Iona Senora Wells WILLIAMS v. Michael David WILLIAMS, 760 So. 2d 469

h GREMILLION, Judge. In this case, the defendant, Michael David Williams, husband of the plaintiff, Iona Señora Wells Williams, appeals the judgment of the trial court which upheld a post-nuptial agreement entered into by the couple. Michael appealed. For the following reasons, we reverse and render. FACTUAL AND PROCEDURAL BACKGROUND Iona and Michael were married on July 12, 1996, after having dated and lived together for many years. Agreements affecting the matrimonial regime and spousal support were subsequently confected and are at issue in this suit.

Following an original handwritten agreement allegedly signed by the parties in January 1997, the parties signed an agreement on July 2, 1997, before a notary and two witnesses. The face of the document indicates that the couple agreed to terminate the community property regime and, further, provided, that in the event of separation or divorce, Michael would provide the following support for Iona: $2,500.00 per month, medical, and health insurance coverage for the remainder of her life, and medical/health expenses not covered by insurance.

The agreement also provided that Michael would maintain a life insurance policy on himself and designate Iona as the beneficiary. In a Joint Petition for Modification of Matrimonial Regime, filed on July 7, 1997, the parties presented the agreement and represented to the trial court that they were subject to the “legal regime of community property under the laws of the lístate of Louisiana,” that they wished to terminate the community property regime, and that they had reached an agreement as to the division of community property they believed to be fair and equitable.

By this joint petition, they asked “that they be allowed to terminate the legal regime of community property presently existing between them and to establish and enter into a regime of separation of property, as allowed by Civil Code

Article 2329.” On July 9, 1997, the trial court signed the following order: “IT IS ORDERED that Michael David Williams and Iona Senora Wells Williams be and are hereby allowed to terminate the legal regime of community property as allowed by Civil Code

Article 2329.” The order and the agreement were filed with the Clerk of Court for Beauregard Parish on July 14, 1997. The instant matter was instituted on June 15, 1998, when Iona filed a Petition for Divorce alleging that she was entitled to divorce, pursuant to La.Civ.Code art. 102, after she and Michael had lived separate and apart in excess of 180 days. She further asked for a hearing on a motion to show cause why Michael should not provide the support described in the above agreement. An order to show cause was subsequently signed by the trial court.

In a separate action, Iona filed a Petition for Breach of Contract and Enforcement of Contract to Terminate Matrimonial Regime, wherein she alleged entitlement to enforcement of the provisions of the marital agreement. Following Michael’s filing of a rule to show cause, a Judgment of Divorce was signed and filed on January 21, 1999. As the issues remaining in each |aof the actions filed by Iona dealt with enforcement of the marital agreement, the two matters were consolidated. Following the filing of additional motions regarding the agreement and alimony by Iona, a hearing was held on the matter on March 4, 1999.

During the hearing, Iona sought enforcement of the terms of the agreement, while Michael contended, chiefly, that he entered into the agreement out of duress and that the contract should not be enforced either due to a failure of cause or because the terms are against public policy. The trial court heard witness testimony, including that of the parties, and also reviewed exhibits, including the petition to terminate the marital regime, the order doing so, and the signed agreement.

The court found in favor of Iona, giving the'following reasons for enforcement: We have two documents in evidence here, P-1, which is dated January 10, 1997; and the court record in C-97-614, which basically is a contract styled “Termination of Matrimonial Regime Between Michael David Williams and Iona Señora Wells Williams” and the petition, which asks for permission to terminate.

Both of those documents were signed by Michael David Williams, the P-1, there having been some notations made on by him in addition to his signature, The termination document was executed nearly seven months later, on July 2, 1997, prepared by an attorney which both Mr. Williams and Ms. Williams state was their attorney. The Court finds no reason why the provisions of the termination of matrimonial regime document, including the paragraph B which refers to payment of alimony pen-dente lite or permanent alimony, why these should not be enforced.

