The opinion
STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT
CA 04-673
DEBRA PARISH PHILMON
VERSUS
JAKE C. PHILMON
**********
APPEAL FROM THE
FOURTEENTH JUDICIAL DISTRICT COURT
PARISH OF CALCASIEU, NO. 99-8358
HONORABLE GUY ERNEST BRADBERRY, DISTRICT JUDGE
**********
JOHN D. SAUNDERS
JUDGE
**********
Court composed of Sylvia R. Cooks, John D. Saunders, and Oswald A. Decuir,
Judges.
AFFIRMED IN PART, REVERSED IN PART AND RENDERED.
W alter M arshall Sanchez
Attorney At Law
P. O. Box 3305
Lake Charles, LA 70602-3305
(337) 436-8401
Counsel for: Defendant/Appellee
Jake C. Philmon
Kathleen Kay
Attorney at Law
P. O. Box 2042
Lake Charles, LA 70602-2042
(337) 439-7616
Counsel for: Plaintiff Appellant
Debra Parish Philmon
SAUNDERS, J.
Issues before the court arise out of a community property partition in which
Mrs. Haymark seeks the rental value of the home for the period during which Mr.
Philmon resided in the home. Mr. Philmon seeks reimbursement for mortgage
payments he made on the home between February 2001 until June 2003. Moreover,
the trial court appointed an appraiser to value the home and Mrs. Haymark challenges
that action by the court.
FACTS
Debra Haymark and Jake Philmon were married on June 2, 1972. After twenty-
eight years of marriage, the couple divorced on August 4, 2000. In Mrs. Haymark’s
petition for divorce, she requested the use and occupancy of the family home, which
the court granted. She also requested interim spousal support. Mr. Philmon was
ordered to pay interim spousal support in the form of the mortgage payment, the van
note and $350.00 cash per month. Once the van note was paid in full, Mr. Philmon
would then pay $600.00 a month plus the mortgage. In that agreement, she waived
her right to reimbursement of the mortgage payment, and he waived his right to rental
reimbursement. The interim spousal support was set to terminate on January 31,
2001. Upon termination, she requested final periodic support, which the court
granted to last until some point in 2004. The final periodic support no longer
provided for Mr. Philmon to pay the mortgage payment on the family home as part
of the support award. The amount ordered was less than the mortgage payment on
the home. In February 2001, Mrs. Haymark left the family home, and that same
month, Mr. Philmon moved into the family home. On March 30, 2001, she requested
that Mr. Philmon be awarded use and occupancy of the family home and that she be
granted the fair rental value for his use of the home. The parties agreed to defer these
issues to the community property partition.
The trial on the community property partition was held on June 18, 2003, and
disposed of all the issues except (1) the fair market value of the home, (2) Mr.
Philmon’s entitlement to reimbursement for mortgage payments made between
February 1, 2001 through June 18, 2003, and (3) Mrs. Haymark’s entitlement to rental
value of the home during Mr. Philmon’s occupancy. Mrs. Haymark’s appraiser,
David Bordelon, appraised the fair market value of the home at $158,000.00. Mr.
Philmon’s appraiser, Michael Mitchell, appraised the home at $134,000.00. In
September 2003, in the written reasons for judgment, the court granted Mr. Philmon
mortgage payment reimbursement, denied Mrs. Haymark’s request for rental
reimbursement, and appointed an appraiser to set the value of the home. The court
appointed appraiser valued the home at $115,000.00.
PROCEDURAL HISTORY
The parties were divorced on August 4, 2000. On September 23, 2003, the trial
court denied the plaintiff’s claim for rental reimbursement, granted the defendant’s
request for reimbursement of mortgage payments, and appointed an appraiser to value
the home without affording an opportunity to the parties to cross examine the
appraiser. The plaintiff filed a timely suspensive appeal on April 2, 2004.
ASSIGNMENT OF ERRORS
1) The plaintiff argues that the trial court erroneously concluded that
Haymark was not entitled to rental value on Philmon’s use of the family
home from time of his occupancy until date of the trial of the partition.
