Laviolette v. Laviolette

128 So. 3d 1043, 12 La.App. 3 Cir. 1209, 2013 WL 811605, 2013 La. App. LEXIS 410
CourtLouisiana Court of Appeal
DecidedMarch 6, 2013
DocketNo. 12-1209
StatusPublished

This text of 128 So. 3d 1043 (Laviolette v. Laviolette) 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
Laviolette v. Laviolette, 128 So. 3d 1043, 12 La.App. 3 Cir. 1209, 2013 WL 811605, 2013 La. App. LEXIS 410 (La. Ct. App. 2013).

Opinion

AMY, Judge.

|,After the parties’ divorce, the plaintiff filed a motion to enforce an extra-judicial agreement that the couple executed prior to the granting of the divorce. At the hearing on the matter, the defendant admitted signing the document, but disputed that it was an agreement as to the division of their property. The trial court found in favor of the plaintiff, partitioning the property in line with the agreement. The defendant appeals. For the following reasons, we affirm the judgment of partition, but vacate as null the amended judgment of partition.

Factual and Procedural Background

Dawn Laviolette filed a petition for divorce from her husband, Rocky Laviolette, in January 2011. Prior to the judgment of divorce ultimately entered in August 2011, Mr. and Ms. Laviolette began addressing the division of their property, including the immovable property accumulated during their marriage. It is undisputed that, in doing so, the parties signed two documents regarding the ownership of the property. The latter document, entitled “Joint Stipulation of Community Property and Descriptive List,” was notarized and filed with the clerk of court.

Thereafter, in February 2012, Ms. La-violette filed a “Motion to Enforce Settlement Agreement and for Judgment Approving and Homologating Agreement,” alleging that that the parties had “engaged in extensive negotiations and entered into a transaction and compromise of all community property issues and reduced that compromise to writing consistent with La. C.C. Arts. 3071 and 3072.” In the motion, Ms. Laviolette addressed both documents referenced above, and asserted that the initial “written compromise agreement” of April 20, 2011 was subsequently reduced to the more formal “joint stipulation of community property |2and descriptive list” of May 12, 2011. Ms. Laviolette moved for a judgment approving of the latter document, which she attached to her pleading. Mr. Laviolette objected to the motion, suggesting that the agreement was without legal effect.

At the resulting hearing, Mr. Laviolette admitted having signed the May 2011 agreement. However, he asserted that the document was only meant for the parties’ evaluation of the appraisals of the property and not for partition purposes. He further denied having reviewed the document in detail before signing it. Much of the testimony was directed to the May 2011 agreement’s designation of Ms. Laviolette as the sole owner of a Carenero residence and its further declaration that:

This residence is not considered community property. Dawn Michelle Olmstead Laviolette is the exclusive, sole owner of this residence as it was acquired with funds she received from a personal injury claim and is hereby excluded. Dawn Michelle Olmstead Laviolette will receive all proceeds from the sale of this property.

Ms. Laviolette suggested in her testimony that, although the settlement agreement had been at Mr. Laviolette’s urging, he no longer wished to abide by the agreement after the above-described residence was destroyed by fire and insurance proceeds became available.

After hearing the parties’ testimony, the trial court concluded that the May 2011 agreement constituted an extrajudicial contract between the parties wherein they agreed as to the disposition of their property. The trial court ultimately signed a judgment of partition, in which it declared that “the transaction and compromise pursuant to La.C.C. Art. 3071 as stipulated by the parties in the May 11, 2011 Joint Stipulation of Community Property and Descriptive List is hereby implemented and [1046]*1046made Judgment of this Court[.]” The judgment listed the property assigned to Reach party. Like the May 2011 agreement, the judgment conveyed the Caren-ero residence to Ms. Laviolette and reproduced the paragraph indicating that:

This residence is not considered community property. Dawn Michelle Olmstead Laviolette is the exclusive, sole owner of this residence as it was acquired with funds she received from a personal injury claim and is hereby excluded. Dawn Michelle Olmstead Laviolette will receive all proceeds from the sale of this property.

In an amended judgment, the trial court included a provision making the judgment’s conveyances of movable and immovable property “retroactive to May 11, 2011, the date of their settlement agreement.” The trial court subsequently denied Mr. Laviolette’s motion for new trial, an aspect of which challenged the amended judgment as an impermissive alteration to a final judgment under La.Code Civ.P. art. 1951.

Mr. Laviolette appeals.

Discussion

Effect of the Extra-JudiciaZ Document

In his brief to this court, Mr. Laviolette asserts that the trial court impermissibly gave effect to the May 2011 document. He contends that numerous provisions of both the Louisiana Civil Code and the revised statutes regarding the partition of community property prohibit the method approved of by the trial court. Having reviewed these arguments, however, we find no error in the judgment rendered by the trial court.

We first address Mr. Laviolette’s contention that the trial court’s acceptance of the May 2011 document permitted a circumvention of the rules of partition, namely La.R.S. 9:2801, which provides, in part, as follows:

A. When the spouses are unable to agree on a partition of community property or on the settlement of the claims between the spouses arising either from the matrimonial regime, or from the co-_Jownership4 of former community property following termination of the matrimonial regime, either spouse, as an incident of the action that would result in a termination of the matrimonial regime or upon termination of the matrimonial regime or thereafter, may institute a proceeding, which shall be conducted in accordance with the following rules....

We find no merit in Mr. Laviolette’s claim under this provision as the first clause of Paragraph A specifically provides for the remedy of La.R.S. 9:2801, “[w]hen the spouses are unable to agree on a partition of community property or on the settlement of the claims between the spouses arising [ ] from the matrimonial regime[.]” Given both the testamentary and documentary evidence before the trial court, we find no manifest error in the trial court’s recognition that the April and May 2011 documents sufficiently evidenced the parties’ mutual agreement to settle their property dispute.1 Neither do we find er[1047]*1047ror in the trial court’s consideration of the parties’ intent, as evidenced by the documents, in rendering the ultimate 1 judgment of partition and incidental matters. Notably, Mr. Laviolette does not here dispute that he signed the documents now at issue.

Mr. Laviolette further contends that the trial court erred in accepting the May 2011 document, since it was confected prior to divorce and was without court approval. In support of his brief argument in this regard, Mr. Laviolette references La.R.S. 9:2802, which provides that: “No judgment of partition shall be rendered unless rendered in conjunction with, or subsequent to, the judgment which has the effect of terminating the matrimonial regime.” He notes that trial court had not terminated the matrimonial regime at the time the May 2011 document was executed. While Mr. Laviolette’s statement is accurate in that the matrimonial regime had not been terminated at the time the parties executed the agreement, La.R.S.

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Bluebook (online)
128 So. 3d 1043, 12 La.App. 3 Cir. 1209, 2013 WL 811605, 2013 La. App. LEXIS 410, Counsel Stack Legal Research, https://law.counselstack.com/opinion/laviolette-v-laviolette-lactapp-2013.