Alford v. Alford

653 So. 2d 133, 1995 WL 144803
CourtLouisiana Court of Appeal
DecidedApril 5, 1995
Docket94-1464
StatusPublished
Cited by14 cases

This text of 653 So. 2d 133 (Alford v. Alford) is published on Counsel Stack Legal Research, covering Louisiana Court of Appeal primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Alford v. Alford, 653 So. 2d 133, 1995 WL 144803 (La. Ct. App. 1995).

Opinion

653 So.2d 133 (1995)

Pamela Dove ALFORD, Plaintiff-Appellee,
v.
Kenneth Ray ALFORD, Defendant-Appellant.

No. 94-1464.

Court of Appeal of Louisiana, Third Circuit.

April 5, 1995.

Charles Wilson Seaman, Natchitoches, for Pamela Dove Alford.

Charles Raymond Whitehead Jr., Natchitoches, for Kenneth Ray Alford.

Before YELVERTON, SAUNDERS and SULLIVAN, JJ.

SULLIVAN, Judge.

This is a community property partition suit brought pursuant to La.R.S. 9:2801. Pamela and Kenneth Alford were married on July 22, 1989. The parties physically separated on February 22, 1992, and Pamela filed a petition for divorce on March 3, 1992. The trial court rendered a judgment of divorce on February 23, 1993 and signed same on March 17, 1993.

Two days later on March 19, 1993, Pamela filed a petition to partition the community property. Each party filed sworn detailed descriptive lists of community assets and liabilities in compliance with La.R.S. 9:2801. Trial on the merits was held on February 2, 1994. The parties stipulated to the value of several of their assets. After accepting the stipulation, the trial court was left to resolve the values of the following items:

1) family home in Vienna Bend Subdivision;
2) cash located in the family home;
*134 3) Wal-Mart stock;
4) Kenneth's body shop tools and equipment;
5) Pamela's Wal-Mart profit sharing plan;
6) Pamela's payment of the mortgage indebtedness on the family home;
7) proceeds from Pamela's personal injury settlement.

The trial court rendered reasons for judgment on June 2, 1994 and signed judgment on August 8, 1994 in favor of Pamela for $4,080.22 plus interest from the date of judicial demand until paid.

Kenneth appeals and asserts that the trial court erred in the following respects:

1) failing to classify the Wal-Mart profit sharing plan as community property;
2) valuing the home at $65,300.00 instead of $78,000.00;
3) valuing the body shop tools at $12,000.00 instead of $3,000.00;
4) rejecting Kenneth's testimony concerning the amount of money in the home safe ($8,800.00) and accepting the amount ($9,700.00) asserted by Pamela.

For the following reasons, we reverse the trial court's decision insofar as it failed to recognize that the portion of the Wal-Mart profit sharing plan which accrued during the existence of the marriage is community property. In all other respects, we affirm.

PROFIT SHARING PLAN

Pamela testified that, as of the date of trial, she had been working for Wal-Mart for twelve and one-half (12½) years. She is a district manager of the jewelry and Ushoe departments. Pamela stated that the profit sharing plan was in existence and that she was a participant therein at the time of her marriage to Kenneth. All funds in the plan are placed there by Wal-Mart and contributions are based solely on Wal-Mart's profitability at the end of each fiscal year. The amount of the annual contribution is completely at the discretion of the Wal-Mart board of directors. The contributions are not dependent upon Pamela's performance as an employee, and, under plan rules, she is prohibited from contributing directly to her account.

Plaintiff's exhibit number 12, which was introduced into evidence in conjunction with Pamela's testimony is a statement of the value of Pamela's account from Debbie Davis Campbell, the director of Wal-Mart's profit sharing trust. The statement reflects that, on July 31, 1989 (eight days after the marriage), the account value was $17,855.06. As of January 31, 1992, the account value had risen to $49,444.11. Pamela's attorney represented to the trial court that further inquiry had been made to Wal-Mart in an effort to acquire more explanatory information. The parties agreed to leave the record open for receipt of the correspondence from Wal-Mart.

Plaintiff also entered into evidence the Wal-Mart Benefits Book which, in pertinent part, describes the profit sharing plan. Wal-Mart makes yearly contributions to the plan based on its profitability. As a general rule, the specific amount deposited in each employee's account is not to exceed twenty-five percent (25%) of the particular employee's annual compensation. An employee can lose benefits through forfeiture, i.e., termination of employment before the employee is fully vested (seven years), and through investment losses. Additionally, the profit sharing plan is not insured by the Pension Benefit Guaranty Company because it is not a "defined benefit" plan.

The record indicates further that Wal-Mart's April 14, 1994 response to plaintiff's inquiry was received by plaintiff on April 25, 1994 and filed into the record on April 27, 1994. The correspondence, authored by Wal-Mart profit sharing trust director Debbie Davis Campbell, indicates that the information contained in the previous statement dated July 30, 1992 (plaintiff's exhibit number 12) is correct. Campbell further explains that the valuation dates used (July 31, 1989; January 31, 1992) are the closest possible valuation dates to the date of marriage (July 22, 1989) and the date of filing of the divorce petition (March 3, 1992). Additionally, Campbell represents in the letter that "Our Profit Sharing Plan is the only retirement plan that Wal-Mart offers." (Emphasis ours.)

*135 The trial court determined that, since the profit sharing plan was in existence prior to the marriage, it is Pamela's separate property. The trial court specifically found that the profit sharing plan is not a pension and, due to this finding, refused to apply the Sims v. Sims, 358 So.2d 919 (La.1978) and progeny formula. Instead, the trial judge applied La.C.C. art. 2368[1] and the jurisprudence applying said article[2] to hold that, because the increased value of the profit sharing plan during the marriage was not due to the uncompensated common labor and industry of the spouses, Kenneth has no right to claim a proportionate ownership interest in the profit sharing plan.

Simply stated, the trial court erred in this respect. For the following reasons, we conclude that Pamela's Wal-Mart profit sharing plan is a community asset to the extent of the portion which accrued during the existence of the community.

In Hare v. Hodgins, 586 So.2d 118, 122 (La.1991), the Supreme Court of Louisiana stated:

This court decided in T.L. James & Co., Inc. v. Montgomery, 332 So.2d 834 (La. 1976) that an employee's contractual pension right is not a gratuity but a property interest earned by him.
To the extent that the right derives from the spouse's employment during the existence of the marriage, it is a community asset subject to division upon dissolution of the marriage. La.Civ.Code art. 2338; Sims v. Sims, 358 So.2d 919 (La.1978); T.L. James & Co., Inc. v. Montgomery, 332 So.2d 834 (La.1976). Consequently, when the community is terminated, the employee's spouse is entitled to be recognized as the owner of one-half of the value attributable to the pension or deferred compensation right earned during the existence of the community. La.Civil Code art. 2336; La.R.S. 9:2801 (1991); Sims, supra at 923-24; T.L. James & Co., supra; see generally Messersmith v. Messersmith, 229 La.

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Cite This Page — Counsel Stack

Bluebook (online)
653 So. 2d 133, 1995 WL 144803, Counsel Stack Legal Research, https://law.counselstack.com/opinion/alford-v-alford-lactapp-1995.