JORDAN COLLINS, SR. VERSUS ALBERTINA COLLINS

Lake Charles, LA - Divorce lawyer represented appellant with appealing a garnishment of his wages.

Jordan and Albertina were divorced on February 4, 2009. On December 9,

2009, the parties entered into a consent judgment stipulating that the partition of their

community property would be implemented pursuant to their joint stipulation. The

joint stipulation set forth that Jordan would pay "[o]ne equalizing payment of

twenty-six thousand and 00/100 ($26,000) dollars, payable in full by March 8, 2010

at 12:00 noon.” The stipulation further provided that "the obligor of the equalizing

payment shall pay a stipulated per diem penalty of $50.00 for each and every day

following the deadline, regardless of the amount remaining to be paid.”

In May 2010, Jordan filed a motion for modification of judgment urging that

he was unable to pay the equalizing payment because he could not refinance the

immovable property due to his credit score and the valuation of the property value

was less than the appraisal.

In June 2010, Albertina filed a motion and order to enforce community

property settlement agreement and for contempt claiming that Jordan had not met

the March 8, 2010 deadline and should be assessed the per diem penalty of $50.00

per day, which at that time equaled penalties of $5,450.00. Following a July 16,

2010 hearing, the trial court denied Jordan's motion for modification and found him

in contempt for failing to pay the $26,000.00 owed Albertina along with the $50.00

per day per diem. Both amounts were made executory, and the judgment was signed

on October 10, 2012, and filed on October 12, 2012.

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On November 26, 2012, Albertina filed a petition to make judgment executory

and for garnishment relating to the October 12, 2012 judgment. On November 27,

the trial court ordered the garnishment of Jordan's wages to meet the obligations of

the October 10, 2012 judgment. A garnishment judgment was rendered on February

1, 2013.

On February 4, 2021, Jordan filed a rule to show cause urging that his

garnishment would be paid in full by February 28, 2021, and seeking to have it

terminated. In the attached memorandum, Jordan claimed that the total amount

garnished was $81,468.97, an amount exceeding the amount due and further arguing

that the 2009 judgment was prescribed pursuant to La.Civ.Code art. 3357 and had

not been reinscribed pursuant to La.Code Civ.P. art. 2031.

Albertina filed a supplemental memorandum and memorandum in opposition

urging that Jordan failed to plead prescription in his rule to show cause, and the

October 2012 judgment and February 1, 2013 garnishment were not prescribed.

Following an April 2021 hearing, the trial court ruled as follows:

This Court finds that the December 9, 2009 Consent Judgment

and Joint Stipulation to Judicially Partition Community and Consent

Judgment Approving & Homologating Same are not subject to the

requirement of reinscription or revival; nor is it subject to prescription

and is still enforceable. This Court also finds that the Judgment of

October 10, 2012 and February 1, 2013 are still in effect and

enforceable.

The Garnishment Judgment continues because MOVER,

JORDAN B. COLLINS, SR. still owes the $50.00 per day penalties and

interest. Thus, the garnishment has not been fully repaid. The

equalizing payment and the $50.00/day penalty and interest does not

prescribe because it is part of the judicial partition agreement.

Therefore, MOVER'S Rule to Show Cause to terminate garnishment is

DENIED.

A judgment memorializing such was signed on May 26, 2021. Jordan now

appeals and assigns as error:

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1. The trial court erred by denying appellant's Rule to Show

Cause to terminate the garnishment.

2. The trial court erred by finding that the December 9, 2009 Joint

Stipulation to Judicially Partition Community and Consent Judgment

Approving & Homologating Same was not subject to the requirement

of re-inscription or revival; nor was it subject to prescription and is

enforceable.

DISCUSSION

A trial court's factual findings are reviewed under the manifest error standard

and will not be overturned unless the trial court committed legal error in the

application of statutory law. Stobart v. State through Dep't of Transp. And Dev.,

617 So.2d 880 (La.1993). Louisiana Civil Code Article 3357 provides that "[e]xcept

as otherwise expressly provided by law, the effect of recordation of an instrument

creating a mortgage or pledge or evidencing a privilege ceases ten years after the

date of the instrument.”

Louisiana Civil Code Article 3501 provides in part:

A money judgment rendered by a trial court of this state is

prescribed by the lapse of ten years from its signing if no appeal has

been taken, or, if an appeal has been taken, it is prescribed by the lapse

of ten years from the time the judgment becomes final.

. . . .

Any party having an interest in a money judgment may have it

revived before it prescribes, as provided in Article 2031 of the Code of

Civil Procedure. A judgment so revived is subject to the prescription

provided by the first paragraph of this Article. An interested party may

have a money judgment rendered by a court of this state revived as often

as he may desire.

