CARRINGTON v. CARRINGTON (2025)

In this appeal, Scott Carrington (“Scott”) appeals the portion of the February 2, 2024 judgment of the trial court, rescinding and vacating the judgment of divorce rendered February 27, 2019, and Dianna Carrington (“Dianna”) appeals the portion of the February 2, 2024 judgment of the trial court, denying her Motion for New Trial. Pursuant to this court's interim order indicating the lack of decretal language, the trial court signed an amended judgment on March 20, 2025, correcting the decretal language deficiencies and maintaining its rulings vacating the judgment of divorce and denying Dianna's Motion for New Trial.

For the reasons that follow, we maintain Scott's appeal and dismiss Dianna's appeal. We further deny Dianna's Motion to Dismiss and Exception of Prematurity,² grant in part Scott's Motion to Strike Dianna's Appellant Brief, reverse the portion of trial court's March 20, 2025 amended judgment that vacated the judgment of divorce, reinstate the judgment of divorce dated February 27, 2019, and remand.

FACTS AND PROCEDURAL BACKGROUND

On May 24, 2018, Scott filed a verified Petition for Divorce, naming Dianna as a defendant, alleging the parties did not enter into a covenant marriage, and alleging no children were born of or adopted during the marriage. Scott asserted the parties had not commenced living separate and apart from each other, but they intended to live separate and apart continuously and without reconciliation for a period of one hundred and eighty days prior to the filing of a rule to show cause why divorced should not be granted, pursuant to La. Civ. Code arts. 102 ³ and 103.1.⁴ Additionally, Scott alleged that, because Dianna had committed a felony and had been sentenced to imprisonment at hard labor, he was entitled to seek an immediate divorce, pursuant to La. Civ. Code art. 103(3).⁵ Scott asserted that, during the marriage, the parties were subject to the legal regime of acquets and gains, and they acquired items of movable property that were community property. Scott requested a judgment terminating the community property regime and decreeing a separation of property. Scott prayed that a copy of the petition, the citation and the notice required by La. R.S. 13:3491 be served on Dianna, and after all legal delays and due proceedings, there be a judgment of divorce a vinculo matrimonii in his favor and against Dianna.

On June 4, 2018, Dianna signed a sworn Acceptance of Service and Waiver of Citation and All Delays, which was filed into the suit record on June 11, 2018. Additionally, on June 11, 2018, Scott filed a Motion for Judgment of Preliminary Default, alleging the Petition for Divorce was filed on May 24, 2018, Dianna accepted service of the petition and executed a waiver of service and all delays, and no answer or opposition had been filed. On June 18, 2018, the trial court signed an Order, entering a preliminary default into the minutes of the court in favor of Scott and against Dianna.

On February 27, 2019, the matter came for a confirmation of divorce hearing pursuant to Scott's Petition for Divorce. Scott testified that he was married to Dianna and was requesting a divorce because she was found guilty and incarcerated for wire fraud and she was sentenced for twenty-two months. Scott further testified that he and Dianna were married in Las Vegas and last lived together as husband and wife in East Baton Rouge Parish. Dianna's sentencing paperwork was offered and admitted into evidence. The paperwork showed Dianna pled guilty to wire fraud under 18 U.S.C. § 1343, and on December 18, 2018, judgment was imposed committing her to the custody of the United States Bureau of Prisons to be imprisoned for a total term of twenty-two months with the recommendation that she be housed in a facility capable of providing educational and vocational training. She was further ordered to pay restitution in the amount of $235,869.52. In open court, the trial court rendered a judgment of divorce, pursuant to Article 103(3).

On February 27, 2019, the trial court signed a judgment of divorce, which ordered the judgment of preliminary default rendered and signed on June 19, 2018 was confirmed, pursuant to La. Code Civ. P. art. 1702, and further ordered that a final judgment of divorce was granted in favor of Scott and against Dianna based upon Article 103(3), because Dianna had been found guilty of committing a felony and had been sentenced to imprisonment at hard labor. Although notice of judgment was requested, the record does not reflect mailing of notice.

Thereafter, on June 28, 2022, Scott and Dianna filed a Joint Motion to Adopt Judicial Partition and Order, which attached a Community Property Agreement stating in part:

The community property regime between the parties terminated by a Judgment of Divorce by The Family Court in and for the Parish of East Baton Rouge, State of Louisiana, bearing Docket Number 213,704, Division “C”, signed by the Honorable Charlene Charlet Day, on the 27th of February, 2019. This community property agreement was not signed until after the judgment of divorce had been rendered and signed terminating the community property regime retroactive to the date of filing the petition for divorce, May 24, 2019 and is incidental to the divorce to equally divide the community of acquets and gains which existed between the parties.

Additionally, on June 28, 2022, Dianna's own affidavit was filed into the record. She attested therein that she read the Community Property Agreement, Joint Motion to Adopt Judicial Partition, and Order, and she understood, freely consented to, and agreed to each provision therein as written. On July 27, 2022, the trial court ordered the Community Property Agreement be adopted as a Judicial Partition.

Subsequently, on August 9, 2023, Dianna filed a verified Motion for New Trial, Motion to Set Aside Judgment, Exception of Prematurity, and Exception of No Cause of Action.⁶ In her Motion to Set Aside Judgment, Dianna argued the divorce judgment was an absolute nullity and subject to being rescinded for lack of proper citation, lack of service of process, fraud or ill practices, lack of a valid preliminary default, and lack of a valid cause of action as the factual basis for an Article 103(3) divorce had not occurred.

