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McCalmont v. McCalmont

Court of Appeals of Louisiana, Third Circuit

December 28, 2017

COLLEEN HAWTHORN MCCALMONT
v.
JAMES ADDISON MCCALMONT, III

         APPEAL FROM THE NINTH JUDICIAL DISTRICT COURT PARISH OF RAPIDES, NO. 256, 513 HONORABLE GEORGE C. METOYER, DISTRICT JUDGE

          Mark 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

          Curtis R. Shelton Ayres, Shelton, Williams, Benson & Paine, LLC COUNSEL FOR DEFENDANT/APPELLANT: James Addison McCalmont, III

          Court composed of Sylvia R. Cooks, John D. Saunders and Candyce G. Perret, Judges.

          SYLVIA R. COOKS, JUDGE.

         The 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.

         On 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.

         On 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) seeking divorce.

         On 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.

         A 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.

         ANALYSIS

         The 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.

         Following 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.

         Mr. 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. McCalmont ...


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