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Pembo v. Pembo

Court of Appeals of Louisiana, First Circuit

June 28, 2019


          On Appeal from the 21st Judicial District Court Parish of Tangipahoa, State of Louisiana No. 2011-0002832 c/w 2011-0003114, The Honorable Jeffery T. Oglesbee, Judge Presiding.

         Jennifer C. Carter, New Orleans, Louisiana, Attorney for Appellant, Dana Montecino Pembo.

          Nicole R. Dillon, Hammond, Louisiana Attorney for Appellee, Ronald Anthony Pembo, III.


          CRAIN, J.

         This is an appeal of a judgment that denied an exception of res judicata, ordered amendment of a Qualified Domestic Relations Order (QDRO) to correct an "error" that resulted in an overpayment to the former wife, ordered recalculation of the amount due the former wife based on the correction, and ordered repayment by the former wife of any overpayment. We vacate the judgment in part.


         Ronald Anthony Pembo and Dana Montecino Pembo were married on November 20, 1993, divorced on October 24, 2012, and their community property regime was terminated retroactive to August 26, 2011. On June 11, 2014, the trial court signed a judgment partitioning the parties' community property, including Ronald's Dow Chemical Company Employee's 401(k) Savings Plan ("the Plan"). The judgment provided that after various specified offsets, Dana would receive $64, 623.18 of the $201, 797.62 community value of the Plan, and ordered segregation of the funds into an account in Dana's name pursuant to a QDRO to be prepared by Ronald's counsel. The QDRO, also signed June 11, 2014, assigned Dana $64, 623.18 of the Plan's balance as of August 26, 2011, and specified that Dana "will be entitled to any interest and investment earnings or losses attributable thereto for periods subsequent to the assignment date [August 26, 2011] until the date of total segregation of [Dana's] assigned share into separate account(s)." (Emphasis in original.) It is undisputed that funds from the Plan were distributed to Dana pursuant to the QDRO.

         A year later, on July 1, 2015, Ronald filed a "Rule to Show Cause," seeking amendment of the partition judgment and QDRO to correct "error[s] in calculation." Ronald alleged the trial court's valuation of the community portion of the plan ($201, 797.62) included interest and earnings made on the community portion of the account since the date the community terminated; therefore, Ronald asserted, the QDRO should have provided Dana was not entitled to any additional amounts for interest and investment earnings after the assignment date. Additionally, Ronald alleged the trial court miscalculated the amount Dana should receive from the Plan based on an error in calculating the equalization payment Dana was owed. Ronald stated that as a result of these calculation errors, Dana received $105, 862.28 from the Plan, while she should have received only $58, 532.61. He asked that she be ordered to show cause why the judgment and QDRO should not be amended to correct the errors and why she should not be ordered to repay to the Plan the $47, 329.67 she received in error.

         In response, Dana filed an exception of res judicata, asserting any claims regarding the partitioned and disbursed funds were barred. She pointed out neither party timely filed a motion for new trial or appealed the partition judgment, and neither party objected to the QDRO Administration Office's interpretation of the QDRO prior to disbursement. She further argued Ronald sought more than mere correction of an error in calculation and the trial court lacked legal authority to make the requested substantive amendments.

         After considering the parties' memoranda and the suit record, the trial court found that in rendering the partition judgment it clearly accepted Ronald's valuation of the Plan as of November 7, 2013, and the QDRO should be amended to reflect that assignment date. The trial court denied the exception of res judicata, determined the amounts Dana was entitled to receive from the Plan would be recalculated based on the corrected assignment date, and that Dana would be required to repay any funds received in excess of the recalculated amount. In all other respects, the Rule to Show Cause was denied. A judgment reflecting the ruling was signed April 24, 2017. On that same date, the trial court signed an amended QDRO, replacing the provisions of the previous one, and designating the assignment date as November 7, 2013.

         Dana filed the instant suspensive appeal, which this court previously dismissed for lack of jurisdiction because the judgment lacks appropriate decretal language and cannot be considered a final judgment. Thereafter, the Louisiana Supreme Court granted a writ of certiorari and remanded the appeal to this court "for briefing, argument, and full opinion on the exception of res judicata."" Pembo v. Pembo, 17-1153, 17-1154, 2018WL1663141 (La.App. 1 Cir. 4/6/18), writ granted, 18-1390 (La. 12/3/18), 257 So.3d 1257.


         Res judicata bars re-litigation of all causes of action arising out of the same transaction and occurrence that were the subject of prior litigation between the same parties. Oliver v. Orleans Parish School Bd., 14-0329 (La. 10/31/14), 156 So.3d 596, 611, cert, denied, __U.S.__, 135 S.Ct. 2315, 191 L.Ed.2d 979 (2015). The general principles of res judicata are codified in Louisiana Revised Statute 13:4231, which pertinently provides "a valid and final judgment is conclusive between the same parties." The principle of res judicata envisions a second suit; therefore, an exception of res judicata is not the proper procedural vehicle for challenging a proposed amendment to a judgment within the same suit. See Family Worship Center Church, Inc. v. Solomon, 17-0064 (La.App. 1 Cir. 6/21/18), 255 So.3d 649, 658, writ denied, 18-1778 (La. 1/28/19), 263 So.3d 427; Quality Environmental Processes, Inc. v. IP Petroleum Company, Inc., 16-0230 (La.App. 1 Cir. 4/12/17), 219 So.3d 349, 365, writ denied, 17-00915 (La. 10/9/17), 227 So.3d 833. Nonetheless, Louisiana is a fact-pleading state that values substance over form and requires courts to look beyond the caption of pleadings in order to ascertain their substance and do substantial justice to the ...

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