Gibbs v. Gibbs

764 So. 2d 261, 2000 WL 792388
CourtLouisiana Court of Appeal
DecidedJune 21, 2000
Docket33,169-CA
StatusPublished
Cited by10 cases

This text of 764 So. 2d 261 (Gibbs v. Gibbs) 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
Gibbs v. Gibbs, 764 So. 2d 261, 2000 WL 792388 (La. Ct. App. 2000).

Opinion

764 So.2d 261 (2000)

Pamela Thomas GIBBS, Plaintiff-Appellee,
v.
Thomas Liner GIBBS, Defendant-Appellant.

No. 33,169-CA.

Court of Appeal of Louisiana, Second Circuit.

June 21, 2000.

*262 Samuel P. Love, Jr., Shreveport, Counsel for Defendant-Appellant.

Stephen L. Harrison, Monroe, Counsel for Horizons Bank.

Jill B. Goudeau, West Monroe, Counsel for Plaintiff-Appellee.

Before GASKINS, CARAWAY and DREW, JJ.

DREW, J.

Thomas Gibbs appeals a judgment sustaining a no cause of action exception to his petition to terminate permanent alimony based upon the alleged fault of his spouse. He also appeals another judgment denying his claim to terminate alimony based upon his allegations that his wife is no longer in need and he is unable to pay alimony.

We affirm the judgments.

FACTS

Pamela Gibbs filed a petition for a La. C.C. art. 102 divorce from Thomas Gibbs on January 4, 1996. By judgment on rule based upon a joint stipulation, Mrs. Gibbs was designated domiciliary parent of their minor child, Larkin Gibbs. Mr. Gibbs was ordered to pay $600 per month in child support and alimony pendente lite of $1,500 per month. On May 22, 1996, Mr. Gibbs filed an answer and reconventional demand in which he sought a divorce under La. C.C. art. 103 on the ground of having lived separate and apart for six months. Mr. Gibbs also alleged in his reconventional demand that Mrs. Gibbs was guilty of fault precluding her from receiving permanent alimony.

On November 21, 1996, both parties appeared in court to make stipulations on the record. Among the stipulations were that Mrs. Gibbs was to receive $500 per month in permanent alimony and $600 per month in child support. On May 16, 1997, Mrs. Gibbs filed a rule to show cause why the Art. 102 divorce should not be granted. Four days later, the court rendered judgment in accordance with the stipulations made by the parties in November. Judgment of divorce was rendered on June 10, 1997. Two days later, the parties entered into a consent judgment relating to the division of the community property. A community property settlement was adopted, attached to the judgment and made part of the record.

On October 30, 1997, Mr. Gibbs filed a rule for a decrease in child support and termination or reduction of alimony due to a change in circumstances. A hearing on this rule was held on April 16, 1998. The *263 trial court denied the rule on May 1, 1998. Mr. Gibbs' motion for new trial was also denied.

On September 29, 1998, Mr. Gibbs filed a petition and rule to show cause alleging that permanent alimony should be terminated because Mrs. Gibbs had never been found free from fault, and that she was guilty of fault in the dissolution of the marriage. Mrs. Gibbs filed the peremptory exception of no cause of action, in which she asserted that Mr. Gibbs waived any right to litigate the issue of fault when he stipulated to permanent alimony.

Mr. Gibbs amended his petition and rule in January 1999 to additionally allege that permanent alimony should be terminated because Mrs. Gibbs is no longer in need of alimony and that he is not financially able to continue paying alimony.

Mr. Gibbs again amended his rule on February 4, 1999, to allege that alimony should be terminated or reduced due to a change in circumstances, namely that Mrs. Gibbs' income had increased and that he had no income since he was unemployed. Mr. Gibbs further alleged that Mrs. Gibbs was no longer in need of alimony.

At a hearing on the issue of fault held on January 20, 1999, the trial court rendered judgment granting Mrs. Gibbs' exception of no cause of action. The pending rule to terminate permanent alimony based upon the financial circumstances of the parties was continued.

Trial was held on the issue of alleged change of circumstances in March 1999. In its written ruling, the trial court found that Mrs. Gibbs was still in need of permanent alimony, but reduced the monthly alimony obligation from $500 to $375 because Mr. Gibbs' ability to pay had diminished somewhat. A judgment reducing alimony but denying the rule to terminate alimony was rendered on March 23, 1999.

Mr. Gibbs appeals the judgments rendered on January 20, 1999 and March 23, 1999.

DISCUSSION

Fault Precluding Alimony

Mr. Gibbs contends in his first assignment of error that the trial court erred in sustaining Mrs. Gibbs' exception of no cause of action to his petition alleging that Mrs. Gibbs was not free from fault. Mr. Gibbs argues that throughout his pleadings, and particularly in his answer and reconventional demand filed on May 22, 1996, he reserved the right to litigate the issue of fault. Mr. Gibbs' reconventional demand stated, in relevant part:

[Mrs. Gibbs] is guilty of pre-separation fault so as to bar her from receiving permanent alimony, and although she is gainfully employed, this pre-separation fault should be determined prior to rendition of a divorce in this matter.
Alternatively, and if the divorce is granted immediately, that the determination of fault be referred to the trial of the partition of community or other trial of the incidental issues.
Plaintiff in Reconvention will request the granting of an immediate divorce under the provisions of law providing that upon the expiration of the mandatory time period the court shall grant the divorce expeditely [sic] reserving to trial other incidental issues that cannot be resolved.
* * * *
Plaintiff in Reconvention further alleges that the alimony obligation should be redetermined in the event [Mrs. Gibbs] is not found to be at fault; accordingly, it is requested that the court redetermine the alimony obligations after the divorce judgment is rendered as provided by law in that a new standard is applicable.
Plaintiff in Reconvention reserves all rights concerning a division of the community and any other incidental issues not asserted in this reconventional demand to be raised by amendment of the pleadings, stipulation, or pre-trial order.

*264 On November 21, 1996, six months after the filing of the reconventional demand, the parties appeared in court with their attorneys. Mr. Gibbs' counsel told the court that by entering stipulations, they were "actually going to be resolving all remaining issues, property and everything...." Mrs. Gibbs' attorney then added that the parties agreed that Mrs. Gibbs was entitled to $500 per month in permanent alimony. Mr. Gibbs' counsel next stated that "[t]his is going to resolve every issue that the parties would currently have with each other or against each other." The trial judge then asked both parties if they understood that "this is the law between you now" and that they couldn't change their minds after leaving the courtroom. Both answered affirmatively.

It is clear from reading the transcript of the November 21, 1996 hearing that the stipulations resolved all remaining issues the parties had raised. Mr. Gibbs had raised the issue of fault as a bar to permanent alimony in his reconventional demand filed six months prior to the stipulation to permanent alimony. Thus, the issue of Mrs. Gibbs' fault was a "remaining" issue at the time of the stipulations, which according to Mr. Gibbs' counsel, was resolved by the stipulations.

Mr. Gibbs also deems it significant that the judgment of divorce stated, in part, that "the right of each party is reserved to bring other

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Cite This Page — Counsel Stack

Bluebook (online)
764 So. 2d 261, 2000 WL 792388, Counsel Stack Legal Research, https://law.counselstack.com/opinion/gibbs-v-gibbs-lactapp-2000.