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Price v. Wise

STATE OF LOUISIANA COURT OF APPEAL FIRST CIRCUIT
Dec 21, 2012
NO. 2012 CA 0311 (La. Ct. App. Dec. 21, 2012)

Opinion

NO. 2012 CA 0311

12-21-2012

SHIRLEY WISE PRICE v. ROGER W. WISE

Wendy L. Edwards Baton Rouge, Louisiana Attorney for Defend ant/Appellant, Roger W. Wise Roger W. Wise Evans, Georgia Defendant/Appellant, In Proper Person G. Bruce Kuehne Marcus Foote Christopher Mensman Baton Rouge, Louisiana Attorneys for Plaintiff/Appellee, Shirley H. Wise Price


NOT DESIGNATED FOR PUBLICATION


On Appeal from the

23rd Judicial District Court,

In and for the Parish of Ascension,

State of Louisiana

District Court No. 89260


The Honorable Ralph Tureau, Judge Presiding

Wendy L. Edwards
Baton Rouge, Louisiana
Attorney for Defend ant/Appellant,
Roger W. Wise
Roger W. Wise
Evans, Georgia
Defendant/Appellant,
In Proper Person
G. Bruce Kuehne
Marcus Foote
Christopher Mensman
Baton Rouge, Louisiana
Attorneys for Plaintiff/Appellee,
Shirley H. Wise Price

BEFORE: CARTER, C.J., GUIDRY AND GAIDRY, JJ.

CARTER, C.J.

Defendant/Appellant Roger W. Wise appeals a final judgment of the district court partitioning community property. For the following reasons, we affirm.

FACTS

Defendant/Appellant, Roger W. Wise (Mr. Wise), and Shirley H. Wise Price (Ms. Price) were married on August 29, 1964, in Baker, Louisiana. There is no dispute that the marriage was contracted in Louisiana, and the couple entered a community property regime. The couple resided in Baker, Louisiana until September 1966. Thereafter, the couple moved in and out of Louisiana several times. After moving back to Louisiana in early 1979, the couple executed and duly recorded a "marriage contract" dated May 23, 1979. This marriage contract stated that the parties resided in Louisiana for less than one year and wished to renounce the provisions of Louisiana law that established a community property regime between them. In 1985, Mr. Wise moved to Georgia while Mrs. Wise remained in Louisiana. Thereafter, Mr. Wise filed for divorce in Georgia. The couples' marriage was terminated in 1986. Mr. Wise continued to live in Georgia until March 2004, when he moved back to Louisiana.

The parties moved to Tennessee in September 1966 and resided there until approximately January 1970. The parties returned to Louisiana in December 1967 and resided in this State until June 1968. The parties lived out the remainder of 1968 in Tennessee. The parties briefly returned to Louisiana in February 1970 and remained through June 1971, then moved to Mississippi where they lived from January 1979 to December 1985. The parties moved to Georgia in December 1985. The parties were divorced in August 1986. Mr. Wise continued to live in Georgia until March 2004. when he returned to Louisiana.

On May 12, 2008, Ms. Price filed a Petition for Judicial Partition of Community Property in Louisiana district court, challenging the validity of the 1979 marriage contract. Mr. Wise denied all allegations contained in the petition.

The district court entered a judgment on December 16, 2009, declaring the parties' marriage contract invalid. The court held the agreement was invalid because the parties failed to follow the required formalities, including the failure to obtain judicial approval to alter the community property regime in accordance with Louisiana Civil Code article 2329.

Following the declaration of the district court that the parties' marriage contract was invalid, Mr. Wise appealed the judgment on February 22, 2010. On May 20, 2010, Ms. Price filed a Motion to Dismiss that appeal for lack of jurisdiction, maintaining that the judgment was a non-appealable interlocutory ruling. This Court granted Ms. Price's motion and dismissed the appeal. We held that the district court's designation of the December 16, 2009 judgment as "final" was in error as it was a partial judgment that merely determined the marriage contract was invalid, but did not address or resolve the closely related issues of partitioning the community property. We remanded the case to the district court to partition the community property. On August 29, 2011, the district court partitioned the parties' community property, including two pension plans.

Shirley Wise Price v. Roger W. Wise, 2010-CA-0857 (La. App. 1 Cir. 12/22/10) (unpublished opinion).

