NOT DESIGNATED FOR PUBLICATION
STATE OF LOUISIANA COURT OF APPEAL, THIRD CIRCUIT
10-1371
MILDRED ELLEN METHVIN
VERSUS
JAMES THOMAS MCMANUS
**********
APPEAL FROM THE FIFTEENTH JUDICIAL DISTRICT COURT PARISH OF LAFAYETTE, NO. C-2005-5234 HONORABLE PHYLLIS M. KEATY, DISTRICT JUDGE
ELIZABETH A. PICKETT JUDGE
Court composed of Oswald A. Decuir, Elizabeth A. Pickett, and Shannon J. Gremillion, Judges.
AFFIRMED.
Katherine P. Martin Gretchen Heider Mayard Martin Mayard, L.L.C. P. O. Box 81338 Lafayette, LA 70598-1338 (337) 291-2440 Counsel for Defendant/Appellee: James Thomas McManus Bradley L. Drell Michael J. Floyd B. Gene Taylor III Gold, Weems, Bruser, Sues & Rundell P. O. Box 6118 Alexandria, LA 71307 (318) 445-6471 Counsel for Plaintiff/Appellant: Mildred Ellen Methvin PICKETT, Judge.
Ex-wife appeals judgment denying her motion to reform community property
settlement entered into by her and her ex-husband. We affirm the judgment.
FACTS
Mildred Methvin and James McManus were married January 2, 1988. Prior to
their marriage in December 1987, the couple executed a marriage contract in which
they renounced the community property regime provided for by Louisiana law and
contracted for a separate property regime. Ten years later, on March 18, 1998,
Mildred and James terminated their separate property regime and established a legal
regime of community property from that date forward. That same date, they each
transferred separate property they owned individually to the newly-established
community of acquets and gains.
Mildred filed for divorce in October 2005. On March 17, 2006, she and James
entered into a Stipulated Community Property Settlement (Settlement) in which they
divided the community property accumulated after they established the community
of acquets and gains. Subsequently, on March 30, 2006, a judgment of divorce,
which provided that the divorce terminated the community of acquets and gains
retroactive to October 7, 2005, and that each party was to retain the property set forth
in the Stipulated Community Property Settlement, was signed by the trial court.
In October 2009, James filed a Motion to Enforce Stipulated Community
Property Settlement Regarding Petitioner’s Federal Retirement Benefits, seeking to
enforce a provision of the Settlement that entitled each party to a portion of their
former spouse’s Civil Service Retirement System retirement benefits. The retirement
benefits provision reads:
1 The parties further agree that each is entitled to a portion of the former spouse’s CSRS retirement benefits. The parties agree to timely submit to the court, prior to their respective retirement dates, a mutually- agreed court order for each party, directing the United States Office of Personnel Management (OPM) to pay the former spouse’s share of the retirement benefits directly to the former spouse in accordance with a formula in accordance with Louisiana law. For purposes of the computation, the parties agree that the community lasted 17.75 years, from January 2, 1988, until October 7, 2005.
The Settlement then outlined in a footnote the formula espoused by the supreme court
in Sims v. Sims, 358 So.2d 919 (La.1978), for partitioning retirement benefits.
Mildred opposed James’s Motion, urging that the retirement benefits provision
contained an error that rendered it unenforceable as written. She asserted that
because the retirement benefits provision stated the community property regime
existed for 17.75 years, the number of years they had been married, rather than the
7.56 years it actually existed, it contained an error of fact that required it to be
reformed to reflect the community property regime existed for 7.56 years, not 17.75
years.
After a hearing, the trial court rendered judgment in favor of James. Mildred
appealed.
ISSUES FOR REVIEW
Mildred assigns three errors with the trial court’s judgment which present the
following issues for our consideration:
1. Whether a stipulation containing a known error of fact entitles a party to an opportunity to retract or rescind the stipulation.
2. Whether a stipulation containing an error of fact made through ignorance of or a misapprehension of the true facts entitles a party to an opportunity to retract the stipulation.