In support of her claims to rescind the divorce judgment and for a new trial, Dianna argued the divorce judgment was a nullity under La. Code Civ. P. art. 2002(A)(2) for lack of service of process pursuant to La. Code Civ. P. art. 1201, where her acceptance of service only applied to a divorce claim under Article 102 and was not a waiver of her rights as to an Article 103(3) divorce and where no citation was issued for an Article 103(3) divorce. Dianna further contended the preliminary default was invalid under La. Code Civ. P. art. 2002(A)(2), as it was improperly entered for an Article 103(1) divorce, the time delays had not run and were not waived, and she did not waive a hearing or trial for an Article 103(3) divorce. Dianna also asserted the confirmation of default was improper, because she received no notice of the preliminary default and no prima facie case was presented since Scott did not show she was sentenced to hard labor and did not show they had not reconciled. She further contended fraud and ill practices, under La. Code Civ. P. art. 2004, existed in the default confirmation evidence, where the parties were living together on June 18, 2018, they continued doing so without interruption until September 2022, and Scott falsely stated otherwise. As to her exceptions, Dianna urged the Petition for Divorce was premature and failed to state a cause of action, where the facts supporting a divorce under either Articles 102 or 103 had not occurred and the parties had reconciled. Lastly, Dianna claimed the Judicial Partition should be rescinded.

On November 19, 2023, Scott filed Exceptions of Res Judicata and Improper Cumulation of Actions,⁷ arguing Dianna was barred from asserting waived defenses and her request to rescind the Community Property Agreement was improperly cumulated with her Motion for New Trial. Additionally, in opposition to Dianna's request to annul the divorce judgment, Scott argued she had not met her burden of proving it should be annulled under Article 2002, and she acquiesced therein through her subsequent execution of the Community Property Agreement and filing of the Joint Motion to Adopt Judicial Partition, barring her from seeking to annul the divorce judgment. Scott also cited Article 2004(A) and (B) and asserted Dianna cannot show she suffered a deprivation of legal rights.

At a hearing on December 5, 2023, the parties were sworn. In response to questioning from the trial court inquiring when she and Scott physically separated, Dianna testified that it was when Scott “evicted” her from the house in September 2022, and she and Scott physically separated on October 6 or 7, 2022. No other testimony or other evidence was offered. The trial court advised it was unnecessary to have a new trial but vacated the divorce judgment, stating, due to the fact that Dianna was not sentenced to hard labor at the time the petition for divorce was filed, the judgment was improperly rendered based upon facts that were untrue, and/or, misleading to the court. In vacating the divorce judgment, the trial court further pointed to “improper pleadings,” “improper citation,” and “no notice at all to have an opportunity to file a motion for a new trial.”

On February 2, 2024, the trial court signed an “Order From Hearing,” ordering that “the Judgment of Divorce rendered February 27, 2019, is rescinded and vacated” and further ordering that “the Motion for a New Trial is denied.” No relief was ordered as to the parties’ exceptions. Notice of the judgment was mailed on February 21, 2024.

On March 20, 2024, Scott filed a Motion for Suspensive Appeal, seeking review of the judgment vacating the February 27, 2019 judgment of divorce. Additionally, on April 26, 2024, Dianna filed a Motion for Devolutive Appeal, seeking review of the denial of her Motion for New Trial.

In his appeal, Scott assigned as error the trial court's nullifying or vacating the divorce judgment based upon an ostensibly erroneous statement regarding Dianna's criminal status, because Dianna waived service and acknowledged receiving the divorce petition, confessed the divorce judgment in a community property partition, and waited more than four years to file a petition to vacate. In her appeal, Dianna assigned as error the trial court's denial of the Motion for New Trial in the event this court overturns the order to vacate.

APPELLATE JURISDICTION

On December 2, 2024, this court, ex proprio motu, issued a show cause order concerning whether the appeal should be dismissed, as it appeared the February 2, 2024 judgment at issue in the instant appeal was a non-appealable ruling. Appellate courts have a duty to examine subject matter jurisdiction sua sponte, even when the parties do not raise the issue. Texas Gas Exploration Corp. v. Lafourche Realty Co., Inc., 2011-0520 (La. App. 1st Cir. 11/9/11), 79 So.3d 1054, 1059, writ denied, 2012-0360 (La. 4/9/12), 85 So.3d 698. This court's appellate jurisdiction extends to “final judgments,” which are those that determine the merits in whole or in part. La. Code Civ. P. arts. 1841 and 2083; State by and through Caldwell v. Teva Pharmaceuticals Industries, Ltd., 2017-0448 (La. App. 1st Cir. 2/8/18), 242 So.3d 597, 602.

Scott appealed the portion of the February 2, 2024 judgment rescinding and vacating the divorce judgment. In her Motion to Set Aside Judgment, Dianna argued the divorce judgment was an absolute nullity and should be rescinded. Although the Motion to Set Aside Judgment was not specifically titled as a petition to annul or a motion to annul, a pleading is governed by its substance rather than its caption, and we construe the pleading for what it really is, not for what it is erroneously designated. See State v. Henderson, 2022-0405 (La. App. 1st Cir. 12/15/22), 371 So.3d 28, 32 n.3. As such, Dianna's Motion to Set Aside Judgment will be treated as a motion to annul the divorce judgment.

A judgment, which sets aside a final judgment, is necessarily itself a final judgment, since, if undisturbed on appeal, it disposes at once and forever of the judgment which it sets aside. See Levy v. Levy, 178 La. 407, 409, 151 So. 635, 636 (1933). Additionally, this court has held that judgments denying petitions to annul or motions to annul are appealable, where they dispose of the controversy presented within the context of the nullity action. See e.g. In re Succession of Reno, 2013-1823 (La. App. 1st Cir. 6/17/15), 175 So.3d 412, 416; In re Succession of McLean, 2009-1851 (La. App. 1st Cir. 6/11/10), 2010 WL 2342752, *1-2 n.1 (unpublished).

In the case before us, the portion of the February 2, 2024 judgment rescinding and vacating the judgment of divorce disposed of all of the issues in controversy within the context of Dianna's Motion to Set Aside Judgment and otherwise would be appealable; nonetheless, it is fatally defective for lack of proper decretal language. The February 2, 2024 judgment did not contain any language identifying the name of the party in whose favor the relief was awarded and the name of the party against whom the relief was awarded. Additionally, we note the February 2, 2024 judgment did not identify the matters that were before the trial court at the December 5, 2023 hearing, did not identify whether each matter was granted or denied, and did not identify any corresponding relief awarded.