The two pension plans forming part of the community property are with TEMBEC and Crown Zellerbach a.k.a. Georgia Pacific. We previously remanded this matter to the district court so the parties could submit a Domestic Relations Order (DRO) to satisfy the requirement of Mr. Wise's employer for a Qualified Domestic Relations Order (QDRO) related to the Georgia Pacific pension plan. The parties received notice that the QDRO was qualified on October 22, 2010.

Mr. Wise now appeals.

DISCUSSION

A. Validity of the Marriage Contract

On appeal, Mr. Wise challenges the trial court's determination that the marriage contract executed by the parties on May 23, 1979 is invalid. When an unrestricted appeal is taken from a final judgment, the appellant is entitled to seek review of all adverse interlocutory rulings prejudicial to it, in addition to review of the final judgment. Landry v. Leonard J. Chabert Med. Ctr., 2002-1559 (La. App.l Cir. 5/14/03), 858 So. 2d 454, 461 n. 4, writs denied, 2003-1748, 2003-1752 (La. 10/17/03), 855 So. 2d 761.

Under Louisiana law, marriage is a legal relationship between a man and a woman that is created by a civil contract. The relationship and the contract are subject to special rules prescribed by law. La. Civ. Code. Ann. art. 86. Of particular interest in this matter are the special rules and provisions, collectively known as the "matrimonial regime," that govern the ownership and management of the property of married persons. La. Civ. Code Ann. art. 2325.

The community property regime is the default matrimonial regime that applies to all married persons domiciled in Louisiana unless the spouses execute a matrimonial agreement. A matrimonial agreement, also known as a "marriage contract" or "prenuptial agreement," is a contract establishing a regime of separate property, or one that modifies or terminates the legal regime. La. Civ. Code Ann. art. 2328. Prior to marriage, spouses are free to establish a matrimonial regime of their choice, however, the consent of both spouses is required. La. Civ. Code Ann. art. 2328. Once executed, a matrimonial agreement continues to govern the spouses until the termination of the marriage, unless the parties terminate the agreement or replace it with a new one. See La. Civ. Code Ann. arts. 2325 and 2328; 16 La. Civ. L. Treatise, Matrimonial Regimes § 8.2, n.6 (3d ed.).

The community property regime is the default "legal regime", that is, the community of acquets and gains. Unless excluded by matrimonial agreement, the legal regime governs the ownership and management of the property of married persons as between themselves and third persons. La. Civ. Code. Ann. art. 2327.

Former Louisiana Civil Code articles 2329, 2400, and 2401, were the governing articles on terminating or modifying the community property regime at the time the parties in this matter purported to execute a matrimonial agreement ("marriage contract") establishing a separate property regime:

La. Civ. Code art. 2329. Every matrimonial agreement can be altered by the husband and wife jointly before the celebration of marriage; but it cannot be altered after the celebration. Provided that in the case of married couples removing to this State and settling therein from other States and countries after marriage, they shall have the right at any time within one year after the passage of this Act, or a like period after such settlement in this State, to make a valid marriage contract, subject in all other respects to the law of this State.
La. Civ. Code. art. 2400. All property acquired in this State by nonresident married persons, whether the title thereto be in the name of either the husband or wife, or in their joint names, shall be subject to the same provisions of law which regulate the community of acquets and gains between citizens of this State.
La. Civ. Code. art. 2401. A marriage, contracted out of this State, between persons who afterwards come here to live, is also subjected to community of acquets, with respect to such property as is acquired after their arrival.

The current corresponding article is also Louisiana Civil Code Annotated article 2329.

The current corresponding article is Louisiana Civil Code Annotated article 2334.

The current corresponding article is Louisiana Civil Code Annotated article 2334.

The parties were married on August 29, 1964, under the laws of the State of Louisiana, thereby establishing a community property regime. By a marriage contract dated May 23, 1979, the Wises purported to modify their community property regime by entering into a separate property regime. There is no contention that the Wises sought or obtained judicial approval prior to the execution of the marriage contract. We further note that the marriage contract was dated prior to the July 20, 1979 passage of Act 709 of the 1979 Regular Legislative Session (effective January 1, 1980; amended by Acts 1980, No. 565).

House Bill No. 798 of 1979.

