The opinion
STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT
22-741
NOEL W. YATES
VERSUS
LISA J. YATES
**********
APPEAL FROM THE
THIRTIETH JUDICIAL DISTRICT COURT
PARISH OF VERNON, NO. 98,623
HONORABLE C. ANTHONY EAVES, DISTRICT JUDGE
**********
SHANNON J. GREMILLION
JUDGE
**********
Court composed of Shannon J. Gremillion, Van H. Kyzar, and Sharon Darville
Wilson, Judges.
AFFIRMED IN PART AS AMENDED;
REVERSED IN PART; AND REMANDED.
Elvin C. Fontenot, Jr.
Attorney at Law
110 East Texas Street
Leesville, LA 71446
(337) 239-2684
COUNSEL FOR PLAINTIFF/APPELLEE:
Noel W. Yates
E. Grey Burnes Talley
Talley & Talley LLP
711 Washington Street
Alexandria, LA 71301
(318) 442-5231
COUNSEL FOR DEFENDANT/APPELLANT:
Lisa J. Yates
GREMILLION, Judge.
Lisa J. Yates appeals the trial court’s judgment that partitioned the
community property existing between her and her former spouse, Noel W. Yates.
For the following reasons, we affirm in part as amended, reverse in part, and
remand with instructions.
FACTUAL AND PROCEDURAL BACKGROUND
Lisa and Noel married in June 1989, and separated in early July 2019. Noel
filed a Petition for Divorce Pursuant to La.Civ.Code art. 102 on February 27, 2020.
On February 24, 2021, Noel filed a “Rule to Show Cause for Separation of
Property Pursuant to La. Civ. C. Art. 2374(C).” On that same day, he filed a
second supplemental and amending petition seeking the eviction of Lisa from the
family home and granting him exclusive use if he was appointed domiciliary
parent. Alternatively, Noel sought “reimbursement from defendant for the rental
value associated with defendant’s exclusive use and occupancy of the residence.”
On April 19, 2021, Noel filed a motion for judgment of final divorce and
fault hearing. Following a May 20, 2021 hearing, the trial court granted a
Judgment of Divorce that was signed on June 23, 2021. The Judgment of Divorce
terminated the community property regime retroactive to February 27, 2020. The
judgment ordered that all other orders would be unaffected, and Noel was to
continue paying the monthly amount for “household expenses and maintenance.”
Following a May 25, 2021 hearing, a judgment rendered on July 14, 2021, awarded
Lisa use of the former matrimonial home and “interim spousal support in the
amount of $900.00, per month, beginning March 17, 2020, which shall terminate
on May 31, 2021.” It denied Lisa’s request for permanent periodic support and
deferred Noel’s request for rental reimbursement to the partition of the community
property along with both parties’ requests for attorney fees.
Noel filed a Petition for Judicial Partition of Community Property on August
3, 2021. He filed his first sworn detailed descriptive list on September 14, 2021.1
Lisa filed her first sworn detailed descriptive list on November 10, 2021. Noel
filed a motion for a court-appointed appraiser on December 17, 2021. On January
24, 2022, Noel filed an amended sworn detailed descriptive list of community
property.2 On February 24, 2022, the trial court signed an order ordering Lisa and
Noel each to pay one-half of the $500.00 for the appraisal prepared by Charest
Thibodeaux. Lisa filed her traversal on March 31, 2022. Noel filed an amended
sworn detailed descriptive list of community property on May 17, 2022. 3 A
1
Noel’s claims for reimbursement were:
1. Home insurance premiums Included in the mortgage
2. Property taxes on home 1748.00
3. 2019 Federal and state income taxes 820.00
4. Deposit made to joint bank account since separation $36,277.00
5. Health, vision and dental insurance $12,920.08
6. Rental Reimbursement $13,500.00
Total Payments by Noel W. Yates $65,265.08
2. LESS: One-half $32,632.54
TOTAL CLAIM FOR REIMBURSEMENT $32,632.54
2
Noel’s claims for reimbursement were:
1. Rental reimbursement on barn for horse stabling $TBD
2. Home insurance premiums Included in the mortgage
3. Property taxes on home 2607.34
4. 2019 Federal and state income taxes 820.00
5. Deposit made to joint bank account since separation $36,277.00
6. Health, vision and dental insurance $12,920.08
7. Rental reimbursement $41,400.00
8. Personal Items destroyed by fire 2,500.00
9. VPSO Items destroyed by fire 500.00
10. House note to Rocket Mortgage 5,800.00
11. Yates Estate TBD.00
Total Payments by Noel W. Yates $101,954.08
2. LESS: One-half $50,982.54
TOTAL CLAIM FOR REIMBURSEMENT $50,982.54
3
Noel’s claims for reimbursement were:
1. Rental reimbursement on barn for horse stabling $10,200.00
2. Home insurance premiums (Included in the mortgage) TBD.00
3. Property taxes on home 2607.34
4. 2019 Federal and state income taxes 820.00
5. Deposit made to joint bank account since separation $36,277.00
6. Health, vision and dental insurance $12,920.08
7. Rental reimbursement $41,400.00
8. Personal Items destroyed by fire 2,500.00
9. VPSO Items destroyed by fire 500.00
10. House note to Rocket Mortgage 7975.00
2
partition hearing was held on May 24, 2022. The trial court rendered its oral ruling
on the partition at a hearing on June 1, 2022.4 A judgment of partition was signed
on July 13, 2022.5 Lisa timely appealed.6 7 8
ASSIGNMENTS OF ERROR
Lisa assigns as error:
1. It was error for the Trial Court to find the Barksdale checking and
savings accounts in Noel’s name were his separate property.
11. Yates Estate TBD.00
12. Withdrawal from Northern Trust Company (separate funds of Noel to contribute to
building of new home) $16,510.57
Total Payments by Noel W. Yates $131,709.99
2. LESS: One-half $65,855.00
TOTAL CLAIM FOR REIMBURSEMENT $65,855.00
4
At the beginning of the hearing, the trial court stated that all objections would be
deferred to the end. At the conclusion, Lisa objected as follows:
Okay, for the record, I need to voice an objection to the award of rental, or
stabling fees. And, then an objection to all of the reimbursement claims of Noel
Yates, which were not proven by anything other than his testimony. You know, if
he just stated what it was, and didn’t have a receipt or a canceled check or
anything of that nature.
5
The trial court’s judgment regarding Noel’s reimbursements states:
IT IS FURTHER ORDERED, ADJUDGED AND DECREED that NOEL W. YATES
shall receive the total of $158,298.82 as reimbursements, to wit:
1. $2,030.02 for payment on children’s insurance premiums;
2. $15,500.00 for attorney fees;
3. $250.00 for appraisal;
4. $77.00 for transcript;
5. $12920.08 for health and vision insurance premiums;
6. $7,975.00 for payments to Rocket Mortgage;
7. $41,400.00 for rental reimbursement;
8. $2,607.34 for payment of property taxes;
9. $39,262.38 for Yates estate; and
10. $36,277.00 for payments into joint account.
6
We note that Lisa’s brief exceeds the page limit and does not address the assignments of
error set forth in sections or any other cohesive manner. Instead, it is just one long document
with no headings or delineation between assignments.
7
We additionally note that Noel’s six-page brief states: “Appellee has attempted to
coordinate the exhibits filed by parties with the testimony on the subject matters at issue;
however, the original exhibits were transferred to the Third Circuit Court of Appeal and were not
available for my review and to insure the accuracy of the exhibits correspond to specific
testimony.”
8
According to Lisa’s counsel, the judgment was prepared by Noel’s counsel. Lisa’s
counsel requested additional time to review the judgment because she had to attend an out-of-
state funeral, but the request was denied.
3
2. It was error for the Trial Court to award Noel half of Lisa’s
MidAmerica Premium retirement, while awarding Noel all of his
Social Security retirement and Lisa all of hers.
3. It was error for the Trial Court to find the alleged $2,000.00
Schamerhorn bill to be a community debt without any
corroborating/documentary or testimonial evidence whatsoever.
4. It was error for the Trial Court to sign a Judgment which does not
conform to its ruling.
5. It was error for the Trial Court to grant Noel a reimbursement
claim for payments on the children’s insurance premiums.
6. It was error for the Trial Court to grant Noel a reimbursement
claim for $250.00 for the appraisal of the former matrimonial
domicile, without granting Lisa the same.
7. It was error for the Trial Court to award Noel a reimbursement
claim of $12,920.09 for payment of health and vision insurance,
when it was ordered as spousal support.
8. It was error for the Trial Court to award Noel a reimbursement
claim of $7,975.00 for payments to Rocket Mortgage when he did
not prove he made payments in that amount.
9. It was error for the Trial Court to award Noel a reimbursement
claim for rental of the former matrimonial domicile.
10. It was error for the Trial Court to award Noel a reimbursement
claim for payment of property taxes without any documentary
evidence (or even clear testimony) that he paid that amount of
property taxes on the former matrimonial domicile.
11.It was error for the Trial Court to award Noel a reimbursement
claim for the Yates estate.
12.It was error for the Trial Court to award Noel a reimbursement
claim for deposits into the joint account.
When the parties cannot agree on a partition, La.R.S. 9:2801 sets forth the
procedure a trial court must follow when partitioning the former spouses’ property:
A. When the spouses are unable to agree on a partition of
community property or on the settlement of the claims between the
spouses arising either from the matrimonial regime, or from the co-
ownership of former community property following termination of the
matrimonial regime, either spouse, as an incident of the action that
would result in a termination of the matrimonial regime or upon
termination of the matrimonial regime or thereafter, may institute a
proceeding, which shall be conducted in accordance with the
following rules:
4
....
(4) The court shall then partition the community in
accordance with the following rules:
(a) The court shall value the assets as of the time of trial on the
merits, determine the liabilities, and adjudicate the claims of the
parties.
(b) The court shall divide the community assets and liabilities
so that each spouse receives property of an equal net value.
(c) The court shall allocate or assign to the respective spouses
all of the community assets and liabilities. In allocating assets and
liabilities, the court may divide a particular asset or liability equally or
unequally or may allocate it in its entirety to one of the spouses. The
court shall consider the nature and source of the asset or liability, the
economic condition of each spouse, and any other circumstances that
the court deems relevant. As between the spouses, the allocation of a
liability to a spouse obligates that spouse to extinguish that liability.
The allocation in no way affects the rights of creditors.
(d) In the event that the allocation of assets and liabilities
results in an unequal net distribution, the court shall order the payment
of an equalizing sum of money, either cash or deferred, secured or
unsecured, upon such terms and conditions as the court shall direct.
The court may order the execution of notes, mortgages, or other
documents as it deems necessary, or may impose a mortgage or lien
on either community or separate property, movable or immovable, as
security.
(e) In the event that the allocation of an asset, in whole or in
part, would be inequitable to a party, the court may order the parties to
draw lots for the asset or may order the private sale of the asset on
such terms and conditions as the court deems proper, including the
minimum price, the terms of sale, the execution of realtor listing
agreements, and the period of time during which the asset shall be
offered for private sale.
(f) Only in the event that an asset cannot be allocated to a party,
assigned by the drawing of lots, or sold at private sale, shall the court
order a partition thereof by licitation. The court may fix the minimum
bids and other terms and conditions upon which the property is
offered at public sale. In the event of a partition by licitation, the court
shall expressly state the reasons why the asset cannot be allocated,
assigned by the drawing of lots, or sold at private sale.
B. Those provisions of a domestic relations order or other
judgment which partitions retirement or other deferred work benefits
between former spouses shall be considered interlocutory until the
domestic relations order has been granted “qualified” status from the
5
plan administrator and/or until the judgment has been approved by the
appropriate federal or state authority as being in compliance with
applicable laws. Amendments to this interlocutory judgment to
conform to the provisions of the plan shall be made with the consent
of the parties or following a contradictory hearing by the court which
granted the interlocutory judgment. The court issuing the domestic
relations order or judgment shall maintain continuing jurisdiction over
the subject matter and the parties until final resolution.
