Court: Louisiana Court of Appeal; February 21, 2018; Louisiana; State Appellate Court
Appellant's appointment as executrix was revoked by the district court, affirming the judgment that found her divorced from decedent Mark Howard Buhler at the time of his death. Mr. Buhler had executed a will bequeathing all property to Ms. Buhler and naming her executrix during their second marriage, which began in 2000 after a prior divorce in 1994. Following Ms. Buhler's petition for divorce in 2014, Mr. Buhler filed a rule to show cause, but he died on August 4, 2015, after a judgment of divorce had been signed but before the appeal period expired. Ms. Buhler sought probate of the will, claiming they were still married, leading to her appointment as executrix.
In February 2016, Mr. Buhler's daughter, Nickie Buhler Paul, filed a motion to revoke Ms. Buhler's executorship, asserting that they were divorced. Ms. Buhler contended that the divorce action was abated by Mr. Buhler's death and that the divorce judgment was not final. The district court, after a hearing and with parties stipulating to the admissibility of records, confirmed the family court had issued a divorce judgment before Mr. Buhler's death. The court ruled that under LSA-C.C. art. 1608, the divorce invalidated Ms. Buhler's testamentary benefits, leading to the revocation of her executorship and the appointment of Ms. Paul as executrix. Despite objections regarding the proposed judgment's accuracy, the district court signed a judgment on October 13, 2016, formalizing Ms. Paul's appointment as Dative Testamentary Executrix.
On October 13, 2016, the district court signed a judgment proposed by Ms. Buhler, which was opposed by Ms. Paul's counsel regarding specific paragraphs and an additional provision. The following day, the court signed a competing judgment proposed by Ms. Paul, which included substantive changes such as validating a divorce judgment, revoking legacies to Ms. Buhler, and recognizing Ms. Paul as an intestate heir. Ms. Buhler's counsel filed a motion for a new trial on the October 13 judgment, which was denied, leading to a devolutive appeal being filed.
In her appeal, Ms. Buhler raised claims of error, including the alleged abuse of discretion in her removal as Executrix without a contradictory hearing and the denial of her new trial motion. The court issued a rule to show cause regarding which judgment was proper. It determined that the October 14 judgment made substantive changes to the original judgment and was not amended following the required procedures, rendering it an absolute nullity. Consequently, the court annulled the October 14 judgment, recognizing the October 13 judgment as valid.
Ms. Paul contended that the October 13 judgment should not apply due to non-compliance with Louisiana District Court Rule 9.5, which mandates a five-day circulation period for comment before presentation to the court. She argued that the judgment was circulated only one day prior, but the rule's purpose is to provide adequate time for opposition, not to invalidate the judgment outright.
Comments regarding the proposed judgment were submitted before it was presented in court. The Certificate indicates that the judgment was emailed to counsel on October 6, 2016, and that Ms. Paul's counsel opposed it on October 7, 2016, thus fulfilling the rule's intent to allow opposition and inform the court of its nature. Although the court's failure to allow five working days before filing could be seen as an error, it is considered harmless since the judgment aligns with the court's oral reasons. As a result, the judgment dated October 13, 2016, is valid for appeal.
Ms. Buhler argues that her removal as executrix was an abuse of discretion, claiming no grounds under LSA-C.C.P. art. 3181. However, Ms. Paul's motion also cited LSA-C.C. art. 1608, which states that testamentary provisions are revoked upon divorce unless stated otherwise. This applies to executors as well. Ms. Buhler’s assertion that Ms. Paul lacks standing under LSA-C.C.P. art. 3182 is rejected, as Ms. Paul, an alleged intestate heir, has a vested interest in whether the designations to Ms. Buhler are revoked.
On appeal, Ms. Buhler contends that the divorce action abated by operation of law because the Judgment of Divorce signed on July 20, 2015, was not executory at Mr. Buhler's death on August 4, 2015, implying they were still married. LSA-C.C.P. art. 428 states that actions do not abate upon a party's death, except for strictly personal obligations. While a divorce action typically abates upon death, the Louisiana Supreme Court in Larocca v. Larocca ruled that a divorce action does not abate when it affects substantial property rights, even if one party dies during the appeal. Ms. Buhler argues that the Larocca exception applies only when property rights are asserted, which she claims is not the case here.
Ms. Buhler contends that her appeal of the Final divorce judgment was hindered by the abatement following Mr. Buhler's death. The case of Larocca illustrates a similar situation where a husband sought a divorce based on a year of separation, while the wife counterclaimed for divorce due to adultery, also asserting her donations to him were contingent on their marriage. The trial court initially ruled in favor of the wife based on the husband's adultery, but later annulled that judgment, granting a divorce based on voluntary separation instead. After the wife's death during the appeal process, the executrix for her succession substituted her in the appeal, but the appellate court determined that the action abated upon her death.
