Opinion
NUMBER 2016 CA 0332
01-10-2017
KATHY SAMPERE GORMAN v. THOMAS MATTHEW GORMAN
Robert C. Lowe Suzette Marie Smith Jeffrey M. Hoffman New Orleans, LA Attorneys for Appellee Plaintiff - Kathy Sampere Gorman Mark J. Mansfield Frank P. Tranchina, Jr. Amy C. Cowley Covington, LA Attorneys for Appellant Defendant - Thomas Matthew Gorman
NOT DESIGNATED FOR PUBLICATION
Appealed from the 22nd Judicial District Court In and for the Parish of St. Tammany, Louisiana
Trial Court Number 2012-12176 Honorable Dawn Amacker, Judge Robert C. Lowe
Suzette Marie Smith
Jeffrey M. Hoffman
New Orleans, LA Attorneys for Appellee
Plaintiff - Kathy Sampere Gorman Mark J. Mansfield
Frank P. Tranchina, Jr.
Amy C. Cowley
Covington, LA Attorneys for Appellant
Defendant - Thomas Matthew Gorman BEFORE: WELCH, CRAIN, AND HOLDRIDGE, JJ. WELCH, J.
In this divorce proceeding, Thomas Matthew Gorman appeals a judgment in favor of his ex-wife, Kathy Sampere Gorman, which sustained her peremptory exception raising the objection of no cause of action and dismissed his petition seeking declaratory judgment and the revocation of a donation on account of ingratitude. For reasons that follow, we reverse the judgment of the trial court and remand for further proceedings.
FACTUAL AND PROCEDURAL HISTORY
Thomas Gorman and Kathy Gorman were married on September 24, 1993. On April 17, 2012, Kathy Gorman commenced divorce proceedings, and a judgment of divorce was ultimately rendered and signed on October 11, 2012. Prior to their marriage, on September 21, 1993, the Gormans entered into a marriage contract providing that they would remain separate in property and that they were formally renouncing the legal regime of the community of acquets and gains ("marriage contract"). Notwithstanding the marriage contract, both Kathy Gorman and Thomas Gorman acknowledge that during their marriage, they jointly owned three pieces of property, which have not been partitioned: (1) their residence located at 34 Cardinal Lane in Mandeville, Louisiana; (2) a condominium in Destin, Florida; and (3) a duplex or double house in New Orleans, Louisiana.
The marriage contract executed by the parties contained the following clauses, which are pertinent to these proceedings:
IX.
Kathy Ann Sampere and Thomas M. Gorman stipulate and express their mutual desire and intent to jointly purchase as co-owners during the marriage a house generally referred to as a double house. If Appearers agree on a particular double house to purchase, then Thomas M. Gorman shall donate to Kathy Ann Sampere, as her separate property, cash in a sufficient amount to allow her to pay one-half of the twenty percent down payment on the house. Appearers
agree that the house shall be financed jointly by Appearers under conventional terms and conditions (eighty percent of purchase price financed for twenty years).
X.
In the event of divorce, if Appearers have been married and have lived together as husband and wife for at least four years, they agree as follows:
(a) If Appearers have purchased the double house described herein in Paragraph IX, then Thomas M. Gorman shall donate to Kathy Ann Sampere, as her separate property, his one-half interest in the double house subject to the mortgage encumbrance; or
(b) If Appearers, for any reason whatsoever, have not purchased the double house as described herein in Paragraph IX, then Thomas M. Gorman shall pay to Kathy Ann Sampere a lump sum cash property settlement payment in an amount to be determined as follows: $6,666.00 per year for each year of marriage beginning with the first year of marriage. The lump sum cash payment shall be calculated by multiplying the number of years of marriage by $6,666.00. The payment described herein shall neither be taxable as income to Kathy Ann Sampere nor deductible from income by Thomas M. Gorman as it is payable as a property settlement and is not, in any manner whatsoever, payable as alimony or any other form of support or maintenance of Kathy Ann Sampere.
If Appearers divorce within the first four years of their marriage, then this provision is void in its entirety and without effect.
XI.
If any of the provisions of this Marriage Contract should be held invalid, such invalidity shall not affect other provisions that can be given effect without the invalid provisions, and to this end Appearers hereby declare that the provisions of the Marriage Contract are severable.
On March 31, 2015, Thomas Gorman filed a petition for declaratory judgments, and in the alternative, to revoke donations due to ingratitude. Therein, Thomas Gorman sought a declaration that the clause of the marriage contract with respect to the donation of his one-half interest in the double house (Paragraph X(a)) was null under La. C.C. art. 1529, which prohibits donations of future property, and that he could not be compelled to donate the property because he no longer had the requisite donative intent to donate his one-half interest. Alternatively, Thomas Gorman sought to revoke the donations set forth in the marriage contract (Paragraphs IX and X) on account of ingratitude. In response, Kathy Gorman filed a peremptory exception raising the objections of no cause of action and prescription.
