Lepard v. Lepard

722 So. 2d 367, 1998 WL 847843
CourtLouisiana Court of Appeal
DecidedDecember 9, 1998
Docket31,351-CA
StatusPublished
Cited by8 cases

This text of 722 So. 2d 367 (Lepard v. Lepard) 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
Lepard v. Lepard, 722 So. 2d 367, 1998 WL 847843 (La. Ct. App. 1998).

Opinion

722 So.2d 367 (1998)

Teresa Lynn LEPARD, Plaintiff-Appellant,
v.
Timothy Lynn LEPARD, Defendant-Appellee.

No. 31,351-CA.

Court of Appeal of Louisiana, Second Circuit.

December 9, 1998.

*368 Jack H. Kaplan, Shreveport, Counsel for Appellant.

James T. Adams, Bossier City, Counsel for Appellee.

Before MARVIN, C.J., and GASKINS and PEATROSS, JJ.

GASKINS, Judge.

The plaintiff in this divorce action, Teresa Lynn Lepard, appeals from a trial court judgment granting an exception of res judicata in favor of the defendant, Timothy Lynn Lepard. The exception of res judicata was based upon a divorce decree in favor of Mr. Lepard granted in Mississippi. For the following reasons, we affirm the trial court judgment.

FACTS

The parties were married in Mississippi in October 1993. No children were born of the marriage. The matrimonial domicile was established in Mississippi and the parties resided in that state until their separation in October 1996 when Mrs. Lepard returned to Louisiana. On March 3, 1997, she filed the present action for divorce in Caddo Parish under La. C.C. art. 102.[1] The only relief she *369 requested was a divorce, restoration of her maiden name and termination of the community. A curator was appointed to represent Mr. Lepard, still a resident of Mississippi.

On March 24, 1997, the curator sent Mr. Lepard notice of the Louisiana divorce proceeding by certified mail. Mr. Lepard then filed an action for divorce in Mississippi on March 28, 1997. Mrs. Lepard was personally served with notice of the Mississippi divorce action on April 28, 1997. In the Mississippi action, she filed a notice of lis pendens on May 27, 1997, but took no other action in those proceedings. On June 14, 1997, Mrs. Lepard was notified by her husband's counsel that the Mississippi divorce action was set for trial on June 17, 1997. On that date, the Chancery Court of Union County, Mississippi granted a divorce in favor of Mr. Lepard.

On June 3, 1997, while the Mississippi proceedings were pending, Mrs. Lepard amended her Louisiana petition to request a divorce under La. C.C. art. 103[2] and to request injunctive relief against harassment by Mr. Lepard. After Mr. Lepard obtained his June 17, 1997 judgment of divorce in Mississippi, he filed exceptions of lack of personal jurisdiction, lis pendens, and res judicata in the Louisiana case. Mr. Lepard also filed a separate action in this state to make the Mississippi divorce judgment executory. In response to that suit, Mrs. Lepard has asserted that the Mississippi judgment was obtained through fraud or ill practices. The trial court denied Mrs. Lepard's motion to consolidate her Louisiana divorce action and Mr. Lepard's petition to make the Mississippi judgment executory. Therefore, the issues raised in the suit to make the Mississippi judgment executory are not presently before this court. On February 4, 1998, the trial court granted Mr. Lepard's exception of res judicata only and dismissed Mrs. Lepard's divorce suit. She now appeals from the adverse trial court judgment, arguing the trial court erred in granting Mr. Lepard's exception of res judicata.[3]

DISCUSSION

In contending that the trial court should have overruled Mr. Lepard's exception of res judicata, the plaintiff essentially argues that, for a number of reasons, the courts of this state should not accord full faith and credit to the Mississippi divorce judgment. The plaintiff argues that her petition for a Louisiana divorce was filed prior to Mr. Lepard's petition for a divorce in Mississippi, that the Mississippi court failed to give effect to her notice of lis pendens, that the Mississippi proceedings were not properly documented and therefore the record of the Mississippi divorce is not properly before this court. Further, Mrs. Lepard contends that the Mississippi statute on residency and jurisdiction lacks accreditation or proof by affidavits that it is actually the law. We find these arguments are without merit.

