CONERY, Judge.
Dianne Denley Stewart (Ms. Denley) appeals the trial court's judgment of September 30, 2014, which granted the peremptory exception of no cause of action asserted by her former husband James E. Stewart, Sr. (Mr. Stewart).
The parties to this litigation were married in 1981, divorced on July 18, 2000, and the community property regime was terminated retroactively to July 13, 1999. After a trial on the issue of division of community property and the submission of post-trial memorandum, oral reasons were given by the trial court on November 16, 2005, and a judgment of partition of community property was signed on December 2, 2005. That judgment ordered that the retirement interest of Mr. Stewart in the Louisiana State Employees' Retirement System (LASERS), and the retirement interest of Ms. Denley in the Teachers Retirement System of Louisiana (TRSL), would be divided according to the formula devised in Sims v. Sims, 358 So.2d 919
However, by February 14, 2008, the issue of retirement benefits was not yet entirely resolved, and the trial court once again ordered the division of the retirement interests of both parties according to the Sims formula, except for the entitlement of Ms. Denley to survivor benefits. The issue of LASERS's survivor benefits was then pending before the supreme court in the case of LASERS v. McWilliams, 06-2191, (La. 12/2/08), 996 So.2d 1036. At the time of the trial court's February 14, 2008 ruling, LASERS v. McWilliams was not a final ruling, as a request for rehearing had been filed in that case.
The trial court ordered the parties to submit a final prepared judgment within thirty days of a final ruling in LASERS v. McWilliams:
Finally, on April 15, 2010, a "Second Amended Judgment of Partition of Employment Benefits" was signed by the trial court granting Mr. Stewart his community interest in Ms. Denley's TRSL retirement account. On April 27, 2010, a "Corrected Judgment of Partition of Employment Benefits" (April 27, 2010 Judgment) was signed by the trial court granting Ms. Denley her community interest in Mr. Stewart's LASERS retirement account. The April 27, 2010 Judgment also clarified Ms. Denley's rights to survivor benefits in accordance with the supreme court's decision in LASERS v. McWilliams. The April 27, 2010 Judgment was approved as to form by counsel for Ms. Denley and was requested in order to correct the handwritten portion of the identical judgment signed by the trial court on March 15, 2010.
The April 27, 2010 Judgment also ordered Ms. Denley to provide LASERS with a certified copy of the judgment within thirty days of signing. Likewise, in the April 15, 2010 judgment partitioning Ms. Denley's benefits in the TRSL, Mr. Stewart was also ordered to provide a certified copy of the judgment to the TRSL.
On July 31, 2014, Ms. Denley, pro se, filed a petition entitled, "Rule to Show Cause to Amend Judgment of Partition," which was fixed for hearing on October 2, 2014. In her petition, Ms. Denley sought to amend the April 27, 2010 Judgment establishing her community property interest in Mr. Stewart's LASERS account made "payable to Dianne Denley upon retirement/termination of employment of James E. Stewart, Sr." Ms. Denley sought to incorporate language which would "allow her to immediately [begin] drawing her share of his LASER'S pension; or that James Stewart, Sr. pay to mover directly 40% of his current salary and/or the amount of mover's share of the pension."
Ms. Denley's basis for seeking the amendment apparently arises from her retirement from teaching in 2014, which triggered the payment to Mr. Stewart of twenty percent of her retirement benefits ordered in the trial court's April 16, 2010 judgment. Citing the inequities of the situation, as Mr. Stewart has not chosen to retire, Ms. Denley stated in her petition that the April 27, 2010 Judgment was not a final judgment pursuant to La.R.S.
Although the hearing on all issues was originally fixed for October 2, 2014, the trial judge, sitting ad hoc, moved the hearing to September 23, 2014 in order to rule before his appointment expired on September 30, 2014. On the day before the hearing, Ms. Denley sought a continuance due to the inability of conditionally retained counsel to appear, and/or to have more time for her to retain counsel. Counsel for Mr. Stewart had not received a copy of the motion to continue, and did not have the authority to consent to the requested continuance. At the September 23, 2014 hearing, the trial court expressed its intention to move forward due to the need to expedite the matter considering the parties involved, and the possibility that additional recusals could ensue.
