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
composed of Judge Terri F. Love, Judge Edwin A. Lombard,
Judge Tiffany G. Chase.
F. Love Judge.
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.
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.
BACKGROUND AND PROCEDURAL HISTORY
Bailey and Nidtreas Clayton Bailey were married on December
31, 2002. 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
further action was taken in the matter until Ms. Clayton
filed a Petition for Partition on May 6, 2016. 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
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.
Bailey contends that the trial court erred by finding that
his divorce action was abandoned.
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.
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 ...