2 3. Whether the trial court erred in refusing to admit parol evidence to allow appellant to demonstrate error that vitiated consent as to the stipulation.
4. Whether the trial court erred in relying on the incorrect fact that appellant drafted the community property partition in making its decision to not allow parol evidence to prove error that vitiated consent.
DISCUSSION
Error of Fact
Mildred contends the Settlement contains a known error of fact which was
included through ignorance of or misapprehension of the true facts; therefore, she is
entitled to retract the stipulation. She relies on La.Civ.Code art. 1853 as support for
her argument. Article 1853 provides:
A judicial confession is a declaration made by a party in a judicial proceeding. That confession constitutes full proof against the party who made it.
A judicial confession is indivisible and it may be revoked only on the ground of error of fact.
Mildred’s argument fails for two reasons. First, the provision in the Settlement
concerning the length of time the community property regime existed was not a
judicial confession. Judicial confession is defined as “a party’s admission, or
concession, in a judicial proceeding of an adverse factual element, waiving evidence
as to the subject of the admission.” Jackson v. Gulf Ins. Co., 199 So.2d 886, 891, 250
La. 819, 832 (La. 1967). See also Leday v. Safeway Ins. Co. of La., 04-610 (La.App.
3 Cir. 11/17/04), 888 So.2d 1084. The length of time the community property regime
existed was known by Mildred and James. Therefore, it was not an issue in the
proceeding and was not an admission or concession of an adverse factual element as
contemplated by La.Civ.Code art. 1853.
3 Second, the “error” of which Mildred complains was made either through her
lack of diligence or negligence, not ignorance or misapprehension of the true facts,
or it was negotiated by her and James, as James argues. Mildred would not be
entitled to relief under either scenario. If the provision was negotiated, it was not an
“error” but a negotiated term of the Settlement. If it was an “error” made through
lack of diligence or negligence, Mildred would not be entitled to relief even if the
Settlement provision was a judicial confession. See Ubas for Use and Benefit of
Ubas v. La. Farm Bureau Mut. Ins. Co., 434 So.2d 199 (La.App. 4 Cir. 1983).
In Ubas, an insurer sought to invalidate a settlement on the basis of lack of
consent, urging that its agent’s error as to the limits of the policy it issued to its
insured constituted an error sufficient to vitiate its consent to the settlement. The
court rejected the argument, holding the insurer and its agent had a duty to know the
limits of the policy and the agent’s failure to fulfill that duty precluded the insurer
from claiming error on that basis. We acknowledge the insurer in Uba urged that its
consent to the settlement was vitiated by error, as provided in La.Civ.
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NOT DESIGNATED FOR PUBLICATION
STATE OF LOUISIANA COURT OF APPEAL, THIRD CIRCUIT
10-1371
MILDRED ELLEN METHVIN
VERSUS
JAMES THOMAS MCMANUS
**********
APPEAL FROM THE FIFTEENTH JUDICIAL DISTRICT COURT PARISH OF LAFAYETTE, NO. C-2005-5234 HONORABLE PHYLLIS M. KEATY, DISTRICT JUDGE
ELIZABETH A. PICKETT JUDGE
Court composed of Oswald A. Decuir, Elizabeth A. Pickett, and Shannon J. Gremillion, Judges.
AFFIRMED.
Katherine P. Martin Gretchen Heider Mayard Martin Mayard, L.L.C. P. O. Box 81338 Lafayette, LA 70598-1338 (337) 291-2440 Counsel for Defendant/Appellee: James Thomas McManus Bradley L. Drell Michael J. Floyd B. Gene Taylor III Gold, Weems, Bruser, Sues & Rundell P. O. Box 6118 Alexandria, LA 71307 (318) 445-6471 Counsel for Plaintiff/Appellant: Mildred Ellen Methvin PICKETT, Judge.
Ex-wife appeals judgment denying her motion to reform community property
settlement entered into by her and her ex-husband. We affirm the judgment.