Louisiana's res judicata statute, La. R.S. 13: 4231, provides as follows:

Except as otherwise provided by law, a valid and final judgment is conclusive between the same parties, except on appeal or other direct review, to the following extent:
(1) If the judgment is in favor of the plaintiff, all causes of action existing at the time of final judgment arising out of the transaction or occurrence that is the subject *370 matter of the litigation are extinguished and merged in the judgment.
(2) If the judgment is in favor of the defendant, all causes of action existing at the time of final judgment arising out of the transaction or occurrence that is the subject matter of the litigation are extinguished and the judgment bars a subsequent action on those causes of action.
(3) A judgment in favor of either the plaintiff or the defendant is conclusive, in any subsequent action between them, with respect to any issue actually litigated and determined if its determination was essential to that judgment.

As provided in the United States Constitution, Article IV, Section 1, "Full Faith and Credit shall be given in each State to the public Acts, Records, and judicial Proceedings of every other State." Succession of Bickham, 518 So.2d 482 (La.1988); Brown v. Brown, 387 So.2d 565 (La.1980), cert. denied 450 U.S. 966, 101 S.Ct. 1482, 67 L.Ed.2d 615 (1981). Louisiana courts may deny "full faith and credit" to judgments rendered in courts of other states only when it is shown that the court lacked jurisdiction. WellTech, Inc. v. Abadie, 95-620 (La.App. 5th Cir. 1/17/96), 666 So.2d 1234, writs denied, 96-0688 (La.5/3/96), 672 So.2d 690, 96-2598 (La.3/13/98), 712 So.2d 864. The relevant law to determine whether the foreign court had jurisdiction is the law of the forum state rendering the original judgment. State v. Fontenot, 587 So.2d 771 (La.App. 2d Cir. 1991). Full faith and credit may also be denied when a collateral attack on the foreign judgment would have been permitted in the state that rendered the judgment. Anderson v. Collins, 26,142 (La.App.2d Cir.1/6/95), 648 So.2d 1371, writs denied, 95-0629, 95-0783 (La.4/21/95), 653 So.2d 576; Fagone v. Fagone, 508 So.2d 644 (La.App. 2d Cir.1987). The litigant who seeks to deny a foreign judgment full faith and credit based on availability of a collateral attack where rendered has the burden of alleging and proving the basis for the availability of the collateral attack. Fagone v. Fagone, supra.

In this case, the plaintiff has failed to show that the Mississippi court lacked jurisdiction or that the Mississippi judgment is subject to collateral attack. The plaintiff points out that she filed her petition for divorce in this state prior to Mr. Lepard's filing in Mississippi and seems to contend that her prior filing should have precluded Mr. Lepard's suit in Mississippi. The plaintiff has furnished us with no authority for the proposition that the first filed suit primes all other suits in all circumstances. The mere act of filing a petition for divorce in Louisiana prior to the defendant's filing for divorce in Mississippi is not a bar to the Mississippi suit. The defendant cites Cox v. Cox, 234 Miss.

Free access — add to your briefcase to read the full text and ask questions with AI

Related

Javeed Khan v. Reshma Azeez
Louisiana Court of Appeal, 2024
Johnson v. Williams
163 So. 3d 880 (Louisiana Court of Appeal, 2015)
Williams v. Board of Supervisors of University of Louisiana System
135 So. 3d 804 (Louisiana Court of Appeal, 2014)
NCO Portfolio Management Inc. v. Gougisha
985 So. 2d 731 (Louisiana Court of Appeal, 2008)
HOLIDAY HOSPITALITY FRANCHISING v. Grant
865 So. 2d 257 (Louisiana Court of Appeal, 2004)
Summers v. Pray
850 So. 2d 46 (Louisiana Court of Appeal, 2003)
Dunn v. Mortenson
839 So. 2d 1007 (Louisiana Court of Appeal, 2003)
Edwards v. Dominick
815 So. 2d 236 (Louisiana Court of Appeal, 2002)
Hollis v. Info Pro Technology
764 So. 2d 184 (Louisiana Court of Appeal, 2000)

Cite This Page — Counsel Stack

Bluebook (online)
722 So. 2d 367, 1998 WL 847843, Counsel Stack Legal Research, https://law.counselstack.com/opinion/lepard-v-lepard-lactapp-1998.