Ball v. Ball

757 So. 2d 824, 2000 WL 228920
CourtLouisiana Court of Appeal
DecidedMarch 1, 2000
Docket32,851-CA
StatusPublished
Cited by13 cases

This text of 757 So. 2d 824 (Ball v. Ball) 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
Ball v. Ball, 757 So. 2d 824, 2000 WL 228920 (La. Ct. App. 2000).

Opinion

757 So.2d 824 (2000)

Barry Dean BALL, Plaintiff-Appellee,
v.
Karen Suzanne Holifield BALL, Defendant-Appellant.

No. 32,851-CA.

Court of Appeal of Louisiana, Second Circuit.

March 1, 2000.
Rehearing Denied March 30, 2000.

*825 James A. Hobbs, West Monroe, Counsel for Appellant.

Alan James Norris, Shreveport, Stephen P. Dupuy, Monroe, Counsel for Appellee.

Before WILLIAMS, CARAWAY and DREW, JJ.

CARAWAY, J.

This community property partition dispute primarily concerns reimbursement for mortgage payments made by the spouse who enjoyed the occupancy of the family residence after divorce until the time of this partition. One spouse appealed this issue and the other spouse answered raising other issues on the trial court's accounting for the community property. Based upon our review, we affirm in part and amend in part the community property partition.

Facts

Barry Ball ("Barry") and Karen Ball (now Franklin) ("Karen") were married on March 2, 1975. On January 9, 1995, Barry and Karen physically separated and Barry filed for divorce on January 11, 1995. Judgment of divorce was rendered between the parties on August 16, 1995 terminating the community of acquets and gains existing between them retroactive to January 11, 1995.

*826 On January 5, 1996, Barry filed a petition for partition of the community property and also sought an accounting from Karen of the property in her possession which belonged to the former community and a settlement of the accounts existing between Barry's separate estate and the former community. Trial was not completed until December 5, 1997.

In its reasons for judgment, the trial court determined that in light of the values of the property each party was allocated, an equalizing payment was necessary from Barry to Karen to achieve an equal division of the community property. Barry contended in a letter to the court on August 4, 1998 that the court had made a calculation error in the equalizing payment. However, because the trial court did not correct the error when an initial judgment was rendered on January 7, 1999, Barry filed a motion for a new trial. Following hearing on this motion, the trial court modified the equalizing payment in the amended judgment of February 3, 1999, reducing it to $12,788.58. The trial court awarded interest on the equalization payment due from Barry to Karen from the date of Barry's judicial demand.

Also in the written reasons for judgment, the trial court allowed certain reimbursement claims to each party, while denying others. In particular, the trial court denied Barry's claim for Karen to pay rent for her occupancy in the family residence. Nevertheless, the court found that Karen's new husband, Tom Franklin ("Franklin"), had also lived in the home and had made monthly payments on the home mortgage. The court therefore denied Karen's reimbursement claim for one-half of those mortgage payments. The trial court further valued the community bank accounts at $23,479.30, the balance in the accounts on the date the divorce was filed, instead of $17,346.96, the balance in the accounts at the time of trial. These accounts were awarded to Karen, and Barry was ordered to make up the decrease in balances of the accounts.

Both parties have appealed various rulings by the trial court in the accounting for and the division of the community property.

Discussion

In community property partitions, the trial court is granted much discretion in valuing and allocating assets and liabilities and is required to consider the source and nature of each asset or liability, the financial situation of the other spouse, and any other relevant circumstances. La. R.S. 9:2801 et seq.; Bedenbender v. Bedenbender, 28,579 (La.App.2d Cir.8/21/96), 679 So.2d 506. Given this great discretion, the trial court is not required to accept at face value a spouse's valuation of assets or debts, or claims against the community. Bedenbender, supra. An appellate court may not set aside a trial court's factual findings absent manifest error or unless clearly wrong. Stobart v. State, Through Department of Transportation and Development, 617 So.2d 880 (La.1993).

Reimbursement for Mortgage Payments

Karen argues that the trial court erred in denying her certain reimbursement claims for mortgage payments. In a judgment of the court on March 28, 1995 fixing child support and alimony pendente lite, Karen was granted the use of the home and contents. The ruling also provided that Karen would pay the mortgage note on the home. The arrangement continued after the August 1995 divorce, and the trial court in this partition proceeding awarded Karen reimbursement for one-half of the mortgage payments that she made from April 1995 through the end of 1995. That amount of reimbursement that Barry owes Karen is not disputed by Barry.

Beginning in early 1996, the record shows that Franklin paid the monthly mortgage payments. From that time until May 31, 1996 when Franklin and Karen were married, Franklin paid three installments by checks drawn on his account. *827 Beginning with a check dated May 31, 1996, the mortgage company was paid by checks drawn on the joint checking account of Franklin and Karen, with Franklin signing each check. The amount of payments from 1996 through the time of trial that were made from these checking accounts totaled $22,809.44.

At trial, while acknowledging the mortgage indebtedness as a community obligation, Barry disputed that the $22,809.44 was paid with the separate property of Karen, and additionally, Barry presented evidence that the rental value of the home was approximately equal to the amount of the monthly installments on the mortgage debt. Barry thus argued that no reimbursement under La. C.C. art. 2365[1] is due for the mortgage payments made by Franklin.

Citing McCarroll v. McCarroll, 96-2700 (La.10/21/97), 701 So.2d 1280, the trial court ruled on Karen's reimbursement claim as follows:

"The Court finds that, just as Mr. Ball [because of McCarroll] was denied rental payments from Mr. and Mrs. Franklin, Mr. Franklin and Mrs. Franklin should be denied reimbursement for one-half the mortgage payments. Mr. Franklin lived there and he got equal value for his money, since the rental value and the mortgage payments were equal."

The resolution of this matter involves both the law concerning the use of the coowned family residence and the reimbursement right under La. C.C. art. 2365. After termination of the community property regime, the provisions governing co-ownership apply to former community property, unless otherwise provided by law. La. C.C. art. 2369.1. The special provision governing co-ownership of the family residence prior to the partition of the community is La. R.S. 9:374(C), which provides as follows:

"A spouse who uses and occupies or is awarded by the court the use and occupancy of the family residence pending either the termination of the marriage or the partition of the community property in accordance with the provisions of R.S. 9:374(A) or (B) shall not be liable to the other spouse for rental for the use and occupancy, unless otherwise agreed by the spouses or ordered by the court."

In McCarroll, supra, the Louisiana Supreme Court reviewed the law of co-ownership and La. R.S. 9:374(C) noting the general rule that "the right of co-owners to possession of the property being equal and co-extensive, neither becomes indebted to the other for his personal occupancy." Id. p. 1290,

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Bluebook (online)
757 So. 2d 824, 2000 WL 228920, Counsel Stack Legal Research, https://law.counselstack.com/opinion/ball-v-ball-lactapp-2000.