Opinion
2021 CA 0865
02-25-2022
Katherine Reznik BENOIT v. Benjamin Paul BENOIT
Katherine Reznik Benoit, Baton Rouge, Louisiana, Plaintiff/Appellant, In Proper Person Deborah P. Gibbs, Baton Rouge, Louisiana, Counsel for Defendant/Appellee, Benjamin Paul Benoit
Katherine Reznik Benoit, Baton Rouge, Louisiana, Plaintiff/Appellant, In Proper Person
Deborah P. Gibbs, Baton Rouge, Louisiana, Counsel for Defendant/Appellee, Benjamin Paul Benoit
BEFORE: McDONALD, LANIER, AND WOLFE, JJ.
LANIER, J.
In this domestic matter, plaintiff, Katherine Reznik Benoit, appeals the district court's judgment granting a divorce in favor of defendant, Benjamin Paul Benoit, as well as the district court's interlocutory judgment denying Mrs. Benoit's exceptions raising the objections of prematurity and vagueness. For the reasons that follow, we affirm. FACTS AND PROCEDURAL HISTORY
When an unrestricted appeal is taken from a final judgment, the appellant is entitled to seek review of all adverse interlocutory judgments prejudicial to her, in addition to the review of the final judgment. Cook v. Rigby, 2019-1463 (La. App. 1 Cir. 4/13/21), 323 So.3d 383, 387, writ denied, 2021-00663 (La. 9/27/21), 324 So.3d 102.
The parties entered into a covenant marriage pursuant to La. R.S. 9:293, et seq. on October 5, 2003, in Baton Rouge, Louisiana. One child was born of the marriage. On November 27, 2018, Mrs. Benoit filed a petition seeking separation from bed and board. In response, on January 25, 2019, Mr. Benoit filed an answer and reconventional demand, similarly seeking a separation from bed and board. The parties entered into a written stipulation on February 12, 2019, stipulating to the facts as alleged in Mrs. Benoit's petition, "that Mr. Benoit has exhibited cruel treatment and outrages toward [Mrs.] Benoit that have rendered the parties living together insupportable." A stipulated judgment of separation was rendered on February 12, 2019, and signed on April 30, 2019.
On October 30, 2020, Mr. Benoit filed a petition for divorce pursuant to La. R.S. 9:307(6)(b). Mrs. Benoit filed an answer to the petition for divorce on November 10, 2020, in which she alleged that Mr. Benoit's petition for divorce was premature because the parties had not complied with the necessary counseling provisions of La. R.S. 9:307(C). Mrs. Benoit further asserted that because Mr. Benoit had already filed an answer to the petition for separation and had not asked for leave of court to amend same, the petition for divorce should be considered without legal effect until Mr. Benoit is granted leave to amend his petition.
Mr. Benoit filed a motion and order to set for hearing, noting that the petition for divorce was pending and that an answer had been filed. The matter was set for hearing on December 7, 2020. According to the record, Mrs. Benoit was not served with notice of the December 7, 2020 hearing until after the hearing. However, Mrs. Benoit filed a pleading on December 7, 2020, entitled "Opposition/Answer to Defendant's Motion and Order to Set Hearing" in which she re-urged the prematurity of the petition and the fact that Mr. Benoit's petition for divorce was without legal effect because he had not been granted leave of court to amend his petition. Mrs. Benoit further argued that the motion to set for hearing was vague and in violation of La. Code Civ. P. art. 962 because it did not mention the grounds for the hearing nor any relief sought by Mr. Benoit. The matter was set for hearing on December 15, 2020.
The record reflects that Mrs. Benoit e-filed this pleading on December 5, 2020.
We note that this order was signed on December 9, 2020, two days after the December 7, 2020 hearing at which the district court had already continued the hearing on the petition for divorce until December 15, 2020.
