GAMBLE v. GAMBLE (2022)

Writ application granted. See per curiam.

WRIT GRANTED. The ruling of the court of appeal is reversed, and the district court judgment, granting Mr. Gamble's declinatory exception pleading the objection of lis pendens in this suit for divorce, is reinstated.

Mr. Gamble's suit for divorce was filed first, on May 26, 2020, in the parish of the parties’ former matrimonial domicile, Caddo Parish, and within days thereafter the instant suit was filed by Ms. Gamble in Orleans Parish, on May 29, 2020, the parish of her current domicile. Each party filed an exception of lis pendens in the suit filed by the other party. The Caddo Parish district court denied Ms. Gamble's lis pendens exception,¹ and the Orleans Parish district court granted Mr. Gamble's exception of lis pendens; Ms. Gamble appealed the latter ruling.

The appellate court held that the Orleans Parish district court erred in granting the lis pendens exception as to Ms. Gamble's suit, since she was not required to file incidental demands or assert a reconventional demand in response to Mr. Gamble's petition for divorce in Caddo Parish, under La. C.C.P. art. 425 or La. C.C.P. art. 1061(B). Since no incidental claims were filed in the Caddo Parish district court case, prior to those filed by Ms. Gamble in the Orleans district court, the appellate court ruled that she was free to file her incidental claims in Orleans Parish, and it concluded that the trial court should not have dismissed her incidental demands.²

Louisiana Code of Civil Procedure Article 531 provides:

When two or more suits are pending in a Louisiana court or courts on the same transaction or occurrence, between the same parties in the same capacities, the defendant may have all but the first suit dismissed by excepting thereto as provided in Article 925. When the defendant does not so except, the plaintiff may continue the prosecution of any of the suits, but the first final judgment rendered shall be conclusive of all.

Also applicable to the instant divorce action are: La. C.C. art. 105 (“In a proceeding for divorce or thereafter, either spouse may request a determination of custody, visitation, or support of a minor child; support for a spouse; injunctive relief; use and occupancy of the family home or use of community movables or immovables; or use of personal property.”) (emphasis added); La. C.C.P. art. 425 (“A party shall assert all causes of action arising out of the transaction or occurrence that is the subject matter of the litigation. ․[T]his Article shall not apply to an action for divorce under Civil Code Article 102 or 103, an action for determination of incidental matters under Civil Code Article 105, an action for contributions to a spouse's education or training under Civil Code Article 121, and an action for partition of community property and settlement of claims between spouses under R.S. 9:2801.”) (emphasis added); and La. C.C.P. art. 1061(B) (“The defendant in the principal action, except in an action for divorce under Civil Code Article 102 or 103 ․, shall assert in a reconventional demand all causes of action that he may have against the plaintiff that arise out of the transaction or occurrence that is the subject matter of the principal action.”) (emphasis added). See also La. C.C.P. art. 1061, 1991 Revision Comment (“The phrase beginning with ‘except [in an action for divorce]’ in Paragraph B of this Article is added in order to make it clear that a defendant in a divorce action is not required to raise the actions commonly associated with divorce actions, such as claims for spousal and child support, in his reconventional demand, if one is filed. Such claims historically have been assertable after the divorce action has been concluded by judgment, and the added phrase makes it clear that this Article does not change the law in that respect.”).

The provisions of La. C.C. art. 105, La. C.C.P. art. 425, and La. C.C.P. art. 1061(B) allow, but expressly do not require, a defendant in a divorce action to assert claims for ancillary matters (such as for injunctive relief; support; child custody or visitation; and/or the possession of, use of, and/or ownership interest related to property and the like) either in the suit for divorce “or thereafter”; therefore, a defendant in a divorce action has the choice of seeking ancillary relief in the divorce action or such a defendant may wait until after the divorce action is concluded.

There is no statement in La. C.C. art. 105, La. C.C.P. art. 425, or La. C.C.P. art. 1061 that a defendant in a divorce action may contemporaneously file a separate claim for ancillary relief in a different court from that in which the first divorce action has been filed. Conversely, La. C.C.P. art. 531 directs that “[w]hen two or more suits are pending in a Louisiana court or courts on the same transaction or occurrence, between the same parties in the same capacities, the defendant may have all but the first suit dismissed by excepting thereto as provided in Article 925.”³

The transaction or occurrence at issue in a divorce action is the termination of a marriage. Therefore, when a party, made a defendant in an ongoing divorce action, files a second suit in a Louisiana court seeking relief arising out of the termination of the marriage, between the same parties in the same capacities, the defendant named in the second suit is entitled, under La. C.C.P. art. 531, to have “all but the first suit dismissed by excepting thereto as provided in Article 925.”

In the instant case, Mr. Gamble filed a divorce action, first, in the Caddo Parish district court based on the termination of his marriage to Ms. Gamble; thereafter, Ms. Gamble filed a second suit in the Orleans Parish district court seeking relief also arising out of the termination of the parties’ marriage. Thus, La. C.C.P. art. 531 entitled Mr. Gamble to have the Orleans Parish suit dismissed, and the Orleans Parish district court agreed and dismissed the suit. Consequently, the appellate court's reversal of the district court ruling was in error.

Accordingly, we reverse the appellate court decision and reinstate the Orleans Parish district court's dismissal of Ms. Gamble's suit filed in Orleans Parish.

APPELLATE COURT DECISION REVERSED; DISTRICT COURT JUDGMENT REINSTATED.

FOOTNOTES

1.   Ms. Gamble filed a writ application from the Caddo Parish district court denial of her lis pendens exception with the Second Circuit Court of Appeal, which denied the application, and a subsequent application to this Court was also denied. See Gamble v. Gamble, 21-00475 (La. 6/1/21), 316 So.3d 835.

2.   Mr. Gamble's initial Caddo Parish petition sought only a La. C.C. art. 102 divorce, while Ms. Gamble's initial Orleans Parish petition sought, in addition to a La. C.C. art. 102 divorce, spousal support, use and occupancy of jointly-owned property, and partition of co-owned property. Mr. Gamble later amended his Caddo Parish petition, twice, to assert the right to a La. C.C. art. 103 divorce, based on his wife's alleged adultery, along with his additional claims that his wife was barred from collecting spousal support and that donations he had made to his wife should be revoked for ingratitude.

3.   What constitutes a transaction or occurrence is to be determined on a case-by-case basis. Krecek v. Dick, 13-0804, p. 4 (La. App. 4 Cir. 2/19/14), 136 So.3d 261, 264; In re Succession of Bernat, 13-0277, pp. 8-9 (La. App. 3 Cir. 10/9/13), 123 So.3d 1277, 1284; Hy-Octane Investments, Ltd. v. G & B Oil Products, Inc. 97-0028, p. 6 (La. App. 3 Cir. 10/29/97), 702 So.2d 1057. A transaction or occurrence is the subject matter of the litigation, principal demand, or action; all logically related events entitling a person to institute a legal action against another generally are regarded as comprising a transaction or occurrence. Id.