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Ast v. Ast

Court of Appeal of Louisiana, Third Circuit

April 1, 2015

REGINA BETH ANN GILLEY AST
v.
DAVID LEE AST, JR

APPEAL FROM THE ELEVENTH JUDICIAL DISTRICT COURT, PARISH OF SABINE, NO. 60,398. HONORABLE STEPHEN BRUCE BEASLEY, DISTRICT JUDGE.

AFFIRMED.

William D. Dyess, The Dyess Law Firm, Many, Louisiana, COUNSEL FOR DEFENDANT/APPELLANT: David Lee Ast, Jr.

David C. Hesser, Hesser & Flynn, A Limited Liability Partnership, Alexandria, Louisiana, COUNSEL FOR PLAINTIFF/APPELLEE: Regina Beth Ann Gilley.

Court composed of Ulysses Gene Thibodeaux, Chief Judge, Billy Howard Ezell, and John E. Conery, Judges.

OPINION

Page 721

[14-1282 La.App. 3 Cir. 1] CONERY, Judge.

This appeal involves issues based on a community property judgment rendered pursuant to a stipulation between former husband and wife as to allocation of the husband's military benefits. The appellant argues that the trial court lacked subject matter jurisdiction to partition military disability benefits as part of the community. The appellant/husband further contends that the stipulation between the parties read on the record and the subsequent judgment rendered are inconsistent such that the judgment should be corrected to reflect the true intent of the parties as reflected in the stipulation. The trial judge held that the court had jurisdiction to enforce its ruling based on the husband's personal appearance and the judgment signed by the husband's attorney. The trial court ruled that the change sought in the wording of the judgment was a substantial change and could not be corrected after it had become final. For the following reasons, we affirm.

FACTS AND PROCEDURAL HISTORY

David Ast sued Regina Gilley for a divorce in Sabine Parish, and a judgment of divorce was signed on August 18, 2008. On November 12, 2008, Ms. Gilley filed a motion claiming entitlement to an alleged forty-nine percent community interest in

Page 722

Mr. Ast's military retirement under the Sims formula as part of the community of acquets and gains.[1] At a hearing on February 5, 2009, a stipulation of the parties was read into the record providing that Ms. Gilley would receive a forty-nine percent interest in Mr. Ast's military retirement benefits. A final judgment was signed on March 24, 2009, after having been approved as to form [14-1282 La.App. 3 Cir. 2] and content and signed by counsel for Mr. Ast. No motion for new trial or appeal was filed by Mr. Ast, and the judgment became final in June 2009.

Over three years later, in January 2013, Ms. Gilley filed a rule for contempt, rule to enforce judgment, and a motion to appoint a curator for absentee defendant against Mr. Ast, who was living out of state. Ms. Gilley sought to enforce the February 2009 judgment against Mr. Ast, claiming that he failed to pay Ms. Gilley her forty-nine percent interest in his military benefits or its equivalent. Mr. Ast appeared through counsel and responded by filing a peremptory exception of no cause of action, a declinatory exception of lack of subject matter jurisdiction, and a rule for partition of property. Mr. Ast claimed that he had suffered a second heart attack in 2010 and was then declared 100% disabled by the United States Department of Veterans Affairs. Mr. Ast further claimed that since 2010, he had been receiving Combat Related Special Compensation (CRSC) military benefits due to his disability status, instead of his military retirement. Mr. Ast asserted that because he was declared 100% disabled and was no longer receiving military retirement, but CRSC instead, his military benefits were no longer classified as community property and could not be partitioned.[2] Thus, Mr. Ast asserted that the trial court lacked subject matter jurisdiction to divide his military benefits and could not enforce the February 2009 judgment. After a contradictory hearing the trial court denied Mr. Ast's exceptions for written reasons assigned.

[14-1282 La.App. 3 Cir. 3] Mr. Ast then filed a motion for a new trial based on his contention that the stipulation of the parties read on the record in February 2009 did not provide that Ms. Gilley would receive military disability benefits. Mr. Ast asserted that the judgment and the record were not consistent and thus, the judgment should be amended to reflect the stipulation of the parties. After another contradictory hearing, the trial court again denied Mr. Ast's motion and ruled in favor of Ms. Gilley. Mr. Ast now timely appeals, the judgment rendered pursuant to that ruling signed on September 17, 2014, asserting two assignments of error. For the following reasons, we affirm.

ASSIGNMENTS OF ERROR

On appeal, Mr. Ast asserts the following as error:

I. THE TRIAL COURT LACKED SUBJECT MATTER JURISDICTION TO DIVIDE UNITED

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STATES MILITARY DISABILITY BENEFITS IN THE 2009 COMMUNITY PROPERTY JUDGMENT AND THEREFORE THE JUDGMENT AS IT RELATES TO MILITARY DISABILITY BENEFITS IS NULL AND CANNOT BE ENFORCED.
II. THE TRIAL COURT ERRED IN NOT AMENDING THE FEBRUARY 5, 2009 JUDGMENT TO CORRECTLY RECITE THE TERMS AND CONDITION[S] OF THE STIPULATION READ ONTO THE RECORD ON FEBRUARY 5, 2009, BECAUSE THE STIPULATION READ ONTO THE RECORD ...

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