CHRISTINE LEBLANC ALLEN v. KELLY ALLEN

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Court of Appeal of Louisiana, First Circuit.

CHRISTINE LEBLANC ALLEN v. KELLY R. ALLEN

2015 CU 0529

Decided: February 09, 2017

BEFORE: GUIDRY, HOLDRIDGE, AND CHUTZ, JJ. Christine LeBlanc Allen, Covington, Louisiana, Plaintiff-Appellant, In Proper Person Mark A. Jolissaint, Slidell, Louisiana, Counsel for Defendant-Appellee, Rebecca O. Allen, Legal Successor, to Kelly R. Allen P. David Carollo, Slidell, Louisiana, Counsel for Defendant-Appellee, Katelyn Allen, Legal Successor, to Kelly R. Allen

Christine LeBlanc Allen appeals from a district court judgment fixing the amount of child support arrearages owed by her deceased ex-husband, Kelly R. Allen. For the following reasons, we amend the judgment in part and, as amended, affirm.

PROCEDURAL AND FACTUAL BACKGROUND

On June 14, 2006, Ms. Allen filed a petition for divorce from Mr. Allen in which she requested designation as the domiciliary parent of the two children born of the marriage, Joshua (age 8) and Katelyn (age 5). Ms. Allen requested Mr. Allen be ordered to pay reasonable child support. On September 12, 2007, the district court signed a judgment incorporating a stipulation between the parties providing Ms. Allen was to have use of the family home and Mr. Allen was to continue making mortgage payments on the home, as well as paying the telephone and utility bills (reserving his right to a credit against any accrued child support or spousal support). The district court granted a final judgment of divorce on September 17, 2007.

Following a hearing officer conference, the parties entered into a stipulation on January 16, 2008, to share joint custody of the children with Ms. Allen designated as the primary domiciliary parent. The stipulation included a visitation schedule for Mr. Allen. The district court signed a judgment on January 23, 2008, making the parties' stipulation the judgment of the court.

The hearing officer held hearings on October 26, 2009, and November 30, 20009, on several pending motions and rules filed by the parties. The hearing officer subsequently rendered a report recommending that Mr. Allen should continue to pay the mortgage, telephone, and utility bills for the former family home pending a judicial determination regarding child support. The district court signed a judgment on February 22, 2010,1 making the hearing officer's recommendation a temporary order of the court pending a hearing. Subsequently, the scheduled hearing was continued without date.

The parties appeared before the district court with counsel on October 21, 2010. Through their counsel, the parties entered into a stipulation in open court with the stated intention of disposing of all rules pending before the district court, including those issues related to the children of the marriage. In reciting the stipulation for the record, Mr. Allen's counsel specifically stated there would be “no claims for past due arrearages of child support,” because the stipulation was “going to put an end to the litigation if my recitation as modified if necessary by [Ms. Allen's counsel was] agreed to by the parties.” Not only did Ms. Allen's counsel fail to object to this statement, he agreed with opposing counsel's recitation of the stipulation. Mr. Allen's counsel also requested a date for the parties to appear before the hearing officer to fix the amount of child support owed by Mr. Allen, which was to be effective December 1, 2010. Upon questioning by the district court, both parties ultimately indicated they agreed with the stipulation.2

In accordance with the stipulation of the parties, the district court signed a consent judgment on January 11, 2011, providing the parties should submit to the hearing officer “for a recommendation for the initial establishment of child support obligations, which will be effective December 1, 2010.” The consent judgment further provided that any claims “for rental reimbursement or other offset claims [were] extinguished by the compromise agreement” and that all outstanding motions and rules were dismissed with prejudice.

On January 17, 2013, Mr. Allen filed a rule for contempt against Ms. Allen alleging she denied him court-ordered visitation with the children, denied him reasonable telephone contact with the children, and refused to subscribe to or communicate with him via Our Family Wizard. When the rule came up for hearing, the district court was informed the parties had reached a compromise agreement. In accordance with the parties' agreement, the district court signed a consent judgment on April 24, 2013, finding Ms. Allen guilty of contempt of court, without admission. Ms. Allen was ordered to reimburse Mr. Allen for all attorney fees and court costs incurred in connection with his rule for contempt after she was provided with evidence thereof.

