DYLAN CAIN DUPLANTIS v. KORTNEY RAE FONTENOT DUPLANTIS (2025)

Defendant, Kortney Rae Fontenot Duplantis, appeals from a default judgment, which granted Plaintiff, Dylan Cain Duplantis, a La.Civ.Code art. 103 divorce based upon a supplemental and amended petition the trial court allowed him to file ex parte. For the reasons herein, we reverse and remand.

FACTS AND PROCEDURAL HISTORY

The parties married on October 22, 2016, and one child was born of the marriage. On June 21, 2023, Plaintiff filed suit seeking a divorce from Defendant pursuant to La.Civ.Code art. 102,¹ in which he asserted that he and Defendant had physically separated and lived separate and apart from November 16, 2022. On September 13, 2023, Defendant responded by filing an answer and a reconventional demand, seeking an Article 102 divorce from Plaintiff. Thereafter, on February 20, 2024, Plaintiff filed a supplemental and amending petition, which supplemented and amended the original petition to request a divorce pursuant to La.Civ.Code art. 103,² as follows:

I.

By amending and supplementing Paragraph 5. of the original Petition for Divorce to read as follows:

“5.

Petitioner desires a Divorce under Louisiana Civil Code Article 103 which permits to [sic] a spouse to obtain a Divorce when a Petition for Divorce is filed and 365 days have elapsed from the service of the Petition or Waiver of Service of the Petition and in which the parties have lived separate and apart since the service of the Petition or Waiver of Service of the Petition.[”]

By amending and supplementing Paragraph 7. of the original Petition for Divorce to read as follows:

“7.

The parties herein were physically separated on or about November 16, 2022 and have lived separate and apart since that time. Plaintiff herein desires an absolute divorce based on the grounds of having lived separate and apart for a period of three hundred and sixty five [sic] (365) days or more as provided for in La. C.C. Art. 103 (1).”

Plaintiff sought ex parte leave of court to file the supplemental and amending petition, which was granted on February 28, 2023. Plaintiff requested personal service on Defendant through her attorney of record, and service was made as requested on March 11, 2024.

Defendant filed no answer in response to the amended and supplemental petition, although she had answered and filed a reconventional demand in response to Plaintiff's original petition. On April 9, 2024, Plaintiff filed a Checklist for 103 Divorce, an Affidavit of Living Separate and Apart, and a Judgment of Final Divorce. That same day, the trial court granted a default judgment of divorce in Plaintiff's favor, and notice of judgment was mailed to the parties on April 11, 2024. Defendant was also personally served with notice of judgment on April 24, 2024.

On May 24, 2024, Defendant sought a suspensive appeal, which was granted on May 28, 2024. After the record was lodged, this court dismissed the appeal as being untimely. Duplantis v. Duplantis, 24-349, p. 1 (La.App. 3 Cir. 9/25/24) (unpublished opinion). However, on Defendant's application for supervisory writs, the supreme court, in a per curium opinion, reversed the dismissal and remanded the matter to this court for consideration of the merits of the appeal. Duplantis v. Duplantis, 24-1527 (La. 2/25/25), __ So.3d __.

On remand, Defendant urges six assignments of error. However, as we find merit in her first two assignments of error, we will limit our discussion to those assignments:

1. The trial court committed manifest error and abused its discretion when it granted the ex parte order granting [the] [Plaintiff] leave of court to file the First Supplemental and Amending Petition for Divorce without holding a contradictory hearing or having the express consent of both parties and when it granted the default judgment of divorce in favor of the [Plaintiff] because the [Plaintiff's] Ex Parte filing, although entitled “Supplemental and Amending”, was only supplemental not amending and therefore was not properly before the trial court.

2. The trial court committed manifest error and abused its discretion when it granted the default judgment of divorce based on [Plaintiff's] ex parte First Supplemental and Amending Petition for Divorce because the filing, although entitled Supplemental and Amending, was only supplemental and therefore no answer was required by the [Defendant], as an Answer to the Original Petition had been previously filed.