2) The plaintiff contends the trial court erroneously allowed Philmon a
reimbursement of mortgage payments made after termination of the
2
community.
3) The plaintiff contends the trial court erroneously appointed an expert
without issuing a rule to show cause as required by La.Code Evid. art.
706, after the close of evidence, and ordered that the value assigned by
that expert would be the value found by the court without allowing any
party an opportunity to cross-examine the expert.
LAW AND ANALYSIS
Findings of the trial court are reviewable on appeal, and the third circuit’s
requisite standard of review has been clearly established. A trial judge’s findings of
fact will not be disturbed unless they are manifestly erroneous or clearly wrong.
Stobart v. State, through Dep’t of Transp. & Dev., 617 So.2d 880 (La.1993). “Absent
‘manifest error’ or unless it is ‘clearly wrong,’ the jury or trial court’s findings of fact
may not be disturbed on appeal.” Sistler v. Liberty Mut. Ins. Co., 558 So.2d 1106,
1111 (La.1990). “If the trial court or jury’s findings are reasonable in light of the
record reviewed in its entirety, the court of appeal may not reverse, even though
convinced that had it been sitting as the trier of fact, it would have weighed the
evidence differently.” Id. at 1112.
ASSIGNMENT OF ERROR NUMBER ONE
The plaintiff requests this court to reverse the trial court’s finding that rental
reimbursement was not appropriate. The starting point for determining whether rent
is appropriate is La.R.S. 9:374(C), which provides:
A spouse who uses and occupies or is awarded by the court the use and
occupancy of the family residence pending either the termination of the
marriage or the partition of the community property in accordance with
the provisions of R.S. 9:374(A) or (B) shall not be liable to the other
spouse for rental for the use and occupancy, unless otherwise agreed by
the spouses or ordered by the court.
McCarroll is the leading Louisiana Supreme Court authority interpreting this statute.
3
McCarroll v. McCarroll, 96-2700 (La. 10/21/97), 701 So.2d 1280. In McCarroll,
the court stated, “. . . that rental payments may not be retroactively assessed under
La.R.S. 9:374(C) unless otherwise agreed by the spouses or ordered by the court.”
Id. at 1289.
In the present case, Mrs. Haymark abandoned her court ordered use of the
family home in February 2001, and Mr. Philmon, as co-owner, moved in. Mr.
Philmon moved into the home prior to Mrs. Haymark’s petition to place him in
possession of the home. According to La.R.S. 9:374(C), rent is not assessed
retroactively. “Once the community of acquets and gains is dissolved by separation,
the spouses become co-owners in indivision of the marital home.” Kline v. Kline, 98-
1206, p. 5 (La.App. 3 Cir. 2/10/99), 741 So.2d 670, 672.
The use and management of a thing held in indivision is determined by
agreement of all the co-owners. A co-owner is entitled to use the thing
held in indivision according to its destination, but he cannot prevent
another co-owner from making such use of it. Nevertheless, it is well
established that a co-owner need not pay rent to another co-owner for
his exclusive use of the co-owned property.
McCarroll v. McCarroll, 96-2700 (La. 10/21/97), 701 So.2d 1280, 1289 (citations
omitted.)
Once Mrs. Haymark abandoned the home, she could not prevent Mr. Philmon
from using or occupying the property. As co-owners, once her use ended by her own
choice, he had the right to step in and use the property regardless of her request to the
court to grant him the use of the property. As a co-owner, Mr. Philmon does not need
the court’s permission to occupy abandoned co-owned property.
This right of co-owners to possession of the property being equal and
co-extensive, neither becomes indebted to the other for his personal
occupancy and enjoyment, save, probably, that a co-owner, who has
4
been deprived of the right of possession by reason of his co-owner’s
exclusive occupancy, may claim damages from the date upon which he
has demanded occupancy and has been refused by the possessor.