FACTS
Mildred Methvin and James McManus were married January 2, 1988. Prior to
their marriage in December 1987, the couple executed a marriage contract in which
they renounced the community property regime provided for by Louisiana law and
contracted for a separate property regime. Ten years later, on March 18, 1998,
Mildred and James terminated their separate property regime and established a legal
regime of community property from that date forward. That same date, they each
transferred separate property they owned individually to the newly-established
community of acquets and gains.
Mildred filed for divorce in October 2005. On March 17, 2006, she and James
entered into a Stipulated Community Property Settlement (Settlement) in which they
divided the community property accumulated after they established the community
of acquets and gains. Subsequently, on March 30, 2006, a judgment of divorce,
which provided that the divorce terminated the community of acquets and gains
retroactive to October 7, 2005, and that each party was to retain the property set forth
in the Stipulated Community Property Settlement, was signed by the trial court.
In October 2009, James filed a Motion to Enforce Stipulated Community
Property Settlement Regarding Petitioner’s Federal Retirement Benefits, seeking to
enforce a provision of the Settlement that entitled each party to a portion of their
former spouse’s Civil Service Retirement System retirement benefits. The retirement
benefits provision reads:
1 The parties further agree that each is entitled to a portion of the former spouse’s CSRS retirement benefits. The parties agree to timely submit to the court, prior to their respective retirement dates, a mutually- agreed court order for each party, directing the United States Office of Personnel Management (OPM) to pay the former spouse’s share of the retirement benefits directly to the former spouse in accordance with a formula in accordance with Louisiana law. For purposes of the computation, the parties agree that the community lasted 17.75 years, from January 2, 1988, until October 7, 2005.
The Settlement then outlined in a footnote the formula espoused by the supreme court
in Sims v. Sims, 358 So.2d 919 (La.1978), for partitioning retirement benefits.
Mildred opposed James’s Motion, urging that the retirement benefits provision
contained an error that rendered it unenforceable as written. She asserted that
because the retirement benefits provision stated the community property regime
existed for 17.75 years, the number of years they had been married, rather than the
7.56 years it actually existed, it contained an error of fact that required it to be
reformed to reflect the community property regime existed for 7.56 years, not 17.75
years.
After a hearing, the trial court rendered judgment in favor of James. Mildred
appealed.
ISSUES FOR REVIEW
Mildred assigns three errors with the trial court’s judgment which present the
following issues for our consideration:
1. Whether a stipulation containing a known error of fact entitles a party to an opportunity to retract or rescind the stipulation.
2. Whether a stipulation containing an error of fact made through ignorance of or a misapprehension of the true facts entitles a party to an opportunity to retract the stipulation.
2 3. Whether the trial court erred in refusing to admit parol evidence to allow appellant to demonstrate error that vitiated consent as to the stipulation.
4. Whether the trial court erred in relying on the incorrect fact that appellant drafted the community property partition in making its decision to not allow parol evidence to prove error that vitiated consent.
DISCUSSION
Error of Fact
Mildred contends the Settlement contains a known error of fact which was
included through ignorance of or misapprehension of the true facts; therefore, she is
entitled to retract the stipulation. She relies on La.Civ.Code art. 1853 as support for
her argument. Article 1853 provides:
A judicial confession is a declaration made by a party in a judicial proceeding. That confession constitutes full proof against the party who made it.
A judicial confession is indivisible and it may be revoked only on the ground of error of fact.
Mildred’s argument fails for two reasons. First, the provision in the Settlement
concerning the length of time the community property regime existed was not a
judicial confession. Judicial confession is defined as “a party’s admission, or
concession, in a judicial proceeding of an adverse factual element, waiving evidence
as to the subject of the admission.” Jackson v. Gulf Ins. Co., 199 So.2d 886, 891, 250
La. 819, 832 (La. 1967). See also Leday v. Safeway Ins. Co. of La., 04-610 (La.App.
3 Cir. 11/17/04), 888 So.2d 1084. The length of time the community property regime
existed was known by Mildred and James. Therefore, it was not an issue in the
proceeding and was not an admission or concession of an adverse factual element as
contemplated by La.Civ.Code art. 1853.
