Lyons v. Fontenot

344 So. 2d 1068
CourtLouisiana Court of Appeal
DecidedApril 13, 1977
Docket5789
StatusPublished
Cited by8 cases

This text of 344 So. 2d 1068 (Lyons v. Fontenot) 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
Lyons v. Fontenot, 344 So. 2d 1068 (La. Ct. App. 1977).

Opinion

344 So.2d 1068 (1977)

Pauline LYONS, Plaintiff-Appellant,
v.
Donald Ray FONTENOT, Defendant-Appellee.

No. 5789.

Court of Appeal of Louisiana, Third Circuit.

April 13, 1977.

*1069 A. J. Plaisance, Lafayette, for plaintiff-appellant.

Pucheu & Pucheu by Jacque B. Pucheu, Jr., Eunice, for defendant-appellee.

Before HOOD, CULPEPPER and GUIDRY, JJ.

HOOD, Judge.

This action was instituted by Mrs. Pauline Lyons against Donald Ray Fontenot. Plaintiff seeks to annul an earlier judgment which decreed a divorce between the parties, and following that annulment she demands judgment in her favor decreeing a divorce between her and defendant, awarding her the custody of her two minor children, and condemning defendant to pay alimony and child support. The trial court rendered judgment maintaining an exception of prescription, an exception of no right or cause of action and an exception of res judicata, all filed by defendant. Plaintiff appealed.

The issues presented on this appeal are whether the trial court erred in maintaining any or all of the above exceptions.

On April 30, 1973, Donald Ray Fontenot filed a suit for divorce against Pauline Lyons, alleging as grounds therefor that the parties had been living separate and apart for more than two years. Fontenot also alleged that one child, Kevin Ray Fontenot, had been born of that union. No answer was filed by the defendant, and on May 30, 1973, a default judgment was rendered by the district court in favor of Fontenot, decreeing an absolute divorce between the parties, granting Mrs. Lyons the custody of the minor child, Kevin Ray Fontenot, and ordering Fontenot to pay child support of $50.00 per month.

The instant suit was filed by Pauline Lyons on June 25, 1976. In her original petition, plaintiff did not seek to have the divorce decree annulled. She alleged that two children were born of her marriage to defendant, one of whom was Kevin Ray Fontenot, who was then nine years of age, and the other was Lauri Fontenot, who was five years of age. Plaintiff demanded judgment awarding her the custody of the younger child (she previously having obtained custody of the older one), support for that child, and alimony and attorney's fees. In response to that original petition, defendant Fontenot filed, among other pleadings, an exception of res judicata, seeking the dismissal of "that portion of her *1070 petition which seeks to declare that an additional child was born of their marriage."

Shortly after the above exception was filed, plaintiff Lyons filed a supplemental petition in which she demands judgment in her favor and against defendant Fontenot (1) annulling the divorce decree which was rendered in the earlier suit on May 30, 1973, (2) decreeing an absolute divorce between plaintiff and defendant, (3) awarding plaintiff the custody of both of her minor children, and (4) condemning defendant to pay alimony and child support. Alternatively, plaintiff prays for the relief which she sought in her original petition.

In response to that, supplemental petition, defendant Fontenot filed several pleadings, including (1) an exception of no cause and no right of action, and (2) an exception of prescription. The minutes of the court show that "arguments of counsel" were heard on July 23, 1976, and that the trial court then rendered judgment maintaining the three above mentioned exceptions. The record indicates that no evidence was introduced at the hearing held on July 23.

Following the above arguments, a formal judgment was read and signed by the trial judge on August 12, 1976, the pertinent parts of which read as follows:

"IT IS ORDERED, ADJUDGED AND DECREED that defendant's exception of prescription to plaintiff's suit for nullity of a divorce judgment for vices in substance be maintained.
"IT IS FURTHER ORDERED, ADJUDGED AND DECREED that defendant's exception of no right or cause of action to plaintiff's suit to annul a judgment due to vices of form is maintained.
"IT IS FURTHER ORDERED, ADJUDGED AND DECREED that defendant's exception of res judicata regarding the number of children born of the marriage of Donald Ray Fontenot and Pauline Lyons is maintained."

Plaintiff appealed from that judgment, and it is that appeal which is before us now.

We consider first the question of whether the trial court erred in maintaining the exception of no right or no cause of action filed by defendant.

Exception of No Right or No Cause of Action

In the exception of no right or no cause of action which Fontenot filed to plaintiff's supplemental petition, he prayed that the action be dismissed only as to "that part of her petition which seeks to declare the judgment . . . a nullity because of vices in form, in particular, lack of jurisdiction." The trial judge rendered judgment maintaining that exception. He did not assign reasons for that judgment, but we assume that he felt that the exception should be maintained on the grounds alleged in the pleadings.

We have decided that the exception of no cause of action was properly maintained by the trial court, but we prefer to base that decision on grounds different from those which we assume were relied on by the trial judge.

One of the principal demands contained in plaintiff's supplemental petition is that the default judgment of divorce, which was rendered in a separate suit on May 30, 1973, be decreed to be null and void under LSA-C.C.P. arts. 2001-2006, on grounds that it was obtained by fraud or ill practices. She alleges the following facts to support that demand:

"5. The above stated judgment should be annulled because of vices of form in that this Court did not have jurisdiction because Donald Ray Fontenot was not residing in St. Landry Parish, Louisiana when the alleged grounds for the divorce took place.
"6. Plaintiff has never voluntarily acquiesced in the judgment because she was not informed of the fact that the judgment of divorce had been rendered until her undersigned attorney advised her by letter dated May 24, 1976.
"6. Further, the judgment of divorce should be annulled for vices of substance, in that it was obtained by Donald Ray Fontenot by fraud or illegal practices in that he alleged in the divorce petition and *1071 testified that he and plaintiff herein had not resided together since the month of March, 1969, when in fact he had lived with plaintiff in Lafayette Parish, Louisiana, where plaintiff and defendant lived together as husband and wife, as late as nine (9) months prior to the birth of Lauri Fontenot."

There are no allegations in any of the pleadings filed in the instant suit to the effect that Mrs. Lyons was prevented from asserting a defense to the original divorce action. We have searched the record of this appeal and find nothing in it which we think would or could excuse her from timely presenting the defense which she now claims she had to that divorce action.

The pleadings which were filed in the original divorce proceeding were not introduced in evidence in the instant suit, and the record of that divorce action does not constitute a part of the record of this appeal. We note, however, that on August 3, 1976, Mrs.

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Bluebook (online)
344 So. 2d 1068, Counsel Stack Legal Research, https://law.counselstack.com/opinion/lyons-v-fontenot-lactapp-1977.