OPINION

In her first two assignments of error, Defendant asserts that the trial court committed manifest error and abused its discretion in granting a default judgment of divorce based on Plaintiff's improperly filed supplemental and amending petition. As the propriety of the default judgment depends on whether that petition was properly before the trial court, we will address this issue first.³

In Flowers v. Jena Band of Choctaw Indians, 23-728, p. 9 (La.App. 3 Cir. 6/12/24), 396 So.3d 992, 997 (citation omitted), this court set forth the standard of review concerning the filing of amending and supplemental pleadings:

As a general rule, courts allow the amendment of pleadings after a defendant has filed an answer unless the evidence shows that the amendment is not sought in good faith, is being used to delay the proceeding, or may prejudice another party. A trial court's decision to allow or deny an amendment is within its sound discretion, and that decision should not be overruled on appeal unless the evidence shows an abuse of discretion occurred and that an injustice could result from the ruling.

The rules applicable to the amendment of pleadings are found in La.Code Civ.P. art. 1151, which provides:

A plaintiff may amend his petition without leave of court at any time before the answer thereto is served. He may be ordered to amend his petition under Articles 932 through 934. A defendant may amend his answer once without leave of court at any time within ten days after it has been served. Otherwise, the petition and answer may be amended only by leave of court or by written consent of the adverse party.

A defendant shall plead in response to an amended petition within the time remaining for pleading to the original pleading or within ten days after service of the amended petition, whichever period is longer, unless the time is extended under Article 1001.

Louisiana Code of Civil Procedure Article 1155 provides for the supplementation of pleadings:

The court, upon written consent of the parties, may permit the mover to file a supplemental petition or answer setting forth items of damage, causes of action or defenses that have become exigible since the date of filing the original petition or answer, and that are related to or connected with the causes of action or defenses asserted therein. If the parties do not consent, the court may grant leave to file a supplemental petition or answer only upon contradictory motion.

Here, we find that the trial court either treated Plaintiff's supplemental and amending petition as strictly an amending petition or applied the version of La.Code Civ.P. art. 1155, as it read prior to its 2023 amendment.⁴ Either way, the trial court committed an error of law. In Newman v. Hoffoss & Devall, LLC, 21-24, pp. 10-11 (La.App. 3 Cir. 6/9/21), 322 So.3d 877, 883-84, this court addressed the distinction between amended petitions and supplemental petitions:

The Louisiana Civil Law Treatise, Civil Procedure § 6:10 (2d ed.), discusses the distinction between amending and supplemental petitions:

Courts and counsel frequently treat the terms supplemental pleading and amended pleading as synonymous. However, they are separate concepts. An amended pleading either restates the allegations of a claim or defense which were imperfectly stated, or adds a new claim or defense which existed, but was not pleaded, when the original pleading was filed. A supplemental pleading sets forth a new claim or defense, or an item of damages, which arose after the filing of the original pleading.

The distinction is important, because the rules governing amended pleadings are much more liberal. Amendment sometimes may be effected without leave of court, and pre-amendment notice to the opposing party may not be required. A supplemental pleading is permissible only if there is sufficient connexity with the claim or defense initially asserted, and only after a contradictory hearing against the opposing party.

Appellate courts have addressed this distinction:

After an answer has been filed, the authorization of the filing of an amending petition is within the discretion of the trial judge. La. C.C.P. arts. 1151 and 1155; Heritage Worldwide, Inc. v. Jimmy Swaggart Ministries, 95-0484 (La.App. 1 Cir. 11/16/95), 665 So.2d 523, 527, writ denied, 96-0415 (La. 3/29/96), 670 So.2d 1233. Thus, a trial judge's ruling granting an amendment to the pleadings will not be disturbed on appeal unless an abuse of discretion has occurred that indicates a possibility of resulting injustice. Rainey v. Entergy Gulf States, Inc., 2001-2414 (La.App. 1 Cir. 11/8/02), 840 So.2d 586, 589, on reh'g., 2001-2414 (La.App. 1 Cir. 6/25/04), 885 So.2d 1193. Amendments should be permitted if: (1) the movant is acting in good faith; (2) the amendment is not being used as a delaying tactic; (3) the opponent will not be unduly prejudiced; and (4) the trial will not be unduly delayed. Rainey, 840 So.2d at 589–90. Good faith is a reasonable belief that the facts alleged in the proposed amendment are true[.] Rainey, 840 So.2d at 590.