Id. at 1290 (citations omitted).
Under the principles enunciated in Juneau, a co-owner in exclusive
possession may be liable for rent, but only beginning on the date
another co-owner has demanded occupancy and has been refused. This
underlying principle amply supports the requirement that for the
assessment of rent under La.R.S. 9:374(C), there must be an agreement
between the spouses or a court order for rent contemporaneous with the
award of occupancy. . . . Public policy also weighs heavily against the
retroactive award of rent under La.R.S. 9:374(C). As is plainly
illustrated by the case sub judice [Juneau], when the community is not
partitioned for many years, the retroactive assessment of rent is
extremely prejudicial to the occupying spouse. Such retroactive
assessment deprives the occupying spouse of the ability to make an
informed and meaningful decision regarding his or her finances and
housing budget. There is no corollary prejudice to the non-occupying
spouse under this interpretation of the statute, since that spouse has the
ability to invoke a court proceeding to determine occupancy and rent at
any time. La.Civ.Code art. 105.
McCarroll v. McCarroll, 96-2700 (La. 10/21/97), 701 So.2d 1280, 1290.
Mrs. Haymark willingly and voluntarily left the family home. From that date,
she never demanded to re-occupy the home, but rather requested the court to grant
Mr. Philmon the right to occupy the home. Therefore, we affirm the trial court’s
decision to deny the plaintiff’s request for rental reimbursement for the defendant’s
use of the home while the home remained community property.
ASSIGNMENT OF ERROR NUMBER TWO
The plaintiff requests that this court reverse the trial court’s decision to grant
Mr. Philmon mortgage payment reimbursement. In February 2001, Mrs. Haymark
abandoned her court ordered use and occupancy of the family home. Upon her
abandonment, Mr. Philmon, as co-owner, asserted his right to use and occupancy by
5
moving into the home. From February 1, 2001 through June 18, 2003 (date of
partition where he was awarded the home) he lived in the home, maintained the home
and paid all mortgage payments, and also paid Mrs. Haymark’s final periodic support.
Mrs. Haymark contends that Sheridon supports disallowance of reimbursement
for mortgage payments, however, this reading of Sheridon is incorrect. Sheridon v.
Sheridon, 03-103 (La. App. 3 Cir. 2/4/04), 867 So.2d 38. In Sheridon, the court
allowed Mrs. Sheridon to receive reimbursement for mortgage payments made from
October 5, 1999 until November 15, 2001 (period from the date Mrs. Sheridon filed
for divorce until the date of partition). The court disallowed the reimbursement of
mortgage payments made from November 15, 2001 until August 15, 2002 (the date
of partition to the date of judgment). The portion of the opinion Mrs. Haymark
quotes pertains to reimbursement for payments made on a community movable and
does not pertain to a community immovable.
Mr. Philmon maintained the family home and paid all the mortgage payments
from February 2001 through June 2003. This time period is prior to the community
partition and as such, the home remained community property. The Sheridon case
supports our decision today as they allowed reimbursement for the period the home
was community property, but disallowed reimbursement for the period of time
following the partition. Therefore, we affirm the trial court’s decision to award the
defendant reimbursement for mortgage payments made on the family home from
February 2001 until June 2003.
ASSIGNMENT OF ERROR NUMBER THREE
Both Mrs. Haymark and Mr. Philmon supplied the court with a detailed
6
appraisal of the home. Mr. Philmon enlisted Michael Mitchell to appraise the home
and his appraisal, conducted on March 15, 2001, valued the home at $134,000.00.
Mrs. Haymark hired Broker’s Price to conduct an appraisal. The home was appraised
at $158,000.00 on June 10, 2003. There is a difference of $24,000.00 between the
two appraisals. The trial court did not consider either appraisal, but merely took note
of the two and after trial ordered an independent appraisal. This appraisal was
ordered to be accepted as the court approved valuation of the home.