Louisiana Civil Code Article 2338 defines community property:
The community property comprises: property acquired during
the existence of the legal regime through the effort, skill, or industry
of either spouse; property acquired with community things or with
community and separate things, unless classified as separate property
under Article 2341; property donated to the spouses jointly; natural
and civil fruits of community property; damages awarded for loss or
injury to a thing belonging to the community; and all other property
not classified by law as separate property.
Appellate review of a trial court’s factual determinations relating to the
partition of community property is as follows:
The trial court’s findings of fact are subject to the manifest
error/clearly wrong standard of review. David [v. David, 12-1051,
(La.App. 3 Cir. 4/10/13],117 So.3d 148, [writ denied, 131541 (La.
10/4/13), 122 So.3d 1023]. However, the trial court is accorded
broad discretion in resolving community property disputes.
Williams v. Williams, 07-541 (La.App. 3 Cir. 10/31/07), 968 So.2d
1234.
Keenan v. Keenan, 15-828 p. 5 (La.App. 3 Cir. 2/3/16), 186 So.3d 289, 295–96,
writ denied, 16-418 (La. 4/15/16), 191 So.3d 590. Legal errors are always
reviewed de novo. Rosell v. ESCO, 549 So.2d 840 (La.1989). “[A]n appeal lies
from the judgment itself, not the reasons for judgment.” La.Code Civ.P. art. 2083;
Bezou v. Bezou, 15-1879 (La.App. 1 Cir. 9/16/16), 203 So.3d 488, writ denied, 16-
1869 (La. 12/5/16), 210 So.3d 814. “Where the trial court’s reasons for judgment
are flawed, but the judgment is correct, the judgment controls. Reasons for
judgment set forth the basis for the court’s holding and are not binding.” Id. at 498
(citing Premier Games, Inc. v. State, Dep’t of Pub. Safety & Corr., Video Gaming
Div., 99-624 (La.App. 1 Cir. 5/12/00), 761 So.2d 707).
6
Assignment of Error One/Community Property Checking and Savings
Accounts
In this assignment, Lisa argues that the trial court erred in finding that the
Barksdale checking and savings accounts were Noel’s separate property because
they were established during the marriage and are subject to the presumption that
they were community property, and the deposit of separate funds into the accounts
did not convert them into separate property.
When separate and community funds are deposited into one
bank account, this fact does not convert the entire account into
community property. “Only when separate funds are commingled
with community funds indiscriminately so that the separate funds
cannot be identified or differentiated from the community funds are
all of the funds characterized as community funds.” Fulco v. Fulco,
50,256 (La.App. 2 Cir. 11/18/15), 183 So.3d 573; citing Curtis v.
Curtis, 403 So.2d 56 (La. 1981).
Bulloch v. Bulloch, 51,146, p. 24 (La.App. 2 Cir. 1/18/17), 214 So.3d 930, 944,
writ denied, 17-348 (La. 4/13/17), 218 So.3d 629.
Noel’s own testimony proves that the checking and savings accounts
contained community funds before he comingled his separate funds from his
inheritance into the accounts. Noel testified the accounts were established during
the marriage and had community funds in them before he deposited inheritance
funds. Noel said (emphasis added):
Q. Okay. So really your - - the assets in your possession, the
[incorporeal] assets in your possession should have this $1,480.01,
that was already in the checking account. And, it should also have the
$3,405.26, that was already in your savings account.
A. Correct.
The trial court’s judgment does not mention ownership of the two accounts.
But at the June 1, 2022 hearing, the following exchange occurred:
MRS. TALLEY:
I think that is correct, Judge. There is something that has came
[sic] up with regard of [sic] reimbursement claims. And that is Noel
7
Yates has an account with Barskdale that he used checks from, and
then – but he had not listed it. So, he did give testimony about – about
the existence of that account at the time he filed his petition.
BY THE COURT:
Right.
MRS. TALLEY:
And, in the record there is a statement that includes the balance
on the date that he filed the petition.
BY THE COURT:
Right.
MRS. TALLEY:
So, you’ll be awarding that to Noel Yates at whatever –
whatever the value was on November, I mean, February 27, 2020?
BY THE COURT:
Correct, but that’s going to be his separate property. I think
testimony was that was from his dad’s estate, you know.
MR. FONTENOT:
Correct.
MRS. TALLEY:
Well, but, Judge, it did – it did have that in there, but number
one, he’s made a reimbursement claim. And that’s his dad’s separate
property, and it went into a separate account. So, how can he make a
reimbursement claim for it, if it never touched community. And,
secondly, there was other money in there, and he testified that there
was several thousand dollars in both the checking and savings and it’s
on some of the exhibits that we had.
[MR. FONTENOT]
Well, I thought you were ruling on the case. I’m not prepared
to add or refute anything you said, because I thought all the evidence
was in. So, I don’t know what Ms. Talley is referring to, but I thought
we went through all of that when we were here the other day, so –
BY THE COURT:
8
So, I’m going to find, just for the record, that is Mr. Yates’s
separate property. There was some testimony, “Well, did you put a
check in there”. I think was about the only thing was, and I think he
said “yes”, actually to that. But, there was never a value established
as to what check was put in there, and how much was in there. I think
the clear majority from the testimony, because there was evidence
indicated that this was from this source from an Edward Jones or from
a life insurance. I think maybe even a burial policy was put in there
from his dad, if my memory was correct. So, of course, in the
community debt part of it, of course, Mr. Yates is going to have to,
and we’ll get to that in a second, but while I’m off track here, might as
well, of course, the value of the – appraised value of the home and the
acreage there was $590,000.00[.]
We find the trial court manifestly erred in determining that the Barksdale
checking and savings account were Noel’s separate property without taking into
account the funds existing when the community was still intact. Noel clearly
testified that the funds in the account were community property prior to the deposit
of the funds he received as part of his inheritance. Noel admits same in brief:
It is undisputed that the checking account had a balance of $1,480.00
before the Columbia Financial Check, which were proceeds from his
deceased father in the amount of $7,267.94, was deposited. The
savings account already had a community funds balance of $3,405.26
when the Edward D. Jones check, which he inherited from his father
in the amount of $8,701.00, was deposited. Appellee has no dispute
with the fact that those two accounts were community accounts. The
court did rule that those accounts were Noel’s separate property.
Appellee does not believe that that is what the court intended but
intended that the proceeds deposited in those accounts be recognized
as being Noel’s separate property. However, all of this was rectified
by the Trial Court later on when the court recognized that the funds,
although deposited in a community account were not so comingled
with the community funds in that account to destroy the separate
nature of those funds. Also, later on the court ruled that Noel Yates
was entitled to one-half the proceeds from that money as a
reimbursement claim when those funds were used to make
improvements to the barn and apartment to house Noel’s father before
he died.
Lisa does not dispute the fact that the two deposits from Noel’s inheritance
were his separate property. Nevertheless, the existing community funds prior to
the two inheritance deposits were community funds that were not properly
9
allocated between the parties under community assets.9 Thus, Lisa is entitled to
reimbursement for one-half of the community funds existing at that time which
amounts to $2,442.63.
Assignment of Error Two/Retirement Accounts
Lisa argues the trial court erred because it did not treat her MidAmerica
retirement account like a federal Social Security account because it is a Social
Security alternative. Lisa’s argument on appeal relating to the MidAmerica
account is reprinted in its entirety (footnote omitted):
It guarantees an interest rate. This feature shows it is a defined
contribution retirement plan, not subject to division by Sims.
Since this is a Social Security alternative account, it and Lisa’s
Social Security earned before her present employment should be
treated the same. If Noel gets all of his Social Security account, Lisa
should have received all of her Social Security and Social Security
alternative accounts.
We note that Lisa provides no law in support of her claim that a retirement
program that is a Social Security alternative should be treated the same as a federal
Social Security account. We further find no support for this claim. In Blanchard v.
Blanchard, 96-1031 (La.App. 5 Cir. 5/28/97), 697 So.2d 275, aff’d, 97-2305 (La.
1/20/99), 731 So.2d 175, the appellate court undertook an in-depth analysis of the
various means of partitioning retirement/pension plans including T.L. James & Co.,
v. Montgomery, 332 So.2d 834 (La.1976) (matured defined contribution
plandetermined based on the contributions the employee made during the
community), Sims v. Sims, 358 So.2d 919 (La.1978) (defined benefit plandivided
the amount of time in the plan during the community by the total number of work
years to determine a percentage earned during the community), and Hare v.
Hodges, 586 So.2d 118 (La.1991) (Sims is not exclusive means of apportioning
9
We note that this account remained a community account until the partition judgment
was rendered as will be discussed more fully in assignment of error twelve.
10
retirement benefitspresent value method can be applicable in some circumstances).
The Blanchard court noted there are many factors in determining whether to award
a present-day value of the retirement plan or a deferred interest, emphasizing the
trial court’s discretion in analyzing the particular facts of the case:
Thus, under La. R.S. 9:2801 and the variations added to the
Sims approach by Hare, the trial court, in considering a community
property partition involving pension rights, has the discretion to make
an equitable determination on a case by case basis, provided that
each spouse receives property of an equal net value, considering the
nature and source of the asset. La. R.S. 9:2801(4)(b) & (c). In other
words, the Sims fixed percentage formula is no longer the only
acceptable method for apportioning pension rights between spouses.
In the appropriate case, where the calculation of the present value of
benefits is not too speculative, where the pension rights can be valued
accurately and where the marital estate includes sufficient equivalent
property to satisfy the claim of the non-employee spouse without
undue hardship to the employee spouse, the present value method
could be used.
Blanchard, 697 So.2d at 278–79 (emphasis added).
The trial court did not address Social Security benefits in the judgment, nor
specifically at the partition hearing, but did state the following at the June 1, 2022
hearing: “And Social Security Retirement, each are going to be entitled to their
own Social Security[.]” It is unknown what that value is for Noel. Lisa, on the
other hand, submitted her Social Security statement into evidence which shows a
payment of $965.00 if she were to retire at age sixty-five.10 Relating to retirement
accounts, the trial court’s judgment awarded Lisa:
10
We note that the trial court can consider the value of Social Security benefits in
apportioning community property but did not do so here. Louisiana Revised Statutes 9:2801.1
provides:
When federal law or the provisions of a statutory pension or retirement
plan, state or federal, preempt or preclude community classification of property
that would have been classified as community property under the principles of the
Civil Code, the spouse of the person entitled to such property shall be allocated or
assigned the ownership of community property equal in value to such property
prior to the division of the rest of the community property. Nevertheless, if such
property consists of a spouse’s right to receive social security benefits or the
benefits themselves, then the court in its discretion may allocate or assign other
community property equal in value to the other spouse.
11
“81. One-Half of MidAmerica Premier Plan Social Security
Alternative Retirement Plan (also known as FICA alternative plan,
defined contribution retirement plan) in the name of Lisa Yates,
account type 31 21 [sic] 457(b)[1.];
Lisa was also awarded the:
77. Edward Jones I.R.A. account in the name of Noel Yates ending
#9811 [$726.00.]
It awarded Noel:
“3. One-Half of MidAmerica Premier [Plan] Social Security
Alternative Retirement Plan (also known as 3121 FICA alternative
plan, defined contribution retirement plan) in the name of Lisa Yates,
account type 31 21 [sic] 457(b).
The trial court ordered that the retirement/pension accounts of Noel with
Schlumberger and the Vernon Parish Sheriff’s Office shall be divided by Qualified
Domestic Relations Order (QDRO).
The trial court, in an exchange with Lisa, referred to the MidAmerica plan as
a defined contribution plan after discussing the differences between defined benefit
and defined contribution plans. He noted regarding Noel’s Vernon Parish
retirement plan and Lisa’s MidAmerica plan, “The moneyappears [sic] from my
testimony would be about the same.”
