Rush v. Rush
115 So. 3d 508
| La. Ct. App. | 2013Background
- Ms. Peuschold and Mr. Rush signed a 1993 matrimonial agreement (before a notary, but without witnesses) to establish a separation of property; they married on Feb. 18, 1993 and had two children.
- In 2011, Rush filed for divorce alleging a separate property regime under the 1993 agreement; Rush executed an authentic act acknowledging his signature in Sept. 2011.
- Peuschold admitted signing the agreement but stated the admission was not sworn or oath-bound; she later sought declaratory relief arguing the agreement was invalid as to form and that a community of acquets and gains existed.
- The trial court held the agreement valid as to form, focusing on an alleged acknowledgment under La. C.C. art. 1836; it designated the judgment as final under La. C.C.P. art. 1915(B) without addressing vices of consent.
- This Court converted the appeal to a supervisory writ, found error in certifying a partial final judgment, and reversed the trial court, rendering a declaratory judgment that the 1993 agreement was invalid for lack of proper form; a community of acquets and gains existed by operation of law.
- All costs of the appeal were assessed to Rush.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Validity of form under 2329/2331 | Peuschold: failure to satisfy form requirements; no proper acknowledgment prior to marriage and no court approval | Rush: acknowledgment before marriage sufficed under 2331 | Invalid for form; required court super-vision and joint petition absent in marriage |
| Effect of acknowledgment during marriage | Admission during marriage cannot validate pre-marital private act | Acknowledgments during marriage could retrofit form | Insufficient; form not perfected prior to or during marriage |
| Appellate/jurisdiction and final judgment status | Partial final judgment improper; miscarriage of appeal | Trial court judgment could be final under 1915(B) | Cert rejected; convert to supervisory writ; reverse and render for Peuschold |
Key Cases Cited
- Motorola, Inc. v. Associated Indemnity Corp., 867 So.2d 715 (La.App. 1st Cir.4/30/2003) (jurisdiction and final judgment principles discussed)
- Van ex rel. White v. Davis, 808 So.2d 478 (La.App. 1st Cir.2/16/2001) (finality of judgments and appellate scope)
- R.J. Messinger, Inc. v. Rosenblum, 894 So.2d 1113 (La.3/2/2005) (appellate jurisdiction over non-final judgments)
- Texas Gas Exploration Corp. v. Lafourche Realty Co., Inc., 79 So.3d 1054 (La.App. 1st Cir.11/9/2011) (need for proper final judgment to support appeal)
- In re First Columbia Life Insurance Co., 724 So.2d 790 (La.App. 1st Cir.9/29/1998) (interpretation of statutes in pari materia)
- Arabie v. CITGO Petroleum Corp., 89 So.3d 307 (La.2012) (when two statutes apply, more specific governs)
- Poirier v. Poirier, 626 So.2d 868 (La.App. 3d Cir.1993) (strict construction of formality requirements)
- Herlitz Construction Co., Inc. v. Hotel Investors of New Iberia, Inc., 396 So.2d 878 (La.1981) (precedential basis for supervisory writ approach)