STATE OF LOUISIANA COURT OF APPEAL, THIRD CIRCUIT
22-67
SONIA DEVI ELLIS
VERSUS
TIMOTHY J. HEINZEN
Pickett, dissents.
The basis of this appeal is the trial court’s judgment dated August 14, 2020,
which followed a hearing held July 24, 2020. In her appeal, Ms. Ellis argues that
her intent at the July 24, 2020 hearing was to waive her right of reimbursement of
payments she made on the parties’ separate debt until the date of the divorce, not
until the separate property secured by that debt was partitioned. She appeals the
inclusion of the phrase “pending partition of that property” in the provision of the
judgment that reads, she “waives her right to seek reimbursement from [Mr.
Heinzen] for her payments of the monthly mortgage note secured by the former
family home pending partition of that property.” The majority determines a
provision of the parties’ marital agreement which reads, in part: “It is the intention
of each party to this agreement that neither will have an economic claim on the
other at the termination of this marriage[,]” governs the determination of whether
or not Ms. Ellis waived her right to reimbursement of payments she made on the
separate debt incurred by the parties during the marriage after the parties divorced
but before the property securing the debt was partitioned.
At the outset of the July 24, 2020 hearing, the parties disputed whether a
March 2020 email by Ms. Ellis’ counsel to Mr. Heinzen’s counsel settled the issues
before the court. The trial court initially ruled it did. However, the trial court, counsel, and the parties then engaged in discussions off the record about Ms. Ellis’
sole occupancy of the family home and payment of the mortgage during her
occupancy and Mr. Heinzen’s waiver of rent during her occupancy. The parties
indicated they had reached an agreement, and the trial court had them sworn and
questioned them as to their agreement on the issues presented. During their
testimony, the parties agreed that Ms. Ellis would have exclusive use of the home
and pay the monthly mortgage and that Mr. Heinzen would waive his rental
reimbursement.
As evidenced by the excerpt quoted by the majority, the trial court did not
ask either party how long they intended the agreement to remain in force.
Specifically, the trial court did not ask Ms. Ellis if she intended to waive
reimbursement of the mortgage payments she made on the property until the
property was partitioned, and she did not indicate in her testimony that she
intended to waive reimbursement of those payments until the property was
partitioned. Nonetheless, the judgment the trial court signed following the hearing
includes the phrase “pending partition of that property.”
Ms. Ellis contends the trial court erred in both finding that the March 27,
2020 email represented a “settlement” by the parties and signing a judgment that
includes the phrase “pending partition of that property” when the parties did not
stipulate to that provision in the email or in their testimony. She argues the parties
did not agree or stipulate to include that phrase in the judgment, and it should not
be enforced. Mr. Heinzen counters the judgment cannot be modified on appeal
because it documents a stipulation made on the record by the parties. He further
cites La.Code Civ.P. art. 2085 to argue that because Ms. Ellis’ attorney signed the
2 judgment below the phrase “APPROVED AS TO FORM AND CONTENT” it
constitutes a judicial confession that cannot be appealed.
Louisiana Code of Civil Procedure Article 2085 states, in part: “An appeal
cannot be taken by a party who confessed judgment in the proceedings in the trial
court or who voluntarily and unconditionally acquiesced in a judgment rendered
against him.” Appeals are favored, and the party seeking to enforce a judgment
has a heavy burden to show that a party the challenging the judgment acquiesced in
it for purposes of La.Code Civ.P. art. 2085. Succession of Franz, 238 La. 608, 116
So.2d 267 (1959). Acquiescence in a judgment that would preclude an appeal “‘is
never presumed and must be established by evidence that leaves no doubt of the
required intent.’” Tatney v. City of Deridder, 16-395, p. 4 (La.App. 3 Cir.
11/16/16), 206 So.3d 1207, 1210 (quoting Vincent v. State Farm Mut. Auto. Ins.
Co., 95-1538, p. 3 (La.App. 3 Cir. 4/3/96), 671 So.2d 1127, 1129). The record
shows Ms. Ellis’ in-court stipulations did not include the phrase “pending partition
of that property.” Therefore, she did not acquiesce in that phrase being included in
the judgment and is not precluded from appealing that portion of the judgment.
When part of a judgment does not accurately reflect the intent of the parties
as evidenced by the record, that part of the judgment does “not constitute part of
the agreement between the [parties] and must be removed to reflect the parties’
intent.” Reon v. Reon, 07-1277, p. 3 (La.App. 3 Cir. 4/2/08), 982 So.2d 210, 212,
(citing Conrad v. Conrad, 497 So.2d 22 (La.App. 5 Cir.1986). Accordingly, the
phrase, “pending partition of that property” should be removed from the judgment
as it pertains to that provision addressing her right to reimbursement.