Noel argues the MidAmerica plan is a defined contribution retirement plan,
for which the Sims formula was intended to partition the parties’ interests. We
agree. Although not discussed by the trial court, one hundred percent of Lisa’s
MidAmerica retirement plan was earned during the existence of the community.
Noel’s Vernon Parish retirement was approximately $70,000.00 while Lisa’s
MidAmerica was around $62,000.00 at the time of the partition trial. To classify
the MidAmerica account in the same way a federal Social Security account is
treated would result in an inequitable distribution of the community-earned
retirement funds. The trial court allowed each party to keep their Social Security
12
benefits and split the remaining retirement accounts in an equitable fashion. We
find no error in the trial court’s allocation of one-half of the MidAmerica account
to each spouse. This assignment of error is without merit.
Assignment of Error Three/Community Debt
In this assignment of error, Lisa argues the trial court erred in finding that
the community owed Chris Schamerhorn $2,000.00 “without any
corroborating/documentary or testimonial evidence whatsoever.” In her brief, Lisa
states (footnote omitted):
The Trial Court found it to be a community debt and awarded it to
Noel. This claim should be denied.
The Trial Court’s Judgment did not assign the Schamerhorn
debt to anyone. But undersigned counsel felt it should be addressed,
if only as an explanation of the deviation between the ruling and the
Judgment.
Noel’s second and third Amended Sworn Detailed Descriptive List of Community
Property listed the $2,000.00 debt to Chris Schamerhorn under “Community
Property Liabilities.” Noel testified: “We owe Chris Schamerhorn $2,000.00 for
work done in January - - December of 19. We’ve never paid him.” Additionally,
the following testimony was elicited from Noel at the trial on cross-examination:
Q. . . . . And tell me again Chris Schamerhorn, what did he do?
A. We purchased rick [sic] for the driveway, the house and the barn.
Q. Okay. Let me come up there so I can hear what you’re saying.
Okay you purchased –
A. Loads of rocks –
Q. Okay.
A. Driveway covering for the driveway to the house and to the barn.
Q. Okay. And when did y’all buy that?
A. It was in late 2019.
13
Q. It was delivered at that time?
A. Yes, ma’am.
Q. Okay. And how was he paid?
A. He wasn’t.
Q. He wasn’t paid? You still owe that?
A. Yes, ma’am.
Noel testified that Schamerhorn was owed $2,000.00 for the payment of rocks used
at the residence. Lisa was not questioned about the rock purchase. The trial court
found Noel’s testimony credible regarding the debt incurred for rocks, and we
cannot say it erred as there was no testimony to suggest otherwise. In this regard,
Lisa’s assignment of error is without merit. Although not mentioned in the
judgment, the trial court did orally state it was a community debt and assigned the
debt to Noel at the partition hearing 11 While we normally would not address
matters not included in the trial court’s judgment, we will do so here to prevent any
further errors on remand. Accordingly, because there was no manifest error in the
trial court’s finding that this was a community debt, the judgment is amended to
include the $2,000.00 community debt assigned to Noel.
Assignment of Error Four/Non-Conforming Judgment
In this assignment, Lisa argues the trial court erred in signing a judgment
that does not conform to its ruling. Although it is difficult to discern from the brief
since Lisa did not use a traditional brief format but instead discussed the issues
under the headings of assets/liabilities/reimbursement, this assignment seems to
encompasses a number of claims spread throughout the brief. Most of these claims
are related to mathematical errors. We will address the non-reimbursement-related
11
The only community debts referenced in the judgment are assigned to Lisa and include
balances on a credit card and Lisa’s car note.
14
claim (appraisal value of the home) and the mathematical-error reimbursement
claims here. One claimed error relating to reimbursement of court costs will be
addressed in the subheading below.
Matrimonial Home Appraisal Value
Lisa claims:
1.The trial court erred in assessing the value of the former
matrimonial home at $590,000 because “there is no evidence in the
Record that the value of the former matrimonial domicile (IP-1) is
anything other than the $606,530.00 shown on the appraisal entered
into evidence.” (footnote omitted.)
At the partition hearing, the trial court stated regarding the former
matrimonial domicile: “[I]t’s been established at $590,000.00 by Mr. Charest
Thibodeaux. That’s just a feedback from that there. And, so, that’s going to be the
value.” Likewise, the trial court’s judgment established the value at $590,000.00.
The documentary evidence in the record regarding valuation of the former
matrimonial domicile includes Noel’s Sworn Detailed Descriptive List listing the
value at $590,000.00, NoelYates1, which is his preapproval letter from a credit
union with a listed purchase price of $590,000.00, and Lisa’s Traversal which lists
the value at $590,000.00 in both the “his” and “her” columns. The other
documentary evidence in the record is NoelYates 12-a Comparable Market
Analysis offered by Vicki M. Perkins, a Century21 realtor, which valued the
property at $606,530.00. Perkins also offered a rental value for the home that the
trial court considered in assessing rental value. The following exchange regarding
the home valuation occurred:
BY MRS. TALLEY:
Judge, the – one of the exhibits that Noel offered was
something called a comparative – comparable market analysis. It is
different than what we were given. One of these has a rental amount
and other [sic] doesn’t. What I don’t know is if the one that was
admitted into evidence has the fair market value of the house itself.
15
BY THE COURT:
It does.
BY MRS. TALLEY:
What does it show it to be?
BY THE COURT:
Pretty close to the appraisal acutally. I’m getting there. It’s –
wait the appraisal is $590,000.00 right?
BY MR. FONTENOT:
Yes.
BY MRS. TALLEY:
$590,00[0].00 is what Mr. Charest –
BY THE COURT:
$606,000.00
BY MRS.TALLEY:
$606,000.00?
BY THE COURT:
So, they were $16,000.00 off. Let the offering be received, the
Rocket Mortgage.
There is no other documentary or testimonial evidence setting the value at
$590,000.00, such as an appraisal from Thibodeaux or testimony from the
appraiser. Nevertheless, Thibodeaux did indeed conduct an appraisal since
Thibodeaux is referred to in the record several times even by Lisa. For example,
she refers in brief to the appraisal fee charged by him in assignment of error six.
Further, in her Traversal describing community property, her very first item is the
“former matrimonial domicile on land more particularly described as [,] ” listing
Noel’s appraisal value at $590,000.00 and her appraisal value at $590,000.00. Her
16
traversal comments state: “11/13/21 appraisal by George Thibodeaux[.]” Noel
was even questioned about the appraisal by Lisa’s attorney:
Alright. Now, your attorney and I had a discussion with regard to Mr.
Thibodeaux’s appraisal, because Lisa had already hired him to do the
appraisal, and he had already done the appraisal and was paid $500.00.
And then there was an order signed by the Judge probably not
knowing that we had already hired him and already had it done. But,
for him to do it and take some more pictures. We discussed whether
we will be able to discuss this with Mr. Thibodeaux and whatever he
says is due that the two if [sic] you will pay half of all of it. Are you
agreeable to that?
While it is certainly odd that the appraisal was not submitted into evidence,
we find no manifest error in the valuation of the former matrimonial domicile at
$590,000.00 based on the above. This assignment is without merit.
Lisa’s Reimbursement Claim for State Farm Premium Payments (Allegation of
Mathematical Error)
Lisa claims:
2.The amount awarded to Lisa for her State Farm premium payments
in the ruling was the amount of the Traversal ($8,541.00) plus
payments for April and May (about $900.00) for a total of $9,441.00.
The judgment only awarded $9,224.26, which was $216.74 too little.
In the trial court’s judgment, Lisa was awarded $9,224.26 in reimbursement
for State Farm insurance premiums she paid with her separate funds. At the
hearing of the court’s ruling, the trial court stated Lisa would be entitled to “LR.4”
and that all of those values are going to be found by the Court, and she be
reimbursed.” Exhibit LR.4 relating to the State Farm Insurance payments made by
Lisa shows a total due of $11,369.00. However, her traversal lists $8,541.00 as the
amount due through March 2022. In a footnote in her brief, Lisa states the
insurance dollar amount comes from “Traversal . . . and regular payments out of
Lisa’s Capital One account (exhibit Lisa Capital One) (about $450.00 / month x 2
months, for April and May)(Emphasis added). The LR.4 exhibit lists varying
amounts ranging from $415.00 to $475.00 monthly. Lisa points to nothing in the
17
record setting forth with specificity the amount of the April and May awards and in
fact gives an estimate of “about $450.00 per month.” Lisa cites “Exhibit Lisa
Capital One,” an exhibit of bank statements from February 2020 through April
2022. The April 2022 bank statement shows two withdrawals from Lisa’s account
by State Farm in the amount of $266.26 and $185.16 for a total of $451.42
($8,541.00 + $451.42 = $8,992.42). Using Lisa’s estimate of $450.00 for the May
payment would result in a total reimbursement of $9,442.42. However, there is no
proof in the record of that final payment. Accordingly, we are unable to find
manifest error on the part of the trial court in awarding $9,224.26. This assignment
is without merit.
Lisa’s Reimbursement Claim for Car Loan Payments (Allegation of Mathematical
Error)
Lisa claims:
3.The amount awarded to Lisa from her Bayou Federal loan payments
in the ruling was the amount on the Traversal ($16,250.00) plus
payments for April and May ($1,300.62) for a total of $17,550.62.
The Judgment awarded Lisa $17,793.20. She received $242.58 too
much.
The judgment awarded Lisa $17,793.00 for payments to Bayou Federal
Credit Union for BMW payments. Lisa complains she was awarded too much.
The Traversal lists the amount as $16,250.00. Exhibit “LR.16,” with payments
through April 2022, lists a total of $16,908.00. In this instance it appears her
exhibit of reimbursement was accurate though April 2022, with one more more
payment needed to be included ($16,908.00 + $650.31=$17,558.31). In her brief
in a footnote, Lisa’s states her calculations as: “The Bayou Federal dollar amount
came from Traversal ($16,250.00) [. . .] and last regular payment out of Lisa’s
Capital One account (Exhibit Lisa Capital One.) ($650.31 / month x 2 months for
April and May).” This calculation equals $17,550.62 ($16,250.00 plus two
18
payments of $650.31). Lisa does not explain the $7.69 variation from the total
reached when using Exhibit LR.16 plus one payment of $650.31 versus the
Traversal plus two more payments. We find the trial court manifestly erred in
awarding Lisa $17,793.00 in reimbursement for car loan payments. The award is
amended to $17,550.62.
Reimbursement Awarded to Lisa for the Montana Tractor
Lisa claims:
4.The Judgment granted a reimbursement claim of $4,500.00 for the
Montana tractor. Undersigned counsel has no idea where that award
came from. It should be reversed.
In this assignment, Lisa argues she was erroneously awarded $4,500.00 in
reimbursement for a tractor. We disagree. The Montana tractor was discussed at
trial and in the descriptive lists and the Traversal. Noel’s Detailed Descriptive List
assigns a value of the Montana tractor at $8,000.00. Lisa’s Traversal assigns a
value of the Montana tractor at “10-14,000.” Noel testified “the Montana tractor is
in my position [sic] now. It was allowed me [sic] by the court in May of 21. I paid,
financed $10,000.00 brand new for it in like 2006, 2007. I would like to have that
back.” Noel testified the Montana tractor was community property. Lisa asked,
“What’s the deal on the tractor?” The trial court replied: “Nothing, I got confused.
It’s community property and I established the value at $9,000.00. I was wanting to
make sure I didn’t make a mistake.” The tractor was allocated to Noel.