My primary reason that I do not think that there is any reason why they should not be enforced is I do not see that there was any duress which would have continued from January 10 up to July 2, 1997. There may have been some duress that may have arisen from some other things; but, generally speaking, I believe that this was a document that Mr. Williams was quite willing to execute of his own free will, although it may-have been that|4he was doing so because he thought it would make things better at home.

In any event, I think it’s extremely significant that this couple had been together for a period of 19 years and lived together for a period of ten years. And, quite frankly, I think when [counsel for Michael] asked Ms. Williams — or Ms. Wells — why Mr. Williams would want to execute an agreement that provided for this, I think it pretty well summed it up that he felt responsible, that they had been together all this time, that she had done a lot of things for him during that time. In short, that he felt it was his moral responsibility.

Therefore, it is the holding of the Court that there is no need for a fault hearing in this matter; that the parties have contractually agreed to the payment of interim spousal support — which was previously called alimony pendente lite and permanent alimony — in the amount of $2,500 per month. And that is the Court’s ruling. Michael appeals, assigning several errors, primarily arguing that the agreement was not statutorily sufficient, no lawful cause existed for the obligation, and, alternatively, that the agreement was entered into as a result of duress.

Iona has answered the appeal alleging that Michael’s appeal is frivolous and requesting attorney’s fees and expenses associated with the appeal. DISCUSSION Validity of Matrimonial Agreement In his first assignment of error, Michael contends that the trial court erred in not finding that the agreement was invalid due to statutory deficiencies. He contends that the agreement did not comply with La.Civ.Code art. 2329, in that no judicial determination was made that the agreement was in the best interest of the parties and that the parties understood the governing principles and rules.

The Louisiana Civil Code provides: Art. 2328. Contractual regime; matrimonial agreement LA matrimonial agreement is a contract establishing a regime of separation of property or modifying or terminating the legal regime. Spouses are free to establish by matrimonial agreement a regime of separation of property or modify the legal regime as provided by law. The provisions of the legal regime that have not been excluded or modified by agreement retain their force and effect. Art. 2329.

Exclusion or modification of matrimonial regime Spouses may enter into a matrimonial agreement before or during marriage as to all matters that are not prohibited by public policy. Spouses may enter into a matrimonial agreement that modifies or terminates a matrimonial regime during marriage only upon joint petition and a finding by the court that this serves their best interests and that they understand the governing principles and rules. They may, however, subject themselves to the legal regime by a matrimonial agreement at any time without court approval.

During the first year after moving into and acquiring a domicile in this state, spouses may enter into a matrimonial agreement, without court approval. We begin our review by observing that this is not a case where the parties entered into the agreement within the first year of moving into and acquiring domicile in the state, a situation which would not have required court approval according to the third paragraph of

Article 2329. Rather, the agreement at issue was entered into during the marriage and required judicial approval as described in the second paragraph of

Article 2329. Thus, the trial court was required to make a twofold determination: 1) that the joint petition to terminate the matrimonial regime serves the parties’ best interests and; 2) that the parties understand the governing principles and rules. Despite the necessity for the trial court’s consideration of the matrimonial agreement before it was signed, there is no indication that any procedure ]¿was followed in this case other than the submission of a joint petition with the attached agreement, which was followed by an order by the trial court. According to

Article 2329, this procedure, as a matter of law, was insufficient to terminate the matrimonial regime and, therefore, we find error in the trial court’s failure to recognize the lack of compliance with the codal requirement. See Poirier v. Poirier, 626 So.2d 868 (La.App. 3 Cir.), writ denied, 634 So.2d 389 (La.1994); Lauga v. Lauga, 537 So.2d 758 (La.App. 4 Cir.1989). Because the matrimonial agreement does not meet the formal requirements found in

Article 2329, we find that it is null and void insofar as it modifies or terminates the matrimonial regime of the parties. However, our analysis does not end there because the agreement entered into between the parties did not simply attempt to terminate the matrimonial regime. Rather, it contained language involving spousal support upon the event of separation or divorce. We shall consider whether those terms of the agreement are enforceable. We recently visited this issue in the factually similar case of Boudreaux v.