In July 2013, Ms. Allen filed a motion requesting the district court fix both current and back child support owed by Mr. Allen. Hearing officer conferences were held on the issue in September 2013 and January 2014. The hearing officer rendered a conference report on June 26, 2014, recommending Mr. Allen be ordered to pay Ms. Allen $637.39 per month in child support, with the first payment due on July 1, 2014. The hearing officer also determined the amount of child support arrearages owed by Mr. Allen for the period from December 1, 2010 to June 30, 2014, was $27,603.93. Based on the parties' October 21, 2010 stipulation, the hearing officer rejected Ms. Allen's claim that Mr. Allen owed arrearages retroactive to her initial claim for child support on June 14, 2006. The hearing officer concluded the mortgage and utility bill payments Mr. Allen made from the date of judicial demand through November 30, 2010, “were made in satisfaction of his child and interim spousal support obligations.”

Ms. Allen objected to the hearing officer's conference report. Following a hearing, the district court rendered judgment on November 10, 2014, ordering Mr. Allen to pay child support in the amount of $642.31 per month, as well as child support arrearages in the amount of $31,139.66 for the period from December 1, 2010 through November 30, 2014. In declining to make the child support award retroactive to the date of Ms. Allen's initial 2006 demand, the district court adopted the hearing officer's finding that, based on the stipulation of the parties, no child support arrearages were due for the period prior to December 1, 2010. Additionally, the district court's judgment ordered Ms. Allen to reimburse Mr. Allen $4,467.43 for court costs and attorney fees he incurred in connection with his rule for contempt against Ms. Allen that resulted in the April 24, 2013 judgment of contempt. The reimbursement was to be credited as an offset against “the accrued child support award” owed by Mr. Allen.

Ms. Allen has now appealed the district court's November 10, 2014 judgment.

SUBSTITUTION OF LEGAL SUCCESSOR

While this matter was pending on appeal, this court was advised by Mr. Allen's counsel that Mr. Allen died on May 13, 2015. Since a judgment rendered for or against a deceased party is an absolute nullity, this court was unable to render a valid judgment in the appeal until a legal successor(s) was substituted for Mr. Allen. See Cortes v. Fleming, 307 So.2d 611, 618-19 (La. 1973) (on rehearing); Rainey v. Entergy Gulf States, Inc., 01-2414 (La. App. 1st Cir. 6/25/04), 885 So.2d 1193, 1197, writs denied, 04-1878, 04-1883 & 04-1884 (La. 11/15/04), 887 So.2d 478 & 479. When a party dies during the pendency of an appeal, a legal successor must be substituted for the deceased party in order to allow the action to continue. See La. C.C.P. art. 801; Rainey, 885 So.2d at 1197; Manuel v. New York Life Insurance & Annuity Corporation, 01-735 (La. App. 5th Cir. 11/27/01), 803 So.2d 210, 211.

Because appellate courts are courts of record and may not receive new evidence, the district court was the proper forum to receive evidence and resolve the outstanding issues regarding the identity of Mr. Allen's legal successors. See Denoux v. Vessel Management Services, Inc., 07-2143 (La. 5/21/08), 983 So.2d 84, 88; Foster v. State, Department of Health & Hospitals, 09-0806 (La. App. 1st Cir. 10/27/09) (unpublished); Manuel, 803 So.2d at 211. Accordingly, we remanded this matter to the district court on three occasions with orders to determine the identity of Mr. Allen's legal successors and to substitute those parties for Mr. Allen in accordance with La. C.C.P. arts. 801-807.3

After conducting multiple hearings, the district court ultimately determined Mr. Allen's legal successors consisted of his surviving spouse, Rebecca Oliver Allen, and his two children, Joshua Allen, who is now of the age of majority, and Katelyn Allen, who is a minor. None of these parties voluntarily appeared to substitute themselves for Mr. Allen. In accordance with La. C.C.P. arts. 802-804, the district court appointed separate counsel to represent Rebecca Allen and Katelyn Allen, respectively. Joshua Allen indicated to the district court he did not wish to be substituted for his father in this matter.

The supplementation of the record with documentation of the district court's actions has placed this matter in a procedural posture allowing this court to now proceed with its review.

ASSIGNMENTS OF ERROR

In her pro se brief, Ms. Allen raised the following assignments of error:

(1) The district court erred in ruling, without any express finding of good cause for deviating from the mandate of La. R.S. 9:325.21(C), that Christine Allen was entitled to child support arrearages only from December 1, 2010, as the court assumed the parties had stipulated, rather than to June 14, 2006, the date of judicial demand.

(2) The district court erred in adopting the hearing officer's purported “finding of fact” that Christine Allen waived any child support arrearages that accrued from the date of judicial demand until December 1, 2010, since the hearing officer's finding was an error of law on its face because it was a mere assumption unsupported by any evidence in the record.