The trial court determined the value of this tractor as follows: “He did –I
established—you [Noel’s attorney] said it was $8,000.00 in your Detail
Descriptive List, and Ms. Yates provided a range on her’s, [sic] and I established
the value at $9,000.[00].” The trial court’s judgment assigned the Montana tractor
to Noel and assigned Lisa a $4,500.00 reimbursement claim for the Montana
tractor. We are perplexed as to why Lisa would claim this as an assignment of
19
error, and we find no manifest error in the trial court’s award of $4,500.00 in
reimbursement to Lisa. This assignment is without merit.
Lisa’s Reimbursement for Credit Card Payments (Allegation of Mathematical
Error)
Lisa claims:
5.The Judgment granted Lisa a reimbursement of “$13,000.00 for her
payments to Barksdale Federal Credit Union credit card account
ending 0509.” This was Lisa’s reimbursement claim L – R.15 for
$8,376.00 (the balance on the account at termination.) It was denied.
The trial court’s exact language at the June 1, 2022 hearing relating to items
Lisa would be reimbursed for:
She’s going to be entitled to LR.1, LR.3., LR.4., LR.5., 6., 7., 8., 9.,
all established in her column and all those values are going to be
found by the Court, and she be reimbursed. LR.10., 11., 12., 13., 14.,
15., 16., 17. and 18. 18. Is $4,057.00 though, and I’m going to allow
those reimbursement claims there. But, Ms. Yates, especially on the
credit card, it’s going to be her responsibility for that debt.
There was a lot of testimony about the community credit card that Lisa continued
to use even after the divorce was granted. Following the termination of the
community, Lisa used the card for community purposes such as replacement of a
3-ton HVAC System-Outdoor & Indoor in the former community home (Lisa was
awarded reimbursement claims for the various AC expenses in the judgment). She
also used the card for other community expenses for which she supplied receipts.
Additionally, she used the card for her own personal expenses. The trial court was
very concerned with the fact that she continued to use the card even after the
community terminated. In discussion about the credit card debt, the following
exchange occurred:
BY MR. FONTENOT:
Judge, sometimes people talk and they talk to different things.
First of all, she’s claiming she paid $8,300.00 and something dollars.
All we’re asking for – what I think the Court is trying to say, “Well,
show me where you paid the money.” But how are you going to show
20
that when you continue to charge on the same card, and you continue
to mount up a balance on this card. She hasn’t proved what she has
paid off. Just because that statement shows, that doesn’t prove that
she paid the initial claim that she’s asking reimbursement for. That is
her burden to carry not the Court’s to decipher how it was done, and
how I’m going to find a way to give credit. She has the burden to
prove here. Here’s the check, I wrote it. Here’s five checks, I wrote.
It totals [$8,300.00] or whatever the amount was that she claiming [sic]
reimbursement. And she hasn’t–that ‘s my objection. I can’t get
anything unless I can prove to you that I acutally paid it. Me getting
up here saying, “Hey, I paid it off.” isn’t prove when it’s disputed.
BY MRS. TALLEY:
If that’s the case, Judge, then it hasn’t been paid off, and it is a
community debt and will have to be added in under community
obligations and both parties owe half.
BY THE COURT:
I just – so regardless if it’s - - because I haven’t looked through
all those Capital One statements to know whether or not $8,376.00
has been paid by your client on that credit card bill. The real problem
here is let’s say I do give her and she has paid that. There’s still
$13,000.00 in debt that this man’s name is potentially - - you know, it
could be - - that he would still potentially be liable for, and can result
in further litigation to say no that’s not mine. I’m divorced this day.
You can’t come after me, but it doesn’t seem to resolve everything by
doing the way that you want to do it, Mrs. Talley. The best way is
just to resolve it so this is over with for somebody whatever it is. But,
hey, whatever[.]
We are unsure of how the judgment arrived at a reimbursement award of
$13,000.00 for the credit card in Lisa’s favor. Based on the above testimony it
seems the $13,000.00 figure was erroneous. We find the record reasonably
supports an award of $8,376.00, the amount owed on the credit card at the time of
the termination of the community and that Lisa requested reimbursement for in her
Detailed Descriptive List. Noel was questioned on cross-examination regarding
the credit card: “Q. Lisa has paid it really. So it’s not a current debt?” and he
responded, “That’s correct.” Thus, both Lisa and Noel testified that the credit card
balance had been paid by Lisa. Moreover, the language in the judgment indicates
that Lisa would be responsible for whatever debt remained on the card rather than
21
a denial of her reimbursement claim. The judgment specifically provides that Lisa
would be responsible for the payment of the community debt relating to Barksdale
Federal Credit Union credit card ending in 0509. Accordingly, the trial court’s
judgment is amended to award Lisa $8,376.00 in reimbursement for her payment
on the credit card ending in 0509.
REIMBURSEMENT CLAIMS
Assignments of error six through twelve all relate to reimbursement claims.
Louisiana Civil Code Article 2365 applies to reimbursement claims:
If separate property of a spouse has been used either during the
existence of the community property regime or thereafter to satisfy a
community obligation, that spouse is entitled to reimbursement for
one-half of the amount or value that the property had at the time it was
used.
If the community obligation was incurred to acquire ownership
or use of a community corporeal movable required by law to be
registered, and separate property of a spouse has been used after
termination to satisfy that obligation, the reimbursement claim shall
be reduced in proportion to the value of the claimant’s use after
termination of the community property regime. The value of that use
and the amount of the claim for reimbursement accrued during the use
are presumed to be equal.
The liability of a spouse who owes reimbursement is limited to
the value of his share of all community property after deduction of all
community obligations. Nevertheless, if the community obligation
was incurred for the ordinary and customary expenses of the marriage,
or for the support, maintenance, or education of children of either
spouse in keeping with the economic condition of the spouses, the
spouse is entitled to reimbursement from the other spouse regardless
of the value of that spouse’s share of all community property.
“[A] paying party is entitled to reimbursement for post-termination, pre-partition
use of separate funds for the payment of a community debt. . . . However, the
burden of proof is on the party claiming reimbursement.” Hardy v. Hardy, 18-487,
pp. 9–10 (La.App. 1 Cir. 2/28/19), 273 So.3d 448, 456–57; See also McElwee v.
McElwee, 93-1010 (La.App. 1 Cir. 8/17/94), 649 So.2d 975, Arterburn v.
Arterburn, 15-22 (La.App. 3 Cir. 10/7/15), 176 So.3d 1163. Thus, for each claim
22
of reimbursement we must determine whether 1) Noel proved that he used his
separate property, and 2) whether the separate property was used to pay a
community debt.
At the June 1, 2022 hearing, the trial court stated the following about Noel’s
reimbursement claims (emphasis added):
I’m going to give Mr. Yates rental reimbursement claim of
$2,000.00 per month. The realtor said $1,800.00 to $2,200.00. I’m
going to establish the rental value at $2,000.00, and that credit. Also
give Mr. Yates credit for – I think it’s $7,975.00, paid to Rocket
Mortgage. It was apparent that Ms. Yates, and I’ll give Ms. Yates
credit for her’s [sic], and I’ll get to her’s [sic] in a second. She was
paying the mortgage and he was paying half mortgage. So, like,
almost a mortgage in [sic] a half was getting paid from the documents
that I read. When you acutally look at the statements, she was
sending in the whole amount and he was sending in half the amount.
So, I give Mr. Yates his credit on that. The Yates estate, Number 11.,
that’s like $39,262.38 my note indicated was from his dad’s separate
funds. And, so, if that was used towards the community property
that’s a reimbursement claim. The deposits, I believe is, $36,277.00,
which is funds that Mr. Yates deposited into their joint checking
account since the date of separation. That’s 5., I’m going to give him
credit for that. I think that is all on that, I believe. Okay.
In the judgment, Noel was awarded $158,298.82 in reimbursements; Lisa
appealed all of the reimbursement awards except for the $15,500.00 award for
attorney fees. We note that numerous items of reimbursement were discussed very
little at trial and/or little or no documentary evidence was provided to support the
claims, as Lisa points out. However, all of Noel’s claims, save the children’s
insurance premiums, were listed in his Detailed Descriptive List. Regardless of
whether documentary or testimonial evidence was presented at trial, Lisa had the
opportunity to cross-examine Noel regarding any of the claims he listed in his
Detailed Descriptive List, but did not do so. Lisa cannot now claim there was
absolutely no proof of certain reimbursement claims when she did not avail herself
of the opportunity to cross-examine Noel as to items specifically listed on his
Detailed Descriptive List.
23
Louisiana Revised Statutes 9:2801(A)(1)(a) specifically provides that a
party’s sworn detailed descriptive list is a judicial determination of the community
assets and liabilities when one spouse fails to file their own detailed descriptive list.
While that is not the case here since Lisa did file her own and a traversal, the same
principle holds true when a party fails to produce any contrary evidence at trial of
the spouse’s valuation of reimbursement claims. In Brown v. Brown, 16-31, pp. 5–
6 (La.App. 3 Cir. 12/21/16), 210 So.3d 297, 299–300 (emphasis added), a panel of
this court addressed the situation where one party does not file a detail descriptive
list or otherwise provide any evidence at trial contesting the other party’s assigned
values:
Recently, in Williams, 968 So.2d 1234, another panel of this
court, relying on Gauthier, [v. Gauthier, La.App. 3 Cir.
11/10/04),]886 So.2d 681, and Charles v. Charles, 05-129 (La.App. 1
Cir. 2/10/06), 923 So.2d 786, reiterated the constraints placed upon
the party who fails to file its own Detailed Descriptive List timely and
leaves in place the trial court ruling making the other spouse’s List the
order of the court.
The law is clear that Gauthier does not require any further
evidence to establish the nature of the property in question other than
the judicially accepted detailed descriptive list. Thus, the trial court
erred in its ruling that Steven failed to prove a prima facie case that
the immovable property was his separate property. Although Steven
contends his testimony was sufficient to establish a prima facie case, it
was not necessary. Once the detailed descriptive list was judicially
accepted, and Tamara did not challenge this acceptance, she lost her
ability to traverse the list and contest the classification of the property.
There is no legal authority for the trial court’s implication that a deed
is required to establish the property in question as Steven’s separate
property. The trial court erred in ignoring the only evidence in the
record, Steven’s judicially accepted Sworn Detailed Descriptive List,
which established the immovable property was Steven’s separate
property.
Williams v. Williams, 07-541 (La.App. 3 Cir. 10/31/07), 968 So.2d 1234,
arrived at the same conclusion under circumstances more like those before us. In
Williams, the husband’s attorney failed to file his sworn detailed descriptive list
until far after the time it had been due even afer a lengthy extension. The husband
24
claimed that the wife “did not meet her burden of proof with regard to her
reimbursement claim because she failed to produce written documentation
establishing the amount that she paid to satisfy the mortgage payments and because
she failed to specifically state that she used her separate funds to pay the mortgage.”
Id. at 1236–37. At a hearing, the trial court orally ruled that it was recognizing the
wife’s detailed descriptive list but would allow the husband to offer input at the
trial. A panel of this court noted that the husband had the opportunity at trial to
question her about her reimbursement claims:
She was not questioned about her claim for reimbursement or how she
arrived at any of the amounts listed on her detailed descriptive list.
Before setting the amount of reimbursement due, the trial court
specifically asked [the husband] if there was anything he cared to add
to the discussion. He again replied in the negative.
Id. at 1238.
It went on to conclude:
Thomas Williams was free to challenge the reimbursement claim of
his former wife at the November 20, 2006 partition trial. He produced
no countervailing evidence at the trial to dispute Joyce Williams’s
claim that she had paid all the mortgage payments due on the family
residence, along with all maintenance and upkeep, since the date of
the divorce. Likewise, his attorney did not cross-examine Joyce
Williams regarding the source of the funds that she used to pay the
aforementioned community debts.
Joyce Williams’s burden of proof regarding her claim for
reimbursement at the partition trial was satisfied by her having
utilized the procedural vehicle of having her detailed descriptive list
deemed a judicial determination of the community. Louisiana Revised
Statutes 9:2801 affords the trial court broad discretion in resolving
community property disputes. Crais v. Crais, 98–1477 (La.App. 4 Cir.
