Faircloth v. Faircloth

48 So. 3d 1100, 2010 La. App. LEXIS 1254, 45,673 (La.App. 2 Cir. 09/22/10)

 

RULE:

If mandatory procedural requirements are not followed and met, the preliminary default is therefore invalid. 

FACTS:

Raymond Faircloth filed a petition for divorce and for partition of community property. A preliminary default was entered and the divorce was granted by a default judgement that was confirmed in May. A preliminary default judgement concerning the partition of community property and settlement of claims was confirmed, and Raymond was awarded ownership of the matrimonial domicile and two vehicles, and was made responsible for the debts on the home, vehicles, and the credit card. Diane Faircloth filed a petition to annul the judgement, contending that the partition did not comply with Louisiana law because Raymond’s detailed descriptive list of the community property was not submitted within 45 days of the filing date of the petition for partition, as ordered by the trial court. She further contended that the was not served with Raymond’s detailed descriptive list or given the opportunity to concur or traverse it prior to the confirmation of the default. The trial court granted the petition to annul and Raymond appeals, arguing that because Diana failed to file an answer, he was not obligated to comply with the Louisiana statute before having the community property judicially partitioned through a default judgement.

ISSUE:

Is a default judgment valid even though plaintiff husband failed to comply with the provisions of the Louisiana statute?

ANSWER:

No.

CONCLUSION:

The Court affirmed the granting of a judgement in favor of Faircloth’s former wife that annulled a defaulted judgement that partitioned some of their community property. Here, Diane was never given an opportunity to traverse Raymond’s detailed descriptive list because he did not file the list with the petition. He also failed to file the list within the 45-day period ordered by the court and actually filed it on the day the default judgement was confirmed. Louisiana law states that a final judgement shall be annulled if it is rendered against a defendant against whom a valid judgement by default has not been taken. Since Raymond did not follow the mandatory procedural requirements, the preliminary default is therefore invalid.

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