Opinion
2021 CA1050
06-03-2022
DONOVAN BOUDREAUX v. DIANE BOUDREAUX
Mark J. Mansfield Amy C. Cowley Frank P. Tranchina, Jr. Covington, Louisiana Attorneys for Plaintiff/Appellee, Donovan Boudreaux Angela Cox Williams Jesmin Basanti Finley Slidell, Louisiana Attorneys for Defendant/Appellant, Diane Boudreaux
NOT DESIGNATED FOR PUBLICATION
On Appeal from the 22nd Judicial District Court In and for the Parish of St. Tammany State of Louisiana Trial Court No. 2020-12685 Honorable Dawn Amacker, Judge Presiding
Mark J. Mansfield Amy C. Cowley Frank P. Tranchina, Jr. Covington, Louisiana Attorneys for Plaintiff/Appellee, Donovan Boudreaux
Angela Cox Williams Jesmin Basanti Finley Slidell, Louisiana Attorneys for Defendant/Appellant, Diane Boudreaux
BEFORE: WHIPPLE, CJ., PENZATO, AND HESTER, JJ.
PENZATO, J.
Appellant, Diane Boudreaux, appeals from a judgment rendered on May 6, 2021, denying her exception of improper use of summary proceeding and granting the parties a divorce pursuant to La. C.C. art. 102. For the following reasons, we reverse.
FACTS AND PROCEDURAL HISTORY
The parties in this matter, Diane Boudreaux and Donovan Boudreaux, were married in February 2009. On June 26, 2020, Mr. Boudreaux filed a petition for divorce pursuant to La. C.C. art, 102, seeking a judgment of divorce based upon the parties' intent to live separate and apart for the requisite amount of time of 180 days. In his petition, Mr. Boudreaux reserved his right to seek a judgment of divorce pursuant to La. C.C. art. 103(1). The June 26, 2020 petition was served on Ms. Boudreaux on August 3, 2020. In response to the petition, Ms. Boudreaux filed exceptions of lack of subject matter jurisdiction, improper venue, and insufficient service. By judgment signed December 8, 2020, the trial court overruled Ms. Boudreaux's exceptions of lack of subject matter jurisdiction and improper venue, and ordered that the exception of insufficient service was moot.
Louisiana Civil Code article 102 provides, in pertinent part, that:
[A] divorce shall be granted upon motion of a spouse when either spouse has filed a petition for divorce and upon proof that the requisite period of time, in accordance with Article 103.1, has elapsed from the service of the petition, or from the execution of written waiver of the service, and that the spouses have lived separate and apart continuously for at least the requisite period of time, in accordance with Article 103.1, prior to the filing of the rule to show cause.
On January 4, 2021, Mr. Boudreaux filed a motion to show cause why divorce should not be granted, asserting he was entitled to a divorce pursuant to La. C.C. art. 102. On January 21, 2021, Mr. Boudreaux filed a motion to dismiss the January 4, 2021 motion to show cause. The following day, January 22, 2021, he filed a "Supplemental and Amending Petition for Divorce." Mr. Boudreaux sought to "amend and supplement" his June 26, 2020 petition for divorce by adding two new paragraphs, averring that the parties physically separated on June 24, 2020, and that he was entitled to an immediate divorce pursuant to the provisions of La. C.C. art. 103(1). He thereafter "renew[ed] and reiterate[d] all of the allegations and the prayer contained in the original Petition for Divorce." Finally, he prayed that the trial court allow his June 26, 2020 petition for divorce to be amended to a petition for divorce pursuant to La. C.C. art. 103(1), based upon the parties' having lived separate and apart continuously for 180 days or more. An order was attached to Mr. Boudreaux's "Supplemental and Amending Petition for Divorce," signed by the trial court on January 26, 2021, that provided as follows:
Louisiana Civil Code article 103(1) provides that a divorce shall be granted on the petition of a spouse upon proof that the spouses have been living separate and apart continuously for the requisite period of time, in accordance with Article 103.1, or more on the date the petition is filed.
IT IS ORDERED that the original Petition for Divorce filed by Donovan Boudreaux on June 26, 2020, be, and hereby is, amended to a Petition for Divorce pursuant to Louisiana Civil Code Article 103(1), based upon the parties' having lived separate and apart continuously, without reconciliation, for one hundred eighty (180) days or more.
On March 12, 2021, Mr. Boudreaux filed a motion and order for preliminary default, which default was entered on March 16, 2021. Thereafter, on March 18, 2021, Ms. Boudreaux filed an answer addressing the allegations in both the June 26, 2020 petition for divorce and the January 22, 2021 supplemental and amending petition for divorce.
On March 19, 2021, Mr. Boudreaux filed a motion to show cause why divorce should not be granted, asserting that he filed a petition for divorce on June 26, 2020; that Ms. Boudreaux was served with said petition on August 3, 2020; that 180 days had elapsed since service of the June 26, 2020 petition and the filing of his motion to show cause; that he and Ms. Boudreaux had lived separate and apart, without reconciliation, since June 24, 2020, more than 180 days; and that he was entitled to a divorce pursuant to La. C.C. art. 102. His motion made no mention of the January 22, 2021 supplemental and amending petition for divorce or the January 26, 2021 order. In response to Mr. Boudreaux's March 19, 2021 motion, Ms. Boudreaux filed an exception of improper use of summary proceeding, averring that in his January 22, 2021 supplemental and amending petition, Mr. Boudreaux amended his request for a divorce under the provisions of La. C.C. art 102 to a divorce under the provisions of La. C.C. art. 103, which cannot be granted through a summary proceeding.
