separated for the last time on

October 6, 1998; and divorced by judicial decree on February 11, 2000. James was

personally served with the divorce petition, retained counsel to represent his

interests, and almost immediately moved to the state of Illinois. Although Debra

filed the initial petition for divorce on December 9, 1998, the divorce decree was

rendered on James’ motion based on La.Code Civ.P. art. 102.

Debra’s original petition included, among other things, a request for both

temporary and permanent spousal support, and, by a judgment executed April 6,

1999, the trial court awarded her temporary spousal support in the amount of

$800.00 per month. On February 3, 2000, or eight days before the trial court

rendered judgment granting the divorce, Debra filed a rule to show cause why she

should not be awarded a judgment of final spousal support. The trial court set this

rule for hearing on March 23, 2000, and James’ counsel of record was served with

the pleading and notice of the hearing date.

On February 15, 2000,1 James, who was still living in Illinois at the time,

wrote to his counsel of record wherein he stated, “AS OF TODAY, I AM FIRING

YOU AS MY ATTORNEY AND NO LONGER NEED YOUR SERVICES.” The

record does not contain evidence of when James forwarded this letter to his

attorney, but it was obviously not the same day as it was written because the

attorney continued to represent James in the litigation. On February 24, 2000, he

filed a motion on behalf of James seeking a continuance of the March 23, 2000

hearing. The motion stated that James would be working in Valdez, Alaska, on

that date and would not return to Louisiana until March 25, 2000. Based on the

content of this motion, and without a hearing, the trial court granted the motion for

continuance and rescheduled the hearing for April 25, 2000.

Before this hearing could be held, the trial court was confronted with

motions from both litigants. The court minutes of April 25, 2000, reflect that when

the matter was called in open court at 10:00 a.m., an attorney appearing on behalf

of James’ counsel orally requested a continuance of the pending matter. 2 The

minutes do not state the basis for the motion, but establish that the trial court

granted the motion and continued the matter without date. The minutes also fail to

indicate whether the trial court was informed that James had terminated his

attorney’s services.

However, at 2:00 p.m. that same day, James’ counsel filed a motion to

withdraw as counsel based on James’ February 15, 2000 correspondence, a copy of

which was attached to his motion. The trial court executed an order that same

afternoon, allowing the attorney to withdraw as counsel for James. At some point

on April 25, 2000, the trial court granted a another written motion for continuance
1
The letter is erroneously dated “2/15/99.”
2
The minutes make no reference to any appearances other than that of the attorney
representing James’ counsel.

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filed the previous day by Debra’s counsel and rescheduled the hearing on the rule

for June 22, 2000.

This matter is currently before us because notice of the June 22, 2000

hearing date was not served on James. Instead, service was effected on his former

counsel. When the matter came for hearing on June 22, 2000, James did not appear

and the matter proceeded to trial without him. At the end of the hearing, the trial

court rendered judgment wherein, among other things, it awarded Debra permanent

spousal support in the amount of $1,100.00 per month.3

The record remained relatively dormant for a number of years after 2000,

and the next entries in the record before us relate to Debra’s 2009 attempts to

reinscribe and/or revive the monetary sums awarded to her at the June 22, 2000

hearing. The record before us suggests that Debra attempted long-arm service on

James to notify him of these filings, but nothing in the record establishes that he

received notice of this activity.

In 2009, James became aware that a judgment against him existed when

funds from his salary were withheld by his employer pursuant to an income

assignment order based on the judgment arising from the June 22, 2000 support

obligation hearing. Two years later, on April 23, 2011, James was personally

served with a March 3, 2011 rule to show cause filed by Debra. In that rule, Debra

sought to have James held in contempt for failure to pay the permanent spousal-

support judgment arising from the June 22, 2000 hearing, and further sought a

judgment for the past-due spousal support and an award of attorney fees. The trial

court set this hearing for May 18, 2011, before a hearing officer.