Nonetheless, both parties appeared in court on December 7, 2020. At the start of the hearing, Mrs. Benoit, who was representing herself, objected to the hearing, indicating that she had never been served with notice. The judge pressed Mrs. Benoit on whether she had received a copy of the petition for divorce, to which Mrs. Benoit responded she had. The judge continued, noting that the motion to set for hearing stated very clearly that a petition for divorce was pending, that an answer had been filed, and that the matter was ready to be set for hearing. Mrs. Benoit again objected, adding that her exception raising the objection of prematurity must be tried and decided in advance of the trial of the case. At that point, the judge instructed Mrs. Benoit to go forward with argument on her exceptions. After preserving her objection for the record, Mrs. Benoit acquiesced.
According to the record, Mrs. Benoit is licensed to practice law in the State of Louisiana.
The judge then heard argument from Mrs. Benoit and counsel for Mr. Benoit. Beau Danton, a Marriage and Family Therapist and Professional Counselor who provided counseling to the parties, also testified. The judge denied Mrs. Benoit's exceptions raising the objections of prematurity and vagueness. Thereafter, there was further discussion regarding the fact that Mrs. Benoit was not served with the motion and order to set the trial on the petition for divorce. Because of the lack of service, the judge continued the matter to December 15, 2020.
The district court signed a judgment in accordance with these findings on December 15, 2020.
Mrs. Benoit later filed a motion and order for continuance of the December 15, 2020 trial. The motion was denied on December 10, 2020.
On December 15, 2020, Mrs. Benoit again urged her objection to the hearing on December 7, 2020, noting that she only went forward with the hearing on her exceptions because it was the "order of the court." Mrs. Benoit added that she made several objections to the fact that she had not been given proper notice of the hearing and that if she had more time, she would have hired an attorney to represent her. When the judge was ready to proceed with the petition for divorce, Mrs. Benoit objected again, stating that "notice and service and procedural defects in this case ... would make this judgment null." The judge explained that all the exceptions had previously been heard, that the rules for ordinary proceedings had been followed, and that there was no reason to delay the trial on the petition for divorce. The matter proceeded, and, after hearing testimony from both parties, and considering the testimony of Mr. Danton, which had been previously taken as a note of evidence, the judge rendered judgment granting Mr. Benoit a divorce pursuant to La. R.S. 9:307 in a judgment signed on December 15, 2020.
This appeal by Mrs. Benoit followed, wherein the following specifications of error were assigned:
I. The [district court] erred by failing to protect [Mrs. Benoit's] Due Process Rights by not providing [Mrs. Benoit] with service of notice of a court date for the hearing for her Exceptions, preventing her from having a meaningful right to be heard.
II. The [district court] erred, as a matter of law, by not complying with La. C.C.P. art. 929 when failing to hear and rule on [Mrs. Benoit's] Dilatory Exceptions filed with her answer to the petition for divorce in a Covenant Marriage prior to the day of the trial, as well as by using evidence obtained during a hearing conducted without [Mrs. Benoit] being properly served with notice of the hearing pursuant to La. C.C.P. arts. 1312, 1313, 1314 and 2594, and still granting the divorce.
III. The [district court] erred as a matter of law by failing to apply La. R.S. 9:307C and rendering a judgment of divorce in a Covenant Marriage without the requirements of the statute being met.
IV. The [district court] erred by ruling that the attorney fees acquired after the judgment of separation were community property in violation of La. C.C. [art.] 2362.1 and La. R.S. 9:309. [ ]
We note that this issue was addressed at the December 15, 2020 hearing. In oral reasons given from the bench, the judge found that "any attorney fees paid between the filing of the petition for legal separation and the granting of the judgment of divorce are community debts of the community." However, there is no such ruling in the judgment on appeal. Because appellate courts review judgments, not reasons for judgment, this issue is not properly before us for review. Wooley v. Lucksinger, 2009-0571 (La. 4/1/11), 61 So.3d 507, 572.
LAW AND ANALYSIS
Due Process and Notice
Mrs. Benoit argues her due process rights were violated because she did not receive proper service of notice of the December 7, 2020 hearing. She maintains that she was denied a meaningful opportunity to be heard concerning the exceptions she raised in her answer to the petition for divorce. Mrs. Benoit further alleges that the district court erred in failing to hear and rule on these exceptions prior to the day of the trial and still granting the judgment of divorce. We find no merit to these arguments.