Thomas Gorman also claimed in his petition that Kathy Gorman made no capital contributions to the purchase of the other jointly owned properties, i.e., the residence located at 34 Cardinal Lane in Mandeville, Louisiana and the condominium in Destin, Florida. Therefore, he sought to be declared the sole owner of those properties. However, the parties subsequently agreed that the classification and partition of those properties would be addressed at the pending partition proceeding rather than through this declaratory judgment action. See footnote 2.
In response to Thomas Gorman's petition, Kathy Gorman also filed a declinatory exception raising the objection of lis pendens. After the parties agreed that the classification and partition of their residence at 34 Cardinal Lane in Mandeville, Louisiana and the condominium in Destin, Florida would be addressed at the pending partition proceeding rather than this declaratory judgment action (see footnote 1), a consent judgment was rendered sustaining Kathy Gorman's objections of no cause of action and lis pendens with respect to Thomas Gorman's claims concerning those two properties.
After a hearing on August 6, 2015, the trial court took the exceptions under advisement. Thereafter, in open court on October 13, 2015, the trial court rendered judgment sustaining Kathy Gorman's peremptory exception raising the objection of no cause of action and dismissing Thomas Gorman's petition. The trial court did not consider Kathy Gorman's objection of prescription since it had already sustained the objection of no cause of action. A judgment in accordance with the trial court's ruling was signed on November 17, 2015, and it is from this judgment that Thomas Gorman has appealed.
LAW AND DISCUSSION
No Cause of Action
The peremptory exception raising the objection of no cause of action tests the legal sufficiency of a pleading by determining whether the law affords a remedy on the facts alleged in the pleading. Naquin v. Bollinger Shipyards, Inc., 2013-1638 (La. App. 1st Cir. 5/2/14), 147 So.3d 207, 209, writ denied, 2014-1091 (La. 9/12/14), 148 So.3d 933; Everything on Wheels Subaru, Inc. v. Subaru South, Inc., 616 So.2d 1234, 1235 (La. 1993).
In the context of the peremptory exception, a "cause of action" is defined as the operative facts that give rise to the plaintiff's right to judicially assert the action against the defendant. Paulsell v. State, Department of Transportation and Development, 2012-0396 (La. App. 1st Cir. 12/28/12), 112 So.3d 856, 864, writ denied, 2013-0274 (La. 3/15/13), 109 So.3d 386. No evidence may be introduced to support or controvert the objection of no cause of action. La. C.C.P. art. 931. The objection is triable solely on the face of the petition and any attached documents. Paulsell, 112 So.3d at 864; see also La. C.C.P. art. 931. For purposes of resolving the issues raised by the objection of no cause of action, the well-pleaded facts alleged in the petition must be accepted as true. Reynolds v. Bordelon, 2014-2362 (La. 6/30/15), 172 So.3d 589, 594-595; Everything on Wheels Subaru, Inc., 616 So.2d at 1235. If the allegations of the petition state a cause of action as to any part of the demand, the exception must be overruled. Pitre v. Opelousas General Hospital, 530 So.2d 1151, 1162 (La. 1988). Any doubts as to the sufficiency of the petition must be resolved in favor of the sufficiency of the petition to state a cause of action. Taylor v. Sider, 99-2521 (La. App. 4th Cir. 5/31/00), 765 So.2d 416, 418, writ denied, 2000-2004 (La. 10/6/00), 771 So.2d 86.
The burden of demonstrating that a petition fails to state a cause of action is upon the mover. Ramey v. DeCaire, 2003-1299 (La. 3/19/04), 869 So.2d 114, 119. Because the exception of no cause of action raises a question of law and the trial court's decision is based solely on the sufficiency of the petition, review of the trial court's ruling on the exception is de novo. Scheffler v. Adams & Reese, LLP, 2006-1774 (La. 2/22/07), 950 So.2d 641, 647.
In this case, Thomas Gorman filed a petition for declaratory judgment and to revoke a donation (or donations) on account of ingratitude. Therefore, we will separately address the applicable law and the facts alleged for each of these demands for relief to determine whether Thomas Gordon has stated a cause of action.
Declaratory Judgment
An action for declaratory judgment provides a method whereby parties may request a trial court to "declare rights, status, and other legal relations whether or not further relief is or could be claimed." La. C.C.P. art. 1871. Further, "[a] person interested under a ... written contract or other writing constituting a contract, ... may have determined any question of construction or validity arising under the instrument, ... contract, ... and obtain a declaration of rights, status, or other legal relations thereunder." La. C.C.P. art. 1872.