Act 709 revised community property law in Louisiana, including former Louisiana Civil Code Annotated article 2329. The general provisions of the act became effective January 1, 1980. Acts 1979, No. 709, § 13. Prior to the enactment of Act 709, a matrimonial agreement altering the legal regime could only be entered into prior to marriage - the parties could not alter the legal regime after marriage. See former La. Civ. Code Ann. art. 2329. Under the amendments to the law, spouses could enter such an agreement after marriage with judicial approval. Acts 1979, No. 709, § 1; La. Civ. Code Ann. art. 2329. Because of the extensive changes in the law, Act 709 provided that persons already married could, between August 1, 1979, and January 1, 1980, alter the legal regime without judicial approval. Acts 1979, No. 709, §§ 1, 10, and 13; Heyl v. Heyl, 445 So. 2d 88, 90 n.l (La. App. 2 Cir.), writ denied, 446 So.2d 1228 (La. 3/16/84). The following year, the Legislature again amended Louisiana Civil Code Annotated article 2329 with the July 23, 1980 passage of Act 565 of the 1980 Regular Legislative Session.

Art. 2329. Exclusion or modification of matrimonial regime. Spouses may enter into a matrimonial agreement before or during marriage as to all matters that are not prohibited by public policy.
Spouses may subject themselves to the legal regime by a matrimonial agreement at any time.
Spouses may modify or terminate a matrimonial regime during marriage only upon joint petition and a finding by the court that this serves their best interests and that they understand the governing principles and rules.
During the first year after moving into and acquiring a domicile in this states, spouses may enter into a matrimonial agreement without court approval.

Acts 1979, No. 709, § 13 reads: "Spouses living under the existing legal community property regime may adopt by matrimonial agreement executed prior to January 1, 1980, a matrimonial regime of their choice in accordance with the provisions of this Act, except that such agreements shall not be subject to the requirement of court approval as provided by Article 2329 of this Act. Such a matrimonial agreement shall not become effective prior to January 1, 1980."

House Bill No. 604 of 1980.
Art. 2329. Exclusion or modification of matrimonial regime. Spouses may enter into a matrimonial agreement before or during marriage as to all matters that are not prohibited by public policy.
Spouses may enter into a matrimonial agreement that modifies or terminates a matrimonial regime during marriage only upon joint petition and a finding by the court that this serves their best interests and that they understand the governing principles and rules. They may, however, subject themselves to the legal regime by a matrimonial agreement at any time without court approval.
During the first year after moving into and acquiring a domicile in this state, spouses may enter into a matrimonial agreement without court approval.

The parties' marriage contract was dated prior to the July 20, 1979 passage of Act 709. Because the Wises executed their marriage contract prior to the enactment of Act 709, the law in effect on May 23, 1979, provided that a matrimonial agreement altering the legal regime could only be entered into prior to marriage, unless the parties were married in another state and then settled in Louisiana pursuant to the requirement of Louisiana Civil Code Annotated article 2329. The Wises did not qualify for the exception of Act 709, § 13, whereby the parties could have modified their community property regime, without judicial approval, by executing their marriage contract between August 1, 1979, and January 1, 1980. We again note that the Wises did not seek judicial approval to alter their marital regime.

Mr. Wise argues that although Louisiana Civil Code Annotated article 2329 is the governing article in this matter, the validity of the parties' marriage contract hinges on an interpretation of the one-year exception encompassed in the former version of the article. This exception gives "married couples removing to this State and settling therein from other States" one year in which "to make a valid marriage contract."

Mr. Wise avers the marriage contract falls into Article 2329's one-year exception. Mr. Wise asserts that while he and Ms. Price initiated a community property regime in Louisiana in 1964, this marital regime ended in 1972, when the couple moved to Mississippi, where the couple then initiated a marital regime under Mississippi law. When the couple returned to Louisiana in April 1979, Mr. Wise argues, a new Louisiana marital regime was initiated. Mr. Wise further argues that the Louisiana Civil Code does not state that a couple, originally married in Louisiana, that later resides in other states for several years before returning to Louisiana, is not eligible for the one-year exception in Article 2329.

In opposition, Ms. Price avers that she and Mr. Wise cannot be characterized under the one-year exception of Article 2329 as spouses "removing to this State and settling therein from other States," because the parties were domiciled in Louisiana at the time of their marriage in 1964, when they contracted a community property regime.

The district court interpreted the one-year exception clause in former Louisiana Civil Code Annotated article 2329 to apply only to spouses who move to Louisiana, after being previously married and domiciled in another state. We agree with the opinion of the district court. A logical interpretation of the one-year exception in Article 2329 is that the legislature intended for the exception to apply to couples married and domiciled outside of this State, who later acquire a Louisiana domicile. Married couples newly-domiciled in this State do not have the same opportunity as couples married under the laws of Louisiana to review the martial regime options available to them prior to contracting marriage. Therefore, it is reasonable to allow married couples, newly-domiciled in Louisiana, one year in which to do what they might have done prior to marriage, had they been married in Louisiana - that is, contract out of or modify the community property regime.

