DeVillier v. DeVillier

543 So. 2d 1142, 1989 La. App. LEXIS 997, 1989 WL 51635
CourtLouisiana Court of Appeal
DecidedMay 16, 1989
DocketNo. 88 CA 0497
StatusPublished
Cited by4 cases

This text of 543 So. 2d 1142 (DeVillier v. DeVillier) 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
DeVillier v. DeVillier, 543 So. 2d 1142, 1989 La. App. LEXIS 997, 1989 WL 51635 (La. Ct. App. 1989).

Opinions

CARTER, Judge.

This is an appeal from a judgment of the trial court sustaining a peremptory exception raising the objection of no cause of action.1

PACTS

Appellant herein, Nancy Gaiennie DeVil-lier, filed a suit for separation from bed and board on September 22, 1986, in the Family Court in East Baton Rouge Parish and also asked for child support and alimony pendente lite. Appellee, Mark Stephen DeVillier, filed an answer and reconven-tional demand on November 7, 1986, seeking a judgment of separation alleging cruel treatment. A stipulated judgment on rules was entered into by the parties, and judgment was signed on December 15,1986. In the stipulated judgment, Mr. DeVillier was ordered to pay child support in the sum of $350.00 per month in semi-monthly installments of $175.00, each payable on the 1st and 15th of each month, beginning November 15, 1986. He was further ordered to pay alimony pendente lite in the sum of $450.00 per month for a period of six months beginning October 1,1986, and ending March 15, 1987, payable in semi-monthly installments of $225.00 on the 1st and 15th of each month, with credit on amounts previously paid. A judgment of separation incorporating the stipulated judgment on rules was signed on January 23, 1987, and further provided that the alimony pendente lite would continue from April 1, 1987, through June 15, 1987, in the sum of $250.00 per month, payable in semi-monthly installments of $125.00 on the 1st and 15th of each month.

Either “at the end of January or beginning of February, 1987,”2 the parties recommenced living together in East Baton Rouge Parish and then moved to Crowley shortly thereafter. Apparently, the parties lived together for approximately two months and subsequently separated again. Ms. DeVillier then filed a petition for sepa[1144]*1144ration from bed and board in Acadia Parish on July 13, 1987.

Thereafter, Ms. DeVillier brought a rule for contempt against appellee in East Baton Rouge Parish for payment of the ar-rearages due for both child support and alimony pendente lite, as well as for interest on such payment, reasonable attorney’s fees, and all costs pursuant to the East Baton Rouge Parish judgments of December 15, 1986, and/or January 23, 1987.

Mr. DeVillier filed an exception pleading the objection of no cause of action3 in these proceedings on November 10, 1987, alleging that the stipulated judgment on rules of December 15, 1986, was “null and void” and, implying that the judgment of January 23, 1987, decreeing child support payments and alimony pendente lite was null and void because the parties had reconciled for approximately 2-3 months after the rendition of these judgments.

After trial on the peremptory exception raising the objection of no cause of action, the trial court sustained the exception rais-. ing the objection of no cause of action holding that the reconciliation extinguished all decrees relating to the judgment of separation including any arrearages due at the time of reconciliation for child support and alimony. Formal judgment sustaining Mr. DeVillier’s peremptory exception raising the objection of no cause of action and dismissing Ms. DeVillier’s rule for contempt was signed on April 4, 1988, and appellant has perfected this devolutive appeal.

ASSIGNMENTS OF ERROR

Appellant contends that the trial court erred as follows:

1. The trial court erred in sustaining appellee’s peremptory exception raising the objection of no right of action and dismissing appellant’s rule for contempt herein.
2. The trial court erred in conclusively finding that the parties had reconciled in the spring of 1987.
3.The trial court erred in holding that the purported reconciliation vitiated appellant’s vested rights to collect ar-rearages from appellee for child support and alimony pursuant to judgments rendered on December 15, 1986, and January 23, 1987.

DISCUSSION

1. Reconciliation

Appellant apparently contends that even though she and her husband resumed living together no reconciliation took place between the parties. Although it may be conceivable that parties could resume living together for several months and not effect a reconciliation, it is clear that a reconciliation did take place in the instant case.

Appellee testified unequivocally that they separated for approximately three months, reconciled in East Baton Rouge Parish, and then moved to Crowley shortly thereafter. It was further corroborated by Ms. DeVillier’s sister, Gail Gaiennie, who testified as follows:

Q Are you aware that the parties obtained a legal separation in Baton Rouge sometime in December of 1986?
A I don’t know what date they obtained the legal separation. I know it was the end of ’86 or first of ’87.
Q Are you aware that they subsequently reconciled and moved to Crowley?
A Yes sir.
Q You probably don’t know the exact date of that either, but give us your best idea of when that might have took place?
A February is my best guess.
Q February of ’87?
A Oh, yes, I’m sorry.
Q And they reconciled at that time?
A Yes.
Q And moved to Crowley, Louisiana?
A Yes sir.
[1145]*1145Q Is it also your understanding that they obtained a legal separation in Crowley?
A Yes sir.

Appellant testified that even though they did resume living together, she never did freely live with appellee of her own accord. Yet, she employed an attorney and filed a proceeding for separation in the 15th Judicial District Court for the Parish of Acadia on July 13, 1987, alleging she and appellee separated in May of 1987. Pursuant to appellee’s petition, another judgment of legal separation was rendered in those proceedings on August 21, 1987. Considering all of the above, the contention that no reconciliation ever was effected between the parties is without merit and frivolous.

2. Effect of Reconciliation on First and Second Judgments Rendered in East Baton Rouge Parish

To summarize the sequence of events, there was a stipulated judgment setting alimony and child support in East Baton Rouge Parish on December 15, 1986. There was a stipulated judgment of separation in East Baton Rouge Parish signed on January 23, 1987. Each of these judgments provided for alimony and child support. It appears that the parties reconciled either at the end of January or the first of February, 1987. However, it is not clear from the record as to the exact time of reconciliation.4 Therefore, under the previous judgments, Mr. DeVillier would have been obliged to pay child support beginning November 15, 1986, and alimony beginning October 1, 1986, to whatever date in January or February that the reconciliation was effected.

The two cases that are relevant to our inquiry are Cummings v. Cummings, 469 So.2d 17 (La.App. 1st Cir.1985), and Dooley v.

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Bluebook (online)
543 So. 2d 1142, 1989 La. App. LEXIS 997, 1989 WL 51635, Counsel Stack Legal Research, https://law.counselstack.com/opinion/devillier-v-devillier-lactapp-1989.