The purpose of a declaratory judgment pursuant to these codal provisions is simply to establish the rights of the parties or express the opinion of the court on a question of law without ordering anything to be done. Bergen Brunswig Drug Co. v. Poulin, 93-1945 (La. App. 1st Cir. 6/24/94), 639 So.2d 453, 455. A person is entitled to relief by declaratory judgment when his rights are uncertain or disputed in an immediate and genuine situation and declaratory judgment will remove that uncertainty or terminate that dispute. Bergen Brunswig Drug Co., 639 So.2d at 456.
Thomas Gorman's petition for declaratory judgment pertains to Paragraph X(a) of the marriage contract, which concerns the donation of his one-half interest in the double house to Kathy Gorman, and he seeks a judicial declaration as to the validity and enforceability of that paragraph.
Pursuant to La. C.C. arts. 2329 and 2331, parties may enter into a matrimonial agreement or a marriage contract either before or during marriage concerning all matters not prohibited by public policy. Rush v. Rush, 2012-1502 (La. App. 1st Cir. 3/25/13), 115 So.3d 508, 511, writ denied, 2013-0911 (La. 5/31/13), 118 So.3d 398. A contract is an agreement by two or more parties whereby obligations are created, modified, or extinguished. La. C.C. art. 1906. A contract is bilateral when the parties obligate themselves reciprocally, so that the obligation of each party is correlative to the obligation of the other. La. C.C. art. 1908. Future things may be the object of a contract. La. C.C. art. 1976.
A donation inter vivos is a contract by which a person, the donor, gratuitously divests himself, at present and irrevocably, of the thing given in favor of another, the donee, who accepts it. La. C.C. art. 1468. The substantive requirements of divestment and donative intent must be fulfilled in order to effect a valid donation. Rose v. Johnson, 2006-518 (La. App. 3rd Cir. 9/27/06), 940 So.2d 181, 184, writ denied, 2006-2528 (La. 12/15/06), 944 So.2d 1273. A donation inter vivos can have as its object only present property of the donor; if it includes future property, it shall be null with regard to that property. La. C.C. art. 1529. A person may make a donation inter vivos to his future or present spouse in contemplation of or in consideration of their marriage, and such a donation shall be governed by the rules applicable to donations inter vivos in general. La. C.C. art. 1744. A donation to a future or present spouse may consist of any of the donor's present property or all or any of the property that the donor will leave at his death. La. C.C. art. 1746. The interspousal donation shall be made by a single instrument in authentic form, shall expressly state the donative intent, and shall be signed by the donor and donee. See La. C.C. art. 1747. Nevertheless, a manual gift of corporeal moveables accompanied by real delivery is not subject to any formality. La. C.C. art. 1543.
According to Thomas Gorman's petition, after executing the marriage contract, the parties acquired the "double house" referred to in the contract (i.e., the third jointly-owned piece of property referenced above as the duplex or double house in New Orleans, Louisiana). Thomas Gorman alleged that he had not donated to Kathy Gorman his one-half interest in the double house and that he no longer had the donative intent to donate his one-half interest in that double house. Thomas Gorman claimed that the inter vivos donation of his one-half interest in the double house referenced in the marriage contract was an absolute nullity, as one cannot donate future property pursuant to La. C.C. art. 1529; therefore the donation clause had no effect. He further claimed that in the event the clause was considered valid, it was unenforceable because he no longer maintained the requisite donative intent to effect a donation of his interest in the property.
Kathy Gorman argues that Thomas Gorman failed to state a cause of action for declaratory judgment because the provision of the marriage contract relative to the double house was not a gratuitous donation, but rather it was an enforceable bilateral contract; hence, La. C.C. art. 1529 was inapplicable.
Accepting all of the allegations of fact set forth in Thomas Gorman's petition as true, we find that Thomas Gorman has stated a cause of action for declaratory judgment. Thomas Gorman's petition requests that Paragraph X(a) of the marriage contract be interpreted in order to determine what his obligations are in regard to the double house jointly owned by the parties. Thomas Gorman contends that the provision is null and/or unenforceable, while Kathy Gorman maintains that it is valid and enforceable as a bilateral contract. Thus, Thomas Gorman's petition requesting that the court interpret a disputed provision in the marriage contract sets forth a cause of action that is appropriate for declaratory judgment. Accordingly, we find that the trial court erred in sustaining Kathy Gorman's peremptory exception raising the objection of no cause of action with respect to Thomas Gorman's Petition for Declaratory Judgment.
Whether Thomas Gorman will prevail on the merits is not an appropriate consideration on the objection of no cause of action.