(3) Alternatively, if the district court accepted that Christine Allen intended to waive her right to child support arrearages for the period prior to December 1, 2010, through the stipulation made by the parties, the district court erred in not permitting Christine Allen to rescind that stipulation based on a material error of fact and in the principal cause of the agreement.

Additionally, although not formally assigned as error, Ms. Allen also contends the district court erred in ordering the reimbursement of the attorney fees and court costs Mr. Allen incurred in connection with his contempt rule be credited as an offset against the child support arrearages award.4

DISCUSSION

On appeal, Ms. Allen argues the district court erred in adopting the hearing officer's finding that the parties stipulated the child support payments fixed by the district court would commence on December 1, 2010, and no arrearages would be due for the period from June 14, 2006 (the date of judicial demand) through November 2010. Ms. Allen contends she is entitled under La. R.S. 9:315.21 to

arrearages retroactive to the date of judicial demand. Ms. Allen denies she ever stipulated December 1, 2010, would be the effective date of the district court's child support award and no arrearages would be due for the period prior to that date.

Louisiana Revised Statutes 9:315.21 provides:

A. Except for good cause shown, a judgment awarding, modifying, or revoking an interim child support allowance shall be retroactive to the date of judicial demand, but in no case prior to the date of judicial demand.

B. (1) A judgment that initially awards or denies final child support is effective as of the date the judgment is signed and terminates an interim child support allowance as of that date.

(2) If an interim child support allowance award is not in effect on the date of the judgment awarding final child support, the judgment shall be retroactive to the date of judicial demand, except for good cause shown, but in no case prior to the date of judicial demand.

C. Except for good cause shown, a judgment modifying or revoking a final child support judgment shall be retroactive to the date of judicial demand, but in no case prior to the date of judicial demand.

D. Child support of any kind, except that paid pursuant to an interim child support allowance award, provided by the judgment debtor from the date of judicial demand to the date the support judgment is signed, to or on behalf of the child for whom support is ordered, shall be credited to the judgment debtor against the amount of the judgment.

E. In the event that the court finds good cause for not making the award retroactive to the date of judicial demand, the court may fix the date on which the award shall commence, but in no case shall this date be a date prior to the date of judicial demand.

Ms. Allen complains the district court made no express finding of “good cause” for deviating from this provision's mandate that she be awarded child support arrearages retroactive to the date of judicial demand.

The burden is on the obligor parent to show “good cause” for not making a child support award retroactive to the date of judicial demand. However, the district court is vested with much discretion in fixing awards of child support, and the court's decision on retroactivity is a matter within its discretion. Moreover, a district court is not required to assign reasons justifying its finding of “good cause” not to make a child support award retroactive to judicial demand. See State Through Department of Social Service in Interest of Garrett v. Ashy, 94-0903 (La. App. 1st Cir. 3/3/95), 653 So.2d 20, 27, writ denied, 95-1371 (La. 9/15/95), 660 So.2d 450; Davis v. Davis, 43,490 (La. App. 2d Cir. 10/22/08), 997 So.2d 149, 156.

In concluding no arrearages were due in this case for the period prior to December 1, 2010, the district court specifically adopted the following findings from the hearing officer's June 26, 2014 conference report.

The parties appeared in open court on October 21, 2010 at which time they entered into a stipulation which included a provision that child support will be “effective” December 1, 2010. It is assumed that the parties agreed that there was no accrual for the period June 14, 2006 through November 30, 2010, and that a monetary sum of child support would be paid by [Mr. Allen to Ms. Allen] beginning December 1, 2010. That Consent Judgment was signed by the Court on January 11, 2011 and ordered the parties to appear at a Hearing Officer Conference for purposes of calculating child support. There does not appear to be any Hearing Officer Report and Recommendation regarding the issue of child support after January 11, 2011. Therefore, child support must be calculated and set for the period December 1, 2010 through the present.”

“Commencing December 1, 2010, child support should have been paid directly to [Ms. Allen]. Any payments made by [Mr. Allen] to the mortgage company or utility companies from June 14, 2006 through November 30, 2010 were made in satisfaction of his child and interim spousal support obligations. [Mr. Allen] filed into the court record proof of payments he made to the mortgage company and utility companies. There are no child support accruals owed by [Mr. Allen] to [Ms. Allen] for the period June 14, 2006 through November 30, 2010․”

[Emphasis added.]

