Unkel v. Unkel

699 So. 2d 472, 1997 WL 471964
CourtLouisiana Court of Appeal
DecidedAugust 20, 1997
Docket29728-CA
StatusPublished
Cited by15 cases

This text of 699 So. 2d 472 (Unkel v. Unkel) 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
Unkel v. Unkel, 699 So. 2d 472, 1997 WL 471964 (La. Ct. App. 1997).

Opinion

699 So.2d 472 (1997)

Karen Lynn UNKEL, Plaintiff-Appellant,
v.
Stephen Patrick UNKEL, Defendant-Appellee.

No. 29728-CA.

Court of Appeal of Louisiana, Second Circuit.

August 20, 1997.

*473 Clifford L. Lawrence, Jr., for Plaintiff-Appellant.

A. Shawn Alford, Farmerville, for Defendant-Appellee.

Before MARVIN, BROWN and WILLIAMS, JJ.

MARVIN, Chief Judge.

This appeal is a sequel to Unkel v.Unkel, 26,650 (La.App.2d Cir. 3/1/95), 651 So.2d 382, wherein we affirmed a March 17, 1994 judgment that denied Mrs. Unkel permanent alimony and an April 6, 1994 order directing Dr. Unkel to continue to pay pendente lite alimony until the March 17, 1994 judgment became definitive.

While those appeals were pending, the litigants negotiated to settle their dispute over the partition of community property, one condition of which terminates "alimony pendente lite as of the date of the settlement." With other conditions, that condition was first written in a letter of June 10, 1994, by Dr. Unkel's counsel to Mrs. Unkel's counsel. When the community property settlement was signed on August 17, 1994, Mrs. Unkel and her counsel signed an addendum that was written on a copy of the June 10, 1994 letter containing the quoted condition. This addendum stated that Mrs. Unkel and her counsel: "Agreed to conditions as of the date of execution of community property settlement 8/17/94."

After this court's judgment of March 1, 1995, in Unkel v. Unkel, supra, affirmed the trial court and became definitive on April 1, 1995, Mrs. Unkel instituted an action demanding pendente lite alimony [$19,376] allegedly due and owing between August 17, 1994 [the date of the settlement], and April 1, 1995, the date of definity of this court's judgment. The trial court's 1996 judgment in that action, which is here appealed, effectively recognized Mrs. Unkel's waiver of temporary alimony in the August 17, 1994 settlement and rejected Mrs. Unkel's demands. Dr. Unkel answers Mrs. Unkel's appeal, complaining that the trial court should have granted his C.C.P. art. 863 motion to sanction Mrs. Unkel and her counsel.

We affirm, finding without merit Mrs. Unkel's contentions that the addendum to the June 10, 1994 letter signed by her on August 17, 1994, is ambiguous and contrary to her intention to merely "suspend" temporary alimony until after the court of appeal judgment became definitive, or, in any event, the "waiver" is contra bonos mores and is not supported by consideration.

FACTS

The parties married in 1977 and last lived together on April 25, 1993. In her divorce action, filed four days later, Mrs. Unkel sought and was awarded temporary alimony. To Dr. Unkel's later motion for divorce, Mrs. Unkel answered and sought permanent alimony. The divorce judgment, signed December 9, 1993, did not address fault-permanent alimony, and was not appealed.

Mrs. Unkel's rule for permanent alimony was heard in December 1993. A judgment of March 17, 1994, found her at fault and denied her permanent alimony. When that judgment was appealed April 6, 1994, the trial court also signed a judgment recognizing Dr. Unkel's continuing obligation to pay temporary alimony during the pendency of that appeal. We affirmed both judgments on March 1, 1995.

About the time the appeals in Unkel v. Unkel, supra, occurred, the Unkels, through counsel, began to negotiate settlement of community property disputes. Mrs. Unkel's counsel prepared and submitted to Dr. Unkel's counsel a draft of a proposed settlement. Dr. Unkel's counsel responded in the letter of June 10, 1994, which suggested some changes in the draft and emphasized that the terms of the proposed settlement:

"are acceptable to Steven Unkel IF AND ONLY IF the following provisions are made:
1. * * * .
2. Simultaneously with the execution of the community property settlement, there shall be a stipulated judgment signed by the parties and their counsel which terminates the alimony pendente lite as of the date of execution of the settlement.
*474 3. There are sufficient funds placed in either your or my trust account, or in another form of escrow, to reimburse Steven Unkel for all sums paid to your client subsequent to the divorce (under Judge Bleich's orders) in the event Judge Bleich is reversed on appeal."

Apparently without otherwise responding to the June 10 letter, Mrs. Unkel and her counsel appeared at the office of Dr. Unkel's counsel on August 17, 1994, announcing their desire to execute a conventional community partition, a draft of which they brought with them. Called by his counsel, Dr. Unkel arrived and final discussions occurred.

On August 17, 1994, neither counsel had prepared the stipulated judgment terminating the alimony pendente lite as contemplated in the June 10, 1994 letter. Dr. Unkel's counsel requested Mrs. Unkel and her counsel evidence their agreement with Dr. Unkel's conditions by signing a copy of the June 10, 1994 letter. The addendum, stating that Mrs. Unkel and her counsel "agreed to conditions [in the letter] as of date of execution of community property settlement 8/17/94," was then handwritten on a copy of the June 10, 1994 letter. Mrs. Unkel and her attorney then signed the addended letter and the conventional community partition was signed by each party in the attorney's office on August 17, 1994.

When the above agreements were signed, Dr. Unkel wrote one check to Mrs. Unkel for part of the amount provided in the partition that was due her. The remainder was paid later. He wrote a second check on August 17, 1994, for $902.12, which represented, pro rata, the monthly temporary alimony owed her through August 17, 1994.

After the judgment in Unkel v. Unkel, supra, became definitive, Mrs. Unkel's counsel wrote to Dr. Unkel's counsel on June 14, 1995, suggesting that Dr. Unkel owed temporary alimony between August 17, 1994, and April 1, 1995, the date Unkel v. Unkel, supra, became definitive. Dr. Unkel's counsel promptly responded by a letter of June 16, 1995, which explained that because the parties had agreed on August 17, 1994, that alimony payments would terminate as of August 17, 1994, the date of the community property settlement, Dr. Unkel owed no alimony. This response caused Mrs. Unkel to institute her 1995 action that alleged temporary alimony was past due between August 17, 1994, and April 1, 1995, the date the judgment in Unkel v. Unkel became definitive. The judgment in her action, signed in 1996, is here appealed.

DISCUSSION

Transaction and Compromise;

Cause v. Consideration

We find that the Unkels entered into a transaction and compromise on August 17, 1994, to resolve their differences, and to end pending, or prevent threatened, litigation. La. C.C. art. 3071. On the one hand, Mrs. Unkel desired an immediate conventional partition and receipt of specific community assets and funds, rather than the delay, effort and expense of judicially enforcing partition of the community. Her counsel prepared and submitted to Dr. Unkel's counsel before June 10, 1994, a draft of her proposed conventional partition. Dr.

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Bluebook (online)
699 So. 2d 472, 1997 WL 471964, Counsel Stack Legal Research, https://law.counselstack.com/opinion/unkel-v-unkel-lactapp-1997.