On March 11, 2025, this court, ex proprio motu, issued an interim order, remanding this matter for the limited purpose of instructing the trial court to sign an amended judgment that corrected the foregoing deficiencies. See La. Code Civ. P. arts. 1918, 1951, and 2088(A)(12). On March 20, 2025, the trial court signed an “Amended Order” setting forth the following:

THIS MATTER came before the Court for hearing on the 5th day of December, 2023, pursuant to a Motion for New Trial, Motion to Set Aside Judgment, Exception of Prematurity, and Exception of No Cause of Action filed by DIANNA CARRINGTON on August 9, 2023, and Petitioner's Exceptions of Res Judicata and Improper Cumulation of Actions with Incorporated Memorandum filed by SCOTT CARRINGTON on November 19, 2023․

WHEREUPON, THE COURT, considering the pleadings in the record, the testimony and evidence presented at the hearing, and the applicable law, ordered as follows:

IT IS ORDERED that judgment is rendered in favor of DIANNA CARRINGTON and against SCOTT CARRINGTON, vacating the Judgment of Divorce rendered on February 27, 2019.

IT IS FURTHER ORDERED that DIANNA CARRINGTON'S motion for new trial, exception of prematurity, and exception of no cause of action are hereby rendered moot and thus denied.

IT IS FURTHER ORDERED that SCOTT CARRINGTON'S exception of res judicata and exception of improper cumulation of actions are also hereby rendered moot and thus denied. [Emphasis in original.]

The record on appeal has been supplemented with the amended judgment. We find the March 20, 2025 amended judgment contains the requisite decretal language and is final and appealable. See La. Code Civ. P. arts. 1841, 1918, and 2083(A). Accordingly, Scott's appeal is maintained.⁸

Nevertheless, Dianna appeals the trial court's denial of her Motion for New Trial. The established rule of this circuit is that the denial of a motion for new trial is a non-appealable, interlocutory judgment. See Bourg v. Safeway Insurance Company of Louisiana, 2019-0270 (La. App. 1st Cir. 3/5/20), 300 So.3d 881, 887. However, the Supreme Court has directed us to consider an appeal of the denial of a motion for new trial as an appeal of the judgment on the merits as well, when it is clear from the appellant's brief that he intended to appeal the merits of the case. Id.

In her Motion for Devolutive Appeal, Dianna asserted that, out of an abundance of caution if this court reinstated the divorce judgment, the timely Motion for a New Trial would immediately become relevant and needed, and the ruling denying the Motion for a New Trial was appealed solely for this reason, to preserve all rights. Moreover, in her appellant brief, Dianna maintained that, if the judgment vacating the divorce is overturned on appeal, then her Motion for New Trial has not been heard, was timely, and should be granted. Therefore, it is clear from her brief that Dianna intended to limit her appeal to the denial of her Motion for New Trial. She did not file an answer to Scott's appeal such that the denial of her Motion for New Trial could be considered as a part of an unrestricted appeal from a final judgment. See Bourg, 300 So.3d at 887. Consequently, this Court lacks appellate jurisdiction to consider the merits of Dianna's appeal, which is dismissed.

While this court has discretion to convert an appeal to an application for supervisory writs, it may only do so if the appeal would have been timely had it been filed as a supervisory writ application. Lea, 342 So.3d at 354. A party intending to apply to this court for a supervisory writ shall give notice of such intention by requesting a return date to be set by the trial court, which shall not exceed thirty days from the date of the notice of judgment. See Uniform Rules-Courts of Appeal, Rules 4-2 and 4-3. At the hearing, Dianna's counsel advised he would prepare a judgment, which the minute entry noted. La. Code Civ. P. art. 1914. Notice of the February 2, 2024 judgment was mailed on February 21, 2024, but Dianna's Motion for Devolutive Appeal was not filed until April 26, 2024. Because Dianna's appeal was not filed within thirty days of the notice of judgment, it cannot be converted to a writ application, and we cannot consider it under our supervisory jurisdiction. See Lea, 342 So.3d at 354.

MOTION TO DISMISS AND EXCEPTION OF PREMATURITY AND MOTION TO STRIKE

On November 15, 2024, Dianna filed a Motion to Dismiss and Exception of Prematurity with this court, arguing the trial court's judgment was interlocutory, the claim for divorce under Article 102 was abandoned, the Petition for Divorce was premature as facts alleged therein had not yet occurred, and the parties had reconciled.

Adopting the foregoing analysis of the finality and appealability of the portion of the March 20, 2025 amended judgment vacating the divorce judgment, we deny the Motion to Dismiss. To the extent the Motion to Dismiss argued the merits of the case, such cannot be considered on a motion to dismiss the appeal. Solomon v. Hickman, 213 So.2d 96, 97 (La. App. 1st Cir. 1968). Moreover, La. Code Civ. P. art. 2163(A) only provides for the filing of peremptory exceptions in the appellate court. Accordingly, the dilatory Exception of Prematurity pursuant to La. Code Civ. P. art. 926(A)(1), which was filed with this court, also is denied.

Additionally, on January 6, 2025, Scott filed a Motion to Strike Dianna's Appellant Brief, arguing her brief should be stricken and her appeal dismissed on the grounds that pages 7 through 10 of the brief contained at least 28 statements of alleged fact that admittedly were not in the record. On the referenced pages of her appellant brief filed on November 15, 2024, Dianna listed “FACTS NOT IN THE RECORD.” Dianna opposed the Motion to Strike, but she noted “it is clearly stated that these facts are not evidence in the record, nor requested to be evidence in the record.”

Appellate courts are courts of record and may not review evidence that is not in the appellate record or receive new evidence. Denoux v. Vessel Management Services, Inc., 2007-2143 (La. 5/21/08), 983 So.2d 84, 88. Thus, an appellate court cannot review facts in appellate briefs, affidavits, and motions if those facts are not in the record. Hazey v. McCown, 2001-0929 (La. App. 1st Cir. 5/10/02), 818 So.2d 932, 936. Because Dianna acknowledges that statements 1 through 28 on pages 7 through 10 of her appellant brief filed with this court on November 15, 2024 are not in evidence in the appellate record, we grant the Motion to Strike in part and strike those portions of her appellant brief.