The trial court did allow counsel for Ms. Denley, or Ms. Denley pro se, to submit any opposition to the motions on or before noon on September 29, 2014. Counsel for Mr. Stewart waived oral argument and agreed to submit the issue to the trial court on his previously filed brief. The continuance sought by Ms. Denley was denied by the trial court at the hearing.
In an order dated September 24, 2014, the request for continuance by Ms. Denley was denied. The order also memorialized the procedure for submission of the motions for decision on briefs. Ms. Denley's retained counsel timely submitted a brief in response to the trial court's order on September 29, 2014. As Mr. Stewart had previously submitted his brief on the issue, the matter was properly submitted to the trial court for decision.
On September 30, 2014, the trial court issued its judgment, granting Mr. Stewart's peremptory exception of no cause of action and rendering moot the exceptions of res judicata and lack of subject matter jurisdiction filed by Mr. Stewart. Ms. Denley timely appealed on October 21, 2014. Shortly thereafter, Mr. Stewart sought to supplement the record with letters from both LASERS and TRSL, which Ms. Denley opposed. Despite the inclusion of the letters in the record on appeal, there was no hearing or order granting Mr. Stewart's motion to supplement the record. Ms. Denley filed a "Motion and Designation of Contents of Record," which was denied by the trial court as untimely.
The recent third circuit case of Harris v. Olivier's Contractors, 14-765, pp. 9-10 (La. App. 3 Cir. 12/10/14), 155 So.3d 652, 661, writ denied, 15-335 (La.4/24/015), ___ So.3d ___, 2015 WL 2184758 stated:
The trial court in its "Judgment on Defendant in Rule's Peremptory Exception of No Cause of Action," signed on September 30, 2014, granted Mr. Stewart's peremptory exception of no cause of action, rendered the other exceptions of lack of subject matter jurisdiction and res judicata moot, and stated in pertinent part:
We begin our de novo review of the trial court's ruling with La. Code Civ.P. art.1951 which provides:
The rule that a trial court may not alter the substance of a final judgment is longstanding in Louisiana jurisprudence, as reiterated in Leland v. Lafayette Ins. Co., 13-476, p. 6 (La.App. 3 Cir. 11/6/13), 124 So.3d 1225, 1229, writ denied, 13-2814 (La. 2/14/14), 132 So.3d 967:
The petition seeking the amendment of the April 27, 2010 Judgment does not state that Ms. Denley sought either a new trial or timely appeal after the trial court signed the April 27, 2010 Judgment, requested by Ms. Denley in order to correct the handwritten portion of the identical judgment signed by the trial court on March 15, 2010. Thus, under La. Code Civ.P. art.1951, the April 27, 2010 Judgment would be considered a final judgment, which could not be amended as requested in Ms. Denley's petition.
Ms. Denley's petition urges that La.R.S. 9:2801(B) provides an exception to La. Code. Civ.P. art 1951. The application of La. R.S. 9:2801(B) would negate the final judgment status of the April 27, 2010 Judgment, making it interlocutory and subject to the amendment sought in her petition. Such an application would grant Ms. Denley a cause of action and allow the trial court to consider the requested amendment to the April 27, 2010 Judgment allowing her to immediately begin to receive her allotted share of Mr. Stewart's LASERS retirement benefits or a proportionate share of his salary.
Louisiana Revised Statutes 9:2801(B) states:
After a determination that it had jurisdiction over both the "action and these parties and is the proper Court to render this Order," the April 27, 2010 Judgment stated in pertinent part (emphasis added):
The April 27, 2010 Judgment then ordered that the aforementioned funds be payable directly to Ms. Denley at her current address or "such other address as Dianne Denley may advise LASERS in writing in accordance with [the] this judgment." The trial court then also ordered (emphasis added):
In her petition, Ms. Denley cited as support for the interlocutory status of the April 27, 2010 Judgment the case of Tate v. Tate, 08-1968 (La.App. 1 Cir. 3/27/2009), 9 So.3d 1010. In Tate, the first circuit affirmed the trial court and found the judgment at issue remained interlocutory under La.R.S. 9:2801(B). The first circuit found that the judgment had not been granted "qualified" status from the LASERS plan administrator, as it had been rejected for non-compliance with the LASERS requirements. See La.R.S. 9:2801(B). Thus, as provided in La.R.S. 9:2801(B), the judgment was subject to amendment after a contradictory hearing or by consent of the parties.