Boudreaux, 98-791 (La.App. 3 Cir. 6/2/99), 745 So.2d 61, wherein we found a post-nuptial agreement requiring the payment of alimony regardless of fault to be void because it was against public policy. In our view, the analysis should not stop here.

Article 2328 defines a matrimonial agreement as “a contract establishing a regime of separation of property or modifying or terminating the legal regime.” The

article further allows spouses to “establish, by matrimonial agreement, a regime of 17separation of property or modify the legal regime as provided by law.” Note also, that

Article 2329 allows spouses to “enter into a matrimonial agreement before or during marriage as to all matters that are not prohibited by public policy.” Before we can begin an analysis of the meaning of these articles, we must define legal regime. “The legal regime is the community of acquets and gains established in

Chapter 2 of this Title.” La.Civ. Code art. 2327. The “Title” set forth in the

Article 2327 is Title VI (of Book III, Of the Different Modes of Acquiring the Ownership of Things) entitled “Matrimonial Regimes.”

Chapter 2 of Title VI is entitled “The Legal Regime of Community of Acquets and Gains,” which sets forth, among other things, the general dispositions of the type of property a spouse can own, the ownership of that property, the acquisition of community and separate property, the management of the community property, and the termination of the community. At no place in Title VI, Matrimonial Regimes,

Chapter 2, the Legal Regime of Community of Acquets and Gains is there mentioned alimony (now periodic spousal support). We, therefore, initially conclude that a matrimonial agreement cannot affect periodic spousal support, as it is not contemplated in the meaning of “legal regime.” That being the case, the matrimonial agreement, which can only modify or terminate the legal regime, cannot establish periodic spousal support. Further, under

Article 2328, a matrimonial agreement is also a contract establishing a regime of separation of property. The clear wording of this portion of the statute provides only that the spouses may establish a separate property regime and not that they may contract for periodic spousal support. | ^Accordingly, under

Article 2329, spouses may enter into a matrimonial agreement before or during marriage, and that matrimonial agreement may only establish a regime of separation of property or modify or terminate the community of acquets and gains as set forth in

Chapter 2 in Title VI. The rules governing periodic spousal support are found in Book I (Of Persons), Title V (Divorce),

Chapter 2 (Provisional and Incidental Proceedings). Under those articles, final periodic spousal support may be awarded to a party who is (1) free from fault, (2) based on the needs of that party, and (3) the ability of the other party to pay. La.Civ.Code art. 111. We are cognizant of a line of cases, including Langley v. Langley, 94-726 (La.App. 3 Cir. 12/7/94), 647 So.2d 640, Klein v. Klein, 485 Só.2d 970 (La.App. 5 Cir.1986), writ denied, 489 So.2d 921 (La.1986), Jones v. Jones, 459 So.2d 1200 (La.App. 5 Cir.), writ denied, 462 So.2d 649 (La.1985), and Cunningham v.

Cunningham, 448 So.2d 910 (La.App. 3 Cir.1984), which have held that a promise to pay alimony after divorce can be the subject of a contract. We distinguished those cases in Bou-dreaux, and do so herein, finding that those cases dealt with contractual alimony and consent decrees ¿fter the parties had separated. In those cases, the contracts were confected during the pendency of a divorce action which ended the marriage, unlike this case, where the matrimonial or post-nuptial agreement was confected, as in Boudreaux, to save the marriage. We are also cognizant of the recent case of McAlpine v.

McAlpine, 94-1594 (La.9/5/96); 679 So.2d 85, which dealt with an antenuptial agreement which was con-fected approximately six weeks before marriage wherein the wife agreed to |9a separate property regime and a waiver of alimony pendente lite and permanent alimony. The agreement also provided that the wife would receive $25,000 at divorce, if the parties were married less than -six years, and $50,000 if they were married six years or more, regardless of fault or need on the part of the wife.

The supreme court, on rehearing, upheld the antenuptial agreement, concluding that such an agreement was not against public policy because “permanent alimony was not enacted to protect a public interest, but for the benefit of individuals. Further, we conclude that if protection of the public interest was ever a proper consideration for permanent alimony, that day has long since passed.” Id. at 87.' We also find McAlpine distinguishable from the instant case.

