Price v. Price

326 So. 2d 545
CourtLouisiana Court of Appeal
DecidedFebruary 4, 1976
Docket5315
StatusPublished
Cited by4 cases

This text of 326 So. 2d 545 (Price v. Price) 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
Price v. Price, 326 So. 2d 545 (La. Ct. App. 1976).

Opinion

326 So.2d 545 (1976)

Katie Lee PRICE, Plaintiff-Appellee,
v.
Albert PRICE, Jr., et al., Defendant-Appellant.

No. 5315.

Court of Appeal of Louisiana, Third Circuit.

February 4, 1976.

*546 Bruscato & Loomis by Anthony J. Bruscato and Percy A. Ford, Jr., Monroe, for defendant-appellant.

William G. Avery, Jonesville, for plaintiff-appellee.

Before HOOD, GUIDRY and PETERS, JJ.

HOOD, Judge.

Plaintiff, Katie Lee Price, seeks a judgment recognizing her as the owner of an undivided one-half interest in an improved lot of land in Catahoula Parish, and ordering that that property be partitioned by licitation. Defendants are Albert Price, Jr., and L. D. Wilson. Judgment was rendered by the trial court decreeing that "Plaintiff, Katie Lee Price, and defendant, L. D. Wilson, are each the owner of an undivided one-half interest" in and to that property, and ordering that the property be sold at public auction to effect its partition by licitation. Defendant Price appealed.

The principal question presented is whether defendant Price may collaterally attack in this proceeding a judgment which was rendered previously by the trial court in another suit.

Defendants, Albert Price, Jr., and L. D. Wilson, were married in Franklin Parish on November 28, 1939. The record indicates that they have never been divorced or judicially separated, at least up to the time of the trial of the instant suit, although they have not lived together for many years.

Despite the fact that Albert Price, Jr., was legally married to L. D. Wilson, he nevertheless married plaintiff in this suit, Katie Lee Price, in Catahoula Parish on or about August 21, 1951. The parties lived together as man and wife from the date of their marriage until they separated during the year 1974.

Some time between 1951 and 1974, while defendant Price and Katie Lee Price were *547 living together as man and wife, Albert Price, Jr., acquired ownership of the following described property situated in Catahoula Parish, Louisiana, to-wit:

"Lot 2 of the Georgia Westbrook Peniston Subdivision in the Town of Sicily Island, Louisiana, and added buildings and improvements thereto."

On June 5, 1974, Katie Lee Price filed suit against Albert Price, Jr., demanding a judgment of divorce on the grounds that the parties had lived separate and apart for a period of more than two years. That suit bears No. 11,517 on the Docket of the Seventh Judicial District Court, for Catahoula Parish. Defendant Price answered, denying that he and plaintiff had been living separate and apart. Plaintiff thereupon filed a supplemental and amending petition in the same suit, alleging that she learned after the original petition was filed that defendant had previously married L. D. Wilson and had never been divorced, that plaintiff married defendant in good faith, that the parties acquired property during that marriage, and that the marriage thus produced its civil effects in her favor. She prayed for judgment decreeing that the marriage between her and defendant Price was a nullity, and ordering "that the property acquired during the putative marriage of plaintiff and defendant be partitioned."

Defendant Price did not answer that supplemental and amending petition, and after due proceedings plaintiff obtained a default judgment against him on October 17, 1974, decreeing that:

"1. The marriage between Katie Lee Price and Albert Price, Jr., on August 21, 1951, was an absolute nullity;
"2. Plaintiff, Katie Lee Price, contracted the marriage now decreed to be a nullity in good faith, without any knowledge of any impediment thereto and is held to be a putative spouse;
"3. Plaintiff, Katie Lee Price, is recognized and declared to be the owner of an undivided one-half interest in all property owned by the putative community of acquets and gains that existed between the parties during the period August 21, 1951 to September 5, 1974;
"4. The child of the putative marriage between the parties hereto, Alma Lee Price, is recognized and declared to be the legitimate child of each party hereto."

No appeal has been taken from that judgment, and it now has become final.

The instant suit, bearing No. 11,619 on the Docket of the Seventh Judicial District Court for the Parish of Catahoula, was instituted on November 1, 1974. In this suit, plaintiff alleged that she is the putative spouse of defendant Price, that she married him in good faith, that during that marriage she and defendant acquired the above described property, and that she owns an undivided one-half interest in that property. She demands, among other things, that judgment be rendered decreeing "that the property held in common between them, in the proportion of an undivided one-half interest to petitioner, and the remainder as determined by this court, be partitioned by licitation, and ordering that a sale of said property be conducted at public auction." Answers were filed by both defendants. Defendant Price alleged in his answer that at the time of his marriage to Katie Lee Price, "plaintiff was aware that defendant was legally married and, therefore, is not a putative spouse marrying defendant in good faith."

No reconventional demands were filed, and defendant Price prayed in his answer merely that "the demands of plaintiff be rejected at her cost."

After trial, judgment was rendered by the trial court in the instant suit on June 5, 1975, decreeing that plaintiff, Katie Lee Price, owns an undivided one-half interest *548 in and to the above described property, and that defendant, L. D. Wilson, owns the remaining undivided one-half interest in that property. The judgment also orders that the property be sold to effect a partition by licitation. It is from this last mentioned judgment that defendant Price has appealed.

Although this appeal was taken from the judgment rendered on June 5, 1975, in suit No. 11,619 of the trial court docket, defendant Price argues here that the judgment rendered on October 17, 1974, in the prior suit (Docket No. 11,517) was erroneous insofar as it decreed that plaintiff married defendant Price in good faith, and that plaintiff thus was defendant's putative wife. Price does not ask us to reverse the judgment which was rendered in the prior suit, but he does seek to have the judgment rendered in the instant suit reversed and the case remanded, on the ground that the earlier judgment was erroneous and that plaintiff was not the putative wife of the defendant.

To support his contention that the judgment in the earlier suit was erroneous, Price argues (1) that the issue of whether plaintiff was the putative wife, in good faith, of defendant Price was not before the court in the earlier suit, because plaintiff did not pray for judgment to that effect in that suit; and (2) that in the prior suit the trial court erred in failing to apply the presumption of good faith to defendant Price, as well as to plaintiff, and in failing to hold that defendant Price also was in good faith. Defendant Price also argues that in the instant suit he should be granted "some interest in the property," in view of the absence of specific evidence to the effect that he was in bad faith at the time of his marriage to plaintiff.

We think the judgment rendered in the prior suit (No. 11,517) was responsive to the pleadings filed in that suit.

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

Related

Salles v. Salles
928 So. 2d 1 (Louisiana Court of Appeal, 2005)
Edwards v. Edwards
755 So. 2d 331 (Louisiana Court of Appeal, 1999)
Boyett v. Ingram
391 So. 2d 960 (Louisiana Court of Appeal, 1980)
Kilcrease, Ehlinger & Faulkner, Inc. v. McLeod
357 So. 2d 67 (Louisiana Court of Appeal, 1978)

Cite This Page — Counsel Stack

Bluebook (online)
326 So. 2d 545, Counsel Stack Legal Research, https://law.counselstack.com/opinion/price-v-price-lactapp-1976.