It is implicit from these reasons for judgment that the district court concluded “good cause” existed for not making the child support award retroactive to the date of judicial demand. The “good cause” consisted of (1) the October 21, 2010 stipulation of the parties that there would be “no claims for past due arrearages of child support” prior to that date; and (2) the mortgage and utility bill payments made by Mr. Allen for the period from June 2006 through November 2010 in satisfaction of his child support obligation. Based on our review of the record, we find no abuse of discretion in the district court's decision. “Good cause” existed in this case for the district court not to made child support payments retroactive to the date of judicial demand.

We also find no merit in Ms. Allen's argument that the record was devoid of any evidence supporting the district court's adoption of the hearing officer's findings of fact. According to Ms. Allen, the hearing officer's findings were based on a mere assumption she “waived the back child support that should have accrued from the date of judicial demand.” She maintains the record is devoid of any reason she would have ever agreed to such a stipulation, particularly considering her desperate financial situation.

As pointed out by Ms. Allen, the hearing officer did use the term “assumed” in her June 2014 conference report concluding the parties agreed at the October 21, 2010 hearing there would be no claim for child support arrearages for the period prior to December 1, 2010. However, despite the hearing officer's use of this terminology, the record contradicts Ms. Allen's claim there was no evidence of such an agreement. An examination of the October 21, 2010 hearing transcript reveals the parties explicitly agreed, as part of the stipulation, that there would be no claim for child support arrearages and the child support award to be fixed by the district court would be effective December 1, 2010. Moreover, this provision was consistent with the clearly expressed intent of the parties for the stipulation to dispose of all rules pending between the parties, including issues related to the children of the marriage. The record clearly supports the district court's finding that the stipulation provided there would be no child support arrearages for the period from the date of judicial demand until December 1, 2010.

Both parties were represented by counsel at the October 21, 2010 hearing and, upon questioning by the district court, each party ultimately agreed with the stipulation, which was subsequently incorporated into a consent judgment signed on January 11, 2011. See La. C.C. art. 3071. The record refutes Ms. Allen's claim she did not agree to the stipulation. Under La. C.C. art. 3080, a compromise agreement “precludes the parties from bringing a subsequent action based upon the matter that was compromised.” Further, a judgment, whether it results from the assent of the parties or is the result of a judicial determination after a trial on the merits, is and should be accorded sanctity under the law. Preston Oil Company v. Transcontinental Gas Pipe Line Corporation, 594 So.2d 908, 913 (La. App. 1st Cir. 1991).

We are unpersuaded by Ms. Allen's assertion she had no incentive to enter into the stipulation at issue. In making this argument, Ms. Allen totally ignores the substantial benefit she derived from the parties' agreement. As part of the stipulation, Mr. Allen waived his claim for rental reimbursement or any other offset claims. Otherwise, Ms. Allen would have been subject to Mr. Allen's considerable claim for rental reimbursement due to the mortgage payments he made on the former family home for the period from June 6, 2006 to December 1, 2010. By virtue of the stipulation, Ms. Allen was relieved of this claim.5

Alternatively, Ms. Allen argues if the district court believed a stipulation occurred providing the child support award would be effective December 1, 2010, and would not be retroactive to the date of judicial demand, then the district court erred in not allowing her to rescind the stipulation due to a material error of fact relating to its principal cause. Specifically, she argues the only conceivable cause for such a stipulation would be that she immediately begin receiving child support payments from Mr. Allen. She alleges the prompt payment of child support by Mr. Allen never occurred, and he continued to evade child support payments for four additional years. Therefore, Ms. Allen contends the district court should have recognized the massive error of fact in the principal cause of the stipulation and allowed her to rescind the stipulation.

In this case, the stipulation at issue was incorporated into the district court's January 11, 2011 consent judgment. A consent judgment is a bilateral contract by which the parties adjust their differences by mutual consent, with each party balancing his hope of gain against his fear of loss. Its binding force arises from the voluntary acquiescence of the parties, rather than the adjudication by the court. Hebert v. Drewitz, 09-0798 (La. App. 1st Cir. 10/27/09), 29 So.3d 607, 608. Because it must be based on consent, a consent judgment may be annulled or rescinded for an error of fact or error of the principal cause of the agreement. See La. C.C. arts. 1950 & 1967; Hebert, 29 So.3d at 608; Stroscher v. Stroscher, 01-2769 (La. App. 1st Cir. 2/14/03), 845 So.2d 518, 524.

