LAURA ALLISON DELOUCHE BORN GARNER v. KENNETH JAY DELOUCHE (2025)

The issue presented is whether a stipulated judgment regarding spousal support can be modified. The trial court sustained peremptory exceptions of res judicata, peremption and/or abandonment, and prescription and dismissed the petition to modify spousal support. For the reasons that follow, we affirm.

PROCEDURAL BACKGROUND

Laura Allison Garner DeLouche (“Allison”) and Kenneth Jay DeLouche (“Jay”) were married in March 1989. In October 2017, Allison filed for divorce under La.Civ.Code art. 102 and, in her petition, requested final periodic support. Allison and Jay were divorced on May 24, 2018.

Instead of hearing Allison's claim for spousal support on October 8, 2019, a stipulation between the parties was stated on the record by Allison's counsel at the time, Randy Fuerst. This agreement was memorialized in writing by Jay's counsel, after which a Stipulated Judgment was signed by the trial court on March 24, 2020. The pertinent provisions of the Stipulated Judgment provide, in pertinent part:

IT IS HEREBY ORDERED, ADJUDGED AND DECREED that KENNETH JAY DELOUCHE shall pay final contractual spousal support, which is non-dischargeable in bankruptcy, to LAURA ALLISON GARNER DELOUCHE in the amount of $4,000.00 per month beginning October 15, 2019, payable on the 15th day of each month, for sixty (60) months․ KENNETH JAY DELOUCHE may pay this amount in a lump sum if he chooses.

IT IS FURTHER ORDERED, ADJUDGED AND DECREED that if LAURA ALLISON GARNER DELOUCHE becomes disabled during this five year period as defined by social security disability, KENNETH JAY DELOUCHE shall pay the additional sum of final spousal support, which is contractual alimony and is non-dischargeable in bankruptcy, in the amount of $1,000.00 per month past the five year period for a total of thirty (30) months. KENNETH JAY DELOUCHE may pay this amount in a lump sum if he chooses.

IT IS FURTHER ORDERED, ADJUDGED AND DECREED that this final spousal support award is contractual and terminates upon the death of LAURA ALLISON GARNER DELOUCHE.

․

IT IS FURTHER ORDERED, ADJUDGED AND DECREED that there would be a claim against KENNETH JAY DELOUCHE's estate for the final spousal support mentioned hereinabove in the event of his death even though it would normally terminate per LA CC Art. 115. In the terms of future final spousal support, LAURA ALLISON GARNER DELOUCHE shall have a claim against KENNETH JAY DELOUCHE's estate if allowed by law for the full sum that would be due under this contractual arrangement. This does not change the nature of the agreement above that it is non-dischargeable in bankruptcy.

On September 18, 2024, Allison filed a Motion to Extend Post Divorce Spousal Support, alleging that Jay “has succeeded in litigating [her], until she is basically insolvent.” Jay responded by filing peremptory exceptions of no cause of action, res judicata, peremption and/or abandonment, and prescription.

Following a hearing, the trial court took the matter under advisement and considered post-hearing briefs. The trial court subsequently rendered judgment, with written reasons, denying Jay's peremptory exception of no cause of action but sustaining his peremptory exceptions of res judicata, peremption and/or abandonment, and prescription. On December 23, 2024, a judgment was signed in favor of Jay, dismissing Allison's Motion to Extend Post Divorce Spousal Support. Allison now appeals.

ASSIGNMENTS OF ERROR

In her appeal, Allison asserts the following assignments of error:

1. The Trial Court erred in Granting the Exception of Res Judicata;

2. The Trial Court erred in Granting the Exception of Prescription; and

3. The Trial Court erred in finding the Motion to Modify the Spousal Support Order was abandoned, or preempted [sic].

APPELLANT'S ARGUMENTS

Allison contends res judicata does not apply in this case because of the exception contained in La.R.S. 13:4232(B) and its inclusion of “support of a spouse” as an incidental matter under La.Civ.Code art. 105. She also argues the jurisprudence allows amendment unless the consent judgment specifically prohibits it. According to Allison, the transcript from the hearing on October 8, 2019 reveals that neither party consented to a non-modification provision, and the resulting Stipulated Judgment is silent as to modification.

