Bland v. Bland

705 So. 2d 1158, 1997 WL 805387
CourtLouisiana Court of Appeal
DecidedDecember 29, 1997
Docket97 CA 0329
StatusPublished
Cited by9 cases

This text of 705 So. 2d 1158 (Bland v. Bland) is published on Counsel Stack Legal Research, covering Louisiana Court of Appeal primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Bland v. Bland, 705 So. 2d 1158, 1997 WL 805387 (La. Ct. App. 1997).

Opinion

705 So.2d 1158 (1997)

Deron BLAND
v.
Connie Thibodaux BLAND.

No. 97 CA 0329.

Court of Appeal of Louisiana, First Circuit.

December 29, 1997.

*1159 Joan M. Malbrough, Houma, for Plaintiff/Appellant Deron Bland.

Norval J. Rhodes, Houma, for Defendant/Appellee Connie Thibodaux Bland.

Before LOTTINGER, C.J., and SHORTESS and CARTER, JJ.

CARTER, Judge.

This is an appeal from a trial court judgment granting an increase in permanent alimony which had been previously awarded pursuant to a consent judgment.

BACKGROUND

Appellant, Deron Bland ("Mr.Bland") was married to Connie Thibodaux Bland ("Mrs. Bland"). Mr. Bland filed a petition for divorce, in which he alleged that Mrs. Bland was entitled to be paid alimony until remarriage in the amount of $300 a month. In her answer to the petition for divorce, Mrs. Bland admitted all of the allegations in the petition. A consent judgment was rendered by the trial court on February 19, 1993, granting the parties a divorce and awarding Mrs. Bland $300 a month permanent alimony until her remarriage.[1] Nine months later, the parties executed and filed a Settlement of Community Property. This document divided the parties' assets and liabilities between them. It made no reference to any alimony payments or obligations.

FACTS

On December 19, 1995, Mrs. Bland filed a rule to show cause why the awards of child support and alimony should not be increased because of an increase in Mr. Bland's income. Mr. Bland responded by filing a motion to revoke or terminate alimony. In this motion, Mr. Bland argued that Mrs. Bland was no longer entitled to receive alimony because she was employed and able to earn a comfortable living. Additionally, Mr. Bland asserted that Mrs. Bland was living in open concubinage with another man, warranting *1160 the termination of alimony under Louisiana law.

A hearing was held on the rules on March 15, 1996, at which the trial court granted an increase in the prior child support award to $858 a month. Additionally, after hearing testimony from the parties and their respective witnesses, the trial court determined that there was no proof of the open concubinage allegation. The parties agreed to take up the rule to increase alimony at a later date to allow the parties the opportunity to exchange information pertinent to the alimony rule. The minutes of the hearing reflect that the parties were to exchange information on the alimony issue by a certain date, submit memos to the court on the alimony issue, and return to court on April 19, for a hearing on the alimony issue, unless they agreed to submit the issue to the court for a ruling based on the memorandums. A judgment setting forth the trial court's ruling was signed on April 18.

Apparently, on the same day that the judgment on the child support and open concubinage issues was signed, the trial court ordered in open court that Mrs. Bland was entitled to an increase in alimony. On April 19, the trial court signed a judgment increasing Mrs. Bland's alimony award to $650 a month. All previous orders of the court remained in full force and effect.

Mr. Bland filed a motion for new trial on the grounds that he had never received any information from Mrs. Bland on the alimony issue, no memorandums on the issue had been filed with the court and his attorney was not served with notice of the April 18 hearing until the late afternoon of April 17. The trial court subsequently granted Mr. Bland's motion for new trial.

On July 9, Mr. Bland was permitted by the trial court to substitute his former counsel with new counsel. This substitution was followed by Mr. Bland's filing of a peremptory exception pleading the objection of no cause of action. For the first time, Mr. Bland argued that the alimony awarded in the consent judgment was not modifiable because the consent judgment did not provide for an increase based on a change in circumstances.

A trial on the alimony rule was held, at the conclusion of which, the trial court took the matter under advisement. A judgment was subsequently rendered in favor of Mrs. Bland, awarding her permanent alimony of $700 a month. In its reasons for judgment, the trial court determined that the right to seek an increase in alimony did not have to be specifically reserved in a consent judgment because it was a right provided by law. Instead, the right to seek an increase in alimony would have to be dispensed with in the consent judgment if the parties wanted to prevent each other from seeking a subsequent modification based upon a change in circumstances. Because the subject consent judgment did not restrict the parties from seeking a modification of alimony based on a change in circumstances, Mrs. Bland had a cause of action for an increase. The trial court further found that Mrs. Bland proved her entitlement to an increase in alimony, by showing both her need for an increase and Mr. Bland's ability to pay for the increased alimony award.

Mr. Bland appeals from the judgment awarding an increase in alimony. He asserts the following assignments of error:

I. The trial court erred in not regarding the Consent Judgment as a contractual agreement between the parties.
II. The trial court erred in overruling the Exception of No Cause of Action.
III. Alternatively, the alimony awarded is excessive.

PEREMPTORY EXCEPTION RAISING THE OBJECTION OF NO CAUSE OF ACTION

Mrs. Bland sought an increase in alimony based on a change in circumstances. After Mr. Bland filed his own motion to terminate alimony, he argued that Mrs. Bland had no cause of action for a modification of alimony because the consent judgment provided that the alimony would continue until Mrs. Bland's remarriage. The trial court rejected this argument and found that the consent judgment did not prevent Mrs. Bland from seeking an increase in alimony. Accordingly, it denied the peremptory exception raising the objection of no cause of action.

*1161 The objection of no cause of action is properly raised by the peremptory exception. The exception of no cause of action questions "whether the law extends a remedy to anyone under the factual allegations of the petition." Louisiana Paddlewheels v. Louisiana Riverboat Gaming Commission, 94-2015, p. 5, n. 3 (La.11/30/94); 646 So.2d 885, 888, n. 3; Treasure Chest Casino, L.L.C. v. Parish of Jefferson, 96-1010, p. 5 (La.App. 1st Cir. 3/27/97); 691 So.2d 751, 754, writ denied, 97-1066 (La. 6/13/97); 695 So.2d 982. The purpose of an exception pleading the objection of no cause of action is to determine the sufficiency in law of the petition. City of New Orleans v. Board of Commissioners of Orleans Levee District, 93-0690, p. 2 (La.7/5/94); 640 So.2d 237, 241; Treasure Chest, 691 So.2d at 754.

Generally, no evidence may be introduced to support or controvert the exception. Treasure Chest, 691 So.2d at 754. However, as set forth in City National Bank of Baton Rouge v. Brown, 599 So.2d 787, 789 (La.App. 1st Cir.), writ denied, 604 So.2d 999 (La.1992), the jurisprudence recognizes an exception to this rule, which allows the court to consider evidence which is admitted without objection to enlarge the pleadings. Treasure Chest, 691 So.2d at 754. Otherwise, the exception is triable on the face of the pleadings, and, for the purposes of determining the issues raised by the exception, the well-pleaded facts in the petition must be accepted as true. City of New Orleans v. Board of Commissioners of Orleans Levee District,

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Cite This Page — Counsel Stack

Bluebook (online)
705 So. 2d 1158, 1997 WL 805387, Counsel Stack Legal Research, https://law.counselstack.com/opinion/bland-v-bland-lactapp-1997.