DISCUSSION

Louisiana Code of Civil Procedure article 2001 provides that the nullity of a final judgment may be demanded for vices of either form or substance, as provided in Articles 2002 through 2006, and Dianna sought to annul the judgment of divorce,⁹ pursuant to Articles 2002 and 2004. We note there is a strong public policy against disturbing or declaring invalid a judgment of divorce, especially after a long period of time where the marital status of innocent parties who relied on the validity of that judgment would be disturbed. See Peschier v. Peschier, 419 So.2d 923, 926 (La. 1982). Because of this strong public policy and a presumption as to the regularity of the judicial proceedings, Dianna was required to prove by clear and convincing evidence the grounds for annulment of a divorce judgment. See Id.

1. Vices of Form Under Article 2002

Nullities predicated on vices of form are set forth in Article 2002, and Article 2002(A)(2) states a final judgment shall be annulled if it is rendered against a defendant who has not been served with process as required by law and who has not waived objection to jurisdiction, or against whom a valid default judgment has not been taken. Except as otherwise provided in Article 2003, an action to annul a judgment on the grounds listed in Article 2002 may be brought at any time. See La. Code Civ. P. art. 2002(B). Yet, Article 2003 provides that a defendant who voluntarily acquiesced in the judgment, or who was present in the parish at the time of its execution and did not attempt to enjoin its enforcement, may not annul the judgment on any of the grounds enumerated in Article 2002.

In his appellant brief, Scott argues the Petition for Divorce set forth grounds for divorce under Articles 102 and 103, a preliminary default was not required, and evidence was introduced at the default confirmation hearing showing Dianna had been convicted of a felony and sentenced to twenty-two months incarceration. Scott further asserts Dianna waived all notices and legal delays, which served to waive any grounds for a nullity under Article 2002(A)(2), and she confessed the judgment of divorce in the stipulated community property partition.

As to Dianna's argument that the divorce judgment was absolutely null due to lack of citation and service, citation and service thereof are essential in all civil actions except summary and executory proceedings and divorce actions under Article 102. La. Code Civ. P. art. 1201; Peschier, 419 So.2d at 927. Without them all proceedings are absolutely null.Id. In determining whether citation and service were required herein, we note Scott's Petition for Divorce alleged the parties intended to live separate and apart and without reconciliation for a divorce under Article 102, and he further alleged Dianna had committed a felony and had been sentenced to imprisonment at hard labor, entitling him to a divorce under Article 103(3). The prayer for relief requested citation and notice under La. R.S. 13:3491 be served on Dianna but generally requested a judgment of divorce. As to his request for a divorce under Article 102, a summary proceeding could be used, see Boudreaux v. Boudreaux, 2021-1050 (La. App. 1st Cir. 6/3/22), 2022 WL 1830833, *3 (unpublished), and citation was not required. See La. Code Civ. P. art. 1201(A). Although La. R.S. 13:3491 requires specific notice in an Article 102 divorce action, a party therein may expressly waive service of the petition and accompanying notice by any written waiver executed after the filing of the petition and made part of the record. See La. Code Civ. P. art. 3957(A). On the other hand, a divorce pursuant to Article 103 is obtainable as an ordinary action, see Boudreaux, 2022 WL 1830833 at *3, and La. Code Civ. P. art. 1201(B) similarly provides that a defendant may expressly waive citation and service thereof by any written waiver made part of the record. Accordingly, citation and service may be waived for divorce actions under both Articles 102 and 103.

As to whether citation and service were validly waived herein, in Smith v. Smith, 47,376 (La. App. 2d Cir. 8/22/12), 104 So.3d 512, 513-14, for example, the defendant, Brandy Smith, filed an action to annul an Article 103(1) default divorce judgment based on lack of service and/or reconciliation. The trial court denied her assertion of nullity for a procedural defect. Id. at 515. On appeal, the Second Circuit Court of Appeal affirmed that denial, noting Brandy had executed a notarized affidavit, which attested:

That she has read the petition filed herein by EDWIN WAYNE SMITH, that she accepts service of same without the necessity of being served by the Sheriff's Office of the Parish of Jackson, State of Louisiana, that she waives formal citation; that she also waives any legal delays that she may be granted under the laws of the State of Louisiana, and she also desires that this matter be taken up without the necessity of legal delays and desires that this matter be taken up as soon as possible for confirmation.

Id. at 515.

Brandy further signed affidavits, representing the parties had not reconciled, representing she desired a divorce on the grounds of living separate and apart for more than six months, and agreeing to the terms of the pleadings as her own free will. Id. at 514. Additionally, on the trial court's signed judgment, Brandy's signature appeared under the sub-caption, “Approved As To Form.” Id. From those facts, the court found notice of the divorce action was given to Brandy and her waiver of service was sufficient. Id. at 515-16. The court noted compliance with former La. Code Civ. P. art. 1701(B) did not occur as Brandy did not receive a certified copy of the petition for divorce, which was filed four days after her waiver. Id. at 516. Nevertheless, the court concluded Brandy clearly received notice of the proposed divorce as set forth in the petition, attested to the parties’ separation for the preceding six months, and waived formal service and citation of the action, revealing her voluntary acquiescence in the judgment. Id.; see also Foster v. Foster, 2010-0353 (La. App. 1st Cir. 6/11/10), 2010 WL 2342769, *2-3 (unpublished) (affirming denial of motion to vacate judgment for lack of service, where acceptance of service and waiver of citation executed by the defendant's attorney and made part of the record was effective and binding on the defendant).

In this case, Scott proceeded with a divorce action under Article 103(3), pursuant to his claim set forth in the petition.¹⁰ Dianna personally signed a sworn Acceptance of Service and Waiver of Citation and All Delays, which bore the caption of the divorce proceeding, was filed into the suit record, and stated:

․ she is the defendant in the above captioned and entitled cause, that she acknowledges and accepts a certified copy of the Petition for Divorce filed in the above captioned and entitled cause, and that she expressly waives the issuance of the notice required by Louisiana Revised Statutes § 13:3491, formal citation, service of process, notice of hearing, and all legal delays.

Dianna offered no evidence of intent contrary to that expressed in her sworn Acceptance of Service and Waiver, which reflects she accepted a copy of the petition and she waived notice under La. R.S. 13:3491 (as required only for an Article 102 divorce), formal citation (as required only for an Article 103 divorce), formal service of process, notice of hearing, and all legal delays.

