FROM THE NINTH JUDICIAL DISTRICT COURT PARISH OF RAPIDES, NO.
256, 513 HONORABLE GEORGE C. METOYER, DISTRICT JUDGE
F. Vilar Aaron L. Green Paul Boudreaux, Jr. Vilar &
Green, LLC COUNSEL FOR PLAINTIFF/APPELLEE: James Addison
McCalmont, IV, Independent Testamentary Executor for
Succession of Colleen Hawthorn McCalmont
R. Shelton Ayres, Shelton, Williams, Benson & Paine, LLC
COUNSEL FOR DEFENDANT/APPELLANT: James Addison McCalmont, III
composed of Sylvia R. Cooks, John D. Saunders and Candyce G.
R. COOKS, JUDGE.
facts in this case are largely undisputed. On August 3, 2016,
Colleen Hawthorn McCalmont filed a petition for a "no
fault" divorce from James Addison McCalmont, III, under
La.Civ.Code art. 102. In that petition, Ms. McCalmont alleged
the parties had been living separate and apart since July 31,
2016. Mr. McCalmont was personally served and did not file
any answer or responsive pleading.
December 14, 2016, after discovering her husband had been
unfaithful, Ms. McCalmont filed an Amending and Supplemental
Petition for Divorce. In this petition she sought a divorce
on the grounds of adultery, pursuant to La.Civ.Code art.
103(2). The Amended Petition alleged only adultery as grounds
for the divorce and did not plead in the alternative any
other grounds for divorce.
December 27, 2016, thirteen days after the Amended Petition
was filed, Mr. McCalmont filed a Motion to Terminate the
Community of Acquets and Gains, retroactive to August 3,
2016, the date of filing of the original petition for
divorce. Ms. McCalmont filed a memorandum in opposition to
that motion, arguing the correct date of the termination of
the community was December 14, 2016, which was the date of
filing of the only pending pleading (the Amended Petition)
January 23, 2017, Mr. McCalmont filed an answer to the
Amended Petition. No exceptions to the content of the Amended
Petition were filed and there was no objection to the fact
the original grounds pled previously for divorce had been
changed from living separate and apart to adultery. The
record also established Mr. McCalmont has not filed a
reconventional demand or pleading of any type seeking a
divorce in this or in any other proceeding.
hearing on the motion to terminate the community was held on
February 6, 2017. There was no dispute that the parties had
begun living separate and apart on July 31, 2016, and that
the community was properly subject to being terminated. The
only issue before the court was the effective date of the
termination of the marital community. At the conclusion of
the hearing, the trial court ruled the termination date
related back to the date of the filing of the Amended
Petition, December 14, 2016. A final judgment to the effect
was signed. This appeal followed. Mr. McCalmont asserts the
trial court erred in finding the effective date of the
termination of the community was December 14, 2016.
Tragically, on February 22, 2017, Ms. McCalmont died after a
lengthy battle with brain cancer before a final judgment of
divorce could be obtained. Her son, James A. McCalmont, IV,
as the testamentary executor for the Succession of Colleen
Hawthorn McCalmont, was the Appellee in this appeal.
record established Ms. McCalmont was the only party to file
any pleading seeking a divorce. Initially, she filed a
Petition for Divorce on August 3, 2016, seeking a "no
fault" divorce under La.Civ.Code art. 102. No answer or
responsive pleading was filed in response to the petition.
that filing, discovery was sent out and responded to by Mr.
McCalmont. Evidence was accumulated that confirmed Ms.
McCalmont's suspicions that Mr. McCalmont was having an
extra-marital affair. Therefore, on December 14, 2016, Ms.
McCalmont filed an Amending and Supplemental Petition for
Divorce. In it, Ms. McCalmont was "now seeking a divorce
under the provisions of Louisiana Civil Code Art. 103(2), due
to the adultery of [Mr. McCalmont]." In the Amended
Petition, Ms. McCalmont did not seek in the alternative a
divorce under La.Civ.Code art. 102.
McCalmont filed an answer to the Amended Petition. No
exceptions or objections were filed to the Amended Petition.
The motion to terminate the community was not filed by Mr.