As the Wises were married in Louisiana and aware of this State's default community property marital regime, the parties had the opportunity to opt out of or modify the community property regime prior to contracting their marriage. Furthermore, there is no contention that the parties sought or obtained judicial approval to alter the marital regime, prior to, or during, their marriage. The fact that the Wises left this State and lived in several other states before eventually returning to Louisiana does not alter the couples' community property regime. We conclude that the one-year exception encompassed in Louisiana Civil Code Annotated article 2329 does not apply to the Wises, as they were married in Louisiana. As the law in effect at the time the parties attempted to contract a separate property regime required that spouses wishing to alter their martial regime do so jointly prior to the celebration of marriage or seek judicial approval, we hold that the Wises's attempt to contract out of the community property regime through the May 23,1979 marriage contract is invalid.

B. Prescription

Mr. Wise filed with this Court a peremptory exception raising the objection of prescription regarding the partition of two pension plans, which form part of the parties' community property.

Louisiana Code of Civil Procedure Annotated article 2163 provides in pertinent part: "the appellate court may consider the peremptory exception filed for the first time in that court, if pleaded prior to a submission of the case for a decision, and if proof of the ground of the exception appears of record."

The two pension plans forming part of the community property are with TEMBEC and Crown Zellerbach a.k.a. Georgia Pacific. Mr. Wise began receiving benefits from the TEMBEC plan on May 1, 1999. Mr. Wise began receiving benefits from the Georgia Pacific Plan in the form of a life annuity on May 1, 2006.

Mr. Wise argued that Ms. Price's claim to her interest in his pension plans was not timely filed and further alleged "laches and estoppels by laches because of the unreasonable delay in plaintiff asserting her claim." Ms. Price argued that the suit was timely filed within ten years of Mr. Wise's receipt of benefits under the two pension plans in accordance with Louisiana Civil Code Annotated article 3499.

Liberative prescription is a mode of barring of actions as a result of inaction for a period of time. La. Civ. Code Ann. art. 3447. Unless otherwise provided by legislation, a personal action is subject to a liberative prescription often years. La. Civ. Code Ann. art. 3499. Courts have classified a suit to recover pension benefits as a personal action, subject to the prescriptive period of ten years. State ex rel Spann v. Board of Trustees of Police Pension Fund for City of New Orleans, 283 So. 2d 294, 296 (La. App. 4th Cir. 1973); see Carpenters Local Union No. 1846 of United Broth, of Carpenters and Joiners of America, AFL-CIO v. Pratt-Farnsworth, Inc., 609 F. Supp. 1302, 1304 (E. D. La. 1984). Furthermore, neither Louisiana Civil Code Annotated article 3494, nor Louisiana Civil Code Annotated article 3497, applies to this case. Thus, the ten-year prescriptive period under Louisiana Civil Code Annotated article 3499, is applicable in this matter. Since Ms. Price filed her suit within ten years of May 1, 1999, the date Mr. Wise first received benefits on the pension plans at issue, her claim is timely filed.

Louisiana Civil Code Annotated article 3494 lists actions subject to a liberative prescription of three years.

Louisiana Civil Code Annotated article 3497 lists actions subject to a liberative prescription of five years.
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CONCLUSION

For the foregoing reasons, we deny Mr. Wise's peremptory exception raising the objection of prescription and affirm the final judgment of the district court. All costs of this appeal are assessed against Defendant/Appellant, Roger W. Wise.

EXCEPTION DENIED; JUDGMENT AFFIRMED.


Summaries of

Price v. Wise

STATE OF LOUISIANA COURT OF APPEAL FIRST CIRCUIT
Dec 21, 2012
NO. 2012 CA 0311 (La. Ct. App. Dec. 21, 2012)
Case details for

Price v. Wise

Case Details

Full title:SHIRLEY WISE PRICE v. ROGER W. WISE

Court:STATE OF LOUISIANA COURT OF APPEAL FIRST CIRCUIT

Date published: Dec 21, 2012

Citations

NO. 2012 CA 0311 (La. Ct. App. Dec. 21, 2012)