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Johnson v. Johnson

Court of Appeal of Louisiana, First Circuit

December 23, 2014

TERRI JOHNSON
v.
JOEY J. E. JOHNSON

Appealed from the Family Court in and for the Parish of East Baton Rouge, Louisiana. Trial Court No. F190922. Honorable Annette Lassalle, Judge.

DAVID O. MOONEY, BATON ROUGE, LA, ATTORNEY FOR PLAINTIFF-APPELLANT, TERRI JOHNSON.

ARLENE C. EDWARDS, BATON ROUGE, LA, ATTORNEY FOR DEFENDANT-APPELLEE, JOEY J. E. JOHNSON.

BEFORE: KUHN, PETTIGREW, AND WELCH, JJ.

OPINION

Page 642

[2014 0564 La.App. 1 Cir. 2] PETTIGREW, J.

In this proceeding for a separation, or in the alternative, a final divorce, child custody, child support, and interim spousal support, the wife/mother, Terri Johnson (Ms. Johnson), appeals a trial court judgment rendered on November 18, 2013, that sustained the peremptory exception raising the objection of no cause of action filed by the husband/father, Joey J. E. Johnson (Mr. Johnson). On January 6, 2014, the trial court signed a written judgment in accordance with its findings. Ms. Johnson appealed that judgment. Upon this court's receipt of Ms. Johnson's appeal, we issued a rule to show cause order why the appeal should not be dismissed due to that judgment lacking the appropriate decretal language. The trial court then rendered an amended judgment, signed July 9, 2014, again sustaining Mr. Johnson's exception, and this time, including language dismissing Ms. Johnson's claims against Mr. Johnson. That judgment was included in the record on appeal and is now before us on appeal. After a thorough review of the record and applicable law, and for the following reasons, we reverse and remand.

BACKGROUND FACTS AND PROCEDURAL HISTORY

Mr. and Ms. Johnson were married on April 18, 2003, and entered into a covenant marriage. They had two minor children born of that marriage: one on May 12, 2004, and the other on August 17, 2005. The parties physically separated on July 19, 2013, and have lived separate and apart without reconciliation since that time.

On July 23, 2013 (four days after the alleged physical separation of the parties), Ms. Johnson filed a petition for separation or in the alternative, divorce. In that petition, she also sought an award of joint custody, that she be named the domiciliary parent of the two minor children, and that the judgment establish child support, a visitation schedule, as well award her interim and " final" spousal support.

Mr. Johnson filed a peremptory exception raising the objection of no cause of action, alleging that Ms. Johnson was seeking a separation or divorce prior to the couple engaging in marital counseling, as required by La. R.S. 9:307 relative to covenant marriages. Mr. Johnson sought a judgment to be rendered in his favor and denying all of [2014 0564 La.App. 1 Cir. 3] Ms. Johnson's claims. As mentioned above, the trial court rendered a final judgment on July 9, 2014, sustaining Mr. Johnson's exception and dismissing Ms. Johnson's claims.

PEREMPTORY EXCEPTION OF NO CAUSE OF ACTION

The function of the peremptory exception raising the objection of no cause of action is to test the legal sufficiency of a pleading by determining whether the law affords a remedy on the facts alleged in the pleading. Ourso v. Wal-Mart Stores, Inc., 2008-0780 (La.App. 1 Cir. 11/14/08), 998 So.2d 295, 298, writ denied, 2008-2885 (La. 2/6/09), 999 So.2d 785. The exception is triable on the face of the pleadings, and, for the purpose of determining the issues raised by the exception, the well-pleaded facts in the petition must be accepted as true. Id., 998 So.2d at 298. The burden of demonstrating that a petition fails to state a cause of action is upon the mover. Foti v. Holliday, 2009-0093 (La. 10/30/09), 27 So.3d 813, 817. In reviewing a trial court's ruling sustaining an exception of no

Page 643

cause of action, appellate courts conduct a de novo review, because the exception raises a question of law, and the trial court's decision is based only on the sufficiency of the petition. State v. ...


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