A matrimonial agreement governs the spouses until the marriage is
terminated, unless the parties terminate it or replace it with a new one. See
3 La.Civ.Code. arts. 2325 and 2328; see also 16 Andrea Carroll and Richard D.
Moreno, Matrimonial Regimes § 8.2, n.8 (5th ed. 2021). As a result, the parties’
matrimonial agreement governed any claims arising from their co-ownership of the
property during the marriage, and the laws governing co-ownership govern such
claims after the marriage was terminated. The parties’ marital agreement
terminated October 26, 2020, the date the parties’ divorce judgment was signed.
Thereafter, the laws of co-ownership and solidary obligations govern the parties’
rights and claims against each other with regard to the property. Accordingly, the
parties’ separate obligations were governed by the Louisiana Civil Code.
The clear wording of the marital agreement provision at issue shows it ended
“at the termination of the marriage”; therefore, it did not extend beyond the
termination of the marriage as the majority determines. Nonetheless, the majority
concludes the marital agreement alone governed the parties’ claims that existed at
the time the marriage terminated as well as all claims that arose after the marriage
terminated. For these reasons, I disagree with the majority’s determination that
Ms. Ellis’ stipulated to waive her right to reimbursement of mortgage payments
she paid after the marriage and the marriage contract terminated and until the
partition of the property.
The trial court’s December 18, 2020 judgment and October 18, 2021
judgment are based on the trial court’s August 14, 2020 judgment. Accordingly, I
would also reverse the provisions of those judgments that provide “neither party
may seek reimbursement from the other for any mortgage payments” and “the
parties shall each receive one-half (½) of the ‘net proceeds’ of that sale” when the
property is sold, respectively.
4 Ms. Ellis also assigns error with trial court’s refusal to allow her to proffer
evidence of mortgage payments and other expenses for which she claims
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STATE OF LOUISIANA COURT OF APPEAL, THIRD CIRCUIT
22-67
SONIA DEVI ELLIS
VERSUS
TIMOTHY J. HEINZEN
Pickett, dissents.
The basis of this appeal is the trial court’s judgment dated August 14, 2020,
which followed a hearing held July 24, 2020. In her appeal, Ms. Ellis argues that
her intent at the July 24, 2020 hearing was to waive her right of reimbursement of
payments she made on the parties’ separate debt until the date of the divorce, not
until the separate property secured by that debt was partitioned. She appeals the
inclusion of the phrase “pending partition of that property” in the provision of the
judgment that reads, she “waives her right to seek reimbursement from [Mr.
Heinzen] for her payments of the monthly mortgage note secured by the former
family home pending partition of that property.” The majority determines a
provision of the parties’ marital agreement which reads, in part: “It is the intention
of each party to this agreement that neither will have an economic claim on the
other at the termination of this marriage[,]” governs the determination of whether
or not Ms. Ellis waived her right to reimbursement of payments she made on the
separate debt incurred by the parties during the marriage after the parties divorced
but before the property securing the debt was partitioned.
At the outset of the July 24, 2020 hearing, the parties disputed whether a
March 2020 email by Ms. Ellis’ counsel to Mr. Heinzen’s counsel settled the issues
before the court. The trial court initially ruled it did. However, the trial court, counsel, and the parties then engaged in discussions off the record about Ms. Ellis’
sole occupancy of the family home and payment of the mortgage during her
occupancy and Mr. Heinzen’s waiver of rent during her occupancy. The parties
indicated they had reached an agreement, and the trial court had them sworn and
questioned them as to their agreement on the issues presented. During their
testimony, the parties agreed that Ms. Ellis would have exclusive use of the home
and pay the monthly mortgage and that Mr. Heinzen would waive his rental
reimbursement.
As evidenced by the excerpt quoted by the majority, the trial court did not
ask either party how long they intended the agreement to remain in force.
Specifically, the trial court did not ask Ms. Ellis if she intended to waive
reimbursement of the mortgage payments she made on the property until the
property was partitioned, and she did not indicate in her testimony that she
intended to waive reimbursement of those payments until the property was
partitioned. Nonetheless, the judgment the trial court signed following the hearing
includes the phrase “pending partition of that property.”
Ms. Ellis contends the trial court erred in both finding that the March 27,
2020 email represented a “settlement” by the parties and signing a judgment that
includes the phrase “pending partition of that property” when the parties did not
stipulate to that provision in the email or in their testimony. She argues the parties
did not agree or stipulate to include that phrase in the judgment, and it should not
be enforced. Mr. Heinzen counters the judgment cannot be modified on appeal
because it documents a stipulation made on the record by the parties. He further
cites La.Code Civ.P. art. 2085 to argue that because Ms. Ellis’ attorney signed the
2 judgment below the phrase “APPROVED AS TO FORM AND CONTENT” it
constitutes a judicial confession that cannot be appealed.
