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11/10/81 Leota Mae Davis Peschier v. Marjorie Morris Peschier

November 10, 1981

LEOTA MAE DAVIS PESCHIER PLAINTIFF-APPELLEE

v.

MARJORIE MORRIS PESCHIER, AS TESTAMENTARY EXECUTRIX OF THE SUCCESSION OF LIONEL JOSEPH PESCHIER, DEFENDANT-APPELLANT

PUBLIC DOMAIN CITE: PESCHIER

v.

PESCHIER , 8388 (LA. APP. 3 CIR. 11/10/81); 407 SO. 2D 1240 APPEAL FROM THE THIRTEENTH JUDICIAL DISTRICT COURT, PARISH OF EVANGELINE, STATE OF LOUISIANA, HONORABLE JOSEPH E. COREIL, JUDGE, PRESIDING. 1981.LA.1852



Before DOMENGEAUX, SWIFT and YELVERTON*, JJ.

COURT OF APPEAL OF LOUISIANA, THIRD CIRCUIT

APPELLATE PANEL:

DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE SWIFT

On November 28, 1960, the Thirteenth Judicial District Court for the Parish of Evangeline granted Lionel J. Peschier a judgment of divorce against his first wife, Leota Davis Peschier. Leota Peschier instituted this suit on May 17, 1977, against Marjorie Peschier, the deceased Mr. Peschier's executrix, asking that court to declare the 1960 divorce judgment null and void. Judgment was rendered in favor of the plaintiff, decreeing the 1960 divorce proceeding null and void for lack of venue and jurisdiction and also because the divorce was obtained through fraud and ill practices on the part of Lionel Peschier.

On March 2, 1938, Lionel Peschier and Leota Davis were married and established their domicile in Lafayette Parish. Their first child, Louise Peschier Sims, was born on October 12, 1938. Around 1940 Lionel Peschier and his family moved to and became domiciled in Rapides Parish. On January 9, 1952, a second child, Candace Maria Peschier, was born of the marriage.

Leota Peschier filed suit in the Ninth Judicial District Court, Rapides Parish, Louisiana, against Lionel Peschier for a separation from bed and board and obtained a judgment in her favor on October 14, 1955. On that same day the parties entered into an agreement partitioning the community of acquets and gains. On September 28, 1957, Leota Peschier signed a supplemental community property agreement which recited that the parties were still living separate and apart from each other.

Lionel Peschier filed the aforementioned divorce suit on October 5, 1960, on the ground that he and his wife had been living separate and apart for more than two years. The petition set forth that Mr. Peschier had been a resident of Evangeline Parish for two and a half years, that reconciliation had not taken place since the 1955 separation and that his wife was an absentee believed to be residing in Amarillo, Texas. This petition was verified by Mr. Peschier on September 30, 1960. Upon the allegation that his wife was an absentee, the court appointed a curator ad hoc to represent Leota Peschier. The curator sent her a certified letter to Amarillo, Texas, but it was returned unclaimed. On November 28, 1960, the trial court rendered judgment in favor of Lionel Peschier granting him a divorce.

On January 11, 1961, Lionel Peschier contracted a second marriage to Marjorie Aylene Null in Angelina County, Texas. They lived together thereafter at Peschier's home in Lake Charles and the defendant, Marjorie Peschier, has continued to reside in that city. No children were born of this marriage.

Leota Peschier filed another suit against Mr. Peschier on October 15, 1976, for separation from bed and board in the Ninth Judicial District Court for Rapides Parish. On December 13, 1976, Mr. Peschier died in an automobile accident in Evangeline Parish and Marjorie Peschier was appointed testamentary executrix of his estate.

As mentioned, this suit for nullity of the 1960 divorce judgment was filed by Leota Peschier on May 17, 1977. The testimony of witnesses and the exhibits offered at the trial established that Mr. Peschier was engaged in the business of coin-operated machines, such as music boxes and so forth, and he owned interests in nightclubs and lounges. His business activities were conducted in several parishes, including Rapides, Evangeline and Calcasieu, requiring him to travel and spend various periods of time in each of these parishes.

Among others, the trial court made the following findings from the evidence adduced at trial: 1) Lionel Peschier was not a domiciliary *fn1 of Evangeline Parish at either the time he verified or filed his divorce petition in that parish; 2) Leota Peschier was not an absentee from this state from September 1 to December 31, 1960, but instead was a resident of and domiciled in Rapides Parish during all of that time; 3) Evangeline Parish was not the parish of proper venue for the 1960 divorce suit and therefore the court lacked jurisdiction thereof; and 4) Lionel Peschier deliberately misled his counsel and deliberately practiced a fraud upon the court as he knew that his wife was residing in Rapides Parish and not Amarillo, Texas, when the suit was filed. Therefore, judgment was rendered in plaintiff's favor declaring the 1960 divorce judgment a nullity.

The trial judge's findings and conclusions, that the 1960 divorce judgment was a nullity because neither party was domiciled nor was their last matrimonial domicile in Evangeline Parish and also that the judgment was obtained through fraud or ill practices on the part of Lionel Peschier, are supported by the record. However, we prefer to rest our affirmation of the decision on the ground that the judgment was defective for a vice of form, the lack of a valid citation and service of process.

LSA-C.C.P. Article 2002 deals with annulment of judgments for vices of form and provides in part as follows:

"A final judgment shall be annulled if it is rendered:

"(2) Against a defendant who has not been served with process as required by law and who has not entered a general appearance, or against whom a valid judgment by default has not been taken;

"Except as otherwise provided in Article 2003, an action to annul a judgment on these grounds may be brought at any time.

Article 2003 provides:

"A defendant who voluntarily acquiesced in the judgment, or who was present in the parish at the time of its execution and did not attempt to enjoin its enforcement, may not annul the judgment on any of the grounds enumerated in Article 2002.

In Dickey v. Pollock, 183 So. 48 (La.App. 2 Cir. 1938), the court nullified a judgment on this ground, saying:

"It is the law of this state that a judgment based on a citation to a curator ad hoc appointed under allegations that the defendant is a non-resident must be annulled when in fact such defendant is a resident of Louisiana. Ventress v. Akin et al., La.App., 177 So. 117.

The plaintiff, of course, bears the burden of proof and in a case such as this where the suit to annul was instituted after the death of the party obtaining the divorce and long after it was granted such proof must be "exceptionally strong and convincing." Patton v. Patton, 229 La. 335, 86 So.2d 57 (La.1956). In that case the attack was ...


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