As previously noted, when the parties appeared at the December 7, 2020 hearing, Mrs. Benoit objected to the hearing, arguing that she had not been served with notice of the hearing. Counsel for Mr. Benoit asserted that any exception to service would be waived by Mrs. Benoit's appearance in court. We agree.
Mrs. Benoit made an appearance in court on December 7, 2020, and, although she preserved her objection for the record, Mrs. Benoit argued her exceptions to the district court. Mrs. Benoit alleged that the petition for divorce was premature because the requirements of La. R.S. 9:307(C) had not been completed. She further asserted that the "Motion and Order to Set Hearing" was vague because it did not comply with La. Code Civ. P. art. 962 by stating the "grounds therefor, and the relief or order sought."
It is clear from the record that Mrs. Benoit had every opportunity to be heard during the December 7, 2020 hearing. Any argument to the contrary is without merit. Moreover, after denying Mrs. Benoit's exceptions at the December 7, 2020 hearing, the district court continued the trial on the petition for divorce to December 15, 2020. Thus, we find no merit to Mrs. Benoit's argument that the district court erred in failing to hear her exceptions prior to the divorce trial.
Covenant Marriage
The Louisiana State Legislature adopted the Covenant Marriage Act ("the Act") in 1997. La. R.S. 9:272, et seq. "Covenant marriage exists as an alternative to traditional marriage and requires the parties to obtain premarital counseling and to express their intent to enter into covenant marriage when they apply for a marriage license." Monica Hof Wallace, A Primer on Divorce in Louisiana, 64 Loy. L. Rev. 617, 649 (2018) (footnote omitted). The Act provides that "[o]nly when there has been a complete and total breach of the marital covenant commitment may the non-breaching party seek a declaration that the marriage is no longer legally recognized." La. R.S. 9:272(A).
As summarized by noted legal commentator Katherine Shaw Spaht,
The first and foremost objective of the covenant marriage legislation is to strengthen the institution of marriage, principally for the sake of the children. The legislation proposes to accomplish that objective by (1) mandatory pre-marital counseling which stresses the seriousness of marriage and the expectation that the couple's marriage will be lifelong; (2) a legally binding agreement in the Declaration of Intent that if difficulties arise during the marriage the spouses will take all "reasonable efforts to preserve the marriage, including marriage counseling"; and (3) limited grounds for divorce making termination
of the marriage depend on either misconduct by a spouse within the marital relationship which society collectively condemns, or a lengthy waiting period of two years living separate and apart.
Katherine Shaw Spaht, Louisiana's Covenant Marriage: Social Analysis and Legal Implications, 59 La. L. Rev. 63, 74-75 (1998) (footnotes omitted).
Parties entering into a covenant marriage must sign a declaration of intent. Included in this attestation is a clause indicating that the couple has undergone premarital counseling and has committed "to take all reasonable efforts to preserve [the] marriage, including marital counseling." La. R.S. 9:273(A)(1). Both parties must sign the attestation and it must be notarized. La. R.S. 9:273(A)(3)(a). The parties must also sign an affidavit attesting to the following:
[T]hey have received premarital counseling from a priest, minister, rabbi, clerk of the Religious Society of Friends, any clergyman of any religious sect, or a professional marriage counselor, which counseling shall include a discussion of the seriousness of covenant marriage, communication of the fact that a covenant marriage is a commitment for life, a discussion of the obligation to seek marital counseling in times of marital difficulties, and that they have received and read the informational pamphlet developed and promulgated by the office of the attorney general entitled "Covenant Marriage Act" which provides a full explanation of the terms and conditions of a covenant marriage.
La. R.S. 9:273(A)(2)(a). In addition, the parties must also include a "notarized attestation, signed by the counselor ... confirming that the parties were counseled as to the nature and purpose of the marriage." La. R.S. 9:273(A)(2)(b).