Louisiana Code of Civil Procedure Article 2085 states, in part: “An appeal
cannot be taken by a party who confessed judgment in the proceedings in the trial
court or who voluntarily and unconditionally acquiesced in a judgment rendered
against him.” Appeals are favored, and the party seeking to enforce a judgment
has a heavy burden to show that a party the challenging the judgment acquiesced in
it for purposes of La.Code Civ.P. art. 2085. Succession of Franz, 238 La. 608, 116
So.2d 267 (1959). Acquiescence in a judgment that would preclude an appeal “‘is
never presumed and must be established by evidence that leaves no doubt of the
required intent.’” Tatney v. City of Deridder, 16-395, p. 4 (La.App. 3 Cir.
11/16/16), 206 So.3d 1207, 1210 (quoting Vincent v. State Farm Mut. Auto. Ins.
Co., 95-1538, p. 3 (La.App. 3 Cir. 4/3/96), 671 So.2d 1127, 1129). The record
shows Ms. Ellis’ in-court stipulations did not include the phrase “pending partition
of that property.” Therefore, she did not acquiesce in that phrase being included in
the judgment and is not precluded from appealing that portion of the judgment.
When part of a judgment does not accurately reflect the intent of the parties
as evidenced by the record, that part of the judgment does “not constitute part of
the agreement between the [parties] and must be removed to reflect the parties’
intent.” Reon v. Reon, 07-1277, p. 3 (La.App. 3 Cir. 4/2/08), 982 So.2d 210, 212,
(citing Conrad v. Conrad, 497 So.2d 22 (La.App. 5 Cir.1986). Accordingly, the
phrase, “pending partition of that property” should be removed from the judgment
as it pertains to that provision addressing her right to reimbursement.
A matrimonial agreement governs the spouses until the marriage is
terminated, unless the parties terminate it or replace it with a new one. See
3 La.Civ.Code. arts. 2325 and 2328; see also 16 Andrea Carroll and Richard D.
Moreno, Matrimonial Regimes § 8.2, n.8 (5th ed. 2021). As a result, the parties’
matrimonial agreement governed any claims arising from their co-ownership of the
property during the marriage, and the laws governing co-ownership govern such
claims after the marriage was terminated. The parties’ marital agreement
terminated October 26, 2020, the date the parties’ divorce judgment was signed.
Thereafter, the laws of co-ownership and solidary obligations govern the parties’
rights and claims against each other with regard to the property. Accordingly, the
parties’ separate obligations were governed by the Louisiana Civil Code.
The clear wording of the marital agreement provision at issue shows it ended
“at the termination of the marriage”; therefore, it did not extend beyond the
termination of the marriage as the majority determines. Nonetheless, the majority
concludes the marital agreement alone governed the parties’ claims that existed at
the time the marriage terminated as well as all claims that arose after the marriage
terminated. For these reasons, I disagree with the majority’s determination that
Ms. Ellis’ stipulated to waive her right to reimbursement of mortgage payments
she paid after the marriage and the marriage contract terminated and until the
partition of the property.
The trial court’s December 18, 2020 judgment and October 18, 2021
judgment are based on the trial court’s August 14, 2020 judgment. Accordingly, I
would also reverse the provisions of those judgments that provide “neither party
may seek reimbursement from the other for any mortgage payments” and “the
parties shall each receive one-half (½) of the ‘net proceeds’ of that sale” when the
property is sold, respectively.
4 Ms. Ellis also assigns error with trial court’s refusal to allow her to proffer
evidence of mortgage payments and other expenses for which she claims
reimbursement during the hearing held September 28, 2021, and assigning all costs
of this proceeding to her. Pursuant to La.Code Civ.P. art. 1636(A), once the trial
court refused to allow Ms. Ellis to introduce evidence substantiating her
reimbursement claims, the court was required to allow her the option of proffering
the evidence or making a statement on the record setting forth the nature of the
evidence. A proffer is meant to preserve excluded evidence so appellate courts can
review it when a trial court has made an erroneous ruling. Cantrelle v. Lafourche
Par. Council, 21-678 (La. App. 1 Cir. 2/1/22), 340 So.3d 1059. For the reasons
discussed above, I would find the trial court erred in refusing to allow Ms. Ellis to
proffer evidence of all her mortgage payments and other expenses.
The trial court has much discretion in assessing costs under La.Code Civ.P.
art. 1920, and we will not reverse a judgment assessing court costs unless we find
the trial court abused that discretion. Trahan v. Plessala, 14-795 (La.App. 3 Cir.
2/4/15), 158 So.3d 209. Because I believe the majority of Ms. Ellis’ assigned
errors have merit and would reverse portions of the trial court’s interlocutory and
final judgments as a result of her appeal, I would also find the trial court erred in
assessing costs to Ms. Ellis and assess all costs to Mr. Heinzen.
For the foregoing reasons, I respectfully dissent.