1/13/99), 737 So.2d 785, writ denied, 99–763 (La.5/14/99), 741 So.2d
668. Moreover, the judgment of a trial court is presumed correct,
absent any record evidence indicating to the contrary. Steinhoff v.
Steinhoff, 03-24 (La.App. 3 Cir. 4/30/03), 843 So.2d 1290. In view of
the fact that Thomas Williams failed to file a scintilla of competent
evidence into the record after his former wife petitioned the trial court
to judicially partition the community, we cannot say that the trial court
was manifestly erroneous or clearly wrong in concluding that the
evidence was sufficient to support an award of $7,000.00 in favor of
Joyce Williams on her claim for reimbursement.
25
Id. at 1238–39 (emphasis added).
“It is incumbent upon the parties to present evidence at the partition trial
regarding the value of the assets.” McLaughlin v. McLaughlin, 17-645, p. 5
(La.App. 5 Cir. 5/16/18), 247 So.3d 1105, 1111. Uncontested testimony is
sufficient evidence. Id. Thus, the trial court cannot be manifestly erroneous where
Noel’s valuations of his reimbursement claims were uncontested at trial. We
address each of the items of reimbursement assigned as error by Lisa.
Reimbursement for Court Costs/Transcript Fee (Under the general assignment of
error four subheading)
Lisa states in brief (footnote omitted):
Noel offered no evidence whatsoever of the court costs he paid.
Accordingly, his unproven claims should be denied.
The Judgment awarded Noel $77.00 for transcripts. It is
unclear where this award came from. The Trial Court ordered that the
cost of the transcript of its ruling be shared between the parties. Noel
paid for the transcript. If this is the cost of the transcript of the Trial
Court’s ruling, Lisa has no objections.
If (on the other hand) this is the correct amount of Noel’s
reimbursement claim for a transcript of any other matter, Lisa asserts
that there is no basis in law for an award of a reimbursement claim for
transcripts.
Noel’s Detailed Descriptive List under the community property liabilities
lists:
....
3. Court Costs paid by Noel W. Yates $2,886.79.
4. Court costs paid by Lisa J. Yates 658.20
....
7. Transcripts $2144.92
The trial court’s judgment does not mention the award of court costs. It
awarded Noel $77.00 for transcript fees. At the June 1, 2022 hearing, the trial
court stated the following, “The attorney fees, the court cost, the transcript fees,
26
and the appraisal fees are all going to be cast as community obligations under the
law, and Mr. Yates is entitled to his reimbursement for those, and I think that is
what’s different then what’s on your clients, as far as, -- okay – hold on.” The trial
court then moved on to a discussion of the tractor issue.
It is true that the trial court’s judgment is at odds with the oral
pronouncement. A trial court has great discretion in awarding court costs and will
not be overturned absent an abuse of discretion. Noland v. Noland, 16-641
(La.App. 3 Cir. 4/26/17), 218 So.3d 215, writ denied, 17-1162 (La. 9/15/17), 225
So.3d 479. Louisiana Code of Civil Procedure Article 1920 provides the general
rule governing court costs: “Unless the judgment provides otherwise, costs shall be
paid by the party cast, and may be taxed by a rule to show cause. Except as
otherwise provided by law, the court may render judgment for costs, or any part
thereof, against any party, as it may consider equitable.” We are unable to
determine from the record how the trial court arrived at a $77.00 reimbursement
for a transcript. Nevertheless, Noel’s Detailed Descriptive List asserts far more
than $77.00 in transcript costs. Noel was questioned on cross-examination, “Okay,
let’s see, and you’ve paid for transcripts?” to which he answered yes. Apparently,
the trial court found Noel’s claim credible, and we cannot say it manifestly erred in
assigning him a reimbursement claim of $77.00, as this amount represents far less
than that claimed, and Lisa did not offer any evidence to refute Noel’s claim. This
assignment of error is without merit.
Assignment of Error Five/ Insurance premiums
Lisa claims the trial court erred in awarding Noel a reimbursement claim for
payment of insurance premiums for the children. The judgment awarded Noel
“$2,030.02 for payments on children’s insurance premiums.” Lisa states
(footnotes omitted):
27
The Judgment awarded Noel a reimbursement claim of
$2,030.02 for payments on children’s insurance premiums. The
undersigned could not locate either the award in the ruling of the Trial
Court or any testimony or exhibit showing said amounts to be paid.
Accordingly, it should be deleted as a reimbursement claim for Noel.
[12]
Noel did not request reimbursement for payment of children’s insurance premiums
in his Detailed Descriptive List. Noel testified that he began paying the premiums
on the life insurance policies for the children once the divorce was final.
At the June 1, 2022 hearing, the trial court stated:
Cash value, I.6., $986.82 and $1043.20 [sic], and those are
going to be Mr. Yates, Noel Yates.
BY MRS. TALLEY:
Would you tell – would you state those again? $9 - -
BY THE COURT:
$986.82, I think the testimony in the documents - - there were
so many documents I didn’t write –
BY MRS. TALLEY:
Okay.
BY THE COURT:
$986.82 and $1,043.00, those are the two life insurance policies
for - - on the children who Mr. Yates are the beneficiary of.
This award is for the cash value of the two insurance policies on the children
rather than premium payments. Noel does not address the assignment of error in
his brief. We find it was error by the trial court to award Noel a reimbursement
claim for the cash value of the life insurance policies. Accordingly, we reverse the
trial court’s award for reimbursement of children’s insurance premiums.
12
Lisa requested reimbursement of $156.00 for payments of $13.02 per month on the
policy from February 2020 through February 2021.
28
Assignment of Error Six/Appraisal Fee
In this assignment, Lisa argues the trial court erred in granting Noel a
reimbursement claim for $250.00 for the appraisal of the former home without
granting Lisa the same. Lisa argues that the trial court ordered Noel and Lisa to
each pay one-half of the cost of the appraisal prepared by Thibodeaux in the
amount of $500.00 and that if Noel is to receive reimbursement without a copy of
this receipt or cancelled check, Lisa should be awarded the same; alternatively, the
claims, which offset each other should be removed from the Judgement. Noel does
not address this assignment in his brief. The trial court obviously concluded that
Noel paid the $500.00 appraisal fee and was due reimbursement for half. Noel did
testify, “The appraisal fee is what I had to pay the Clerk’s Office to get the
appraisal.” Accordingly, we find no manifest error in the trial court’s award of
$250.00 reimbursement to Noel for the payment of the appraisal fee. This
assignment of error is without merit.
Assignment of Error Seven/Health, Vision and Dental Insurance
Lisa argues the trial court erred in awarding Noel reimbursement of
$12,920.09 for payment of health and vision insurance when it was ordered as
spousal support. Lisa’s argument in its entirety is (footnote omitted):
[T]he Trial Court ordered Noel to keep Lisa covered on his
insurance until after the divorce was granted. This is support of
persons, a separate debt of the payer. He should have no
reimbursement claim for that. Additionally, this amount just
appeared on his last filed sworn detailed descriptive list. Nowhere
in the testimony did he verify this amount. Neither is there any
documentary evidence of it. Accordingly the claim should be
denied.
Lisa cites no law in support of her claims.
Noel’s full response to this assignment of error: “Appellant further contends
that Noel Yates was granted a reimbursement claim for health, vision and dental
29
insurance in the amount of $12,920.08. Appellant argues that that was an element
of spousal support but there is absolutely no court order requiring that be paid as an
element of spousal support.” We agree.
Noel testified on cross-examination:
Q. Okay. Alright. This health, vision and dental insurance, that’s
something that the judge ordered you to pay for her until July 1st. Is
that correct?
A. Correct.
Q. Did you keep it through July 1st?
A. It was cancelled June 30th.
The trial court’s Interim Order dated June 23, 2020, ordered that “any
insurance coverage maintained by either parent shall remain the same until further
orders of the Court, meaning that no one will be dropped from or reduced in
insurance coverage.” Supplemental Interim Orders dated January 6, 2021,
reiterated the same. The Judgment of Divorce dated June 23, 2021, declared that
“all other orders of the Court shall be and they are hereby declared unaffected by
this judgment. Said orders include, but are not limiter [sic] to injunctions, order to
pay a monthly amount for household expenses or maintenance, etc.”
The trial court’s “order” was simply to maintain existing community
insurance policies. It was not an element of spousal support pursuant to a consent
judgment. Similar to the payments Lisa made for homeowner’s insurance, Noel is
entitled to be reimbursed for separate funds he used to maintain Lisa’s health
insurance subsequent to the termination of the community but prior to the partition.
While it is true that Noel provided no documentary evidence or testimony
supporting this amount, it was listed in his detailed descriptive list. Moreover, Lisa
did not challenge the amount at trial, only the characterization of the payment.
Thus, the trial court did not err in finding Noel is entitled to reimbursement for
30
$12,920.08. Noel is entitled to one-half of $12,920.08. This assignment of error is
without merit.
Assignment of Error Eight/Mortgage Payments
Lisa claims the trial court erred in awarding Noel reimbursement of
$7,975.00 for payments to Rocket Mortgage when he did not prove he paid that
much. Lisa claims he only proved $4,862.50. She stated he only submitted a few
checks into evidence and that the notations on them are unclear. Noel states in
brief, “We will defer to all exhibits that were filed into evidence showing the
payments made to Rocket Mortgage, either directly or checks that were given to
Lisa Yates and deposited to her checking account for his one-half of the monthly
payment.” Nevertheless, Noel did assert the claim of $7,975.00 for mortgage
reimbursement payments in his Detailed Descriptive List, and the trial court found
Noel’s testimony credible. We find no error in that finding. The checks that were
submitted into evidence are listed below:
CHECK # DATE AMOUNT PAYABLE TO NOTATION
1015 4/17/2020 $300.00 Lisa Yates Ref #1012 (1/2 Covid mortgage) Marshall Softball
1018 5/7/20 $562.50 Lisa Yates ½ Covid Mortgage $200 Marshall
1040 10/30/2020 $1000.00 Lisa Yates [sic] + car note
1184 5/28/2021 $725.00 Lisa Yates ½ Mortgage Pay
1185 6/23/2021 $725.00 Noel Yates ½ Mortgage
1194 7/30/2021 $725.00 Rocket Mortgage [Account Number]
1196 8/26/2021 $725.00 Rocket Mortgage Principal Only [Account Number]
1093 12/23/2021 $725.00 Rocket Mortgage [Account Number]
1152 1/24/2022 $725.00 Rocket Mortgage [Account Number]
1155 2/22/2022 $725.00 Rocket Mortgage [Account Number]
31
The Rocket Mortgage statement evidence indicates payments in $725.00
increments on the following dates: 8/10/21, 9/2/21, 10/2/21, 11/1/21, 1/08/22,
2/01/22, 3/01/22, and 3/22/22. In addition to the seven payments noted above in
the check evidence, the four payments from September, October, and November
2021, plus the payment dated March 22, 2022 equals Noel’s claim of $7,975.00
due in reimbursement. The testimony was clear at trial that, except during a
COVID forbearance period when partial payments were made of $500.00,13 Lisa
paid the full mortgage payment while Noel paid $725.00. Accordingly, we find the
trial court did not manifestly err in awarding Noel $7,975.00 in reimbursement for
mortgage payments. Noel is entitled to one-half of the payments of $7,795.00.
This assignment of error is without merit.
Assignment of Error Nine/Rental Payments
In this assignment of error, Lisa argues the trial court erred in awarding Noel
$2,000.00 per month (for a total of $41,400.00) in rental reimbursements for Lisa’s
use of the community home. Lisa argues the trial court legally erred because the
requirements of La.R.S. 9:374 were not met, thus, no reimbursement is due. Lisa
states the trial court’s deferral of the matter, without agreement of the parties, was
not authorized by law and renders the rental issue moot. Louisiana Revised
Statutes 9:374(C), as it was applicable in this case, stated (emphasis added):14
13
It is unclear from the record how those payments were credited and to whom.
