#### Beverly Lambert ALBRECHT v. Robert Joseph ALBRECHT.

No. 10742.

Court of Appeal of Louisiana, Fourth Circuit.

Oct. 4, 1979.

Rehearing Denied Nov. 19, 1979.

C. James Gelpi, New Orleans, for plaintiff-appellant.

John David Cassanova, Metairie, for defendant-appellee.

Before REDMANN, LEMMON and BOU-TALL, JJ.

LEMMON, Judge.

This is an appeal from the dismissal of an action to annul a default judgment which had granted the husband’s reconventional demand for separation based on abandonment.

On February 1,1978 Mrs. Albrecht filed a petition for separation based on cruelty. *522On February 22, 1978 her husband filed an answer and reconventional demand for separation, denying the cruelty and alleging that Mrs. Albrecht had abandoned him without lawful cause.

On April 26, 1978 Mr. Albrecht’s counsel entered a preliminary default, and the judgment was confirmed on May 4, 1978. At the confirmation hearing the attorney, when questioned by the court about communication with the wife’s counsel of record, stated:

> “No. I have called his office. I never received any correspondence back from him.

> “Mr. Albrecht and his wife have talked and want to amicably settle this matter to go forward.

> “They may reconcile or they may not. At this point they want to minimize the legal fees involved in this.”

In June, 1978 the wife filed a petition for nullity of the default judgment, alleging (1) “the issues are joined and should not be subject to a judgment through default by one of the parties” and (2) the attorney^, and parties had contemplated an amicable resolution of the issues so that obtaining a default judgment without notice was an improper action.

At the trial of the nullity action Mrs. Albrecht denied that she and her husband had agreed to let the matter go by default, as represented at the confirmation. The husband did not remember telling his lawyer they had reached such an agreement, but he also specifically denied he had ever agreed to withhold action on the reconven-tional demand. The trial court concluded that, since there had never been any communication between the lawyers, Mr. Al-brecht could properly obtain a default judgment with notifying counsel of record for his wife.

Mrs. Albrecht’s first contention on appeal addresses the validity of the default judgment. C.C.P. art. 2002 authorizes annulment of a default judgment against a defendant when no valid judgment by default has been taken.

When a defendant in an incidental action fails to answer within the time prescribed by law, judgment by default may be rendered against him. C.C.P. art. 1701. Here, although Mrs. Albrecht did not file a pleading labeled as an answer to the recon-ventional demand for separation based on abandonment without lawful cause, she had previously filed a pleading alleging the fact of her husband’s cruelty, which constitutes lawful cause for leaving the matrimonial domicile. In this jurisdiction which adheres to fact pleadings, it is evident that facts were pleaded by Mrs. Albrecht which denied her husband’s entitlement to a separation grounded on abandonment. The codal provisions governing default judgments contemplate that issue has not been joined except by entry of preliminary default. Moreover, since the Code mandates every pleading shall be construed so as to do substantial justice, the original petition under the circumstances of this case may justifiably be construed as an answer generally denying the reconventional demand. Accordingly, there was no valid judgment by default, and the judgment must be annulled.1

The judgment of the trial court in the nullity action is reversed, and it is now ordered that judgment be rendered annulling the default judgment of May 4, 1978. Assessment of costs will await further disposition.

*REVERSED AND RENDERED.*

BOUTALL, J., concurs and assigns reasons.

1

. We thus do not reach Mrs. Albrecht’s second contention of nullity based on ill practice.

BOUTALL, Judge,

concurring.

I concur that the judgment appealed should be reversed, but I cannot agree to the grounds upon which the majority would reverse it. It appears to me that the majority judgment holding that the allegations of the original petition constitute an answer to the reconventional demand is contrary to the provisions of our Code of Civil Proce*523dure. Article 1035 provides that the answer in an incidental action shall be filed within the delay allowed by Article 1001 and shall be subject to all of the rules set forth in Articles 1001 and 1003 through 1006. This petition does not meet the requirements of answers specified in Articles 1003 and 1004.

The majority would amend the Code of Civil Procedure and create some new procedural advice. I cannot conclude that Article 1701 intends to say that a judgment by default may be entered when the defendant fails to answer an incidental demand, except when the principal demand may dispute the issues raised in the incidental demand. Under the foregoing judgment, presumably an astute petitioner may now word his petition to eliminate entirely the requirement of filing an answer to a recon-ventional demand. Although we have fact pleading, the pleadings must still be governed by orderly rules of procedure, and it does not appear to me that our Code of Civil Procedure permits us to add this type of pleading.

Nevertheless, I concur in result because of the other issue raised in the nullity action. I believe that the facts alleged would constitute sufficient grounds for nullity either under fraud or ill practice. It is apparent from the record of confirmation of default that the trial judge was concerned about plaintiff in reconvention’s entitlement to proceed, and elicited from the attorney (who was sworn as a witness) that he was proceeding because there was an agreement between the parties permitting plaintiff in reconvention to proceed. On this basis he rendered judgment in favor of plaintiff in reconvention.

In the action for nullity, the attorney reiterated that he proceeded on the basis of the information told him by his client. The client however, denied telling the attorney that there was such an agreement. It is clear that there is a direct conflict between the testimony of plaintiff in reconvention and his attorney. One or the other must be incorrect. I place no credibility on the testimony of Mr. Albrecht and conclude that the judgment was obtained by giving to his lawyer a false statement, and causing the court to render judgment based upon that statement. Albrecht, of course, was present at the time of the statement and made no effort to deny it or correct it. He now seeks to excuse the difference in testimony on the basis that he has a very poor memory. However, poor memory cannot explain or excuse his silence and inaction during the confirmation of default.