The April 27, 2010 Judgment in this case ordered that Ms. Denley, "
Ms. Denley also cited the cases of Hare v. Hodgins, 586 So.2d 118 (La.1991) and Halverson v. Halverson, 589 So.2d 1153, (La.App. 5 Cir.1991), writ denied, 600 So.2d 655 (La.1992). Both of these cases were decided prior to the addition of La. R.S 9:2801(B) to La. R.S. 9:2801 by 2001 Acts 493 and therefore lend no support to Ms. Denley's argument. Additionally, each of the cases cited involved an appeal of the initial partition of the community assets, which included retirement benefits. As previously stated, the April 27, 2010 Judgment which partitioned Mr. Stewart's retirement benefits was not appealed. Therefore, we find that the trial court correctly determined that the July 31, 2014 petition filed by Ms. Denley failed to state a cause of action. Thus, Ms. Denley's assignment of error number one is without merit.
Ms. Denley seeks to have stricken from the record a September 3, 2014 letter from LASERS and a May 11, 2010 letter from the TRSL, which were filed in conjunction with Mr. Stewart's October 24, 2014 motion to supplement the record. Ms. Denley opposed the motion and there is no order allowing the submission of the letters into the record. Ms. Denley sought to have the letters stricken from the record and filed a "Motion and Designation of Contents of Record," which was denied by the trial court as untimely.
Louisiana Code of Civil Procedure Article 2164 states, in pertinent part, "The appellate court shall render any judgment which is just, legal, and proper upon the record on appeal." "Appellate courts are courts of record and may not review evidence that is not in the appellate record, or receive new evidence." Denoux v. Vessel Mgmt. Serv., Inc., 07-2143, p. 6 (La. 5/21/08), 983 So.2d 84, 88. There is nothing in the record to indicate that the two letters were received into evidence, despite having been filed into the record in connection with the motion to supplement. "Evidence not properly and officially offered and introduced cannot be considered, even if it is physically placed in the record." Denoux, 983 So.2d at 88.
The trial court's ruling granting Mr. Stewart's exception of no cause of action was correctly rendered on the basis of Ms. Denley's pleadings, pursuant to La. Code Civ.P. art 931, which states in pertinent part, "No evidence may be introduced at any time to support or controvert the objection that the petition fails to state a cause of action." However, "an exception to this rule has been recognized by the jurisprudence, and a court may consider evidence admitted without objection to enlarge the pleadings." Maw Enters., 149 So.3d at 215. In this case, the application of the exception to La. Code Civ.P art. 931 does not apply in light of the strenuous objection by Ms. Denley to the admission into evidence of the two letters at issue. Therefore, for the reasons previously stated, Ms. Denley's assignment of error two has no merit, as the letters at issue are not part of the record on appeal having not been properly entered into evidence in the district court record.
Ms. Denley, in her third assignment of error, asks this court to reimburse her for costs of the appeal, district court costs, and other costs relating to the proceedings. In the alternative, she asks this
Louisiana Code of Civil Procedure 2164 provides:
Considering the outcome of this appeal, this court finds no basis to grant Ms. Denley's request that the costs be waived or allocated between the parties to the litigation.
For the reasons assigned, we affirm the judgment of the trial court sustaining James E. Stewart's peremptory exception of no cause of action, finding that the "Rule to Show Cause to Amend Judgment of Partition" filed on behalf of Dianne Denley Stewart failed to state a cause of action for which a remedy could be afforded under the laws of the State of Louisiana. Costs of this appeal are assessed to Dianne Denley Stewart.