Louisiana Code of Evidence article 702 provides when expert testimony may
be used. “If scientific, technical, or other specialized knowledge will assist the trier
of fact to understand the evidence or to determine a fact in issue, a witness qualified
as an expert by knowledge, skill, experience, training, or education, may testify
thereto in the form of an opinion or otherwise.” Also, Louisiana Code of Evidence
article 706(A) provides when the court may appoint an expert.
In a civil case, the court may on its own motion or on the motion of any
party enter an order to show cause why expert witnesses should not be
appointed, and may request the parties to submit nominations. The court
may appoint any expert witnesses agreed upon by the parties, and may
appoint expert witnesses of its own selection. An expert witness shall
not be appointed by the court unless he consents to act. A witness so
appointed shall be informed of his duties by the court in writing, a copy
of which shall be filed with the clerk, or at a conference in which the
parties shall have the opportunity to participate. A witness so appointed
shall advise the parties of his findings, if any; his deposition may be
taken by any party; and he may be called to testify by the court or any
party.
Mrs. Haymark contends and Mr. Philmon concedes that the court abused its
discretion by ordering an expert without an order to show cause. She also contends
that the court abused its discretion when it ordered that the expert’s appraisal would
be the value accepted by the court, thus, denying the parties an opportunity to cross
7
examine the expert. “Moreover, that expert, as any other expert, clearly should be
subject to cross examination by the parties. Otherwise, . . . the report is objectionable
and inadmissible as hearsay. The authority of the trial court . . . however broad, does
not include the right ex parte to consider evidence obtained without affording the
parties the opportunity of cross examination.” Petroutson v. First Nat’l Bank of
Jefferson Parish, 631So.2d 1172, 1174 (La.App. 5 Cir.), writ denied, 635 So.2d 1113
(La.1994). Dufhilo states “[a]lthough La.C.E. art. 706(A) does not so provide, it
seems to us that fundamental fairness requires that a court-appointed expert should
be subject to cross-examination.” Dufhilo v. D’Aquin, 615 So.2d 522, 526 (La.App.
3 Cir. 1993).
The trial court did not afford the parties an opportunity to cross examine the
court appointed expert. We therefore reverse the trial court’s appraisal of
$115,000.00 and based on the evidence, we will set the value of the home.
When such a prejudicial error of law skews the trial court’s finding of
a material issue of fact and causes it to pretermit other issues, the
appellate court is required, if it can, to render judgment on the record by
applying the correct law and determining the essential material facts de
novo.
Lasa v. Olin Corp., 625 So.2d 1002, 1006 (La.1993).
Mr. Philmon had the home appraised on March 15, 2001, and it was appraised
at $134,000.00. More than two years later, Mrs. Haymark had the house appraised
and it was valued at $158,000.00. During this two-year period, Mr. Philmon had
performed numerous improvements on the home. He painted the kitchen, changed
the bathroom fixtures, and had the sheet rock repaired. Wallpaper was added, tile
installed and carpet was installed in the living room, the four bedrooms, the hall and
the closets. The total costs of improvements was $7,468.65. These improvements
8
added value to the home over that of the first appraisal of $134,000.00 and, as such,
equity would dictate that the costs for improvements should be deducted from Mrs.
Haymark’s appraisal. Deduction for the costs of improvements from Mrs. Haymark’s
appraisal reduces her appraised value to approximately $150,000.00. The difference
between the two appraisals is now $16,000.00. We grant equal weight to the two
appraisals and therefore set the value of the home at $142,000.00.
CONCLUSION
We affirm the trial court’s denial of rental reimbursement to Mrs. Haymark,
and affirm the decision to grant Mr. Philmon mortgage payment reimbursement. We
reverse the trial court’s decision to appoint an appraiser and adopt that value as the
value of the home, and thus set the value of the home at $142,000.00. Costs of this
appeal are to be split between the parties, with Mrs. Haymark paying 2/3 of the costs
and Mr. Philmon to pay 1/3 of the costs.
AFFIRMED IN PART, REVERSED IN PART AND RENDERED.
9