Allison further contends that her motion seeking to modify the Stipulated Judgment is not a delictual action subject to prescription, nor is it perempted or abandoned since her right to receive spousal support was being exercised. Accordingly, Allison asks this court to overrule Jay's peremptory exceptions, reverse the judgment of the trial court, and remand this matter for a hearing on the merits of the requested modification of spousal support.

APPELLEE'S POSITION

Jay argues the language of the Stipulated Judgment clearly specified that Allison's contractual spousal support provided for only two potential changes in circumstances: it provided a possible extension if Allison became disabled as defined by social security, and it provided the support obligation would terminate if Allison died. Thus, Jay asserts that the Stipulated Judgment has the effect of res judicata on Allison's motion to extend his support obligation.

Jay further argues that Allison's ambiguous allegations of destitution raise the question of whether she is asserting a tort, e.g., abuse of process, against Jay for damages in the form of additional spousal support. Thus, according to Jay, the trial court rightly sustained his prescription exception because Allison's claim arises from tort. Jay also contends Allison's motion was not filed within three years of the day the judgment of divorce was signed, and Allison took no action toward the adjudication of her spousal support claim for more than six years after the judgment of divorce was signed. Accordingly, Jay asks this court to uphold his peremptory exceptions and affirm the judgment of the trial.

LAW AND DISCUSSION

“The standard of review of a peremptory exception of res judicata requires an appellate court to determine if the trial court's ruling is legally correct.” Fletchinger v. Fletchinger, 10-0474, p. 4 (La.App. 4 Cir. 1/19/11), 56 So.3d 403, 405. “[T]he doctrine of res judicata is stricti juris and, accordingly, any doubt concerning the applicability of the principle must be resolved against its application.” Id. at 406.

McCalmont v. McCalmont, 19-738, p. 6 (La.App. 3 Cir. 4/29/20), 297 So.3d 1057, 1063.

The first issue presented to this court is whether the trial court erred in finding that res judicata applied to the Stipulated Judgment between Allison and Jay. The doctrine of res judicata is codified in La.R.S. 13:4231, which provides:

Except as otherwise provided by law, a valid and final judgment is conclusive between the same parties, except on appeal or other direct review, to the following extent:

(1) If the judgment is in favor of the plaintiff, all causes of action existing at the time of the final judgment arising out of the transaction or occurrence that is the subject matter of the litigation are extinguished and merged in the judgment.

(2) If the judgment is in favor of the defendant, all causes of action existing at the time of the final judgment arising out of the transaction or occurrence that is the subject matter of the litigation are extinguished and the judgment bars a subsequent action on those causes of action.

(3) A judgment in favor of either the plaintiff or the defendant is conclusive, in any subsequent action between them, with respect to any issue actually litigated and determined if its determination was essential to that judgment.

The burden of proving the facts essential to support the objection of res judicata is on the party pleading the objection, in this case Jay. Palermo v. Century Indem. Co., 17-825 (La.App. 3 Cir. 5/23/18), 248 So.3d 462.

Allison's argument against res judicata is twofold: first, a statutory exception exists for her spousal support claim; and second, the Stipulated Judgment does not contain a non-modification provision. As to the first contention, Allison cites the res judicata exception found in La.R.S. 13:4232(B), regarding “an action for determination of incidental matters under Civil Code Article 105[.]” In La.Civ.Code art. 105, “support for a spouse” is listed as an incidental matter. As to the second contention, Allison contends the jurisprudence allows her to seek an extension of the term of spousal support because the Stipulated Judgment did not specifically say it could not be modified. The basis of Allison's proposition flows from the following quotation:

