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Stewart v. Stewart

Court of Appeals of Louisiana, Third Circuit

June 3, 2015

JAMES E. STEWART, SR.
v.
DIANNE DENLEY STEWART

APPEAL FROM THE FIRST JUDICIAL DISTRICT COURT, PARISH OF CADDO, NO. 441,913. HONORABLE. JOSEPH BLEICH, DISTRICT JUDGE.

Donald L. Kneipp, Monroe, Louisiana, COUNSEL FOR DEFENDANT/APPELLANT: Dianne Denley Stewart.

James C. McMichael, Jr., McMichael, Medlin, D'Anna, Wedgeworth & Lafargue, LLC, Shreveport, Louisiana, COUNSEL FOR PLAINTIFF/APPELLEE: James E. Stewart, Sr.

Nyle A. Politz, Booth, Lockard, Politz & Lesage, Shreveport, Louisiana, COUNSEL FOR PLAINTIFF/APPELLEE: James E. Stewart, Sr.

Court composed of Jimmie C. Peters, John E. Conery, and David Kent Savoie, Judges.

OPINION

Page 449

[15-153 La.App. 3 Cir. 1] JOHN E. CONERY, Judge.

Dianne Denley Stewart (Ms. Denley) appeals the trial court's judgment of September 30, 2014, which granted the peremptory exception of no cause of action asserted by her former husband James E. Stewart, Sr. (Mr. Stewart).[1] The trial court found that the relief sought by Ms. Denley in her petition was a substantive amendment of the April 27, 2010 final judgment of partition, which is precluded under Louisiana law. For the following reasons, we affirm.

FACTS AND PROCEDURAL HISTORY

The parties to this litigation were married in 1981, divorced on July 18, 2000, and the community property regime was terminated retroactively to July 13, 1999. After a trial on the issue of division of community property and the submission of post-trial memorandum, oral reasons were given by the trial court on November 16, 2005, and a judgment of partition of community property was signed on December 2, 2005. That judgment ordered that the retirement interest of Mr. Stewart in the Louisiana State Employees' Retirement System (LASERS), and the retirement interest of Ms. Denley in the Teachers Retirement System of Louisiana (TRSL), would be divided according to the formula devised in Sims v. Sims, 358 So.2d 919

Page 450

(La.1978). The trial court further ordered counsel " to prepare the appropriate order for the court's approval without delay."

However, by February 14, 2008, the issue of retirement benefits was not yet entirely resolved, and the trial court once again ordered the division of the retirement interests of both parties according to the Sims formula, except for the [15-153 La.App. 3 Cir. 2] entitlement of Ms. Denley to survivor benefits. The issue of LASERS's survivor benefits was then pending before the supreme court in the case of LASERS v. McWilliams, 06-2191, (La. 12/2/08), 996 So.2d 1036. At the time of the trial court's February 14, 2008 ruling, LASERS v. McWilliams was not a final ruling, as a request for rehearing had been filed in that case.

The trial court ordered the parties to submit a final prepared judgment within thirty days of a final ruling in LASERS v. McWilliams :

[P]roposed orders dividing the LASERS retirement interest of JAMES E. STEWART, SR. and the Louisiana Teachers Retirement interest of DIANNE DENLEY. The Court will, without necessity of further proceeding herein [argument or hearing], execute and enter the appropriate order in conformity with the Judgment of Partition previously rendered herein and the Lasers vs. McWilliams decision.

Finally, on April 15, 2010, a " Second Amended Judgment of Partition of Employment Benefits" was signed by the trial court granting Mr. Stewart his community interest in Ms. Denley's TRSL retirement account. On April 27, 2010, a " Corrected Judgment of Partition of Employment Benefits" (April 27, 2010 Judgment) was signed by the trial court granting Ms. Denley her community interest in Mr. Stewart's LASERS retirement account. The April 27, 2010 Judgment also clarified Ms. Denley's rights to survivor benefits in accordance with the supreme court's decision in LASERS v. McWilliams. The April 27, 2010 Judgment was approved as to form by counsel for Ms. Denley and was requested in order to correct the handwritten portion of the identical judgment signed by the trial court on March 15, 2010.

The April 27, 2010 Judgment also ordered Ms. Denley to provide LASERS with a certified copy of the judgment within thirty days of signing. Likewise, in [15-153 La.App. 3 Cir. 3] the April 15, 2010 judgment partitioning Ms. Denley's benefits in the TRSL, Mr. Stewart was also ordered to provide a certified copy of the judgment to the TRSL.

On July 31, 2014, Ms. Denley, pro se, filed a petition entitled, " Rule to Show Cause to Amend Judgment of Partition," which was fixed for hearing on October 2, 2014. In her petition, Ms. Denley sought to amend the April 27, 2010 Judgment establishing her community property interest in Mr. Stewart's LASERS account made " payable to Dianne Denley upon retirement/termination of employment of James E. Stewart, Sr." Ms. Denley sought to incorporate language which would " allow her to immediately [begin] drawing her share of his LASER'S pension; or that James Stewart, Sr. pay to mover directly 40% of his current salary and/or the amount of mover's share of the pension."

Ms. Denley's basis for seeking the amendment apparently arises from her retirement from teaching in 2014, which triggered the payment to Mr. Stewart of twenty percent of her retirement benefits ordered in the trial court's April 16, 2010 judgment. Citing the inequities of the situation, as Mr. Stewart has not chosen to retire, Ms. Denley stated in her petition that the April 27, 2010 Judgment was not a final judgment pursuant to La.R.S. 9:2801(B).

Page 451

In response, Mr. Stewart filed the declinatory exception of lack of subject matter jurisdiction and the peremptory exceptions of no cause of action and res judicata.

Although the hearing on all issues was originally fixed for October 2, 2014, the trial judge, sitting ad hoc, moved the hearing to September 23, 2014 in order to rule before his appointment expired on September 30, 2014. On the day before the hearing, Ms. Denley sought a continuance due to the inability of conditionally retained counsel to appear, and/or to have more time for her to retain counsel. Counsel for Mr. Stewart had not received a copy of the motion to continue, and did [15-153 La.App. 3 Cir. 4] not have the authority to consent to the requested continuance. At the September 23, 2014 hearing, the trial court expressed its intention to move forward due to the need to expedite the matter considering the parties involved, and the possibility that additional recusals could ensue.

The trial court did allow counsel for Ms. Denley, or Ms. Denley pro se, to submit any opposition to the motions on or before noon on September 29, 2014. Counsel for Mr. Stewart waived oral argument and agreed to submit the issue to the trial court on his previously filed brief. The continuance sought by Ms. Denley was denied by the trial court at the hearing.

In an order dated September 24, 2014, the request for continuance by Ms. Denley was denied. The order also memorialized the procedure for submission of the motions for decision on briefs. Ms. Denley's retained counsel timely submitted a brief in response to the trial court's order on September 29, 2014. As Mr. Stewart had previously submitted ...


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