Johnson v. Johnson

168 So. 3d 641, 2014 La.App. 1 Cir. 0564, 2014 La. App. LEXIS 3050, 2014 WL 7278660
CourtLouisiana Court of Appeal
DecidedDecember 23, 2014
DocketNo. 2014 CA 0564
StatusPublished
Cited by8 cases

This text of 168 So. 3d 641 (Johnson v. Johnson) 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
Johnson v. Johnson, 168 So. 3d 641, 2014 La.App. 1 Cir. 0564, 2014 La. App. LEXIS 3050, 2014 WL 7278660 (La. Ct. App. 2014).

Opinion

PETTIGREW, J.

| RIn this proceeding for a separation, or in the alternative, a final divorce, child custody, child support, and interim spousal support, the wife/mother, Terri Johnson (Ms. Johnson), appeals a trial court judgment rendered on November 18, 2013, that sustained the peremptory exception raising the objection of no cause of action filed by the husband/father, Joey J.E. Johnson (Mr. Johnson). On January 6, 2014, the trial court signed a written judgment in accordance with its findings. Ms. Johnson appealed that judgment. Upon this court’s receipt of Ms. Johnson’s appeal, we issued a rule to show cause order why the appeal should not be dismissed due to that judgment lacking the appropriate decretal language. The trial court then rendered an amended judgment, signed July 9, 2014, again sustaining Mr. Johnson’s exception, and this time, including language dismissing Ms. Johnson’s claims against Mr. Johnson. That judgment was included in the record on appeal and is now before us on appeal. After a thorough review of the record and applicable law, and for the following reasons, we reverse and remand.

BACKGROUND FACTS AND PROCEDURAL HISTORY

Mr. and Ms. Johnson were married on April 18, 2003, and entered into a covenant marriage. They had two minor children born of that marriage: one on May 12, 2004, and the other on August 17, 2005. The parties physically separated on July 19, 2013, and have lived separate and apart without reconciliation since that time.

On July 23, 2013 (four days after the alleged physical separation of the parties), Ms. Johnson filed a petition for separation or in the alternative, divorce. In that petition, she also sought an award of joint custody, that she be named the domiciliary parent of the two minor children, and that the judgment establish child support, a visitation schedule, as well award her interim and “final” spousal support.

Mr. Johnson filed a peremptory exception raising the objection of no cause of action, alleging that Ms. Johnson was seeking a separation or divorce prior to the couple engaging in marital counseling, as required by La. R.S. 9:307 relative to covenant marriages. Mr. Johnson sought a judgment to be rendered in his favor and denying all of [¡¡Ms. Johnson’s claims. As mentioned above, the trial court rendered a final judgment on July 9, 2014, sustaining Mr. Johnson’s exception and dismissing Ms. Johnson’s claims.

PEREMPTORY EXCEPTION OF NO CAUSE OF ACTION

The function of the peremptory exception raising the objection of no cause of action is to test the legal sufficiency of a pleading by determining whether the law affords a remedy on the facts alleged in the pleading. Ourso v. Wal-Mart Stores, Inc., 2008-0780 (La.App. 1 Cir. 11/14/08), 998 So.2d 295, 298, writ denied, 2008-2885 (La.2/6/09), 999 So.2d 785. The exception is triable on the face of the pleadings, and, for the purpose of determining the issues raised by the exception, the well-pleaded facts in the petition must be accepted as true. Id., 998 So.2d at 298. The burden of demonstrating that a petition fails to state a cause of action is upon the mover. Foti v. Holliday, 2009-0093 (La.10/30/09), 27 So.3d 813, 817. In reviewing a trial court’s ruling sustaining an exception of no [643]*643cause of action, appellate courts conduct a de novo review, because the exception raises a question of law, and the trial court’s decision is based only on the sufficiency of the petition. State v. Black, 2013-1148 (La.App. 1 Cir. 3/25/14), 144 So.3d 1.

In his exception, Mr. Johnson asserted that Ms. Johnson’s petition was premature and stated no viable cause of action against him for divorce or separation, because the statutory provision for covenant marriages, requiring the parties to engage in counseling prior to filing for a legal separation or divorce, had not been met. In the memorandum he filed in support of the exception, Mr. Johnson also challenged Ms. Johnson’s petition as failing to state a viable cause of action on the basis of the insufficient amount of time that the parties had been physically separated (one month) at the time of the filing of the petition.

Ms. Johnson does not deny entering into a covenant marriage with Mr. Johnson. In fact, she alleges such in her petition. In that petition, Ms. Johnson alleged she was seeking a separation from bed and board pursuant to La. R.S. 9:307B(6), relative to covenant marriages, because of the cruel treatment of Mr. Johnson, or in the alternative, pursuant to La. R.S. 9:307B(5), upon the passage of the requisite period of time (two |4years) of living separate and apart without reconciliation. She additionally alleged that she would “receive counseling as required by La. R.S. 9:307(C).”

In sustaining the exception and dismissing Ms. Johnson’s claims, the trial court issued the following written reasons:

The Court, considering the briefs filed by both parties in this matter, grants the defendant, Joey J.E. Johnson’s exception of No Cause of Action.

In brief to this court, counsel for Ms. Johnson states that the trial court, in a status conference, questioned whether the covenant marriage act, specifically, La. R.S. 9:308, prohibited the parties from suing for child custody and support; and the parties submitted briefs on that issue. The transcript of the hearing in this matter is not included in the record before this court. However, counsel for Ms. Johnson further indicates in brief to this court that the trial court’s expressed reason for sustaining the exception was its belief that marital counseling was a statutory prerequisite to the filing of a petition for separation/divorce for parties in a covenant marriage.

ISSUES RAISED ON APPEAL

On appeal, Ms. Johnson asserts the trial court legally erred in: sustaining the exception; dismissing her action for separation/divorce; dismissing her claims for child custody and child support; and dismissing her claim for spousal support. These assignments raise the issue of the extent of the statutory requirement that parties who contract to a covenant marriage obtain marital counseling prior to obtaining a judgment of separation or divorce, and whether that requirement prohibits the parties, prior to obtaining such counseling, from filing suit for incidental demands, specifically, child support, child custody, and spousal support.

APPLICABLE LAW/DISCUSSION/ANALYSIS

The Covenant Marriage Act, La. R.S. 9:272 et seq., was enacted by 1997 La. Acts No. 1380, effective July 15, 1997.1 That [644]*644act, with regard to divorce, in La. R.S. 9:272C | ¡/provides a covenant marriage maybe terminated by divorce only upon one of the exclusive grounds enumerated in La. R.S. 9:307. That statute provides as follows:

A. Notwithstanding any other law to the contrary and subsequent to the parties obtaining counseling, a spouse to a covenant marriage may obtain a judgment of divorce only upon proof of any of the following;
(1) The other spouse has committed adultery.
(2) The other spouse has committed a felony and has been sentenced to death or imprisonment at hard labor.
(3) The other spouse has abandoned the matrimonial domicile for a period of one year and constantly refuses to return.

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Bluebook (online)
168 So. 3d 641, 2014 La.App. 1 Cir. 0564, 2014 La. App. LEXIS 3050, 2014 WL 7278660, Counsel Stack Legal Research, https://law.counselstack.com/opinion/johnson-v-johnson-lactapp-2014.