David Gradon Clemons, Jr. v. Kristin Renee Diable

NOT DESIGNATED FOR PUBLICATION
STATE OF LOUISIANA
COURT OF APPEAL
FIRST CIRCUIT
NO. 2022 CA 0493
DAVID GRADON CLEMONS, JR.
W* Nalk
KRISTEN RENEE DIABLE
Judgment Rendered. JAN 10 2023
ky * .* * * * * * *
Appealed from the
21' Judicial District Court
In and for the Parish of Tangipahoa
State of Louisiana
Case No. 2020- 0000650
The Honorable Jeffery Oglesbee, Judge Presiding
F: F C x eF
J. Gamson Jordan Counsel for Plaintiff/Appellant
Hammond, LA David Gradon Clemons, Jr.
Nicholas J. Muscarello
Hammond, LA
Tracy E. Gold Counsel for Defendant/Appellee
Covington, LA Kristin Renee Diable
BEFORE: WELCH, PENZATO, AND LANIER, JJ.
LANIER, J.
The plaintiff, David Gradon Clemons, Jr., appeals from the Twenty -First
Judicial District Court' s judgment declaring the March 20, 2019 marriage
ceremony between Mr. Clemons and the defendant, Kristen Renee Diable, to be
valid and in compliance with Louisiana Civil Code article 87, et seq. In this
memorandum opinion, we affirm the trial court' s declaratory judgment.
Mr. Clemons and Ms. Diable began a romantic relationship in 2017, during
which Ms. Diable became pregnant. The couple then had a" commitment
ceremony" on December 8, 2018. Both Mr. Clemons and. Ms. Diable
acknowledged that the commitment ceremony was not an official marriage
ceremony, since they did not apply for nor obtain a marriage license, and the
officiant of the ceremony was not licensed to perform marriages. The purpose of
the commitment ceremony was to celebrate with their family and close friends.
The couple then planned to become legally married. They arranged for
Dominique LaToya Papillon -Herr, a wedding officiant licensed to perform
weddings in Louisiana, to meet them in New Orleans on March 20, 2019, with two
of their friends serving as witnesses. The ceremony was to take place in Ms.
Herr' s office, but Ms. Herr notified the group that she was running late to her
office and suggested they wait for her at a bar next door to her office. Ms. Herr
met the group at the bar and askedthem to follow her to her office, but the group
stated they would rather perform the ceremony at the bar. Ms. Herr performed a
signing ceremony," which consists of the wedding couple, two witnesses, the
officiant, and an agreement by the couple to be married. An official marriage
license, as well as a commemorative marriage certificate, were signed by all the
parties.
Ms. Diable gave birth on April 9, 2019, Mr. Clemons filed a petition for
custody in Tangipahoa Parish on March 2, 2020, requesting joint custody with him
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designated as the domiciliary parent, and alleging that Ms. Diable has substance
abuse and mental health issues. On or about April 8, 2020, Ms. Diable filed a
petition for divorce pursuant to La. C. C. art. 102 in Orleans Parish, claiming that
she and Mr. Clemons were unofficially married in New Orleans on December 8,
2018, and then legally married in New Orleans on March 20, 2019. Ms. Diable
claimed that since that time, she had separated from Mr. Clemons, who resided in
Tangipahoa Parish, and moved with the child to Orleans Parish. She also claimed
that Mr. Clemons has mental health, substance abuse, and anger issues, and has
been abusive toward her and the child. She therefore requested that there be joint
custody of the child with her designated as the domiciliary parent. Ms. Diable
further requested a partitioning of the community property and a judgment of
separation of property.
On May 6, 2020, Mr. Clemons filed a supplemental and amending petition
for custody, motion for declaratory judgment, and alternatively petition for divorce
pursuant to La. C. C. art. 102. Mr. Clemons alleged therein that he and Ms. Diable
applied for and received a marriage license on February 27, 2019, which they
signed on March 20, 2419; however, no vows or rings were exchanged, and the
marriage license was never filed and subsequently expired. Mr. Clemons therefore
attested that no legal marriage between himself and Ms. Diable had ever taken
place, and requested that a declaratory judgment be issued, declaring that he and
Ms. Diable had never been married. In the alternative, Mr. Clemons petitioned the
court for a divorce pursuant to La. C. C. art. 102.
On January 10, 2022, the district court rendered and signed a judgment
declaring that the ceremony conducted on March 20, 2019 was a valid marriage
ceremony between Mr. Clemons and Ms. Diable and in compliance with La. C. C.
art. 87, et seq. On February 4, 2022, Mr. Clemons filed the instant suspensive
appeal of the January 10, 2022 declaratory judgment.
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Mr. Clemons' s sole assignment of error is that the district court abused its
discretion by finding that the purported marriage of March 20, 2019, that occurred
in a bar with no vows, exchange of rings or terms of endearment, or any type of
ceremony was nevertheless legally valid. In reviewing the trial court' s findings as
to whether a valid marriage occurred, its factual findings should not be reversed on
appeal absent manifest error, or when those findings are deemed as clearly wrong.