3
The trial court first executed a written judgment on July 13, 2000, but executed an
amended judgment on August 22, 2001. The amendments did not affect the award of permanent
spousal support.
3

James did not personally appear at the May 18, 2011 hearing, but was

represented by his new counsel at the proceeding. The record before us contains

the hearing officer recommendations arising from those proceedings, and on June

15, 2011, the trial court executed a judgment corresponding to those

recommendations. This judgment was in favor of Debra and against James,

awarding Debra $130,900.00 as back-due spousal support owed under the

judgment arising from the June 22, 2000 hearing and $1,000.00 as attorney fees for

successfully prosecuting the deficiency action; finding James in contempt of court

for failing to comply with the judgment; and sentencing him to serve ninety days in

the parish jail for contempt of court. The trial court ordered that the parish jail

sentence be suspended provided James serve any sentence previously imposed for

a prior contempt of court judgment; resume paying spousal support in accordance

with the judgment arising from the June 22, 2000 hearing; begin paying an

additional $1,000.00 per month to address the arrears judgment; pay Debra

$1,000.00 in attorney fees within ninety days; and pay all costs of court within

thirty days.

On June 10, 2011, or after the hearing officer proceeding and five days

before the trial court rendered the June 15, 2011 judgment, James filed a rule to

show cause why the final periodic spousal support award should not be terminated.

This rule came before the trial court on June 24, 2011, and resulted in a consent

judgment executed that same day. The consent judgment provided “that any and

all future spousal support payments are hereby terminated effective June 10,

2011[.]” The judgment further provided that “any jail sentence currently pending

against [James] is suspended” so long as he complies with all court orders and

keeps his former wife “advised of his current employment.” Finally, the consent

judgment provided that the “[p]resent Income Assignment in the amount of
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$2100.00 remains in effect until all judgments and court orders are satisfied.” Both

James and Debra, as well as their attorneys, signed the judgment below the

notation “APPROVED AS TO FORM AND CONTENT.”

However, this judgment did not end the litigation. Two months and one day

later, on August 11, 2011, James filed a rule to set aside the judgment arising from

the June 22, 2000 hearing, asserting that the judgment was a nullity. He based his

motion on the lack of service to him of notice of the June 22, 2000 hearing, and his

assertion that he received no notice of the hearing from any other source. The trial

court heard this rule on November 18, 2011.

At the hearing on this rule, James testified that he was residing in Iberia

Parish, Louisiana, when Debra filed for divorce and that he retained an attorney to

assist him in the litigation; responded to the petition through the attorney; and

immediately moved to Illinois and became a resident of that state. He further

acknowledged that he was ordered to pay temporary spousal support during the

pendency of the divorce proceedings and that his paycheck had been made the

subject of an income assignment and order of support. According to James, he

terminated the services of his attorney immediately after the trial court rendered

the judgment of divorce on February 11, 2000. Although he denied ever being

aware of Debra’s February 3, 2000 filing seeking permanent spousal support, he

acknowledged that he was represented by his counsel of record at that time.

James further testified that after terminating his attorney’s services, he never

provided anyone in Louisiana with an address where he could be contacted and

that he moved to the State of Washington in 2003. His next contact with the

Louisiana proceeding occurred in May of 2009, when his employer began

withholding amounts from his paycheck pursuant to the income assignment order.

Not only did he not take any action to stop the income assignment, but his
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employer was still withholding part of his pay check at the time of the November

18, 2011 hearing. In fact, he did not begin searching for an attorney to assist him

in this matter until 2011.

The trial court took the matter under advisement, and on January 10, 2012,

rendered reasons for judgment granting James’ request to have the June 22, 2000

judgment nullified. On March 5, 2012, the trial court executed a written judgment

nullifying the judgment and vacating the income assignment then in force. Debra

responded by filing a motion for new trial, which was heard on April 27, 2012.