Finally, La.Code Civ.P. art. 2031 addresses revival of judgments:

A. A money judgment may be revived at any time before it

prescribes by an interested party by the filing of an ex parte motion

brought in the court and suit in which the judgment was rendered. The

filing of the motion to revive interrupts the prescriptive period

applicable to the judgment. The motion to revive judgment shall be

accompanied by an affidavit of the holder and owner of the judgment,

stating that the original judgment has not been satisfied. A judgment

shall thereupon be rendered reviving the original judgment. No citation

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or service of process of the motion to revive shall be required. The court

may order the judgment debtor to pay additional court costs and

reasonable attorney fees in connection with the judgment revival action.

Notice of signing of the judgment of revival shall be mailed by the clerk

of court to the judgment debtor at his last known address as reflected in

the suit record.

B. At any time after the signing of the judgment of revival, the

judgment debtor may, by contradictory motion, have the judgment of

revival annulled, upon showing that the judgment which has been

revived was in fact satisfied prior to the signing of the judgment of

revival. If the judgment debtor proves that the judgment has been

satisfied prior to the filing of the motion to revive the judgment, the

holder or owner of the judgment shall pay all court costs, fees, and

attorney fees incurred by the judgment debtor in opposing the ex parte

order of revival and the cancellation of the judgment from the mortgage

records.

Prescription/Revival1

The trial court found the 2009 consent judgment was not subject to

prescription or revival. We disagree. There are very limited actions that do not

prescribe, such as an action for partition. La.Civ.Code art. 817. Although there is

some disagreement as to what type of action a consent judgment with an equalizing

payment is, i.e., a money judgment or a personal action, the distinction is immaterial

for our purposes as both are subject to a prescriptive period of ten years. See

La.Civ.Code arts. 3499 & 3501. A consent agreement partitioning property is

subject to a ten-year prescriptive period. Huckabay v. Huckabay, 485 So.2d 165

(La.App. 2 Cir. 1986). On its face, the consent agreement of 2009 prescribed in

2019. Thus, the obligations created by the judgment in favor of Albertina prescribed

in 2019 unless the judgment was revived or prescription was otherwise interrupted.

1 We note that Jordan did not file a peremptory exception of prescription. However, he did

file a rule to show cause why the garnishment should not be cancelled because it had been satisfied.

In the accompanying memorandum he stated that the 2009 judgment was prescribed as it had not

been revived or reinscribed. Because the issues of revival versus the alleged "new obligations”

created by subsequent judgments are intertwined, we choose to address the issue of prescription

as the natural consequence of the failure to revive the money judgment.

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Albertina sets forth no claims that prescription was interrupted. Instead, she

argues that the 2012 contempt judgment and 2013 garnishment judgment stand

separate and apart from the 2009 judgment and create "new obligations” which have

not been satisfied. We disagree.

It is indisputable that but for the 2009 consent judgment, there would have

been no reason to file the contempt and garnishment motions. We have noted the

indistinguishability of a garnishment judgment from the original judgment from

whence it was created. In Brunston v. Hoover, 06-970 (La.App. 3 Cir. 12/6/06), 945

So.2d 852, Brunston obtained a money judgment on April 29, 1986. Garnishment

of Hoover's wages began on July 14, 1988. On September 9, 2005, Hoover filed an

affidavit declaring that the money judgment of April 1986 had prescribed, and the

garnishment judgment was therefore null and void. Brunston argued that the

ongoing garnishment served as an acknowledgment of the debt that interrupted

prescription. The trial court cancelled the garnishment and a panel of this court

affirmed on appeal. We noted that the only method to prevent the tolling of

prescription for a money judgment is revival and reinscription in accordance with

La.Code Civ.P. art. 2031. In further addressing whether the garnishment interrupted

prescription, we stated:

While La.Civ.Code art. 3464 does allow for interruption of

prescription by acknowledgment, that acknowledgment must be by the

debtor to the creditor. Flowers v. U.S. Fidelity & Guaranty Co., 381

So.2d 378. A garnishment judgment is directed to the debtor's

employer, not the debtor. It requires no acknowledgement of debt by

the debtor. And, having twenty-five percent of one's salary taken by

court order cannot be construed as voluntary.

We, therefore, agree with the trial court's conclusion that "an

ongoing garnishment does not constitute an interruption of the ten year

liberative prescription against the judgment debtor under Article 3464

of the Civil Code, because it is not a voluntary payment or

acknowledgment by the debtor. A garnishment cannot be maintained

to satisfy a prescribed judgment.”

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Additionally, a garnishment judgment is based on the underlying

money judgment it seeks to satisfy.

Id. at 856.

Accordingly, we find the trial court erred in finding that the 2009 consent

judgment was not subject to revival in order to prevent the tolling of prescription.

Because Albertina did not take any action to revive it, the 2009 consent judgment is

prescribed.

Garnishment

Jordan argues that the garnishment has been satisfied. Because we have found

the 2009 consent judgment is prescribed, the garnishment is cancelled, and this

assignment is rendered moot.

The judgment of the trial court in favor of the defendant-appellee, Albertina

Collins, is reversed. The garnishment judgment against the plaintiff-appellant,

Jordan Collins, Sr. is cancelled as it is based upon a prescribed consent judgment.

All costs of this appeal are assessed against Albertina Collins.