We must determine whether the plaintiffs’ pleading entitled “Amended Petition for Damages” constitutes an “amendment” or a “supplement.” A supplemental pleading differs from an amended pleading in that an amended pleading involves matters that occurred before the original complaint was filed, which were either overlooked by the pleader or were unknown to him at the time, while a supplemental pleading covers issues or causes of action that have arisen since the filing of the original petition, which relate to the issues or actions contained in the original petition. Gilchrist Const. Co., L.L.C. v. State, Dept. of Transp. and Dev., 2013-2101 (La.App. 1 Cir. 3/9/15), 166 So.3d 1045, 1051, writ denied, 2015-0877 (La. 6/30/15), 172 So.3d 1097.

Under La. C.C.P. art. 1151, a petition may be amended after an answer has been filed “by leave of court.” On September 19, 2011, the trial court signed the bottom portion of the amended petition entitled “Order,” which stated that the plaintiffs were “GRANTED leave of Court to file this Amended Petition for Damages.” Thus, La. C.C.P. art. 1151 was satisfied. Furthermore, the plaintiffs pled no new facts, nor did they name any additional defendants. The plaintiffs merely added allegations.

Baringer v. Robinson, 15-698, pp. 9-11 (La.App. 1 Cir. 12/2/15), 216 So.3d 919, 926-27.

Here, Plaintiff's pleading is self-styled as a “First Supplemental and Amending Petition for Divorce.” We acknowledge that it is the substance rather than the caption, style, and form of a pleading that controls and determines the nature of the proceeding. Gremillion v. Rapides Par. Police Jury, 430 So.2d 1362 (La.App. 3 Cir.), writs denied, 435 So.2d 426, 440 (La.1983). However, there is no doubt that the petition at issue sets forth a new claim which arose after the filing of the original pleading. At the time it was filed, the parties had, in fact, lived separate and apart for the requisite 365 days, providing Plaintiff with a cause of action for an Article 103 divorce. As this fact was not extant when Plaintiff filed the original petition, he could only request a divorce under Article 102 at that time. However, when the time period accrued subsequently, Plaintiff's cause of action for an Article 103 divorce arose.

We agree with Defendant that the trial court legally erred in allowing Plaintiff's supplemental petition to be filed without first holding a contradictory hearing as is plainly required by La.Code Civ.P. art. 1155. Thus, the ex parte grant of leave of court was without effect. “An amended petition filed without leave of court, when such permission is required, may not be considered. ‘[A]n amended petition so filed is totally without effect and is deemed not to have been filed at all.’ ” Gaspard v. Safeway Ins. Co., 15-1197, pp. 4-5 (La.App. 1 Cir. 8/31/16), 202 So.3d 1128, 1131(alteration in original) (citation omitted). We hold the same to be true of a supplemental petition filed where leave of court was granted without a contradictory hearing or the consent of all parties. Accordingly, the judgment of divorce based upon Plaintiff's supplemental pleading is reversed, and the matter is remanded to the trial court for further proceedings.

DECREE

The judgment of the trial court granting a divorce pursuant to La.Civ.Code art. 103 in favor of Dylan Cain Duplantis is reversed, and the matter is remanded to the trial court for further proceedings. Costs of this appeal are assessed to Dylan Cain Duplantis.

REVERSED AND REMANDED.

FOOTNOTES

1.   Under La.Civ.Code art. 102, a divorce is granted after a spouse files a petition for divorce and then lives separate and apart from their spouse for the requisite period of time, either from the date of service of the divorce petition or from the date a written waiver of service is executed. The requisite period of time for parties with a minor child is 365 days. La.Civ.Code art. 103.1(2).

2.   Under La.Civ.Code art. 103(1) a divorce is granted upon the filing of a petition for divorce upon proof that the parties have lived separate and apart for the required length of time. La.Civ.Code art. 103(1).

3.   In brief, Plaintiff argues the effect of pleadings and events occurring in Docket Number C-061423 that are not part of the record on appeal. However, because “[t]his court has no authority to consider on appeal facts referred to in appellate briefs if those facts are not in the record on appeal[,]” we will not consider them. Pedestal Bank v. Castaways Oyster Bar & Seafood Grill, LLC, 22-609, p. 5 (La.App. 3 Cir. 4/5/23), 367 So.3d 71, 75.

4.   Prior to August 1, 2023, La.Code Civ.P. art. 1155 provided:The court, on motion of a party, upon reasonable notice and upon such terms as are just, may permit mover to file a supplemental petition or answer setting forth items of damage, causes of action or defenses which have become exigible since the date of filing the original petition or answer, and which are related to or connected with the causes of action or defenses asserted therein.

VAN H. KYZAR JUDGE