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In re Succession of Buhler

Court of Appeals of Louisiana, First Circuit

February 22, 2018

IN THE MATTER OF THE SUCCESSION OF MARK HOWARD BUHLER

         On Appeal from the Nineteenth Judicial District Court In and for the Parish of East Baton Rouge State of Louisiana No. P100003 Honorable R. Michael Caldwell, Judge Presiding

          Mary E. Roper Baton Rouge, Louisiana Counsel for Plaintiff/Appellant Betty Miller Buhler

          Siobhan S. Leger Trenton A. Grand Denise N. Akers Baton Rouge, Louisiana Counsel for Defendant/ Appellee Nickie Buhler Paul

          BEFORE: McCLENDON, WELCH, AND THERIOT, JJ.

          MCCLENDON, J.

         Appellant seeks review of a judgment granting appellee's motion revoking appellant's appointment as executrix in a succession. For the following reasons, we affirm.

         FACTS AND PROCEDURAL HISTORY

         Betty Miller Buhler married Mark Howard Buhler in 1988. They subsequently divorced in 1994. In 2000, they remarried. During their second marriage, Mr. Buhler, on May 18, 2013, executed his "Last Will and Testament" bequeathing all of his property "to my wife, Betty Miller Buhler" and naming Ms. Buhler executrix.

         In 2014, Ms. Buhler filed a Petition for Divorce in the same suit record as the 1994 divorce (Docket No. 103, 346, Division B, The Family Court in and for the Parish of East Baton Rouge). More than six months after Ms. Buhler filed her petition for divorce, Mr. Buhler filed a "Rule to Show Cause Why a Judgment of Divorce Should Not Be Granted." Mr. Buhler died on August 4, 2015, after a judgment of divorce had been rendered and signed in the 2014 family court proceeding, but before the delay for taking an appeal had expired.

         On August 12, 2015, Ms. Buhler filed a "Petition for Probate of Statutory Testament" in district court, alleging decedent was her husband at the time of his death. She attached decedent's testament to the petition, noting that it designated her to serve as executrix. The district court signed orders probating the testament and confirming Ms. Buhler as testamentary executrix.

         In February 2016, Nickie Buhler Paul, the daughter of decedent, filed a "Motion for Revocation of Appointment of Executrix, " alleging that Ms. Buhler and decedent were divorced at the time of decedent's death, and Ms. Buhler misrepresented her status to the court. Ms. Paul sought to revoke Ms. Buhler's appointment as executrix and requested that she be appointed as executrix. Ms. Buhler opposed the motion, arguing that the divorce action abated on Mr. Buhler's death because the judgment of divorce was not final given that the appeal delays had not expired. Alternatively, she argued that the judgment of divorce was invalid or null.

         The matter was heard by the district court on September 26, 2016. Prior to the hearing on this motion, the parties signed a stipulation in which they agreed to the authenticity and admissibility of certain exhibits, including "[t]he entire suit record for Buhler v. Buhler, Docket No. 103, 346, Division B, The Family Court in and for the Parish of East Baton Rouge."[1]

         Following the hearing, the district court determined that the family court had rendered a judgment of divorce prior to Mr. Buhler's death and found that any challenge to the validity of that judgment should be made in the court where the judgment had been rendered, which was the Family Court of East Baton Rouge Parish. Additionally, the district court held that under LSA-C.C. art. 1608, [2] the judgment of divorce negated any testamentary provisions in favor of Ms. Buhler. Accordingly, Ms. Buhler's appointment as executrix was revoked, and Ms. Paul was appointed executrix. Ms. Paul's counsel was instructed to prepare a judgment.

         Thereafter, on October 7, 2016, Ms. Buhler's counsel filed a proposed judgment, which indicated that an opposition to the proposed judgment had been received from Ms. Paul on the basis that it did not accurately reflect the detailed oral ruling rendered by the district court and that Ms. Paul's counsel, not Ms. Buhler's counsel, had been directed to draft the judgment. Nevertheless, on October 13, 2016 the district court signed the judgment submitted on behalf of Ms. Buhler. That judgment provided:

IT IS ORDERED, ADJUDGED AND DECREED that the Motion for Revocation of Appointment of Executrix is granted and that the appointment of Betty Buhler as Executrix of the estate of Mark Howard Buhler is revoked.
IT IS FURTHER ORDERED, ADJUDGED, AND DECREED that Nickie Buhler Paul is hereby appointed as Dative Testamentary Executrix of the Succession and it is further ordered that Letters of Administration be issued to her upon her compliance with the requirements of law.

         The day before the filing of a judgment on behalf of Ms. Buhler, Ms. Paul's counsel had also filed a proposed judgment. In that proposed judgment, Ms. Paul stated that an opposition was received from Ms. Buhler's counsel to the inclusion of paragraphs 3, 4, and 5 of the judgment as well as to an additional provision that was redacted. However, the district court signed Ms. Paul's proposed judgment on October 14, 2016, the day after it signed Ms. Buhler's proposed judgment.[3]

         On October 26, 2016, Ms. Buhler's counsel filed a motion for new trial from the October 13, 2016 judgment, which was denied by the district court. Thereafter, Ms. Buhler's counsel filed a Motion for Devolutive Appeal from the judgment signed on October 13, 2016. The district court signed an order granting the appeal of that judgment.[4]

         In her appeal, Ms. Buhler assigns the following as error:

1. The trial court abused its discretion by removing Appellant, Betty Miller Buhler, as Executrix.
2. The trial court committed legal and reversible error by removing Appellant as Executrix without first conducting a contradictory hearing.
3. The trial court abused its discretion in denying Appellant's motion for new trial.

         RULE TO SHOW CAUSE

         This court, ex proprio motu, issued a rule to show cause ordering that the parties show cause by briefs which judgment was the proper judgment before the court. The rule to show cause was referred to this panel to be decided in connection with this appeal.

         As stated above, the district court signed the judgment submitted on behalf of Ms. Buhler on October 13, 2016. On the following day, October 14, 2016, the district court signed the competing judgment addressing the same motion, which was submitted on behalf of Ms. Paul. While the first and fifth paragraphs of the second judgment were substantively the same as the first judgment, paragraphs two through four of the second judgment added substantive rulings, including recognition and validation of the ...


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