Whether the amount of spousal support awarded through a consent judgment can be modified depends on the specific terms of the judgment. Twichell v. Twichell, 00-1248 (La.App. 5th Cir.11/28/00), 772 So.2d 956, 959, writs denied, 01-0133 (La.3/23/01), 788 So.2d 428, and 01-0206 (La.3/23/01), 788 So.2d 429; Bland v. Bland, 97-0329 (La.App. 1st Cir.12/29/97), 705 So.2d 1158, 1161. To bar subsequent modification of the duration and/or amount of spousal support, the consent judgment must evidence a clear intent of the parties to do so. Bland, 705 So.2d at 1161. The mere listing of events which will terminate spousal support does not evidence a clear intent that the amount of spousal support can never be changed. Id. If the intent is not clear on the face of the judgment, other evidence, including but not limited to the testimony of the parties, a community property settlement, or a written stipulation, is admissible to determine the intent of the parties. Id. at 1163.

Ray v. Ray, 05-873, pp. 5–6 (La.App. 1 Cir. 3/23/07), 960 So.2d 174, 178 (footnotes omitted). According to Allison, the Stipulated Judgment contains no language which makes it clear that the spousal support could not be modified as to duration or amount. In her brief to this court, Allison alleges that “[i]t is clear from the transcript that neither party consented to a non-modification provision in the judgment, and in fact, the judgment is silent as to modification, thus, applying the Ray, supra, rationale, the judgment can be modified, and statutorily it is not Res Judicata.”

Jay argues the stipulation regarding spousal support made before the trial court in October 2019 and the subsequent Stipulated Judgment signed by the trial court in March 2020 were a bargained-for agreement, the cause of which was to terminate unknown and uncertain litigation for both parties. He contends the Stipulated Judgment has the effect of res judicata for all issues pertaining to a party's entitlement to final periodic support, including fault, need, or ability to pay. Jay argues these issues were merged into the Stipulated Judgment and cannot now be relitigated.

A review of the record shows that while a hearing was set for Allison's claim for spousal support on October 8, 2019, it did not take place. Rather, the parties appeared and entered into a stipulation on the record. The relevant portion of the hearing transcript reveals the following:

MR. FUERST [ALLISON'S COUNSEL]:

[W]e are here today on what would otherwise be a determination of fault only hearing as it relates to Ms. Delouche's claim for permanent support.

The parties have reached an agreement[,] and they are resolving the permanent support issue today as follows:

As part of a domestic relations order that shall be known as one that is the kind non-dischargeable in bankruptcy, Mr. Delouche will pay Ms. Delouche the sum of $4,000 per month for 60 months starting October 15, 2019, and the 15th day of each month thereafter. He will direct deposit into her account by the 15th of each month․

If Ms. Delouche becomes disabled during this 5-year period as defined by social security disability, Mr. Delouche will pay the additional sum of support, alimony in the amount of $1000 per month past the 5-year period for a period of 30 months. This is a contractual alimony award; however, it is a domestic relations order, nondischargeable in bankruptcy.

․

To reiterate, that is a contractual alimony award. However, it does terminate upon the death of Ms. Delouche.

As a separate agreement herein, Your Honor, severable from the agreement we just mentioned, Mr. Delouche agrees that there would be a claim against his estate for the alimony herein in the event of his death. Normally, Louisiana Civil [Code] Article 115[1] would terminate it. In terms of future alimony, he is agreeing that she may have a claim against his estate if allowed by law for the full sum of the alimony that would be due under this contractual arrangement. It does not change the nature of the separate agreement of the domestic relations order on the first part that is non dischargeable in bankruptcy, your Honor.

That is the agreement between the parties.

MR. JONES [JAY'S COUNSEL]:

Did you say the part about if she were to pass away, the alimony terminates?

MR. FUERST:

That is correct.

․

MR. JONES:

We agree to that language, Your Honor. The only other thing I didn't think to ask Mr. Fuerst, do y'all have a problem putting a provision in there that alimony can be paid in a lump sum?

MR. FUERST:

I have no problem agreeing that he can advance pay on the contractual alimony obligation. But again, there is -- we are not changing the fact that it is domestic relations order that --

MR. JONES:

Correct.