Pursuant to La. R.S. 9:272(C), a covenant marriage can only be terminated for one of the causes enumerated in La. Civ. Code art. 101, which includes divorce. The exclusive grounds for separation and divorce in a covenant marriage are set forth in La. R.S. 9:307. "Although separation from bed and board was abolished in 1990, [the Act] served to reinstate a new version of the law as applied to a covenant marriage." Wallace, supra , at 649 (footnotes omitted).
The exclusive grounds for terminating a covenant marriage based on divorce are enumerated in La. R.S. 9:307, which provides, in pertinent part:
A. Notwithstanding any other law to the contrary and subsequent to the parties obtaining counseling, a spouse to a covenant marriage may obtain a judgment of divorce only upon proof of any of the following;
....
(6)(a) The spouses have been living separate and apart continuously without reconciliation for a period of one year from the date the judgment of separation from bed and board was signed.
(b) If there is a minor child or children of the marriage, the spouses have been living separate and apart continuously without reconciliation for a period of one year and six months from the date the judgment of separation from bed and board was signed; however, if abuse of a child of the marriage or a child of one of the spouses is the basis for which the judgment of separation from bed and board was obtained, then a judgment of divorce may be obtained if the spouses have been living separate and apart continuously without reconciliation for a period of one year from the date the judgment of separation from bed and board was signed.
Subsection B of R.S. 9:307 addresses separation and provides, in pertinent:
B. Notwithstanding any other law to the contrary and subsequent to the parties obtaining counseling, a spouse to a covenant marriage may obtain a judgment of separation from bed and board only upon proof of any of the following:
....
(6) On account of habitual intemperance of the other spouse, or excesses, cruel treatment or outrages of the other spouse, if such habitual intemperance, or such ill-treatment is of such a nature as to render their living together insupportable.
Subsections (C) and (D) were added by La. Acts 2004, No. 490, § 1, and address the requisite counseling, providing as follows:
C. The counseling referenced in Subsections A and B of this Section, or other such reasonable steps taken by the spouses to preserve the marriage, as required by the Declaration of Intent signed by the spouses, shall occur once the parties experience marital difficulties. If the spouses begin living separate and apart, the counseling or other intervention should continue until the rendition of a judgment of divorce.
D. Notwithstanding the provisions of Subsection C of this Section, the counseling referenced in Subsections A and B of this Section shall not apply when the other spouse has physically or sexually abused the spouse seeking the divorce or a child of one of the spouses.
Mrs. Benoit argues on appeal that the petition for divorce was premature because Mr. Benoit did not comply with the requirements of La. R.S. 9:307(C) prior to filing for divorce, i.e ., that "[i]f the spouses begin living separate and apart, the counseling or other intervention should continue until the rendition of a judgment of divorce." She maintains that by signing the Declaration of Intent, Mr. Benoit obligated himself to "take all reasonable efforts to preserve [the] marriage, including marital counseling" between the time of the judgment of separation until the time of the judgment of divorce as required by La. R.S. 9:307(C). Mrs. Benoit maintains that this court should either require Mr. Benoit to fulfill the obligation he entered into when he agreed to the covenant marriage or remand the matter to the district court for a hearing on the amount of damages to be awarded to Mrs. Benoit for Mr. Benoit's breach of the contract. We find no merit to Mrs. Benoit's arguments.
Louisiana Code of Civil Procedure article 926(A)(1) provides for the dilatory exception raising the objection of prematurity, which is intended to retard the progress of the action, rather than to defeat it. See La. Code Civ. P. art. 923. The objection of prematurity raises the issue of whether the judicial right of action has yet to come into existence because some prerequisite condition has not been fulfilled. It's Golden, LLC v. Watercolors Unit 6, LLC, 2016-1362 (La. App. 1 Cir. 6/2/17), 223 So.3d 545, 547. Prematurity is determined by the facts existing at the time the suit is filed. Dutrey v. Plaquemine Manor Nursing Home, 2012-1295 (La. App. 1 Cir. 6/17/13), 205 So.3d 934, 942. Appellate courts generally review a lower court's decision concerning an exception of prematurity for manifest error. Code v. Department of Public Safety and Corrections, 2011-1282 (La. App. 1 Cir. 10/24/12), 103 So.3d 1118, 1127, writ denied, 2012-2516 (La. 1/23/13), 105 So.3d 59.