After considering the arguments of counsel at that hearing, the trial court rendered

a judgment setting aside that portion of the March 5, 2012 judgment vacating the

income assignment order and reinstated the order pending further orders of the

court. The trial court took the new trial issue under advisement and, in written

reasons for judgment dated June 9, 2012, and filed on June 13, 2012, the trial court

rejected Debra’s motion for new trial. The trial court executed a written judgment

to this effect on June 25, 2012, and Debra timely perfected this appeal.

In her appeal, Debra asserts two assignments of error:

1) The trial court committed manifest error in failing to recognize that
JAMES FLEMMING had adequate notice and [in] vacating the
Judgment under LA C.C.P. Art. 2002.

2) The trial court committed manifest error in rejecting the application of
voluntary acquiescence.

While we reject Debra’s initial argument that notice was adequate for the June 22,

2000 hearing, we find merit in her second assignment of error.

OPINION

The trial court declared the judgment arising from the June 22, 2000 hearing

null due to the lack of service on James of notice of the hearing as required by law,

and because James’ subsequent actions did not constitute a voluntarily

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acquiescence in the judgment. On appeal, Debra does not dispute the factual

findings of the trial court. Rather, she asserts that the trial court reached incorrect

legal conclusions in applying the facts to this case. Because the issues are legal

and not factual, the standard of review is de novo. Hooper v. Hooper, 06-825

(La.App. 3 Cir. 11/2/06), 941 So.2d 726, writ denied, 06-2823 (La. 1/26/07), 948

So.2d 177.

As stated in La.Code Civ.P. art. 6(A)(1), the “legal power and authority of a

court to render a personal judgment against a party to an action or proceeding. . . .

requires . . . [t]he service of process on the defendant, or on his agent for service of

process, or the express waiver of citation and service under Article 1201.”

However, La.Code Civ.P. art. 1201(A) (emphasis added), further provides that

“[c]itation and service thereof are essential in all civil actions except summary and

executory proceedings, divorce actions under Civil Code Article 102, and

proceedings under the Children’s Code.” A summary proceeding includes “[t]he

original granting of, subsequent change in, or termination of . . . support for a

spouse[.]” La.Code Civ.P. art. 2592(8). With regard to service requirements in a

summary proceeding, La.Code Civ.P. art. 2594 provides:

Citation and service thereof are not necessary in a summary
proceeding. A copy of the contradictory motion, rule to show cause,
or other pleading filed by the plaintiff in the proceeding, and of any
order of court assigning the date and hour of the trial thereof, shall be
served on the defendant.

Thus, all that was required to satisfy service of process on James with regard to the

June 22, 2000 hearing was to have him served with a copy of the rule to show

cause and the order of the trial court assigning the matter for hearing at the

appropriate time on June 22, 2000. However, this did not happen as the service

was made on his prior counsel of record, and James received no notice of the date

and time of the hearing from any other source. In fact, he only became aware that
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a judgment had been rendered against him in May of 2009 when his paycheck

became subject to an income assignment order.

This lack of adequate notice implicates a procedural due process concern.

Each individual is afforded an opportunity to be heard in addition to the notice of a

pending action. Lassere v. State, Dept. for Health & Hospitals, 00-306 (La.App. 1

Cir. 3/28/01), 808 So.2d 513. Adequate notice of the hearing, therefore, is

fundamental. Id. Because adequate notice is so fundamental, the lack thereof

gives rise to a nullity action. Louisiana Code of Civil Procedure Article

2002(A)(2) (emphasis added) provides, in pertinent part, that “[a] final judgment

shall be annulled if it is rendered . . . [a]gainst a defendant who has not been

served with process as required by law and who has not waived objection to

jurisdiction[.]” Thus, considering only the absence of compliance with La.Code

Civ.P. art. 2594, with respect to the June 22, 2000 hearing, it would seem that

James was entitled to a nullity judgment.

