Sicard v. Sicard

82 So. 3d 565, 11 La.App. 5 Cir. 423, 2011 WL 6821443, 2011 La. App. LEXIS 1633
CourtLouisiana Court of Appeal
DecidedDecember 28, 2011
DocketNo. 11-CA-423
StatusPublished
Cited by1 cases

This text of 82 So. 3d 565 (Sicard v. Sicard) 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
Sicard v. Sicard, 82 So. 3d 565, 11 La.App. 5 Cir. 423, 2011 WL 6821443, 2011 La. App. LEXIS 1633 (La. Ct. App. 2011).

Opinion

JUDE G. GRAVOIS, Judge.

| ⅞Appellant, Charles Sicard, has appealed the trial court’s grant of summary judgment and award of attorney’s fees in favor of appellee, Carole Sicard. For the rea[566]*566sons that follow, we affirm the grant of summary judgment, reverse the award of attorney’s fees, and remand the matter to the trial court for further proceedings consistent with this opinion.

FACTS AND PROCEDURAL HISTORY

Charles Sicard filed a petition for divorce from Carol Sicard in 2008. Carole reconvened seeking spousal support. On April 8, 2009, Cynthia DeLuca, counsel for Carole, sent Charles a letter stating that it was her understanding that the parties had reached an agreement concerning final spousal support. A copy of a draft of a Consent Judgment on final support was included in the letter. Ms. DeLuca requested that Charles go to her office to sign the Consent Judgment.

|sOn April 9, 2009, Charles went to Ms. DeLuca’s office and signed the Consent Judgment. On April 13, 2009, the Consent Judgment was filed into the record of the divorce proceeding and was signed by the domestic commissioner. Thereafter, Charles began to pay the spousal support set forth in the Consent Judgment.

On April 6, 2010, Charles filed a Petition for Nullity of the Consent Judgment, alleging ill practices on the part of Carole and her attorney, Ms. DeLuca. On June 3, 2010, Carole’s Exception of No Cause of Action was granted and Charles was given fifteen days to amend his petition. On June 11, 2010, Charles filed a Supplemental and Amending Petition for Nullity of Judgment. On September 28, 2010, Carole’s second Exception of No Cause of Action was overruled. On October 1, 2010, Carole answered both the original and supplemental petitions for nullity, denying all allegations therein.

On November 5, 2010, Carole filed a Motion for Summary Judgment, stating that the nullity action is “completely unfounded in both fact and law.” Carole claimed that the nullity action was simply an effort to avoid paying support. On December 27, 2010, Charles filed an opposition to the Motion for Summary Judgment, claiming that he was not represented by counsel when he signed the Consent Judgment and was informed by Ms. DeLu-ca that he “would be unable to obtain a divorce until he agreed to provide spousal support in favor of’ Carole.

On February 9, 2011, the trial court held a hearing on the Motion for Summary Judgment. At the conclusion of the hearing, summary judgment was granted. This timely appeal followed.

yLAW AND ANALYSIS

A motion for summary judgment is a procedural device used to avoid a full-scale trial when there is no genuine issue of material fact. Craig v. Bantek West, Inc., 04-0229 (La.App. 1 Cir. 9/17/04), 885 So.2d 1241. The summary judgment procedure is favored and is designed to secure the just, speedy, and inexpensive determination of every action. La. C.C.P. art. 966(A)(2). The motion should be granted only if the pleadings, depositions, answers to interrogatories, and admissions on file, together with any affidavits, show that there is no genuine issue as to material fact and that mover is entitled to judgment as a matter of law. La. C.C.P. art. 966(B). The burden of proof is on the mover to show that judgment should be rendered in his favor. La. C.C.P. art. 966(C)(2). If, however, the mover will not bear the burden of proof at trial on the matter that is before the court on the motion for summary judgment, the mover need only point out to the court that there is an absence of factual support for one or more elements essential to the adverse party’s claim, action, or defense. Id. Thereafter, the adverse party must produce factual evidence sufficient to establish that he will be able to satisfy his evidentiary burden of proof [567]*567at trial. Id. If the adverse party fails to meet this burden, there is no genuine issue of material fact, and the mover is entitled to summary judgment. Id.

Appellate courts review summary judgments de novo under the same criteria that govern the trial court’s determination of whether summary judgment is appropriate. Haley v. Roberts, 02-30 (La.App. 5 Cir. 5/29/02), 820 So.2d 1114, 1116.

In her Motion for Summary Judgment, Carole argued that throughout these entire proceedings, Charles had not been forthcoming about his income and had failed to produce proper and complete documentation of his income. She states 15that at the time the Consent Judgment was signed, a motion to compel discovery and a rule for contempt and attorney’s fees were pending. She reasons that Charles signed the Consent Judgment so that the motion and rule would be dismissed and he would not have to produce proof of his income. Carole claims that the only purpose of the action for nullity is to harass and financially burden her. Carole argues that Charles cannot carry his burden of proving any ill practice or fraud and cannot make the requisite showing that he has been deprived of a legal right, nor can he prove that enforcement of the Consent Judgment would be inequitable or unconscionable.

In support of her motion, Carole attaches a transcript of sworn testimony taken at the time Charles signed the Consent Judgment. The following are excerpts from that transcript:

EXAMINATION BY MS. DELUCA:
Q. Charles, you are here freely and voluntary; is that correct?
A. No. I’ve been forced.
Q. If you were forced, then we can’t sign this document today.
A. In that case, I’m on free will accord.
Q. You are freely and voluntarily here today?
A. Yes, I am.
Q. No one’s coerced you or held you— over this document?
A. Right.
Q. Yes or no?
A. Yes.
[[Image here]]
A. Nobody forced me to be here.
[[Image here]]
|fiQ. Have you had an opportunity to bring this [the Consent Judgment] to an attorney?
A. Yes, I have.
Q. Have you brought it to an attorney?
A. No, I didn’t.
Q. Have you chose not to bring it to an attorney?
A. Yes, I chose not to bring it to an attorney.
[[Image here]]
Q. Do you understand that I cannot answer any questions that you may have because I represent Mrs. Sicard?
A. Fine. I don’t have any questions for you.
Q. You have no questions regarding this document?
A. Other than what did you change?
Q. There are two paragraphs that have been changed in the document since I presented it to you a week or so ago when I sent it to you. It would be the paragraph on page 2 and the second to last paragraph on page 2.

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Cite This Page — Counsel Stack

Bluebook (online)
82 So. 3d 565, 11 La.App. 5 Cir. 423, 2011 WL 6821443, 2011 La. App. LEXIS 1633, Counsel Stack Legal Research, https://law.counselstack.com/opinion/sicard-v-sicard-lactapp-2011.