Upon review, we find that the district court did not commit manifest error in its denial of the exception raising the objection of prematurity. According to the record, the parties first sought counseling with Dee Adams, a counselor that Mrs. Benoit chose. Mr. Benoit testified that they attended eight or nine sessions with Ms. Adams. Mrs. Benoit indicated that she had no personal recollection that they attended eight or nine sessions with Ms. Adams, adding that her recollection was that it "was much less." Mrs. Benoit testified she would "find it hard to see how it would comply with the statute."
When things "didn't work out" with Ms. Adams, the parties began seeing Mr. Danton, a counselor that Mr. Benoit found. They attended seven sessions with Mr. Danton. According to Mr. Benoit, Mrs. Benoit left the last session with Mr. Danton early, indicating that she was not going to return. After that, Mr. Benoit started seeing a "second counselor on [his] own privately." Mr. Benoit indicated that counseling made him realize that he was not going to continue in the marriage.
Mr. Danton testified that the parties attended seven couples counseling sessions and that he had one individual session with each of them. The parties stipulated that this counseling occurred prior to the judgment of separation from bed and board. However, during the December 15, 2020 hearing, Mrs. Benoit questioned Mr. Benoit about what reasonable steps he had taken to preserve the marriage to this date. Mr. Benoit replied, "In the past two years we, me and [Mrs. Benoit] have not gone to counseling but I've gone to individual counseling." Although the "counseling" referred to throughout La. R.S. 9:307 clearly infers marriage counseling as indicated in the Declaration of Intent signed by parties to a covenant marriage, the law and jurisprudence do not specify what constitutes "other such reasonable steps taken by the spouses to preserve the marriage" and "other intervention" as provided for in subsection C.
We have thoroughly reviewed the record before us. The parties clearly obtained the requisite counseling prior to obtaining the April 30, 2019 judgment of separation from bed and board. Moreover, following the judgment of separation, Mr. Benoit continued in individual counseling. Based on the unique facts and circumstances of this case, and considering the testimony of Mr. Danton, as well as the parties, we find no manifest error in the district court's ruling that Mr. Benoit was entitled to a judgment of divorce pursuant to La. R.S. 9:307.
DECREE
For the above and foregoing reasons, we affirm the district court's December 15, 2020 judgment granting a divorce in favor of Mr. Benoit and we affirm the district court's December 15, 2020 judgment denying Mrs. Benoit's exceptions raising the objections of prematurity and vagueness. We assess all costs associated with this appeal against plaintiff/appellant, Katherine Reznik Benoit.
AFFIRMED.
Wolfe, J. concurs with reasons.
WOLFE, J., concurring.
I find no merit to Mrs. Benoit's due process argument because I construe her answer to the divorce petition as asserting a defense of prematurity rather than an exception, and because she had proper notice of the hearing on the petition for divorce during which her defense was considered. Her "exception" of vagueness to the motion to set the divorce for hearing was procedurally improper. See La. C.C.P. art. 926 ; In re Succession of Cannata, 2014-1546 (La. App. 1st Cir. 7/10/15), 180 So.3d 355, 363 n.3, writ denied, 2015-1686 (La. 10/30/15), 180 So.3d 303 (recognizing an exception is responsive to a petition). Further, I find no merit to Mrs. Benoit's argument that the divorce was premature based on the counseling requirements of La. R.S. 9:307C. That provision was added by Acts 2004 No. 490, which became effective August 15, 2004; therefore, I do not find that it applies to the parties’ 2003 covenant marriage.
For these reasons, I concur in affirming the trial court's judgment that granted the divorce.