Here, we have a post-nuptial matrimonial agreement which provided for the payment of alimony, regardless of fault, need, or ability to pay, while in McAlpine, the agreement was antenuptial and waived the right to alimony (but provided for a lump sum payment in the case of divorce). We, further, consider whether, under

Article 2329, the matrimonial agreement at issue is “prohibited by public policy.” While it is clear under McAlpine that the waiver of alimony by a spouse in an antenuptial matrimonial agreement is not void as against public policy, the question is still unsettled as to whether a matrimonial agreement providing for alimony to a spouse regardless of fault or need on the part of the obligee spouse, or ability to pay on the part of the obligor spouse is void as against public policy.

Article 111 provides for an award of final periodic spousal support “to a party free from fault prior to the filing of a proceeding to terminate the marriage based on the needs of that party and the ability of the other |inparty to pay, in accordance with the following Articles.” La. Civ.

Code art. 112 provides certain relevant factors the court must consider “in determining the entitlement, amount, and duration of final support.” La.Civ.Code art. 114 provides that an “award of periodic support may be modified if the circumstances of either party change, and shall be terminated if it has become unnecessary.” In La.Civ.Code art. 115, the obligation of spousal support is extinguished by, among other things, the remarriage of the obligee or a judicial determination that the obligee has cohabited with another person of either sex in the manner of married persons.

Considering the intent of the legislature in the promulgation of the aforementioned articles, one could easily conclude that it is against public policy to allow,a spouse to obligate him/herself, by matrimonial agreement, to pay permanent periodic spousal support, regardless of a determination of fault, need, or ability to pay. We, therefore, find, as we did in Boudreaux, that such an agreement is void as against public policy and, accordingly, unenforceable.

Since we find merit in Michael’s first assignment of error, we need not consider his other assignments of error grounded on the trial court’s finding of a moral obligation owed by Michael to Iona or the issue of duress. Iona’s Answer to the Appeal Iona filed an answer to Michael’s appeal asserting that we should assess attorney’s fees, court costs, and expenses, contending that Michael’s arguments are |nfnvolous. Since we have found merit in Michael’s assignments of error and reverse the trial court, we find no merit in Iona’s Answer. DECREE For the foregoing reasons, the judgment of the trial court is reversed.

We find that the matrimonial agreement at issue in this case is null, void, and unenforceable. Costs of this appeal are taxed against the plaintiff-appellee, Iona Señora Wells Williams. REVERSED AND RENDERED. WOODARD, J., dissents for the reasons assigned by AMY, J., and for the reasons assigned by YELVERTON, J. in Bou-dreaux v. Boudreaux, 98-791 (La.App. 3 Cir.6/2/99); 745 So.2d 61. AMY, J., dissents and assigns reasons. .

We refer to the July 2, 1997 document in its entirety as an "agreement.” As seen below, however, this generic reference to the document is not to be confused with that portion of the document which addresses the termination of the matrimonial regime and which we refer to specifically, as a "matrimonial agreement.” . For appeal purposes, the consolidated matter is discussed under the above-docket mim-her. See Williams v. Williams, 99-1102 (La.App. 3 Cir. 4/12/99); 760 So.2d 478. .

While this finding is true with regard to the termination of the marital regime as of the date of the agreement, the separation of any community assets existing at the time of the agreement remains unchanged. See Poirier, 626 So.2d 868. . We also found the post-nuptial agreement in Boudreaux to be null and void because it lacked court approval. .

Those factors may include: (1) the needs of the party; (2) the income and means of the party, including the liquidity of such means; (3) the financial obligations of the party; (4) the earning capacity of the parties; (5) the effect of custody of children upon a party’s earning capacity; (6) the time necessary for the claimant to acquire appropriate education, training, or employment; (7) the health and age of the parties; (8) the duration of the marriage; (9) and the tax consequences to either or both parties.

Article 112 also provides that the sum awarded shall not exceed one-third of the obligor's net income.