Cause is defined as the reason why a party obligates himself. La. C.C. art. 1967; Acadian Cypress & Hardwood Inc. v. Stewart, 12-1425 (La. App. 1st Cir. 3/22/13), 121 So.3d 667, 671. Error vitiates consent only when it concerns a cause without which the obligation would not have been incurred and that cause was known or should have been known to the other party. La. C.C. art. 1949.

Ms. Allen argues Mr. Allen's prompt payment of monetary child support was the sole conceivable cause for her to enter into the October 21, 2010 stipulation. On that same date, although Mr. Allen's counsel requested a date for the parties to appear before the hearing officer to fix the amount of child support to be paid by Mr. Allen, it appears no date was fixed. Further, the record contains no evidence Ms. Allen ever requested the fixing of a hearing date on this issue until over two years and one-half years later when she filed a rule to fix current and back child support in July 2013. The extensive delay of over two years by Ms. Allen in filing her rule to fix the amount of child support undermines her contention the prompt payment of child support was the principal cause of the stipulation and there was a failure of such cause because Mr. Allen continued to evade paying child support for over four years.

Moreover, while a judgment may be declared a nullity for vices in either form or substance, absent an attack via one of the well-delineated methods of attacking a final judgment, the judgment maintains the effect of the law between the parties. See La. C.C.P. art. 2001 et seq.; Preston Oil Company, 594 So.2d at 914. In the instant case, Ms. Allen has filed no pleading seeking to annul the January 11, 2011 consent judgment. Therefore, we find no merit in her contention the district court should have allowed her to annul and rescind the stipulation of the parties incorporated into the January 11, 2011 consent judgment.

Lastly, Ms. Allen contends the district court erred in ordering the reimbursement she owed Mr. Allen for court costs and attorney fees he incurred in connection with his rule for contempt to be credited as an offset against the child support arrearages Mr. Allen owed. She claimed this order violated a stipulation between the parties that the reimbursement owed by Ms. Allen would be offset against the community property partition between the parties. This claim has merit. The record reveals the parties agreed at a hearing held in connection with the rule for contempt that the reimbursement owed to Mr. Allen for attorney fees and costs would be allocated to him in the final community property partition. In accordance with this agreement, the district court judgment will be amended to so provide.

CONCLUSION

For the foregoing reasons, we hereby amend the district court's November 10, 2014 judgment to change the provision ordering $4,467.43 in attorney fees and court costs to be credited to Mr. Allen as an offset to the award for child support arrearages to order the sum of $4,467.43 be allocated to Mr. Allen's estate in the final partition of community property as reimbursement for attorney fees and court costs he incurred in connection with his rule for contempt against Ms. Allen. The district court judgment is affirmed in all other respects. Ms. Allen is to pay all costs of this appeal.

AMENDED IN PART AND, AS AMENDED, AFFIRMED.

FOOTNOTES

1.   The date actually stated on the judgment is February 22, 2009, which appears to be a typographical error since the judgment specifically adopted recommendations included in a hearing officer conference report that was rendered on December 15, 2009.

2.   Upon questioning, Ms. Allen initially responded she did not agree with the stipulation. However, after an off-the-record discussion with her counsel, Ms. Allen then indicated she agreed with the stipulation.

3.   Although La. C.C.P. art. 821 states, in pertinent part, that “[t]he substitution of parties in an action pending in the supreme court or in a court of appeal is governed by the rules of the appellate court,” Uniform Rules, Courts of Appeal, Rule 2-9 expressly provides that “[t]he rules and procedures for substitution of parties provided by LSA-C.C.P. Arts. 801-807 shall regulate the substitution of parties.”

4.   An assignment of errors is not necessary in an appeal. La. C.C.P. art. 2129. An appellate court has the right to consider an issue even though there was no assignment of error in that regard. See La. C.C.P. art. 2164, comment (a); Wegener v. Lafayette Insurance Company, 10-0810 (La. 3/15/11), 60 So.3d 1220, 1232 n.11; Georgia Gulf Corporation v. Board of Ethics, 96-1907 (La. 5/9/97), 694 So.2d 173, 176.

5.   It is also noteworthy that in the September 12, 2007 judgment incorporating a stipulation between the parties, Mr. Allen agreed to make telephone and utility bill payments for the former family home, while reserving the right to a credit for these payments against any accrued child support or spousal support. At the October 21, 2014 child support hearing, Mr. Allen testified he had paid a total of $19,599.00 in electricity bills from 2006 to 2011.

CHUTZ, J.

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