WILLIAM DERING v. KAY DERING (2023)

The issue presented in this case is whether a Community Property Partition Agreement executed by former spouses, William Dering and Kay Dering, created a right to reside in the former family home in favor of Kay, for as long as she “chooses to reside there.” The district court granted Kay's motion for summary judgment, thereby recognizing her right to reside in the home. The court of appeal affirmed, interpreting the provisions of the agreement as more closely resembling a usufruct than a mere right of habitation. In reversing these rulings, the majority fails to give proper consideration to the clear and unambiguous conditions set forth in the contractual agreement.

The lower courts and the majority err, in my view, in attempting to shoe horn the agreement into some “legal pigeonhole” as opposed to applying the language of the Partition Agreement as written by the parties. Regardless of whether the Partition Agreement created a lifetime usufruct in favor of Kay, the contractual language directly addresses Kay's right to continue residing in the home. The majority correctly sets forth the law on contract interpretation, but I must respectfully dissent from the ultimate application. Although I agree with the majority that the Partition Agreement was tied to the needs of the minor children when it was executed in 1981, the Partition Agreement does not provide that Kay's right to use the property terminated when the children reached majority status. The contractual language in the Partition Agreement provides that the parties will remain co-owners in indivision and that the property remains in Kay's care. Importantly, the contractual language provides that this agreement will remain valid “for as long as [Kay] chooses to reside there, with the stipulation that [Kay] maintains the present condition of said property and continues payment of the monthly notes ․ and for as long as [Kay] does not remarry or set up household with another male while the minor children remain in her custody.”

I interpret the above language to create a right in favor of Kay to remain on the property for a long as she chooses to reside there, subject to the stated stipulations. William and Kay were free to create any agreement contractually, as long as it did not violate public policy. See La. C.C. art. 1971; Louisiana Smoked Products, Inc. v. Savoie's Sausage & Food Products, Inc., 96-1716, 96-1727, p. 14 (La. 7/1/97), 696 So. 2d 1373, 1380-81. This court has long recognized that the freedom to contract is an important public policy, and the parties’ right to contract can only be restricted if the proposed bargain is found to have some deleterious effect on the public or to contravene some other matter of public policy. Shelter Mut. Ins. Co. v. Rimkus Consulting Group, Inc. of Louisiana, 13-1977, p. 17 (La. 7/1/14), 148 So.3d 871, 881-82. Notably, even framing the issue solely as whether the language of the Partition Agreement created a lifetime usufruct in favor of Kay, our Civil Code does not require use of the words “usufruct” or “lifetime usufruct” to validly create one. See La. C.C. art. 544. Parties have contractual freedom to establish a term or set forth conditions in creating the usufruct. See La. C.C. art. 545 (“Usufruct may be established for a term or under a condition, and subject to any modification consistent with the nature of usufruct. The rights and obligations of the usufructuary and of the naked owner may be modified by agreement unless modification is prohibited by law or by the grantor in the act establishing the usufruct.”)

The parties here were free to contract as they wished. Kay was granted the right to stay in the house as long as she “chooses to reside there” provided she maintain the property and pay the note, and provided she did not remarry or cohabitate with another male while the minor children were in her custody. It is undisputed that Kay has chosen to live in the home since the Partition Agreement was executed, paid the note, paid the taxes, and maintained the property. There is no allegation she remarried or lived with another male while the children were minors. Kay has performed all of the conditions stipulated in the agreement.

Signatures to an agreement are not mere ornaments. Tweedel v. Brasseaux, 433 So.2d 133, 137 (La. 1983). Courts are bound to give force and effect to that which is written and not modify the agreement because it is perceived one made a bad bargain or expressed their agreement inarticulately. Any suggestion the language is ambiguous is undermined by the fact the lower courts ruled in favor of Kay. The language is explicit and clear–Kay can stay in the home for as long as she “chooses to reside there” as long as she meets the stipulations.

I would deny the writ application because the ultimate judgments of the lower courts correctly reflect the agreement of the parties.

WEIMER, C.J., dissenting.