As to Dianna's contention that the preliminary default was invalidly entered pursuant to former La. Code Civ. P. art. 1701(B),¹¹ which provided rules for the entry of a divorce under Article 103(1), she correctly notes Scott requested a preliminary default under Article 1701(B), despite not pleading an Article 103(1) divorce in his petition. Nevertheless, a preliminary default is actually not a judgment at all. See Henderson, 371 So.3d at 35. Moreover, neither the minute entry nor the preliminary default order reflect it was entered under Article 1701(B); instead, the order only generally noted it was entered in favor of petitioner and against defendant.

Additionally, as to Dianna's contention that the preliminary default was entered prior to the expiration of her delay to answer, former La. Code Civ. P. art. 1701(A), which was in effect when the preliminary default herein was entered, stated, if a defendant in the principal or incidental demand fails to answer or file other pleadings within the time prescribed by law or by the court, a preliminary default may be entered against him. This court has found a preliminary default is premature and the judgment rendered on confirmation of that default is absolutely null under Article 2002, where, for example, the preliminary default was entered prior to the expiration of an extension to answer. See e.g. Duclos v. U. S. Fire Insurance Co., 417 So.2d 40, 41 (La. App. 1st Cir. 1982). However, Dianna's Acceptance of Service and Waiver waived all legal delays, and no evidence demonstrates she did not intend to waive the delay for answering set forth in La. Code Civ. P. art. 1001. The Acceptance of Service and Waiver was made a part of the record at the time of the filing of the preliminary default.

Even assuming Dianna was not properly cited and served and a valid preliminary default was not taken, the issue becomes whether she voluntarily acquiesced in the judgment, under La. Code Civ. P. art. 2003. In Hemavathy v. Shivashankara, 34,440 (La. App. 2d Cir. 2/28/01), 782 So.2d 115, 123, writ denied, 2001-1318 (La. 6/22/01), 794 So.2d 790, for instance, the Second Circuit Court of Appeal found the plaintiff had acquiesced in the separation judgment and was precluded from attacking its validity, where the pleadings she filed following the finality of the couple's divorce indicated her voluntary acquiescence in the separation judgment. In various pleadings, she admitted or noticed the existence of the separation judgment and claimed a one-half interest to the community property, which community property regime was terminated retroactive to the date of filing of the separation proceedings upon the finality of the separation judgment. Id. The court found she availed herself of the separation judgment, and even if she intended to attack the validity of the separation judgment for a vice of form, such a claim was precluded by her subsequent voluntary acquiescence in the judgment. Id. Other courts have found similarly, when one relies on a divorce or separation judgment to obtain an economic benefit. Poitevent v. Poitevent, 152 So.2d 256, 258-59 (La. App. 4th Cir. 1963), writ refused sub nom. Poitevent v. Schramm, 244 La. 672, 153 So.2d 884 (1963); Bergman v. Bergman, 425 So.2d 831, 832-33 (La. App. 5th Cir. 1982).

In the present case, on May 17, 2022 after the entry of the divorce judgment, Dianna and Scott signed a sworn Community Property Agreement before a notary and two witnesses, which transferred certain property to Dianna and stated:

The community property regime between the parties terminated by a Judgment of Divorce by The Family Court in and for the Parish of East Baton Rouge, State of Louisiana, bearing Docket Number 213,704, Division “C”, signed by the Honorable Charlene Charlet Day, on the 27th of February, 2019. This community property agreement was not signed until after the judgment of divorce had been rendered and signed terminating the community property regime retroactive to the date of filing the petition for divorce, May 24, 2019 and is incidental to the divorce to equally divide the community of acquets and gains which existed between the parties.

․

The parties desire to settle and liquidate the community that formerly existed between them, and have agree to do so as set forth in this agreement. Each party has had the opportunity to seek legal counsel, and other expert assistance, and makes this settlement and exchange agreement that the property and rights exchanged, transferred, and relinquished are an equal and proportionate division of the property.

․

․

Each party shall bear their own court costs, attorney fees, accountant fees, appraiser and other expert fees associated with this settlement and the prior termination of community property action, divorce action or any action incidental thereto.

Dianna also signed a Joint Motion to Adopt Judicial Partition, along with Scott's counsel, asking that the court recognize the community property agreement as a Judicial Partition and order that it be the law between the parties. The motion further set forth that “[b]y signature below, and by signature on the Community Property Agreement, both parties acknowledge that they have received equal and fair value in the community and that this agreement comports with all requirements of law.” An Order was filed with the Joint Motion to Adopt as Judicial Partition, which stated: “IT IS HEREBY ORDERED that the Community Property Agreement, the original being attached to the motion, be adopted as a Judicial Partition and accepted as the law between the parties and be binding on all involved, to the extent provided by law.”

Additionally, Dianna executed a sworn affidavit, stating:

DIANNA CARRINGTON, who is the defendant in the above-captioned suit for divorce, and who after being duly sworn, did depose and state ․ She has read the above captioned Community Property Agreement, Joint Motion to Adopt Judicial Partition, and Order; she formally and expressly acknowledges that she fully understands each provision in the Community Property Agreement, Joint Motion to Adopt Judicial Partition, and Order as written; she is freely consenting to each provision in the Community Property Agreement, Joint Motion to Adopt Judicial Partition, and Order as written; and she formally and expressly agrees to each provision in the Community Property Agreement, Joint Motion to Adopt Judicial Partition, and Order as written. [Emphasis in original.]

Considering the foregoing, we find the Community Property Agreement and Dianna's own affidavit show she had actual knowledge of the divorce proceeding and the divorce judgment, she acknowledged the effect of the divorce judgment on the community property regime, and she availed herself of the divorce judgment, which gave her an economic benefit in the right to her portion of the terminated community property regime. Additionally, she moved for the Community Property Agreement to be adopted as the Judicial Partition, and her motion was granted. We find Dianna unmistakably acquiesced in the Judgment of Divorce, and she may not annul the judgment of divorce on any of the grounds enumerated in Article 2002.

