Barr v. Barr

613 So. 2d 1159, 1993 WL 41166
CourtLouisiana Court of Appeal
DecidedFebruary 10, 1993
Docket92-CA-715
StatusPublished
Cited by8 cases

This text of 613 So. 2d 1159 (Barr v. Barr) 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
Barr v. Barr, 613 So. 2d 1159, 1993 WL 41166 (La. Ct. App. 1993).

Opinion

613 So.2d 1159 (1993)

Wallace W. BARR, III
v.
Sharon Difatta BARR, Wife of Wallace W. Barr, III.

No. 92-CA-715.

Court of Appeal of Louisiana, Fifth Circuit.

February 10, 1993.
Rehearing Denied March 17, 1993.

*1161 John H. Brooks, Gretna, for defendant/appellant Sharon Difatta Barr, wife of Wallace W. Barr, III.

Henry Hoppe, III, Slidell, for plaintiff/appellee Wallace W. Barr, III.

Before DUFRESNE, GOTHARD and CANNELLA, JJ.

CANNELLA, Judge.

Plaintiff, Wallace W. Barr, and defendant, Sharon Difatta Barr, appeal from the judgment which partitioned their community property. For the reasons which follow, we amend the judgment, and as amended, affirm.

The parties were married on April 13, 1973. Two children were born of the marriage. They physically separated on July 16, 1987. The community was terminated on September 22, 1987.[1] Thereafter, a Petition for Partition of Community Property was filed on November 29, 1989. The matter was heard on April 22, 1991 and taken under advisement. Defendant was represented by counsel and plaintiff appeared in proper person. As pointed out by the trial judge, "this has been a bitterly contested domestic action. In the partition the parties have made claims for reimbursement for separate funds, for property missing, and have submitted lists of property that included such items as a `scraper', pens, pins, blankets and even a paper towel holder." On December 6, 1991 the trial judge rendered judgment, partitioning the community property and both parties have appealed.

Defendant assigns eight errors concerning various items addressed in the judgment. We will treat each of them in order.

I. The Rolex Watch.

Defendant contends that the trial judge erred in assessing the value of the man's Rolex watch at $7,080, arguing that it should have been valued at $12,500, the appraisal value. Plaintiff, on the other hand, argues that the trial judge erred in finding that the watch was community property, because it was purchased with separate funds.

The trial testimony revealed that a man's Rolex watch was purchased during the marriage on February 16, 1985. Plaintiff alleges that the watch was purchased with $1,000 cash, which was community property, and the remainder was paid by the exchange of old jewelry which he had acquired before his marriage (separate property). The bill of sale had the block marked "cash" checked off and the price of the watch was designated at $8,745. Plaintiff testified that he lost the watch on May 17, 1986 and State Farm paid a loss claim of $7,780. With this sum, plaintiff purchased another Rolex watch on July 1, 1986 for $8,250. On the date of purchase it was appraised by the selling jeweler for $12,500. This watch was missing at the time of trial.

The trial judge, in his reasons for judgment, considered the argument of each party in deciding that the watch was community property and assessing its value at $7,080.

We agree with the trial judge that the watch was community property. It was purchased during the existence of the community and therefore presumed to be community property. La.C.C. art. 2338. The trial judge found that plaintiff did not overcome that presumption by his testimony alone and without corroborative proof. *1162 The bill of sale for the watch did not support plaintiff's testimony that the watch was purchased with the exchange of old jewelry. The bill of sale showed "cash".

The trial judge further ruled that the appropriate value of the watch was set by the insurance payment for the lost watch ($7,080[2]). Defendant argues that the appraised value of $12,500 should be used as the value of the watch.

The appraisal, referred to by defendant, was made by the selling jeweler on the same day as the sale, in an amount more than $3,500 in excess of the selling price. Rather than using the appraised value, the trial judge relied on the sum that the insurance company paid for the loss of a similar watch. We find clear error in the trial judge's reliance on that figure. On July 1, 1986 the watch was purchased for $8,250. The purchase price is uncontradicted. There is no persuasive evidence that it was worth more, or less, when the community ended. Accordingly, we amend to $8,250 the value placed on the Rolex watch. Since plaintiff was last in possession of the watch, its value is attributed to him.

II. Post Divorce Rent For Use of the Family Home.

The trial judge awarded plaintiff $7,475 for post divorce rent, for use of the family home (community property) by defendant, her new husband and the parties' two children. Defendant contends that under La.R.S. 9:374(C) no rent is due because the matter was previously considered and rent was not awarded.

La.R.S. 9:374(C) provides:

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

Defendant argues that under this provision, because rent was not previously ordered, plaintiff is precluded from receiving rental reimbursement. Defendant relies on the case Wochomurka v. Wochomurka, 552 So.2d 405 (La.App. 1st Cir.1989) in support of her argument. In that case, the First Circuit interpreted La.R.S. 9:374(C) to mean that a spouse, awarded the use and occupancy of the marital home pending the judicial partition of the community, shall not be liable to the other spouse for rental payments unless agreed to by the spouses beforehand or unless ordered by the court at the time the spouse is awarded occupancy of the home.

There is a conflict in our appellate circuits on this issue. The Third Circuit has reached a contrary result in LeBlanc v. LeBlanc, 490 So.2d 763 (La.App. 3rd Cir. 1986). In that case, the trial judge expressly refused to award rent to the wife in an earlier judgment, granting the husband use of the community property. Thereafter, in the partition proceeding, the trial judge ordered rental reimbursement for the time that the husband occupied the family home, despite the earlier ruling. The Third Circuit affirmed the judgment on this point, reasoning that "[t]he statute clearly establishes that a decision to award rent to a non-occupant spouse rests within the discretion of the judge." The court reasoned that the earlier judgment denying rent was interlocutory in nature and subject to change in the final partition judgment. In a more recent case, the Third Circuit stated, in allowing a later award for rent, that La.R.S. 9:374(C) creates a rebuttable presumption that no rental payments are due unless agreed upon by the spouses beforehand or ordered by the court at the time the spouse is awarded occupancy of the family home. Herrell v. Herrell, 594 So.2d 943 (La.App. 3rd Cir.1992). In again affirming the later rent award, the court in Herrell held that, where the record was silent on rental payments, the court could award rental reimbursement later, at the time of the partition of the community property. The court relied on its earlier *1163 decision, Patin v. Patin, 462 So.2d 1356 (La.App. 3rd Cir.1985), and equity, to find that where the community property was occupied by one spouse to the exclusion of the other, as in the case of remarriage, rent was owed for the use of the community property.

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Cite This Page — Counsel Stack

Bluebook (online)
613 So. 2d 1159, 1993 WL 41166, Counsel Stack Legal Research, https://law.counselstack.com/opinion/barr-v-barr-lactapp-1993.