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David v. David

Court of Appeal of Louisiana, Third Circuit

February 4, 2015

DIONE W. DAVID
v.
RICHARD G. DAVID

Page 1165

APPEAL FROM THE SIXTEENTH JUDICIAL DISTRICT COURT, PARISH OF IBERIA, NO. 113919. HONORABLE CHARLES PORTER, DISTRICT JUDGE.

AFFIRMED IN PART; REVERSED IN PART; REMANDED FOR A HEARING.

Ed W. Bankston, Lafayette, LA, COUNSEL FOR DEFENDANT/APPELLANT: Richard G. David.

L. E. " Tony" Morrow, Jr., The Law Offices of Tony Morrow, Lafayette, LA, COUNSEL FOR PLAINTIFF/APPELLEE: Dione W. David.

Court composed of Jimmie C. Peters, Marc T. Amy, and Shannon J. Gremillion, Judges.

OPINION

Page 1166

[14-999 La.App. 3 Cir. 1] AMY, Judge.

This matter is yet another facet of the ongoing proceedings stemming from the parties' divorce and community property partition. After the community partition judgment was amended and affirmed on appeal, and supreme court writs were denied, the husband filed a Petition for Action of Nullity of Judgment, which was set for trial. The day before trial, the husband filed a motion to recuse the trial court judge. That motion was denied without a hearing. Neither the husband nor his attorney appeared at the trial of the petition for nullity, and the trial court dismissed the petition with prejudice and awarded sanctions against the husband and his attorney. This appeal follows. For the following reasons, we affirm in part, reverse in part, and remand for a hearing.

Factual and Procedural Background

As discussed in this case's previous incarnations before this court, Richard and Dione David were married for thirty-six years before divorce proceedings were instituted. At the time of the divorce, there were multiple businesses and parcels of real property at issue for partition. After a multi-day trial on the community property partition issue, the trial court rendered judgment partitioning the community property. Richard appealed, and, on appeal, a panel of this court amended the partition judgment and affirmed, as amended. David v. David, 12-1051 (La.App. 3 Cir. 4/10/13), 117 So.3d 148. Richard sought a rehearing in this court, which was denied. Additionally, his application for certiorari and request for reconsideration at the Louisiana Supreme Court was denied. David v. David, 13-1541 (La. 10/4/13), 122 So.3d 1023; David v. David, 13-1541 (La. 11/15/13), 125 So.3d 1098. Although Richard's application for certiorari with regard to the partition judgment was denied, litigation in both the trial and appellate courts [14-999 La.App. 3 Cir. 2] continued. Other proceedings before this court indicate that Richard was sometimes at least partially successful in his appellate endeavors, David v. David, 14-126 (La.App. 3 Cir. 6/4/14), 144 So.3d 1110, and sometimes not, David v. David, 12-1260 (La.App. 3 Cir. 3/13/13), 110 So.3d 713. Most recently, Dione filed a motion to cancel several notices of lis pendens attached to properties that were awarded to her in the partition judgment, which Richard opposed. David v. David, 14-758 (La.App. 3 Cir. 12/10/14), So.3d . Dione's motion was granted by the trial court, and that judgment was affirmed on appeal. Id.

In December of 2013, Richard filed a Petition for Action of Nullity of Judgment on the basis that he had been deprived of his " legal rights." Therein, Richard contended that the original community property partition judgment was in violation of La.R.S. 9:2801(4)(b); that he had been required to pay for one of the properties twice; that he paid one-half of his IRA account to Dione, but that he had not received one-half of her IRA account; that the trial court failed to take into consideration some 600 pages of evidence which had been filed, post-trial, with the clerk of court; and that the trial court awarded Richard some credits that were not reflected in the partition judgment.

According to the record, at Richard's request, a hearing was scheduled for April

Page 1167

1, 2014. However, on March 31, 2014, Richard filed a motion to recuse the trial court judge, alleging that the trial court judge was biased and that it was " unexpected that [the trial court] would render an impartial judgment with regard to these issues." In support of this allegation, Richard pointed to the trial court's original partition judgment; the alleged failure to consider the 600 pages of evidence submitted post-trial; the trial court's prior issuance of bench warrants for Richard's arrest and order to jail Richard for ninety days; and the cancellation of [14-999 La.App. 3 Cir. 3] the notices of lis pendens.[1] That same day, the trial court denied the motion without a hearing. Trial on the petition for nullity of judgment went forward the next day. However, neither Richard nor his attorney appeared at the hearing. After Dione's attorney requested dismissal of the petition and sanctions, the trial court dismissed the petition for nullity with prejudice and awarded sanctions in the form of attorney fees and costs.

Richard appeals, asserting that:

A. The trial court erred by its judgment of Article 863 Sanctions in the ...

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