2. Vices of Substance Under Article 2004

Nullity predicated on vices of substance are covered in Article 2004(A), which states a final judgment obtained by fraud or ill practices may be annulled. An action to annul a judgment on these grounds must be brought within one year of the discovery by the plaintiff in the nullity action of the fraud or ill practices. La. Code Civ. P. art. 2004(B). A relative nullity involves a factual issue which must be proven by evidence placed in the record. Jackson v. Dupre, 2024-0638 (La. App. 1st Cir. 12/30/24), 2024 WL 5244964, *5 (unpublished).¹²

In his appellant brief, Scott argues annulment of the divorce judgment for vices of form is improper, where his Petition for Divorce was not fraudulent, Dianna's waiver shows she accepted a copy of the petition, Dianna was not deprived of a defense, and she cannot stand by and permit the trial court to render a divorce judgment and then seek to vacate the judgment. Scott further argues peremption extinguishes Dianna's claim, where her pleadings were filed more than four years after the divorce judgment and more than one year after she joined him in the Joint Motion to Adopt as Judicial Partition recognizing the Community Property Agreement.

Article 2004 is not limited to cases of actual fraud or intentional wrongdoing but is sufficiently broad to encompass all situations wherein a judgment is rendered through some improper practice or procedure. Robins v. Pirzadah, 2022-0844 (La. App. 1st Cir. 4/14/23), 365 So.3d 830, 834, writ denied, 2023-00665 (La. 9/19/23), 370 So.3d 466. However, not every fraud or ill practice constitutes grounds to annul a judgment. Florida Gas Transmission Co., LLC v. Texas Brine Co., LLC, 2022-1234 (La. App. 1st Cir. 6/2/23), 369 So.3d 892, 896, writ denied, 2023-00925 (La. 11/15/23), 373 So.3d 50, reconsideration not considered, 2023-00925 (La. 1/24/24), 377 So.3d 676. Nullity is an appropriate remedy only when the judgment is obtained by fraud or ill practice, and there must be a causal relationship between the fraud or ill practice and the obtaining of the judgment. Id. Louisiana jurisprudence sets forth two criteria to determine whether a judgment has been rendered through fraud or ill practices and is thus subject to nullification: (1) whether circumstances under which the judgment was rendered showed the deprivation of legal rights of the litigant seeking relief; and (2) whether enforcement of the judgment would be unconscionable or inequitable. Id. The petitioner must satisfy both criteria to succeed in his action for nullification. Id.

“Ill practice” is any improper practice or procedure which operates, even innocently, to deprive a litigant of some legal right. Robins, 365 So.3d at 834. The “legal right” of which a litigant must be deprived to have a judgment annulled includes the right to appear and assert a defense and the right to a fair and impartial trial. Id. When ill practices are alleged, the court must examine the case from an equitable viewpoint to determine whether the party seeking annulment has met the burden of showing how he was prevented or excused from asserting his claims or defenses. Mike v. Bob's Painting, 2007-2190 (La. App. 1st Cir. 9/26/08), 995 So.2d 43, 47. The purpose of an action for nullity is to prevent injustice that cannot be corrected through new trials and appeals. Id. Trial courts are permitted discretion in deciding when a judgment should be annulled because of fraud or ill practices to which discretion reviewing courts will defer. Id.

Although alleging a nullity for fraud or ill practices under Article 2004, Dianna's Motion to Set Aside Judgment did not expressly allege that Scott's conduct deprived her of her legal rights or that enforcement of the Judgment of Divorce would be unconscionable or inequitable. Instead, she alleged the divorce judgment came for a default confirmation hearing under Article 102, but the default divorce judgment was confirmed improperly under Article 103, where Scott failed to provide her notice of the preliminary default, failed to present a prima facie case, and made fraudulent statements.

At the time of the confirmation of the divorce judgment herein Article 1702(A) stated, in pertinent part:

A preliminary default must be confirmed by proof of the demand that is sufficient to establish a prima facie case and that is admitted on the record prior to the entry of a final default judgment. ․ When a preliminary default has been entered against a party that is in default after having made an appearance of record in the case, notice of the date of the entry of the preliminary default must be sent by certified mail by the party obtaining the preliminary default to counsel of record for the party in default, or if there is no counsel of record, to the party in default, at least seven days, exclusive of holidays, before confirmation of the preliminary default.

As to notice of the preliminary default, in Russell v. Illinois Central Gulf Railroad, 96-2649 (La. 1/10/97), 686 So.2d 817, 819, for example, the court found it was an ill practice for the plaintiff's attorney to obtain a default judgment without attempting to notify the opposing attorney, when the opposing attorney had participated in the litigation proceedings and inadvertently failed to file an answer to the plaintiff's second amended petition. However, unlike the defendant in Russell, Dianna had not participated in the litigation, and the record does not reflect that she had made an appearance of record, triggering the notice provisions of Article 1702(A).¹³ Furthermore, although the trial court's minute entry noted the case came for default confirmation hearing under Article 102, Dianna has not shown this circumstance deprived her of her legal rights, especially as her Acceptance of Service and Waiver indicated she waived notice of hearing.

To the extent Dianna argues Scott failed to present a prime facie case to support the confirmation of the divorce judgment or made a false statement to the trial court to the confirmation, we note that, in Temple v. Jackson, 376 So.2d 972, 976 (La. App. 1st Cir. 1979), this court found ill practices and annulled a judgment, where the plaintiff misrepresented facts at a confirmation of default that were material in the plaintiff obtaining judgment in his favor. However, in Louisiana Workers’ Compensation Corp. v. Louisiana Demolition, Inc., 2011-2232 (La. App. 1st Cir. 6/8/12), 93 So.3d 765, 766, the Louisiana Workers’ Compensation Corp. (“LWCC”) filed a petition for an audit. The defendant, Louisiana Demolition, Inc. (“La. Demo”), was served, but it did not file any responsive pleadings; a default judgment was signed. Id. La. Demo filed a petition for nullity, focusing on the evidence LWCC introduced and claiming LWCC failed to establish a prima facie case amounting to fraud or ill practices. Id. LWCC filed a peremptory exception raising the objection of no cause of action, which was granted. Id. This court affirmed the granting of the peremptory exception raising the objection of no cause of action. Acknowledging Temple, this court noted La. Demo's widespread inaction in its own defense could not go unnoticed. Id. at 769. La. Demo did not answer LWCC's original petition, file any exceptions, raise any affirmative defenses, or move for summary judgment against what it claimed was poor evidence that did not even satisfy the minimal requirements of a prima facie case. Id. at 769-70. La. Demo did not appeal the default judgment, where the allegations in its petition for nullity could have served well as assignments of error. Id. at 770. Therefore, this court found La. Demo was not deprived of any legal right and waived its legal rights through its inaction. Id.; see also Cochran v. Foreman, 2019-0527 (La. App. 1st Cir. 3/4/22), 341 So.3d 625, 630.