The Louisiana Supreme Court, however, clarified that while a divorce action typically abates with a party's death, the intertwining property rights in this case prevented the action from abating. It remanded the case for the appellate court to consider the merits of the appeal. Ms. Buhler argues this exception should only apply when property matters are directly included in the divorce action. The Supreme Court's decision referenced French legal sources regarding spousal donations and their revocation due to fault, noting that case law has allowed heirs to continue divorce actions to seek rescission of donations if the original petitioner prevails. The court emphasized that revocation of donations is achieved through judicial decree, aligning the rights of heirs with ongoing divorce actions.
The court recognized that, in line with the French approach and most common law jurisdictions, property interests allow the continuation of divorce actions, even when one party dies during an appeal. The majority of courts have determined that appeals survive despite the lack of express property provisions in divorce decrees. The cited legal precedent indicates that the potential for property rights, such as inheritance and dower rights, means appeals from divorce decrees should not abate upon a party's death. In the case at hand, the court found that the divorce action did not abate because legacies and testamentary rights were linked to the divorce judgment, which could only be revoked through judicial decree.
Ms. Buhler could challenge the divorce judgment before appeal delays expired, and while she claims the judgment is an absolute nullity, this can be attacked collaterally at any time. She argues that the divorce petition was improperly served on Mr. Buhler's attorney instead of him personally, which, according to Louisiana law, meant that the required time for the court rule to show cause did not commence. Additionally, she contends that neither she nor her attorney received proper service of Mr. Buhler's motion to show cause.
Ms. Buhler asserts that she was not given prior notice of the April 15, 2015 hearing regarding Mr. Buhler's motion for divorce, despite her attorney's presence at the courthouse. She claims her attorney acted without consultation, and she may have wished to change her decision about the divorce, even though she had initially indicated her consent. The divorce judgment was not signed until July 2015, leading Ms. Buhler to argue that the delay could have allowed for a reconciliation. Although she acknowledges failing to properly serve Mr. Buhler with the divorce petition, he did not raise any objections regarding service, which are waived if not pleaded. Mr. Buhler filed a motion for divorce on March 20, 2015, claiming proper service and stating they had been living apart for over 180 days. Ms. Buhler later signed a "Waiver of Notice" on May 29, 2015, acknowledging receipt of the divorce motion and waiving further service, without contesting the claims made by Mr. Buhler. Consequently, the court found the divorce judgment valid, disqualifying Ms. Buhler from serving as executrix upon Mr. Buhler's death, in accordance with relevant legal codes. Additionally, Ms. Buhler argued that her removal as executrix was erroneous due to a lack of a contradictory hearing. However, the court noted that the parties had stipulated to the facts and that Ms. Buhler did not object to the process or specify what additional defenses she sought to present. Her second assignment of error was also deemed without merit.
Ms. Buhler argues that the district court should have granted her a new trial due to its failure to consider her defenses of abatement and the absolute nullity of the divorce judgment. However, upon review, the appellate court finds no merit in her claims and affirms the trial court's October 13, 2016 judgment while annulling the October 14, 2016 judgment. The appellate court assesses costs of the appeal to Ms. Buhler. The October 14 judgment revoked Ms. Buhler's appointment as Executrix of the estate of Mark Howard Buhler and recognized the divorce judgment from July 20, 2015, as valid, effectively terminating her marriage to the decedent. Consequently, all fiduciary nominations and legacies to Ms. Buhler in his will are deemed revoked under Louisiana Civil Code Article 1608. Nickie Buhler Paul is recognized as an intestate heir and appointed as Dative Testamentary Executrix. The court noted that a judgment appointing or removing a succession representative is a final judgment subject to immediate appeal. Ms. Paul contends that the second judgment is a permissible amended judgment filed within the delay for a motion for new trial, referencing a previous case, but the court clarifies that the legal principles in that case do not apply here.
A defendant petitioned to declare a second judgment an absolute nullity. The court determined that LSA-C.C.P. art. 2005 applied, allowing annulment only if the grounds for nullity were not evident in the appeal record or were not addressed by the appellate court. In this case, both judgments were part of the record and the changes in the second judgment were clear. Although the nullity issue wasn’t initially briefed by either party, it was raised during rehearing. The court did not address the procedure for correcting substantive errors, deeming it unnecessary for the case's decision. Subsequent rulings established that later judgments could be annulled if they did not comply with the requirements for substantive amendments. Ms. Paul did not dispute the accuracy of the first judgment but argued it failed to encompass the full scope of the court's ruling. Louisiana Code of Civil Procedure article 3181 allows the court to revoke the appointment of a succession representative if they do not qualify within ten days, with potential extensions for good cause. Article 3942 outlines the appeal process for annulment of marriage or divorce judgments, stipulating a thirty-day appeal window and the suspension of judgment execution concerning annulments or divorces. Ms. Buhler claimed the prior divorce judgment was also absolutely null, but did not demonstrate its relevance, particularly since the parties later remarried. The record included various documents and affidavits related to the estate funds.