However, as pointed out by Debra on appeal, La.Code Civ.P. art. 2003

provides, in pertinent part, that “[a] defendant who voluntarily acquiesced in the

judgment, or who was present at the time of its execution and did not attempt to

enjoin its enforcement, may not annul the judgment on any of the grounds

enumerated in Article 2002.” Debra argues that James’ actions subsequent to

being made aware of the judgment at issue constitutes acquiescence, and he can no

longer complain of lack of notice.

Debra first argues that James’ failure to take steps to set aside the income

assignment order in 2009 constituted a voluntary acquiescence in the judgment

arising from the June 22, 2000 hearing. We do not find that such inaction is

sufficient to satisfy the requirements of voluntary acquiescence as mere failure to

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act does not necessarily qualify as acquiescence pursuant to La.Code Civ.P. art.

2003. See Donnelly v. Quatroy, 03-1145 (La.App. 5 Cir. 1/27/04), 866 So.2d 917.

Next, Debra argues that James’ participation in all of the proceedings after

being personally served with her March 3, 2011 rule to show cause constituted

voluntary acquiescence in the judgment. We find merit in this argument although

we do note that James’ initial participation at the hearing officer proceeding in the

litigation on May 18, 2011, did not by itself, constitute a voluntary acquiescence.

That initial appearance constituted more of a response to the trial court’s order that

he respond to the allegations of Debra’s rule to show cause than a voluntary

acquiescence. See Custom Acceptance Corp. v. Paul, 376 So.2d 510 (La.App. 4

Cir. 1979). Still, the record before us contains no evidence that James objected to

the trial court’s authority to consider the issue of past-due spousal support during

the hearing officer proceeding or when the trial court rendered the June 15, 2011

judgment based on the hearing officer’s recommendation.

We find that it was James’ continued participation in the litigation after the

May 18, 2011 appearance before the hearing officer, combined with his initial

response at that hearing, that constitutes voluntary acquiescence. Not only did

James not initially contest the validity of the judgment arising from the June 22,

2000 hearing when he first responded to Debra’s March 3, 2011 filing, but his

subsequent response on June 10, 2011, was a rule to show cause seeking to have

the judgment terminated, not annulled. He then actively pursued this remedy and

received relief by virtue of the compromise judgment rendered on June 24, 2011.

In the June 24, 2011 compromise judgment, James received relief from any

future spousal support obligations previously imposed on him, as well as the

incarceration sentences imposed on him for contempt of court. In exchange for

those concessions from Debra, he agreed that the he would comply with the other
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court orders in effect, keep his former wife advised of any changes in employment,

and recognize that the $2,100.00 per month income assignment would remain in

full force and effect until the judgment for past-due support was fully satisfied.

Nothing in this judgment suggests that the issue of the nullity of the judgment

arising from the June 22, 2000 hearing, was reserved as an issue for future

consideration, and it is significant to the issue before us that James personally

endorsed and accepted both the form and content of the June 24, 2011 judgment by

his signature. Because neither litigant timely appealed the June 24, 2011

judgment, it was a final judgment even before James filed his August 11, 2011

nullity action. La.Code Civ.P. arts. 3942 and 3943.

We find that James’ participation in the underlying proceedings between

April 23, 2011, when he received personal service of Debra’s March 3, 2011 rule,

and the finality of the June 24, 2011 consent judgment constituted voluntary

acquiescence in the judgment arising from the June 22, 2000 hearing. Thus, the

trial court erred in finding that the judgment was a nullity. Accordingly, we render

judgment reinstating the judgment arising from the June 22, 2000 hearing in its

entirety except as modified by the June 24, 2011 compromise judgment.

DISPOSITION

For the foregoing reasons, we reverse the trial court’s judgment annulling

the judgment arising from the June 22, 2000 hearing and render judgment

reinstating that judgment in its entirety, subject to the modifications to that

judgment made by the June 24, 2011 compromise judgment. We assess all costs of

this appeal to James Bailey Flemming.

REVERSED AND RENDERED.

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