Revocation of Donation on Account of Ingratitude
A donation inter vivos may be revoked because of ingratitude of the donee. La. C.C. art. 1556. Revocation of a donation on account of ingratitude may take place only if the donee has attempted to take the life of the donor or if the donee has been guilty towards the donor of cruel treatment, crimes, or grievous injuries. La. C.C. art. 1557. Grievous injuries sufficient to revoke a donation have been defined as any act or acts naturally offensive to the donor. Porter v. Porter, 36,007 (La. App. 2nd Cir. 6/12/02), 821 So.2d 663, 667; Spruiell v. Ludwig, 568 So.2d 133, 138 (La. App. 5th Cir. 1990), writ denied, 573 So.2d 1117 (La. 1991). Adultery by a spouse has been held to constitute cruel treatment or grievous injury sufficient to revoke a gratuitous donation. Porter, 821 So.2d at 667; Spruiell, 568 So.2d at 138; Whitman v. Whitman, 31,814 (La. App. 2nd Cir. 3/31/99), 730 So.2d 1048, 1053.
Thomas Gorman's petition for revocation of a donation on account of ingratitude pertained to Paragraphs IX and X of the marriage contract. In Thomas Gorman's petition, in addition to the facts set forth above, Thomas Gorman also alleged that in June, 2013, Kathy Gorman moved to South Florida with the parties' two minor children purportedly for a job opportunity for herself and better educational and social opportunities for the children. Thomas Gorman further alleged that on March 31, 2014 (one year prior to the suit being filed), he discovered through a private investigator that Kathy Gorman and their children were living with Kathy Gorman's paramour, and that Kathy Gorman commenced the relationship with her paramour during their marriage and that she conspired with her paramour to move to Florida following the filing of the petition for divorce so as to take advantage of Thomas Gorman's poor health and weakened state. Thomas Gorman further alleged that Kathy Gorman had encouraged the minor children to lie to him about where they were living and to block him from their social media accounts in order to cover up the fact that they were living with Kathy Gorman's paramour and that she had systematically attempted to estrange him from the minor children. Thomas Gorman maintained that Kathy Gorman's adulterous affair constituted ingratitude and that she had also humiliated, embarrassed, and treated him cruelly. Therefore, with respect to Paragraph IX, Thomas Gorman sought to revoke the donation of cash to Kathy Gorman, which permitted her to pay one-half of the twenty percent down payment on the double house on account of ingratitude, and with regards to Paragraph X(a), Thomas Gorman also sought, in the alternative to the relief requested by declaratory judgment, that in the event it was determined that he had already donated his one-half interest in the property to Kathy Gorman, to also revoke that donation on account of Kathy Gorman's ingratitude.
Kathy Gorman argued that the alleged acts of ingratitude occurred after the judgment of divorce was rendered, therefore Thomas Gorman failed to state a cause for revocation of a donation on account of ingratitude. However, Thomas Gorman clearly alleged that Kathy Gorman commenced the relationship with her paramour during their marriage. --------
Accepting all of the allegations of fact set forth in Thomas Gorman's petition as true, we find that Thomas Gorman has stated a cause of action for revocation of a donation on account of ingratitude, i.e., Kathy Gorman's alleged adulterous affair and other cruel treatment. Thus, the trial court erred in sustaining Kathy Gorman's peremptory exception raising the objection of no cause of action with respect to Thomas Gorman's petition for revocation of donation on account of ingratitude.
Accordingly, the November 17, 2015 judgment of the trial court sustaining Kathy Gorman's peremptory exception raising the objection of no cause of action and dismissing Thomas Gorman's petition is reversed and this matter is remanded for further proceedings. As noted above, Kathy Gorman also raised the objection of prescription in her peremptory exception, arguing that even if Thomas Gorman had stated such a cause of action for revocation of a donation on account of ingratitude, the action was prescribed, as it was filed more than one year from the date when Thomas Gorman knew or should have known of the alleged ingratitude. See La. C.C. art. 1558. The trial court did not consider Kathy Gorman's objection of prescription since it had already sustained the objection of no cause of action. Therefore, on remand, the trial court is directed to conduct a hearing and to rule on this objection.
CONCLUSION
For all of the above and foregoing reasons, the November 17, 2015 judgment of the trial court is reversed and this matter is remanded for further proceedings consistent with the views expressed in this decision. All costs of this appeal are assessed to Kathy Sampere Gorman.
REVERSED AND REMANDED. CRAIN, J., concurring.
I agree that the petition states a cause of action for declaratory relief, and on that basis, I would reverse the trial court's judgment sustaining the exception of no cause of action. Because all of Mr. Gorman's claims arise out of the marriage contract, I believe the recognition of this one basis for relief is sufficient to maintain the petition. See Everything on Wheels Subaru, Inc. v. Subaru S., Inc., 616 So. 2d 1234, 1239 (La. 1993). For that reason, the trial court erred in sustaining the exception of no cause of action for the claim seeking to revoke the alleged donations.