14
Louisiana Revised Statutes 9:374 was amended in June 2022, and became effective
August 1, 2022, to specifically authorize a trial court to defer the issue of rental determination
until partition without agreement of the parties (emphasis added):
C. A spouse who, in accordance with the provisions of Subsection A or B
of this Section, uses and occupies or is awarded by the court the use and
occupancy of the family residence, a community immovable occupied as a
residence, or a community manufactured home as defined in R.S. 9:1149.2
and occupied as a residence, regardless of whether it has been
immobilized, shall not be liable to the other spouse for rental for the use
and occupancy, except as hereafter provided.
32
A spouse who, in accordance with the provisions of Subsection A or
B of this Section, uses and occupies or is awarded by the court the use
and occupancy of the family residence, a community immovable
occupied as a residence, or a community manufactured home as
defined in R.S. 9:1149.2 and occupied as a residence, regardless of
whether it has been immobilized, shall not be liable to the other
spouse for rental for the use and occupancy, except as hereafter
provided. If the court awards use and occupancy to a spouse, it shall
at that time determine whether to award rental for the use and
occupancy and, if so, the amount of the rent. The parties may agree
to defer the rental issue for decision in the partition proceedings. If
the parties agreed at the time of the award of use and occupancy to
defer the rental issue, the court may make an award of rental
retroactive to the date of the award of use and occupancy.
Lisa cites numerous cases for the proposition that no reimbursement claim
can lie when the trial court did not contemporaneously order a rental value or the
parties did not agree to defer the rental value issue, relying on the law set forth in
McCarroll v. McCarroll, 96-2700 (La. 10/21/97), 701 So.2d 1280, as cited by the
second circuit in Mason v. Mason, 40,804, p. 5 (La.App. 2 Cir. 4/19/06), 927 So.2d
1235, 1239, writ denied, 06-1524 (La. 10/13/06), 939 So.2d 366:
In McCarroll v. McCarroll, 96–2700 (La. 10/21/97), 701 So.2d 1280,
the Louisiana Supreme Court held 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. The court reasoned that
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. The assessment of rent
under La. R.S. 9:374(C) requires an agreement between the spouses or
a court order for rent contemporaneous with the award of occupancy.
McCarroll v. McCarroll, supra. When there is no evidence of court
ordered rent or an agreement between the parties, the occupying
D. In a proceeding for divorce or thereafter, a spouse may move for an
award of rent at any time. After a contradictory hearing, the court may
award rent to be paid by a spouse exercising exclusive use and occupancy
of a residence whether by judgment or in fact. The award shall be
retroactive to the date of filing of the motion, but rent shall be awarded
only for the period of exclusive occupancy. The adjudication of the issue
of rent and the amount thereof may be deferred to a later date by the court
or by agreement of the parties. It shall not be a prerequisite to the award of
rent that the spouse against whom the award is made shall have requested
use and occupancy of the residence.
33
spouse is not liable for rent. Gay v. Gay, 31,974 (La.App. 2 Cir.
6/16/99), 741 So.2d 149.
In Bulloch, 214 So.3d 930, the appellate court noted McCarroll, but went on
to find that rental reimbursement was due even though the parties had not agreed to
defer the rent issue to the partition hearing and the trial court did not
contemporaneously award rent. The appellate court affirmed the trial court’s
award of fair rental value to the ex-husband, stating:
We find no legal error in the trial court’s ruling. La. R.S.
9:374(B) states, in pertinent part, that “either spouse may petition for,
and a court may award to one of the spouses, after a contradictory
hearing, the use and occupancy of the family residence ... pending
further order of the court.” (Emphasis added.) Likewise, R.S.
9:374(C), upon which Lydia relies, expressly states that its provisions
apply to the awards of use and occupancy pending divorce or partition
of the community property made “in accordance with the provisions
of R.S. 9:374(A) and R.S. 9:374(B),” which, as noted above, require a
contradictory hearing. Although the court awarded Lydia use and
occupancy of the family home “on an interim basis” at the October 30,
2013, hearing concerning the misappropriated funds, the record is
clear that there was no contradictory hearing on the issue of use and
occupancy and whether Brian was entitled to rental value. Brian
properly demanded rental value of the home in his answer and
reconventional demand along with a contradictory hearing on the
matter to which he was entitled under La. R.S. 9:374(B).
Id. at 934–35 (second emphasis added).
In Hight v Hight, 17-566, pp. 11-12 (La.App. 4 Cir. 12/13/17), 234 So.3d
1143, 1150, the appellate court reiterated the trial court’s discretion in deferring a
determination of rental value:
In this matter, the trial court decided to continue the rule for
rental reimbursement and the valuation issue to be addressed at the
community partition trial. It is well established that a trial judge has
vast discretion in conducting a trial, “and it is only upon a showing of
a gross abuse of discretion that appellate courts have intervened.”
Further, “[a] final judgment is one that determines the merits in whole
or in part and is identified as such by appropriate language.” An
interlocutory judgment does not determine the merits but only the
preliminary matters in the course of a trial. In the case sub judice, this
Court does not find that the trial court abused its discretion in
continuing the rule and the valuation to the community partition trial.
34
In this case, a hearing was held on May 25, 2021, at which time the trial
court reviewed some issues that were no longer before the court such as the
granting of divorce. There is no transcript of this hearing in the record, however
Noel attached a two-page transcript from the May 25, 2021 hearing that only has a
statement by the trial court copied in part here (emphasis added):
So those are the issues before the court today, or that haven’t been
dealt with previously. So we’ll start off with – we’ll start off with the
issue of – the issue of the rental value and that claim of – and Ms.
Talley just cites a lot of Code Articles, but no specific ones just in an
abroad [sic] category. I’m going to defer that to the – whenever they
deal with the community property. There’s nobody seeking to
partition as far as in the sense of filing the necessary documents to –
to do that.
The two-page document evidences no objections by either party. It only
contains what the trial court stated. The minutes of court from that day state:
Case taken up and evidence adduced.
Fontenot continued with cross Lisa Yates.
Objections made and ruled on by the Court.
Both parties rest.
The Court for oral reasons-rental value deferred to property
settlement[.]
Lisa’s brief and reply brief point to her objections during the partition
hearing that the rental value determination based on the appraisal being hearsay.
She did not submit any evidence indicating her objection to the deferral at or
following the May 25, 2021 hearing. Accordingly, we find no gross abuse of
discretion when the trial court announced its intention to defer the rental valuation
issue, without contemporaneous objection. Lisa acquiesced to the determination
of the rental value at a later date at the hearing on May 25, 2021. We find no
manifest error of the rental valuation at $2,000.00 per month. Thus, Noel is
entitled to reimbursement for one half of the value of rental reimbursement of
$41,400.00. See Averill v. Averill, 18-299 (La.App. 1 Cir. 9/21/18), __ So.3d __;
35
Thomas v. Thomas, 22-141 (La.App. 5 Cir. 12/28/22), 356 So.3d 548, writ denied,
23-124 (La. 4/4/23), 358 So.3d 868.
Assignment of Error Ten/Property Taxes
Lisa argues the trial court erred in awarding Noel $2,607.34 for payment of
property taxes. We agree. Noel plainly stated he only paid one payment of
$850.00, otherwise the previous payments were split. Noel testified on direct
examination:
Q. Okay. And – did you have – who paid the property taxes
since the termination of the community?
A. I paid the full amount last year for last year’s taxes.
Q. Alight. [sic]
A. $800.00 something for last year. And we’ve split the
difference on the two previous years.
Q. Alright. We’ll [sic] you have property taxes on a home you
listed $2607.34.
A. Correct.
Q. Was that [the] total amount of the property taxes that you’ve
paid?
A. That’s what we’ve turned in. Yes, that’s correct.
On cross-examination, Noel testified:
Q. Okay. Alright. And them [sic] property taxes on the home,
$2,601.34. Do you have the receipts for that? Cancelled checks for it?
A. I do. There’s a discrepancy on that. We split the first two.
It–so for the sake of agreement $450.00 a piece [sic]. The last one I
paid completely $850.00. There was [sic] other fees that we had paid
going through the secretary running the list of receipts over that is
going to be in there. I think that is going to be acutally a payment for
income tax that we paid jointly and 19.
....
A. Again, it may – it may simply just be a typo. I’m trying to
figure – whenever I was asked that a while ago it was $450., $450.00,
$850.00. That’s what we pay.
36
Q. Okay. So you think maybe $850.00 might be the right
number instead of $2,607.34. Is that right?
A. Ma’am?
Q. So, do you think that $850.00 might be the correct number
instead of $2,607.00?
A. If I remember correctly and I do have the receipts $854.00
something is what I paid this time.
Q. Okay.
A. The two years previously we have [sic] split it, which comes
out to around $450.00.
Q. Okay. So, if the Judge says those are a wash, you’d still
have $850.00.
A. Sure, yes.
Noel submitted check #1059 evidencing his payment of $859.34 to the Vernon
Parish Tax Collector. The trial court manifestly erred in awarding Noel
reimbursement of $2,607.34 for the payment of property taxes. Noel is entitled to
reimbursement for one-half of $859.34 which equals $429.67.
Assignment of Error Eleven/Yates estate
Lisa argues the trial court erred in awarding Noel a reimbursement claim for
the “Yates Estate.” We agree. Noel was awarded $39,262.38 for “Yates Estate.”
At the partition hearing, 15 the trial court stated:
15
The minutes from the hearing state:
Trial – Community Property
....
Case taken up and evidence adduced.
On motion of Fontenot, the Court grants motion to take Judicial Notice of
Appraisal taken by Century 21 previously filed into the record.
On motion of Fontenot, the Court grants motion to take Judicial Notice of
the Affidavit of Small Succession previously filed into the record, no
objection by Talley.
Oral argument between Fontenot and Talley.
37
The Yates estate, Number 11., that’s like $39,262.38 my note
indicates was from his dad’s separate funds. And, so, if that was used
towards the community property that’s a reimbursement claim.
Noel’s response to this argument in brief is reprinted in full (emphasis
added):
Appellant later on in her brief raises the issue of the $39,262.38
of funds that Noel deposited into an account as money he received
from the succession of his father. Noel furthermore testified that he
used that money to make improvements to the former community
property, which included the apartment that he renovated to care for
his father before he died. . . . Appellant’s argument [is] that this
money is not reimbursable because they [sic] were received during the
community property regime. That is not accurate. They [sic] were
[sic] received but they were clearly traceable and delineated as being
the separate property of Noel Yates, which he inherited from his
father.
In Bulloch, 214 So.3d at 944, the court stated:
If separate property of a spouse has been used either during the
existence of the community or thereafter to satisfy a community
obligation, that spouse is entitled to reimbursement for one-half of the
amount or value the property had at the time it was used. La. C.C. art.
2365; Bodenheimer v. Freitag, 94-2573 (La. 1/6/95), 651 So.2d 251.
The burden of proof is on the party claiming reimbursement to show
that separate funds existed and were used to satisfy the community
obligation. Tippen v. Carroll, 47,415 (La.App. 2 Cir. 9/20/12), 105
So.3d 100. Where separate funds can be traced with sufficient
certainty to establish the separate ownership of the property paid for
with those funds, the separate status of such property will be upheld.
Curtis v. Curtis, [403 So.2d 56 (La.1981)].
“Things in the possession of a spouse during the existence of a regime of
community of acquets and gains are presumed to be community, but either spouse
may prove that they are separate property.” La.Civ.Code art. 2340. We find that
Noel proved he received inheritance funds totaling $15,969.79. However, the fact
Court takes Judicial Notice of Ms. Perkins’ analysis.