See Stobart v. State through Dept. ofTransp. and Development, 617 So. 2d 880,
882 ( La. 1993).
Louisiana Civil Code art. 87 states that a valid contract of marriage in
Louisiana requires the absence of legal impediment', a marriage ceremony, and
free consent of the parties expressed at the ceremony. A marriage ceremony
requires the participation of both parties, and a third person who is qualified or
reasonably believed by the parties to be qualified to perform the marriage
ceremony. All three persons must be physically present at the ceremony when it is
performed. La. C. C. art. 91.
It is undisputed that Mr. Clemons, Ms. Diable, and Ms. Herr were all present
when the purported ceremony occurred. Ms. Diable testified she contacted Ms.
Herr and requested that she be the officiant of the ceremony, and both Mr.
Clemons and Ms. Diable stated that they believed Ms. Herr was legally authorized
to perform marriage ceremonies. Ms. Herr stated in her deposition that she was
legally authorized to perform marriage ceremonies. See La. R.S. 9: 201. Ms. Herr
further stated that, during the purported ceremony, when she asked Mr. Clemons
and Ms. Diable if it was their intent to be married, they both said " yes."
The Louisiana Civil Code lists the legal impediments as: an existing marriage; parties of the
same sex, parties with blood relationship; and a party being under the age of sixteen. La. C. C.
arts. 88- 90. 1. We note that the legal impediment of same sex has been declared unconstitutional
by the United States Supreme Court and Louisiana Supreme Court. See 4bergefell v. Hodges,
576 U. S. 644, 135 S. Ct. 2584, 192 L. Ed. 609 ( 2015); Constanza v. Caldwell, 167 So. 3d 619.
Regardless, Mr. Clemons has not raised the issue of a legal impediment to the marriage.
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Mr. Clemons argues that the marriage cannot be valid since no rings or vows
were exchanged, and that the marriage license was signed, but was not filed and
subsequently expired. We initially note that none of these are explicitly required
by La. C. C. art. 87. There is no Louisiana statute, nor any jurisprudence, which
states that an exchange of vows and/or rings is a requirement for a valid marriage.
Furthermore, comment ( d) to the article states that the parties' failure to procure a
marriage license will not prevent the creation of a valid marriage. See also
Succession of Jene, 173 So. 2d 857, 861 ( La. App. 4 Cir. 1965). While La. R.S.
9: 205 states that an officiant may not perform a marriage ceremony until he/ she
has received a license authorizing him/ her to perform that marriage ceremony, it is
silent as to whether the licensed must subsequently be filed in the public records.
At trial, Ms. Herr' s deposition and photographs of the purported ceremony
were filed into evidence. It is clear that the marriage license was signed from the
evidence and undisputed by the parties. Ms. Herr testified in her deposition that
the marriage license was signed by herself and the parties before a " fancy" or non-
legal certificate, was signed. Ms. Herr stated both the legal and " fancy"
certificates were signed and appear in the photographs. Additionally, the
photographs further reflect the parties' consent to be married. Ms. Herr also stated
that the marriage license did not have to be filed to make the marriage valid.
The evidence indicates that, while the marriage license may not have been
filed, it was presented to Ms. Herr and signed by the parties at the ceremony,
which would satisfy La. R. S. 9: 205. The trial court clearly found Ms. Herr' s
deposition testimony credible, and we do not find that the trial court committed
manifest error in doing so.
The judgment of the Twenty -First Judicial District court declaring the March
20, 2019 marriage ceremony to be in compliance with La. C. C. art. 87 et seq.,
therefore effecting a valid marriage between the appellant, David Gradon Clemons,
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Jr., and the appellee, Kristen Renee Diable, is affirmed. We issue this
memorandum opinion pursuant to Uniform Rules— Courts of Appeal, Rule 2-
16. 1( B). See Breen v. McMillin, 2018- 0909 ( La. App. 1 Cir. 2125119), 2019 WL
926892, at * 2 ( unpublished). All costs of this appeal are assessed to Mr. Clemons.
AFFIRMED.
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STATE OF LOUISIANA
COURT OF APPEAL
FIRST CIRCUIT
2022 CA 0493
DAVID GRADON CLEMONS, JR.
VERSUS
KRISTIN RENEE DIABLE
t PENZATO, J., dissenting.
I respectfully disagree with the majority opinion affirming the January 10,
2022 judgment because I do not believe we have jurisdiction over this appeal. Mr.
Clemons sought a declaratory judgment that the parties " are not and have never
been legally married to each other by law." I find that the January 10, 2022
judgment is an interlocutory ruling declaring the March 20, 2019 marriage
ceremony to be valid. This court' s appellate jurisdiction only extends to final
judgments. In the absence of a valid final judgment this court lacks subject matter
jurisdiction and the appeal should be dismissed. Advanced Leveling & Concrete
Solutions v. Lathan Company, Inc., 2017- 1250 ( La. App. 1 Cir. 12120/ 18), 268 So.
3d 1044, 1046 ( en banc).
Thus, I respectfully dissent.