MR. FUERST:

-- is non dischargeable in bankruptcy.

MR. JONES:

That's fine then, Your Honor.

THE COURT:

Sure. Okay, all right.

Ms. Delouche, you have heard what's been stated. Is that your agreement?

MS. DELOUCHE:

Yes, sir; it is.

THE COURT:

Do you feel like you understand it?

MS. DELOUCHE:

Yes, sir.

THE COURT:

Do you have any questions about it?

MS. DELOUCHE:

No, sir.

THE COURT:

And Mr. Delouche, you've heard what's been stated; is that your stipulation and agreement as well?

MR. DELOUCHE:

Yes, Your Honor.

THE COURT:

Do you feel like you understand it?

MR. DELOUCHE:

I do.

THE COURT:

Do you have any questions about it?

MR. DELOUCHE:

No, sir.

Though Allison asserts that Ray, 960 So.2d 174, supports her contentions that a non-modification provision was required and that the trial court herein misunderstood the first circuit's decision, we disagree. In Kelly v. Kelly, 16-206, p. 2 (La.App. 1 Cir. 10/31/16), 233 So.3d 620, 622, the first circuit dealt with the issue of whether a spousal support agreement could be modified when it set a fixed amount of support “until [the wife] remarries or dies.” Despite the husband's contention that under La.R.S. 13:4232(B), res judicata is inapplicable because the amount of spousal support is subject to judicial modification based on a material change in circumstances under La.Civ.Code art. 114, the court concluded:

Despite the general rule regarding modification of spousal support and the limited application of res judicata in matters incidental to divorce, under the specific facts of this case, the trial court's prior determination that the consent judgment between [the husband and wife] was contractual and could not be altered by the courts means the peremptory exception of res judicata must be sustained.

Id. at 624.

In Ray, 960 So.2d 174, the first circuit dealt with the issue of whether the husband bargained away his right to have his spousal support obligation reduced or terminated due to a change in circumstances. Therein, the consent agreement stated that spousal support was contingent upon proceeds from certain investment, retirement, and annuity proceeds. Because the trial court found the consent judgment ambiguous, it considered parol evidence to determine the parties’ intent. Consequently, the first circuit found no manifest error in the trial court's ruling that the husband's “spousal support obligation would not be subject to modification as to amount or duration unless the change of circumstances listed in that judgment occurred.” Id. at 180.

As accurately expressed in the trial court's written reasons, “Both [Kelly, 233 So.3d 620, and Ray, 960 So.2d 174,] refused to interpret the contracts to impute the Civil Code provisions on modification if that modification wasn't expressly provided by the parties’ bargained-for contracts.” A review of the trial court's written reasons shows a comprehensive breakdown of the applicable law regarding spousal support contracts, as well as an accurate assessment of the parties’ agreement:

[T]he parties[ ] clearly intended for payments to continue for five years UNLESS [Allison] died or was declared disabled, either of which would modify the agreement. Those conditions that they included in their agreement acted as a non-modifiable provision. There would have been no need for them to include the conditions of death or disability and detail the specific disability modification terms in their agreement if they intended for modification to be available whenever there was any change in circumstance. Therefore, since Allison took no steps to fulfill the only condition that the contract allowed for extended support, she is precluded from doing so now by res judicata.

Accordingly, we find the exception of res judicata was properly maintained by the trial court.

Having found no merit in Allison's challenge to Jay's peremptory exception of res judicata, analysis of the remaining assignments of error is unnecessary.

DECREE

The trial court's judgment sustaining Jay's peremptory exception of res judicata is affirmed. Costs of this appeal are assessed to Laura Allison Garner DeLouche.

AFFIRMED.

FOOTNOTES

1.   Louisiana Civil Code Article 115 provides, “The obligation of ․ final periodic support is extinguished upon the remarriage of the obligee, the death of either party, or a judicial determination that the obligee has cohabitated with another person of either sex in the manner of married persons.”

JONATHAN W. PERRY JUDGE