Defense stipulates separate property; Mr. Yates may retrieve those items if
he wishes.
Objections made and ruled on by the Court.
Case submitted. For oral reasons and evidence adduced, the Court fixed
ruling for June 1, 2022 at 10:00AM.
Court adjoined.
38
that Noel received an inheritance does not entitle him to automatic reimbursement.
Noel must prove he is owed reimbursement for expending his separate property for
a community purpose.
Noel’s claim that he used his inheritance to improve the community home is
completely contrary to the evidence he presented. Noel’s last Detailed Descriptive
List filed May 27, 2022, lists “Yates Estate” as “TBD.” The documentary evidence
indicates the receipt by Noel in November 2019, of $15,969.79 ($8,701.85 Edward
Jones and Columbia Financial Group statement of $7,267.94) in inheritance funds,
which totals $15,969.79, as discussed in the first assignment of error.) Noel
specifically testified about the $15,969.79 in inheritance deposits, but offered no
testimony about the remaining $23,292.59 that is completely unaccounted for in
testimony or documentary evidence. Although inherited money is usually easily
distinguished as separate property of a spouse through documentation, one must
still prove that the separate property was used for a community purpose.
There was significant testimony at the trial regarding the “barn apartment”
that Noel “improved” and whether it was for his benefit or his father’s benefit. We
find this distinction irrelevant. Noel testified numerous times that he did not use
his separate property to improve the barn apartment.
Noel was questioned on direct (emphasis added):
Q. Okay. And did you expend any of your funds that you
inherited from your father to improve any of the property located that
was community property between you and Mrs. Yates?
A. Not any of my funds. Dad past [sic] in September, and the
succession was done in January. She was pushing me to get the
divorce filed, get it filed, get it filed, . . . .
....
Q. Okay. When you were building this apartment, did you
expend any of the money that you inherited from your father?
39
A. No.
Q. Did you expend any of the money that you yourself had that
was your separate property?
A. In building it?
Q. Yes.
A. I mean, we were – by 2018 I was no longer using the – our
joint checking account anymore.
Q. Alright.
A. I mean, I didn’t have a debt [sic] card anymore, nothing. So,
it was all –yeah – money.
[MRS. TALLEY:]
I’m not sure I understood that answer.
Q. Can you repeat that response you just gave?
A. If I understand – I’m going to repeat the question as I
understood it. Did I spend any of my money building the apartment?
Well, the answer would be yes, because we were still together when it
was initially built. To finish it off, right around the time of daddy’s
death, succession, trying to figure out what to do with him until he
passed. It was mainly his money that was spent to finish off things
and maintain his property. The items that we spent money on
between my sister and I on daddy’s stuff is still the same stuff that’s at
the house that we have never had excess [sic] to [.] . . .
Q. Okay. So after your father died, did you spend any money
that was your separate money on improving any of the buildings or
structures on the property?
A. No.
Noel was even questioned by the trial court:
BY MR. YATES:
Number 12, the Yates estate, there is receipts, that is what Mr.
Fontenot and I spoke about first. That is moneys that was spent on the
nonmovable of the property solely off of dad[’]s money before he
passed.
BY THE COURT:
Okay.
40
BY MR. YATES:
In preparation for moving him there at some point.
BY THE COURT:
And that was improving to the value of the property.
BY MR. YATES:
Correct. And that number if I’m not mistaken was right at
$4,700.00.
However, Noel was later questioned on direct:
Q. . . .I’m going to show you these documents here, and there’s
23 of them and I want you to go through each one and look at them
and tell us if – my question is are those sums of money expended to
improve the property that you and Ms. Yates owned? Particularly the
barn property that’s in connection with the apartment you built for
your father.
A. Yes, this is the complete list to include my hand written note.
When I turned it in, not only the apartment, but like I say the
equipment still maintain [sic] on the property that came from the
succession.
Q. And, what was the source of the money that was used to pay
that?
A. Dad.
Q. Money you inherited from him? Is that correct?
A. Correct.
However, on cross-examination regarding the apartment portion of the barn,
Noel testified:
Q. Okay. Alright. Now, one of the exhibits that you entered
into evidence is Noel Yates 11, was a number of receipts and – If I
understand this right, you – well the date of this receipt is 5/27/19. So
May of 19.
A. Yes.
Q. There’s another May of 19, July, August, September all in
through there. At that time, your dad was still living. Is that correct?
A. He had his first surgery in April.
41
Q. Okay. What was the date of your dad’s death?
A. September of 19.
Q. Okay. Now, did he live in this area? In the Leesville area?
A. Yes, ma’am.
Q. Was he in good health before he died?
A. No, ma’am.
Q. What would you say his physical limitations were?
A. He couldn’t walk or stand.
Q. Couldn’t walk –
A. Walk or stand.
Q. Walk or stand – excuse me, I’m sorry.
A. Mentally, he was gone.
Q. Okay, how long was he in that condition?
A. From the time I found him – he deteriorated fast. I found
him in late October of 18 in bad shape. I maintained him at his
residence until [he] broke his back in April.
Noel Yates 11, one of the exhibits offered by Noel, is comprised of many
receipts for charges related to the apartment. All of the receipts that use the
account number bearing the last four digits of 7477 also have a handwritten note
stating “DAD” directly under the 7477. There was no evidence that the account
“7477” was Noel’s personal account that held separate funds. Rather, it was his
father’s debit card that was being used to purchase items for the barn apartment.
Some of these receipts (from places that print out invoices) are even in the father’s
name. There are over twenty receipts all of which evidence purchases made
between May 2019 and August 2019. The last chronological receipt was dated
September 14, 2019, which was before his father died. Noel also submitted a
42
handwritten sheet created by him that states, “Receipts Dad paid for this” that lists
twenty-five receipts dated before his father’s death.16
The receipts prove that the purchases were made before his father’s death on
September 22, 2019, and long before he received his inheritance checks that were
issued on November 5, 2019 ($7,267.94) and the other around November 22, 2019
($8,701.85). The evidence is clear that money spent on the barn apartment was
from Noel’s father’s debit card while the father was still alive and during the
existence of the community. Thus, according to La.Civ.Code art. 2340, these
funds were presumed to be community.
Louisiana jurisprudence has firmly established that the only
issue with respect to gifts of this nature is whether the donor intended
her donation as a gift to the individual or to the community. In
answering that question, the intention of the donor controls the
identity of the donee or donees. Allbritton v. Allbritton, 561 So.2d 125
(La.App. 3rd Cir.), writs denied, 565 So.2d 445, 454 (La.1990). As
stated earlier, the burden of overcoming the presumption of
community property set out in LSA–C.C. Art. 2340 rests upon the
party who asserts that the property is separate. Id.
Hebert v. Hebert, 94-864, p. 4 (La.App. 3 Cir. 2/15/95), 650 So.2d 436, 439.
Because the father’s donative intent cannot be established since he is
deceased, and the only other evidence relating to the father’s intent was Noel’s
own testimony that “[m]entally [his father] was gone[,]” the money spent on the
barn apartment was community funds, and Noel has no reimbursement claim for
these expenditures. Even if he had proven the funds were his separate funds and
that they were used for a community purpose, that would only amount to about
$5,000.00, far less than the $15,969.79 Noel proved that he inherited or the
$39,268.38 he was awarded for “Yates estate.” The trial court manifestly erred in
finding that Noel met his burden of proving he had any claims for reimbursement
16
Some of these receipts in the handwritten list are duplicative of the photocopied
receipts.
43
for separate inheritance funds expended for a community purpose. Thus, Noel is
not due any reimbursement for “Yates estate.” It was manifest error to award a
reimbursement claim for “Yates estate” in the amount of $39,262.38. Accordingly,
we reverse the trial court’s award of $39,262.38 for “Yates estate.”
Assignment of Error Twelve/Deposits Into Joint Account
In her final assignment of error, Lisa argues the trial court erred in awarding
Noel a reimbursement claim for deposits of $36,277.00 into the joint account.
Noel’s detailed descriptive list asserts $36,277.00 due in reimbursement for
“[d]eposit made to joint bank account since separation[.]” In this assignment, Lisa
states (footnotes omitted):
Noel claimed he deposited $36,277.00 into the joint banking
account after separation. First the parties separated sometime
during the summer of 2019; but he did not file his divorce petition
until February 27, 2020. Only deposits made after that date are
presumed to be use [sic] of his separate funds.
Next, Noel offered no documentary evidence of that amount
being deposited by him into the joint account. He said the amount
did not include the $2,000.00 / month they first agreed on, the
$1,000 / month they agreed on at the first hearing, or the $900.00 /
month the Trial Court awarded for interim spousal support between
March 17, 2020 and May 31, 2020. Some of the few checks he
produced were credited elsewhere, such as for payment of the
mortgage. One was to give Lisa ½ of the tax refund, for example.
To allow a credit in more than one place is double-dipping and
should be reversed.
....
Further, Noel’s deposits should have been reduced by his
payment of $900.00 / month in between March 7, 2020, and May
31, 2021 (for a total of $13,275.00) interim spousal support to Lisa,
pursuant to, orders of the Trial Court, and credit sign applied
elsewhere.
Noel’s brief does not address this assignment of error.
At the June oral hearing on the judgment, the trial court stated: “The
deposits, I believe is [sic], $36,277.00, which is funds that Mr. Yates deposited into
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their joint checking account since the date of separation. That’s 5., I’m going to
give him credit for that.”
Noel’s counsel identified the accurate time period in question regarding the
validity of payments made from separate property early on in questioning:
Q. Okay, well let’s go - - go through each one, and tell us what
you expended, and how much you expended of the money you just
identified as your dad’s money.
A. From November until February.
Q. And November
A. 19 until February of - -
Q. 19 until February of - -
A. 20.
Q. 20.
A. I’m still there. I’m still spending money there. I’m still
sending money into the joint account. We’re paying bills out of that
money. We’re - - it’s normal everyday living expenses. I’m
maintaining – I’m still there maintaining the property. That is money
that goes direct into the account.
Q. Okay. And, so, do you have any documentation to show
specifically what that money was used to pay for?
A. I have the cancelled checks where I was sending her
$2,000.00 per month. I have –
Q. Out of that account?
A. Yes. I have – yes.
On this subject, Noel testified (emphasis added):
A. In February [the mortgage payments were] coming out of
the joint account. Our joint Capital One account. My direct
deposits ended in February. I continued to pay her $2,000.00 per
month. Is [sic] something we agreed on verbally, until which time
we had the first zoom hearing and at that point in time we agreed to
$1,000.00 that I continued to pay until May of 21. The order on
that was to pay $1,000.00 per month for expenses is the way it was
written in the order. But, at that point in time from April until
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October, April of 20, until of October of 20, I had placed the house
in forbearance because she wasn’t employed at the time.
At the partition trial, Noel was questioned by the trial court:
BY THE COURT:
So, what I have to make sure, Mr. Yates is one, if you inherited
money from your family, that’s separate property. Post separation
money is your separate property. And, so, did separate money go for
community property? That’s what I have to consider – like there’s
some reimbursement claims, okay, for stuff paid. And did you use the
money you inherited from your father or did you use your personal
money post separation to pay things then there is some reimbursement
claims because it’s your separate property. It was not a community
thing at that point. Especially, inheritance you know, if somebody
inherited $5,000.00 and you went to pay the house note, well you’re
entitled – that’s – what was yours not y’all’s money.
BY MR. YATES:
Maybe I’m not answering correctly. When dad passed and
succession was done there was a significant amount of succession
money put into the accounts that I opened prior to us filing for
divorce. We were still married. So, those moneys are deposited
into that account literally a month before filing. This is the same
two accounts that I moved direct deposits too [sic]. These are the
same accounts that I have paid along the way everything to her, to
include the $2,000.00 per month until we actually had court and
had a judgment.
