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Davies v. Davies

Court of Appeals of Louisiana, Fourth Circuit

December 19, 2018

MARTIN J. DAVIES
v.
JANET LABATUT DAVIES JANET LABATUT DAVIES
v.
MARTIN J. DAVIES

          APPEAL FROM CIVIL DISTRICT COURT, ORLEANS PARISH NO. 2012-04553 C\W 2009-05534, DIVISION "H-12" Honorable Monique E. Barial, Judge

         ON REHEARING

          Jennifer C. Carter de BLANC LAW FIRM, LLC COUNSEL FOR PLAINTIFF/APPELLANT

          Jennifer C. Carter de BLANC LAW FIRM, LLC COUNSEL FOR PLAINTIFF/APPELLANT

          Court composed of Judge Daniel L. Dysart, Judge Joy Cossich Lobrano, Judge Dale N. Atkins

          Daniel L. Dysart, Judge.

         This matter is before the Court on an application for rehearing filed by plaintiff-appellant, Martin J. Davies, and a second application for rehearing filed by defendant-appellee, Janet Labatut Davies. For the reasons that follow, we deny Mr. Davies' application for rehearing, although we clarify that decision to make clear that our review of the matter was under the standard of review for the grant of a peremptory exception of no cause of action. However, we remand this matter to the trial court pursuant to La. C.C.P. art. 934 to allow Mr. Davies the opportunity to amend his motion, if he can, to state a cause of action.

         As to Ms. Davies' application for rehearing, it is granted for the limited purpose of vacating that portion of our decision which found that the trial court granted Mr. Davies' motion to terminate payment of health insurance premiums.

         Mr. Davies' application for rehearing

         In his application for rehearing, Mr. Davies contends that this Court erred in finding that the trial court correctly sustained Ms. Davies' exception of no cause of action with respect to Mr. Davies' motion to terminate final periodic spousal support. He maintains that this Court erred in applying an "abuse of discretion" standard of review and in reviewing "facts outside the four corners of the pleadings" in considering whether the 2015 Consent Judgment should have been modified to terminate Ms. Davies' spousal support.[1]

         A peremptory exception of no cause of action may be raised in objection to a motion to modify judgments in family law litigation, including motions to modify support obligations. See, e.g., Rigaud v. DeRuise, 13-0376 (La.App. 4 Cir. 5/21/14), 141 So.3d 917, 919; Vincent v. Vincent, 11-1822 (La.App. 4 Cir. 5/30/12), 95 So.3d 1152, 1155; Donelon v. Donelon, 95-0088 (La.App. 4 Cir. 7/26/95), 659 So.2d 512; Richardson v. Richardson, 02-2415 (La.App. 1 Cir. 7/9/03), 859 So.2d 81; Bland v. Bland, 97-0329 (La.App. 1 Cir. 12/29/97), 705 So.2d 1158, 1160. In Rigaud, this Court reiterated the well-settled rule that:

[T]he grant of an exception of no cause of action [is subject] to de novo review because the exception raises an issue of law and the trial court's decision is based solely on the sufficiency of the petition. Fink v. Bryant, 2001-0987, pp. 3-4 (La.11/28/01), 801 So.2d 346, 348-49. "The peremptory exception of no cause of action is designed to test the legal sufficiency of the petition by determining whether the particular plaintiff is afforded a remedy in law based on the facts alleged in the pleading." Industrial Companies, Inc. v. Durbin, 2002-0665, p. 6 (La.1/28/03), 837 So.2d 1207, 1213. "The exception is triable on the face of the petition and, for the purpose of determining the issues raised by the exception, the well-pleaded facts in the petition must be accepted as true." Id; Badeaux v. Southwest Computer Bureau, Inc., 2005- 0612, 2005-0719, p. 7 (La.3/17/06), 929 So.2d 1211, 1217.

Rigaud, pp. 4-5, 141 So.3d at 920.

         It is equally well-settled that "[n]o evidence can be introduced to support or to controvert an exception of no cause of action." Vincent, 11-1822, p. 7, 95 So.3d 1158. Importantly, however, there is an exception to this general rule "that allows the trial court to consider evidence in ruling on an exception of no cause of action where that evidence is admitted at trial without objection. In such instances, the pleadings are considered to have been enlarged." Rhodus v. Lewis, 15-1454, p. 4 (La.App. 1 Cir. 4/15/16), 193 So.3d 215, 219. Thus, for example, as noted in Gereighty v. Domingue, 17-339, p. 12 (La.App. 5 Cir. 5/30/18), 249 So.3d 1016, 1027, quoting Emigh v. W. Calcasieu Cameron Hosp., 13-2985 (La. 7/1/14), 145 So.3d 369, ...


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