On May 6, 2021, the matter came for hearing before the trial court. Following the arguments of counsel, the trial court denied Ms. Boudreaux's exception of improper use of summary proceeding, proceeded with Mr. Boudreaux's motion to show cause for divorce, and granted a divorce between the parties pursuant to the provisions of La. C.C. art. 102. A judgment of divorce was signed on May 6, 2021. An order denying Ms. Boudreaux's exception of improper use of summary proceeding was signed on May 14, 2021. This appeal followed.
ASSIGNMENTS OF ERROR
Ms. Boudreaux contends the trial court erred:
(1) In denying her dilatory exception of improper use of summary proceedings thereby allowing Mr. Boudreaux to proceed with the hearing on the La. C.C. art. 102 divorce; and
(2) By allowing Mr. Boudreaux to proceed with, and by granting, the parties' divorce pursuant to La. C.C. art. 102.
When an unrestricted appeal is taken of a final judgment determinative of the merits, the appellant is generally entitled to seek review of all adverse interlocutory judgments prejudicial to him, in addition to the review of the final judgment. Judson v. Davis, 2011-0623 (La.App. 1 Cir. 11/9/11), 81 So.3d 712, 724. writ denied. 2011-2747 (La. 2/17/12), 82 So.3d 288. Accordingly, we will consider the merits of Ms. Boudreaux's challenge to the trial court's denial of her dilatory exception of improper use of summary proceedings.
LAW AND DISCUSSION
At issue in the case before us is the effect of the trial court's January 26, 2021 order issued in connection with Mr. Boudreaux's "Supplemental and Amending Petition for Divorce" filed on January 22, 2021. In a case involving no dispute regarding material facts, but only the determination of a legal issue, a reviewing court must apply the de novo standard of review, under which the trial court's legal conclusions are not entitled to deference. TCC Contractors, Inc. v. Hospital Service Dist. No. 3 of Parish of Lafourche, 2010-0685 (La.App. 1 Cir. 12/8/10), 52 So.3d 1103, 1108.
On appeal, Ms. Boudreaux argues that the January 26, 2021 order converted Mr. Boudreaux's request for divorce to one pursuant to La. C.C. art. 103(1), changed his procedural rights from proceeding with a divorce pursuant to La. C.C. art. 102 to proceeding with a divorce pursuant to La. C.C. art. 103(1), and extinguished his right to proceed with a divorce pursuant to La. C.C. art. 102. On the other hand, Mr. Boudreaux argues that his supplemental and amending petition renewed and reiterated his claim for a divorce pursuant to La. C.C. art. 102, while adding an additional cause of action for a divorce pursuant to La. C.C. art. 103.
Mr. Boudreaux's argument ignores the import of the trial court's January 26, 2021 order. Mr. Boudreaux did not simply file a supplemental and amending petition adding an additional cause of action for a divorce pursuant to La. C.C. art. 103. He included therewith an order, which was signed by the trial court on January 26, 2021, that amended Mr. Boudreaux's original petition for divorce to a petition for divorce pursuant to La. C.C. art. 103(1). We find that this order served to convert the original filing seeking a divorce pursuant to La. C.C. art. 102 to an action for a divorce pursuant to La. C.C. art. 103(1), and extinguished his right to proceed with a divorce pursuant to La. C.C. art. 102.
Mr. Boudreaux argues on appeal that the provisions of La. C.C.P. art. 3958 mandate that a claim for divorce pursuant to La. C.C. art. 102 may only be dismissed by joint application of the parties or upon contradictory motion. However, Mr. Boudreaux did not challenge the trial court's January 26, 2021 order that converted the petition for divorce under La. C.C. art. 102 to a petition for divorce under La. C.C. art. 103(1).
Summary proceedings are those which are conducted with rapidity, within the delays allowed by the court, and without citation and the observance of all the formalities required in ordinary proceedings. La. C.C.P. art. 2591. Louisiana Code of Civil Procedure article 2592 provides that summary proceeding may be used for an issue which may be raised by a rule to show cause. One such matter is a divorce pursuant to the provisions of La. C.C. art. 102. See La. C.C.P. art. 3952. In contrast, a divorce pursuant to the provisions of La. C.C. art. 103 is obtainable as an ordinary action. Nelson v. Nelson, 42, 697 (La. App, 2 Cir. 12/5/07), 973 So.2d 148, 151.
Because the trial court's January 26, 2021 order converted Mr. Boudreaux's original petition to an action for a divorce pursuant to La. C.C. art. 103(1), the trial court erred in denying Ms. Boudreaux's exception of improper use of summary proceedings. Accordingly, we reverse the trial court's May 14, 2021 judgment denying Ms. Boudreaux's exception of improper use of summary proceeding. Moreover, because we have determined that the trial court's January 26, 2021 order extinguished Mr. Boudreaux's right to proceed with a divorce pursuant to La. C.C. art. 102, we find the trial court erred in granting the parties' divorce pursuant to La. C.C. art. 102, and reverse the trial court's May 6, 2021 judgment of divorce.
CONCLUSION
For the above and foregoing reasons, we reverse the trial court's May 14, 2021 judgment denying the exception of improper use of summary proceeding filed by Diane Boudreaux and the trial court's May 6, 2021 judgment of divorce. All costs of this appeal are assessed to Donovan Boudreaux.
JUDGMENTS REVERSED.