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Bailey v. Bailey

Court of Appeals of Louisiana, Fourth Circuit

November 28, 2018

LOUIS BAILEY
v.
NIDTREAS CLAYTON BAILEY

          APPEAL FROM CIVIL DISTRICT COURT, ORLEANS PARISH NO. 2012-04037, DIVISION "H-12" Honorable Monique E. Barial, Judge.

          Leonard K. Fisher III LAW OFFICE OF LEONARD K. FISHER, III, COUNSEL FOR PLAINTIFF/APPELLANT, LOUIS BAILEY

          Court composed of Judge Terri F. Love, Judge Edwin A. Lombard, Judge Tiffany G. Chase.

          Terri F. Love Judge.

         This appeal arises from the trial court's ruling that the parties abandoned their divorce proceeding. The plaintiff contends that the trial court erroneously held that the parties had not taken any action in their divorce proceeding for three years since the preliminary default was granted.

         We find that the parties' divorce proceeding was abandoned on its face, as no steps towards the prosecution were taken in over three years. Additionally, no exceptions to abandonment apply. The trial court did not err by finding that the divorce proceeding was abandoned and dismissing the petition. The judgment of the trial court is affirmed.

         FACTUAL BACKGROUND AND PROCEDURAL HISTORY

         Louis Bailey and Nidtreas Clayton Bailey were married on December 31, 2002.[1] On April 25, 2012, Mr. Bailey filed a Petition for Divorce from Ms. Clayton based on La. C.C. art. 103(1). Mr. Bailey alleged that the couple had been living separate and apart since June 31, 2009. Ms. Clayton signed a Waiver and Acceptance of Service on July 10, 2012, which was filed into the record on August 7, 2012. Mr. Bailey filed a Motion for Entry of Default Judgment. On October 9, 2012, the trial court granted an order of default judgment on the divorce.

         No further action was taken in the matter until Ms. Clayton filed a Petition for Partition on May 6, 2016.[2] Ms. Clayton sought to partition the home located at 7610 Inlet Lane in New Orleans. During the proceedings on the Petition for Partition, the trial court noted that a final divorce decree was missing from the record. Thereafter, Mr. Bailey filed a Motion to Acknowledge Divorce Judgment. The trial court found that the Petition for Divorce was abandoned pursuant to La. C.C.P. art. 561, denied the motion, and dismissed Mr. Bailey's divorce action. Mr. Bailey's appeal followed.

         STANDARD OF REVIEW

         "Whether an action has been abandoned is a question of law; thus the standard of review of the appellate court is simply to determine if the trial court's decision was correct." Heirs of Simoneaux v. B-P Amoco, 13-0760, p. 3 (La.App. 4 Cir. 2/5/14), 131 So.3d 1128, 1130.

         ABANDONMENT

         Mr. Bailey contends that the trial court erred by finding that his divorce action was abandoned.

         Mr. Bailey filed a Petition for Divorce pursuant to La. C.C. art. 103(1). Ms. Clayton then filed a Waiver and Acceptance of Service approximately two months after the Petition for Divorce was filed. Accordingly, Louisiana statutory law provides that "[w]hen a defendant in an action for divorce under Civil Code Article 103(1), . . . acknowledges receipt of a certified copy of the petition and waives formal citation, service of process, all legal delays, notice of trial, and appearance at trial, a preliminary default may be entered against the defendant." La. C.C.P. art. 1701(B). Thereafter, Mr. Bailey filed the Motion for Entry of Default Judgment pursuant to La. C.C.P. art. 1701, which was granted. However, the preliminary default granted by the trial court was never confirmed.

         "A preliminary default must be confirmed by proof of the demand that is sufficient to establish a prima facie case and that is admitted on the record prior to the entry of a final default judgment." La. C.C.P. art. 1702(A). Following the trial court's October 9, 2012 preliminary default judgment, the record is void of activity until the May 6, 2016 Petition for Partition, except for the January 10, 2014 Notice of Change ...


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