To the extent Dianna argues Scott did not prove his claim for a divorce under Article 103(3) at the confirmation hearing, as she disputes her sentence was for “hard labor,” such does not establish a claim for nullity for fraud or ill practices under Article 2004. See e.g. State, Through Department of Health and Human Resources, Office of Family Security, In Interest of Brown v. Beauchamp, 473 So.2d 323, 325-26 (La. App. 1st Cir.), writ denied, 477 So.2d 1125 (La. 1985) (noting an Article 2004 action is not a substitute for an appeal from a judgment that might be erroneous due to insufficiency of evidence or misinterpretation of substantive law, but is a separate remedy designed to afford relief against a judgment procured by methods viewed with disdain by the judiciary); Williams v. Williams, 2006-0358 (La. App. 1st Cir. 2/9/07), 2007 WL 441360, *11 (unpublished) (noting “judgments rendered contrary to law are subject to reversal on appeal, but are not thereby subject to an action in nullity”).

Moreover, Dianna's inaction in her own defense herein cannot go unnoticed. She had notice of the divorce proceeding and accepted the petition, and she waived service of process, citation, notice of hearing, and all legal delays. Upon acceptance of the petition, she could have asserted any defense available; however, she did not file an answer or exceptions or raise any affirmative defenses. Dianna has failed to show how Scott's actions prevented her from appearing in the divorce proceeding and asserting a defense.¹⁴ The absence of a valid and sufficient reason for a party's failure to defend a suit in which a default judgment was taken precludes that party from later maintaining an action for nullity of the judgment based on fraud or ill practices which could and should have been pleaded in the original suit. Louisiana Workers’ Compensation Corp., 93 So.3d at 770.

As to Dianna's argument that Scott made false statements at the default confirmation hearing as they had reconciled, we note a cause of action for divorce is extinguished by the reconciliation of the parties. See La. Civ. Code art. 104, Comment (1990) (“This Article codifies the prior jurisprudence holding that an action for divorce under ․ Article 103 ․ could be defeated by proof that the parties had reconciled. ․ Under this revision reconciliation may also defeat a divorce action under new Civil Code Article 102 ․”). Reconciliation occurs when there is a mutual intent to reestablish the marital relationship on a permanent basis. Pociask v. Moseley, 2013-0262 (La. 6/28/13), 122 So.3d 533, 542 n.4. In seeking a divorce, Scott did not bear the burden of proving affirmatively that there had been no reconciliation; rather, to the extent Dianna alleged the affirmative defense of reconciliation, she bore the burden of proving it. See Broyles v. Broyles, 197 So.2d 123, 124 (La. App. 1st Cir. 1967); see also Hightower v. Schwartz, 2014-0431 (La. App. 4th Cir. 10/15/14), 151 So.3d 903, 905-06. Yet, again, we note Dianna filed no answer and affirmative defenses in the divorce proceeding, despite having notice thereof. Dianna testified at the December 5, 2023 hearing that Scott “evicted” her from the house in September 2022 and that she and Scott physically separated in October 2022. However, this testimony does not prove the parties’ mutual intent to reestablish the marital relationship prior to February 27, 2019, when the divorce judgment was entered and while Dianna was serving a twenty-two-month prison sentence.

Yet, even assuming she proved fraud or ill practices under Article 2004(A), the burden of proof to show that a nullity action was brought within one year of the discovery of the fraud or ill practice is on Dianna, as the proponent of the nullity action. See LaCroix, 326 So.3d at 923-24. The one-year peremptive period in Article 2004 begins to run on the date that the injured party discovers—or should have discovered—through the exercise of reasonable diligence, information on which a cause of action might be based. Id. at 925. Whenever there is notice enough to excite attention, put a person on guard, or suggest further investigation, this is tantamount to knowledge or notice of everything to which a reasonable inquiry may lead. Id.

In Smith, 104 So.3d at 516, for example, the court found Brandy's action for a nullity under Article 2004, on the basis of reconciliation, was perempted. The court found the May 27, 2005 execution of the affidavits for the divorce proceeding revealed her knowledge thereof, and she admitted that her husband informed her of the judgment in the summer of 2006; however, she did not institute the action for nullity until October 14, 2008. See Id. Accordingly, the court reversed the trial court's judgment and dismissed the nullity action. Id. at 516-17.

In this case, the Motion to Set Aside Judgment was filed on August 9, 2023, yet Dianna had knowledge of the divorce judgment on May 17, 2022, at the latest, when she personally executed the Community Property Agreement, her supporting affidavit, and the Joint Motion to Adopt Judicial Partition. Dianna presented no evidence establishing she did not know of the contents of the divorce judgment at that time. Thus, for more than one year prior to her filing the nullity request, Dianna had sufficient knowledge to excite further inquiry and a reasonable opportunity to discover the alleged fraud and ill practices. Accordingly, Dianna's nullity claim under Article 2004(A) is untimely and barred.

CONCLUSION

For the foregoing reasons, we reverse the portion of the March 20, 2025 amended judgment insofar as it vacated the judgment of divorce. We reinstate the February 27, 2019 judgment of divorce and remand this matter for further proceedings.

Appeal costs are assessed against Dianna Carrington.