BY THE COURT:
So you did expend separate property funds you got from
your father – your inheritance from your father to pay community
debts. And so legally you want that your entitled to back in those.
BY MR. YATES:
Yes.
BY THE COURT:
And I’ll let Mr. Fontenot and Mrs. Talley go into grader [sic]
detail. I’m just trying to understand everything. You know, how
much money is in there, that’s your business. Okay. Unless it was
a community thing, and then that becomes our business. You
know, but if you used your money same thing with Ms. Yates, if
she got money that she inherited or somebody gave her then we
have to calculate all that. So we have to know, I guess what to ask
and not to ask. . . .
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....
BY THE COURT:
Now I will ask a question before I turn the lawyers back
loose. That moneys from those two Barksdale accounts is that, that
you expended, because only your [sic] going to have the
knowledge and there will be a paper trail. Is that reflective, Mr.
Yates in this reimbursement part that you’ve laid out here?
BY MR. YATES:
There - - in the reimbursement- -
....
BY MR. YATES:
I – I hope so. That is the accounts I’ve had – all moneys [sic]
I had in a check form goes into that account. Everything I pay go
goes out. Essentially, I’m paying the bills there - -
BY THE COURT:
But, did it go out through one through 12 on that page five
[Noel’s reimbursement claims on his detailed descriptive list]?
.....
BY THE COURT:
Did you use money from Barksdale, one and two I’ll call it that
is your separate property from your dad – did that go – is that
reflective [sic] in one through 12 on page five? Or do we need to be
looking somewhere else for that moneys?
BY MR. YATES:
All of that moneys [sic] went to the same place. I mean, that’s
the only way I know how to answer that. Everything I’m paying for
and have paid for, paying rent during all this, the expenses that during
the time that she wasn’t working, the money I was sending her that’s
all from that account.
BY THE COURT:
And that is reflective one through 12? Or is that reflective –
BY MR. YATES:
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Well, yes. It is deposits made into the account since separation,
$36,277.00.
BY THE COURT:
Okay. So now we know that you’ve put that much money from
your separate funds into deposit number five. Is [sic] correct?
BY MR. YATES:
Correct.
BY THE COURT:
Okay. Well, that gives a number to work with. You know, if
you expend $36,000 of your separate money into community debts,
that’s number five on page five, Mrs. Talley and Mr. Fontenot.
According to Mr. Yates, that’s where some of it is reflective.
Noel testified that the sources of the inheritance from his father’s estate were
“an insurance policy, it was a bank account, and an Edward Jones Account.” As
previously noted, Noel only testified, and the evidence in the record only
established, that he received $15,969.79 in inheritance money that was deposited
into his Barksdale account.
Later in the record, he was asked on cross-examination:
Q. Okay. Alright. And then Number five, deposit made into
joint bank account since separation. Now, does this include the
alimony checks that you wrote, or deposited there or whatever?
A. The $1,000.00 per month? The ordered $2,000.00 per month?
Q. Yes, Sir.
A. No ma’am.
Q. Okay. What kind of evidence do you have that supports that?
A. It is in the direct deposits in the bank – in the bank
statements.
Cross-examination continued:
Q. Now, but what should be on here, on your last list but, hasn’t
been on the list would be that account at Barksdale Federal Credit
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Union that has account number 2202 and 2201. The second one being
savings. Those should be on here. Correct?
A. And they are.
Q. That’s an account that you had established while y’all were
married.
A. Correct.
Q. And you put your pay roll check in there.
A. Only after the divorce filling [sic]. Yes.
Q. Okay. Well you continued [sic] to use it now though. You
continued [sic] to use that same account now?
A. Yes, it’s the same accounts I had since then.
Q. Alright. Are you saying that everything that went into that
account before you file your petition for divorce was your dad’s
money?
A. Pretty close. I put some overtime checks, or some detailed
[sic] checks along the way. I was paying for Tanner.
Q. Okay, but it was overtime you earned while you were
married. Correct?
A. Yes, details, yes.
Noel then testified about the community funds addressed in assignment one.
Lisa testified:
He - - paid - - he - - up until we filed for divorce at the end of
February he paid $2,000.00 per month toward expenses. And then
once we filed for divorce in March, I think he paid $2,000.00. And
then in April you told him to pay $1,000.00, and he started paying
$1,000.00 towards expenses.
Noel was questioned by the trial court near the end of the trial:
BY THE COURT:
Mr. Yates, I’ve got a question while they’re doing that.
[XXXX]1011, there is about $39,262.38 worth of what I would call
money that you got from your dad that you show deposits into an
account from your accounts that you opened up from your dad’s estate.
Is that approximately correct? That would be Number 11 on your
reimbursement claim.
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BY MR. YATES:
Yes.
BY THE COURT:
Okay. And then Number 5 says deposits you made to the joint
account since separation, which is $36,277.00. Is that a different
account and where did that money come from? Your salary from the
sheriff or money from that – since you separated. So is that $39 plus
the $36 that you’ve put towards that you’re asking reimbursement for?
BY MR. YATES:
My salary was direct deposited into the Capital One that I
didn’t have access to.
BY THE COURT:
And that’s the one where all the bank payments were coming
out of that Ms. Yates had control over.
BY MR. YATES:
That’s correct, that’s correct.
[NOEL YATES]:
And then I continued to pay after I pulled my direct deposit,
which was after filing, I continued to pay her us agreeing $2,000.00
per month until the court ordered $1,000.00 per month.
BY THE COURT:
Okay. And, so, that would have been from February, I think
you filed about February 27th–
BY MR. YATES:
That’s correct.
BY THE COURT:
And when was the $1,000.00? I don’t have that.
BY MR. YATES:
It would’ve started in April of 20.
BY THE COURT:
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2020?
BY MR. YATES:
April of 20.
BY THE COURT:
Okay. So you’ve paid March and April. So you’ve paid
$2,000.00 for two months. This $36,277.00, where did that come
from? What is that? Is that the $1,000.00 per month you put in that
account?
BY MR. YATES:
And the direct deposit from separation.
BY THE COURT:
Right. The $2,000.00 then the $1,000.00, so you’re counting
every month you put $1,000.00 or $2,000.00 in there?
BY MR. YATES:
That’s correct.
BY THE COURT:
Okay. I’m just trying to understand where – was that a – it’s a
fairly lengthy, you’ll probably know or Mrs. Talley or Mr. Fontenot
will know. The $1,000.00 that wasn’t spousal support or child
support? That was just paying the bills?
BY MR. YATES:
In the order, it said expenses and bills.
BY THE COURT:
Okay. Is that correct, Mrs. Talley.
BY MRS. TALLEY:
I’m sorry.
BY THE COURT:
Expenses and bills, the $1,000.00 in the Court order was for
him to continue to pay expenses and bills till whatever –
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BY MRS. TALLEY:
Yes, yes.
Noel testified that his separate funds were used to satisfy community debts,
“everyday living expenses.” While Noel testified that he had cancelled checks as
proof of the payments he made, he did not submit any cancelled checks or bank
statements into the record except for one page of a November 30, 2019 statement
showing one of the deposits he received from his inheritance totaling $7,267.94,
and two pages of a statement that shows an electronic transfer of $1,000.00 to the
joint Capital One account in February 2020. Nevertheless, based on his testimony,
we find the trial court could have reasonably concluded that Noel used his separate
inheritance money from November 2019 through February 2020 to pay the
$2,000.00 per month to Lisa for ordinary expenses. While the Barksdale accounts
were joint accounts, it appears uncontested that once Noel deposited his
inheritance funds in those accounts, no other community funds were deposited.
A judgment of divorce terminates the community of acquets and gains
retroactively to the date of the filing of the divorce petition. La.Civ.Code art. 159.
Again, La.Civ.Code art. 2365 allows reimbursement when “separate property of a
spouse has been used either during the existence of the community property regime
or thereafter to satisfy a community obligation[.]”
We cannot say how the trial court arrived at a reimbursement of $36,277.00
based on payments of $2,000.00 and $1,000.00. Nothing in the record accounts for
the $277.00. We note that the “date of separation” is referred to frequently in the
record, but prior to the retroactive date of termination of the community, February
27, 2020, the only funds Noel would be entitled to are those he proved to be his
separate property. Noel is not entitled to reimbursement for the payments made
from June 2019, until he received his inheritance in November 2019, as the funds
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used to make those payments were community property. Thus, we find the trial
court manifestly erred in awarding Noel payments from the date of separation
equaling $10,000.00 (five months at $2,000.00 per month) until the date he
received his inheritance. The trial court did not err in attributing the $2,000.00
payments from November 2019, through February 2020, as Noel’s separate
property. Therefore, Noel is entitled to $8,000.00 in reimbursement for the
payments he made into the joint account in November 2019, December 2019,
January 2020, and February 2020.
Regarding the payments made subsequent to termination, Noel provided no
documentary evidence to support the claims, but the testimony was clear from both
parties that he paid the $2,000.00 and $1,000.00. Therefore, Noel is entitled to
reimbursement for the remaining payments from termination until partition which
amounts to $2,000.00 per month for March 2020 and April 2020, and $1,000.00
per month for May 2020 thru July 2021 (15 months for a total of $15,000.00 +
$4,000.00 = $19,000.00). Accordingly, we amend the trial court’s award of
$36,277.00 to $27,000.00. Noel is therefore entitled to one-half of that amount in
reimbursement, $13,500.00.
Finally, despite significant effort on our part, we are unable to reconcile the
math in the trial court’s written judgment with the math in the hearing partitioning
the property. One such example is that Noel requested $65,800.00 in
reimbursement but was awarded $158,298.82. According to Lisa, the judgment
was prepared by Noel’s counsel without her input. Of notable concern is the
possibility that the reimbursement claims were not properly halved. In Carmichael
v. Brooks, 16-93 (La.App. 3 Cir. 6/22/16), 194 So.3d 832, writs denied, 16-1396,
16-1501 (La. 11/7/16), 209 So.3d 100, the appellate court was faced with similar
issues and remanded for recalculation in light of its rulings. Similarly, we feel a
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remand is necessary in order to recalculate assets, liabilities, and reimbursements
with attention given to halving as required by law, taking into consideration the
findings above and with the input of both Lisa and Noel’s counsel.
CONCLUSION
We affirm the trial court’s rulings relating to Lisa’s MidAmerica retirement
plan; the home appraisal value of $590,000.00; the reimbursement award to Lisa
for insurance premium payments in the amount of $9,224.26; the reimbursement
award to Lisa for the Montana tractor in the amount of $4,500.00; the award of
$77.00 in reimbursement to Noel for transcript costs; the award of $250.00 in
reimbursement for the appraisal fee; the reimbursement award of $12,920.08 to
Noel for health, vision, and dental insurance payments; the reimbursement award
to Noel for $7,795.00 in mortgage payments; and the reimbursement to Noel of
$41,400.00 for rental reimbursement.
We find the trial court manifestly erred in the following awards and amend
as follows: the reimbursement award to Lisa for car loan payments is amended to
$17,550.62; for credit card payments to $8,376.00; the award to Noel for property
taxes is amended to $429.67; the award to Noel for “deposits into joint account” to
$27,000.00.
We find no manifest error in the trial court’s ruling relating to the
Schamerhorn debt but order the trial court to amend the judgment to reflect same.
We amend the trial court’s ruling to reflect that Lisa is entitled to one half of
the community funds existing in the former joint accounts at the time of
termination, in the amount of $2,442.63.
We reverse the reimbursement award of $2,030.02 for payments on
children’s “insurance premiums,” and the award for “Yates estate” in the amount
of $39,262.38. This case is remanded for proceedings consistent with this opinion.
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Costs of this appeal are assessed equally between the parties, Noel W. Yates and
Lisa J. Yates.
AFFIRMED AS AMENDED; REVERSED IN PART;
AND REMANDED.
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