3 Second, the “error” of which Mildred complains was made either through her
lack of diligence or negligence, not ignorance or misapprehension of the true facts,
or it was negotiated by her and James, as James argues. Mildred would not be
entitled to relief under either scenario. If the provision was negotiated, it was not an
“error” but a negotiated term of the Settlement. If it was an “error” made through
lack of diligence or negligence, Mildred would not be entitled to relief even if the
Settlement provision was a judicial confession. See Ubas for Use and Benefit of
Ubas v. La. Farm Bureau Mut. Ins. Co., 434 So.2d 199 (La.App. 4 Cir. 1983).
In Ubas, an insurer sought to invalidate a settlement on the basis of lack of
consent, urging that its agent’s error as to the limits of the policy it issued to its
insured constituted an error sufficient to vitiate its consent to the settlement. The
court rejected the argument, holding the insurer and its agent had a duty to know the
limits of the policy and the agent’s failure to fulfill that duty precluded the insurer
from claiming error on that basis. We acknowledge the insurer in Uba urged that its
consent to the settlement was vitiated by error, as provided in La.Civ. Code art. 1948,
but find the court’s reasoning applicable to Mildred’s argument under Article 1853.
See also Watkins v. Cawthon, 33 La.Ann. 1194 (1881); Nestor v. La. State Univ.
Health Sci. Ctr. in Shreveport, 40,378 (La.App. 2 Cir. 12/30/05), 917 So.2d 1273,
writ denied, 06-221 (La. 4/14/06), 926 So.2d 551, which indicate that only newly
discovered information which has a prejudicial impact on an adverse party warrants
application of Article 1853. For these reasons, we reject Mildred’s argument that the
Settlement contains a judicial confession made through an error of fact which justifies
revocation of the confession.
4 Parol Evidence
Mildred next argues the trial court erred in refusing to allow parol evidence to
correct the length of time the community property regime existed. She argues:
1) parol evidence should have been allowed to establish that the retirement benefits
provision contains an error that vitiates her consent to it and 2) it was error for the
trial court to interpret the retirement benefits provision against her because she did
not draft the Settlement.
As discussed above, Mildred’s first argument has no merit. Ubas, 434 So.2d
199 (La.App. 4 Cir. 1983). With regard to her second argument, La.Civ.Code art.
1848 prohibits the admission of testimony or other evidence to contradict the contents
of an authentic act except where it is used to prove vice of consent, simulation, or that
the written act was modified by a subsequent and valid oral agreement. The Civil
Code instructs that interpretation of a contract is the determination of the common
intent of the parties, La.Civ.Code art. 2045, then prohibits interpretation of a contract
when its words are clear and explicit and lead to no absurd consequences.
La.Civ.Code art. 2046. Thus, jurisprudence interpreting Article 1848 holds that
unless a contract is ambiguous, parol evidence is generally inadmissible to vary the
terms of the written contract. Ortego v. State, Dep’t of Trans. & Dev., 96-1322 (La.
2/25/97), 689 So.2d 1358.
The trial court did state in oral reasons that Mildred admitted she drafted the
Settlement; therefore, it had to be construed against her. We need not address this
comment, however, because Article 2056, the basis of the trial court’s comment,
applies only when there is doubt that cannot be resolved. Kenner Fire Fighters Ass’n
Local No. 1427, I.A.F.F. v. City of Kenner, 09-129 (La.App. 5 Cir. 9/29/09), 25 So.3d
5 147, writ denied, 09-2362 (La. 1/8/10), 24 So.3d 870. Neither the retirement benefits
provision nor the Settlement in its entirety is ambiguous as written; they are clear and
explicit. Accordingly, there is no doubt as to the meaning of the retirement benefits
provision, and the trial court did not err in refusing to allow parol evidence
concerning the length of time the community property regimes existed. Furthermore,
we find merit in James’s argument that it was unnecessary to specifically state the
number of years and the dates during which the community existed if he and Mildred
intended to partition her retirement benefits according to the formula provided in
Sims, 358 So.2d 919.
DISPOSITION
For these reasons, the judgment of the trial court is affirmed. All costs are
assessed to Mildred Methvin.