APPEAL MAINTAINED IN PART; APPEAL DISMISSED IN PART; MOTION TO DISMISS AND DILATORY EXCEPTION RAISING THE OBJECTION OF PREMATURITY DENIED; MOTION TO STRIKE GRANTED IN PART; JUDGMENT REVERSED IN PART; JUDGMENT OF DIVORCE DATED FEBRUARY 27, 2019 REINSTATED; REMANDED.

FOOTNOTES

2.   Louisiana Code of Civil Procedure article 922 recognizes only three exceptions: the declinatory exception, the dilatory exception, and the peremptory exception. See La. Code Civ. P. arts. 925, 926, 927. Dianna filed a dilatory exception pleading the objection of prematurity with this court. See La. Code Civ. P. arts. 926. Herein, for brevity, we refer to that exception as an exception of prematurity. The parties’ other exceptions are referred to similarly.

3.   Louisiana Civil Code article 102 states:Except in the case of a covenant marriage, 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.The motion shall be a rule to show cause filed after all such delays have elapsed.

4.   Louisiana Civil Code article 103.1(1) states, in pertinent part: “The requisite periods of time, in accordance with Articles 102 and 103 shall be as follows: ․ [o]ne hundred eighty days where there are no minor children of the marriage.”

5.   Louisiana Civil Code article 103 states, in pertinent part:Except in the case of a covenant marriage, a divorce shall be granted on the petition of a spouse upon proof that:(1) 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.․(3) The other spouse has committed a felony and has been sentenced to death or imprisonment at hard labor.One of the main benefits of obtaining a fault-based divorce under Article 103(3) is that there is no waiting period; the divorce is immediate. See Martin v. Trushyna, 19-79 (La. App. 5th Cir. 11/13/19), 283 So.3d 1083, 1089 (discussing an immediate divorce under Articles 103(4) and (5)). To entitle a spouse to an immediate divorce, Article 103(3) requires only that “[t]he other spouse has committed a felony and has been sentenced to death or imprisonment at hard labor.” It is not necessary that all delays for appeal have expired or that the convicted spouse actually serve any of the sentence. Nickels v. Nickels, 347 So.2d 510 (La. App. 2d Cir. 1977) (discussing former La. Civ. Code art. 139, which was reproduced without substantive change in current Article 103(3)). Additionally, a guilty plea to the commission of a crime is tantamount to a conviction for the commission of that crime for purposes of Article 103. See Scheppf v. Scheppf, 430 So.2d 370, 372 (La. App. 3d Cir. 1983) (discussing former Article 139).

6.   See footnote 2, supra.

7.   See footnote 2, supra.

8.   Even assuming this court's appellate jurisdiction would not attach, we further note that, because Scott's Motion for Suspensive Appeal was filed within thirty days of the notice of judgment, his appeal could be converted to a writ application, and we could consider his appeal under this court's supervisory jurisdiction. See Lea v. Lea, 2021-1293 (La. App. 1st Cir. 4/28/22), 342 So.3d 352, 354.

9.   A judgment granting a divorce is appealable. See La. Code Civ. P. art. 3942(A). Although notice of a default judgment of divorce is not served pursuant to La. Code Civ. P. art. 1913, it still can be annulled prior to or pending an appeal therefrom. See Draper v. Draper, 554 So.2d 79, 84 (La. App. 2d Cir. 1989) ( citing La. Code Civ. P. arts. 1911, 2005, and 2083).

10.   To the extent it could be argued his claims were improperly cumulated, Dianna did not file a dilatory exception raising the objection of improper cumulation of actions. See La Code Civ. P. art. 926(A)(7).

11.   Acts 2021, No. 174 § 5 and § 6 repealed La. Code Civ. P. art. 1701 and amended and reenacted La. Code Civ. P. arts. 1702, 1702.1, 1703, and 1704 relative to default judgments. These changes apply to default judgment rendered on or after January 1, 2022. Acts 2021, No. 174, § 7. Thus, the default judgment at issue in this case, rendered on February 27, 2019, is governed by the law in effect prior to this amendment. At the time the preliminary default herein was entered and the default was confirmed, La. Code Civ. P. art. 1701(B) stated:When a defendant in an action for divorce under Civil Code Article 103(1), by sworn affidavit, acknowledges receipt of a certified copy of the petition and waives formal citation, service of process, all legal delays, notice of trial, and appearance at trial, a preliminary default may be entered against the defendant the day on which the affidavit is filed. The affidavit of the defendant may be prepared or notarized by any notary public. The preliminary default may be obtained by oral motion in open court or by written motion mailed to the court, either of which shall be entered in the minutes of the court, but the preliminary default shall consist merely of an entry in the minutes. Notice of the entry of the preliminary default is not required.

12.   A nullity action based on vice of substance is properly instituted as a direct action, which should be instituted by petition, with citation and proper service of process, utilizing an ordinary proceeding. LaCroix v. Coleman, 2020-1247 (La. App. 1st Cir. 5/19/21), 326 So.3d 921, 923, n.1. Although Dianna set the matter for a contradictory hearing by a rule nisi and the trial court summarily decided the case on its merits, Dianna filed the Motion to Set Aside Judgment in the same case number that produced the judgment of divorce and, therefore, has not collaterally attacked the judgment of divorce. See Id. Despite filing other exceptions, Scott did not assert a dilatory exception raising the objection of unauthorized use of summary proceedings with respect to the Motion to Set Aside Judgment, prior to the time the matter was heard, and that objection was waived. See Id.

13.   “Appearance of record” is intended to have the same meaning as in La. Code Civ. P. art. 1671, and includes filing a pleading such as any one or more of the exceptions, appearing at a hearing, and formally enrolling as counsel of record. Snyder v. Insurance Company of the State of Pennsylvania, 2022-0159 (La. App. 1st Cir. 11/30/22), 357 So.3d 374, 378-79; see also La. Code Civ. P. art. 1702, Comment (b) (2001). Although her Acceptance of Service and Waiver was filed, Dianna did not express therein that she was entering an appearance, and she did not appear at any hearing.

14.   Although it is undisputed Dianna was incarcerated on the date of the default confirmation hearing, the record does not reflect the dates of her guilty plea or her incarceration. Still, the Petition for Divorce was filed on May 24, 2018, and Dianna was sentenced on December 18,

CALLOWAY, J.