Benoit v. Benoit

91 So. 3d 1015, 2011 La.App. 1 Cir. 0376, 2012 WL 758961, 2012 La. App. LEXIS 298
CourtLouisiana Court of Appeal
DecidedMarch 8, 2012
DocketNo. 2011 CA 0376
StatusPublished
Cited by17 cases

This text of 91 So. 3d 1015 (Benoit v. Benoit) 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
Benoit v. Benoit, 91 So. 3d 1015, 2011 La.App. 1 Cir. 0376, 2012 WL 758961, 2012 La. App. LEXIS 298 (La. Ct. App. 2012).

Opinion

GUIDRY, J.

12This appeal arises from a trial court judgment partitioning the community of acquets and gains formerly existing between Troy Benoit and Tammy Williams Benoit. For the reasons that follow, we vacate the judgment of the trial court.

FACTS AND PROCEDURAL HISTORY

Troy and Tammy Benoit were married on December 31, 2000. This was Troy and Tammy’s second marriage to one another. On March 8, 2006, Troy filed a petition for La. C.C. art. 102 divorce. In his petition, Troy sought, among other things, partition of the community of acquets and gains in accordance with La. R.S. 9:2801. Tammy filed an answer and reconventional demand also seeking partition of community property. A final judgment of divorce was subsequently rendered on December 15, 2006.

On January 14, 2008, Tammy filed a detailed descriptive list of assets and liabilities of the community. Troy filed a sworn detailed descriptive list on April 14, 2008 and filed an amended detailed descriptive list on August 6, 2008. Thereafter, Troy and Tammy filed a combined detailed descriptive list on October 28, 2009.

A trial of the community property partition was held on January 5, 2010. Prior to the presentation of evidence, Troy and Tammy stipulated as to the classification, allocation, and/or valuation of certain assets, liabilities, and claims for reimbursement. Following a trial on the remaining contested issues, the trial court issued reasons for judgment on February 8, 2010, and signed a judgment on April 8, 2010, partitioning the community of acquets and gains. Tammy and Troy both filed motions for new trial, which were denied. Tammy and Troy now separately appeal from the trial court’s April 8, 2010 judgment.

|sDISCUSSION

Legal Principles and Standard of Review

The provisions of La. R.S. 9:2801 set forth the procedure by which community property is to be partitioned when the spouses are unable to agree on a partition of community property. La. R.S. 9:2801 A; Hoover v. Hoover, 10-1245, p. 3 (La. App. 1st Cir.3/17/11), 62 So.3d 765, 767. Particularly, La. R.S. 9:2801 A(4) provides, in pertinent part:

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 proper[1019]*1019ty 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:
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(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.

It is well settled that a trial court has broad discretion in adjudicating issues raised by divorce and partition of the community. A trial judge is afforded a great |4deal of latitude in arriving at an equitable distribution of the assets between the spouses. Factual findings and credibility determinations made in the course of valuing and allocating assets and liabilities in the partition of community property may not be set aside absent manifest error. Clemons v. Clemons, 42,129, p. 3 (La.App. 2nd Cir.5/9/07), 960 So.2d 1068, 1071, writ denied, 07-1652 (La.10/26/07), 966 So.2d 583. However, the allocation or assigning of assets and liabilities in the partition of community property is reviewed under the abuse of discretion standard. Legaux-Barrow v. Barrow, 08-530, p. 5 (La.App. 5th Cir.1/27/09), 8 So.3d 87, 90, writ not considered, 09-0447 (La.4/13/09), 5 So.3d 152.

Allocation of Property Located at 1181 Clipper Drive

Tammy asserts that the trial court erred in allocating the family home located at 1181 Clipper Drive, Slidell, Louisiana, to Troy pursuant to the provisions of La. R.S. 9:2801, because the home was not community property, but was eo-owned property, having been acquired by the parties prior to their marriage.

Though originally listed on the parties’ combined detailed descriptive list as a community asset, the documentary evidence and testimony admitted at the partition proceeding demonstrates that the property was actually purchased by Troy and Tammy ten days prior to their second marriage. The parties do not dispute that based on this evidence, the home is not [1020]*1020community property, but rather, is co-owned by the parties in indivisión. Accordingly, the partition of this piece of property is governed by the articles of the Civil Code concerning ownership of property in indivisión, La. C.C. arts. 707-818, not by La. R.S. 9:2801.

Louisiana Civil Code article 797 provides “[ojwnership of the same thing by two or more persons is ownership in indivisión. In the absence of other provisions of law or juridical act, the shares of all co-owners are presumed to be equal.” Any co-owner has a right to demand partition of a thing held in indivisión. La. C.C. art. 807. The mode of partition may be determined by agreement of all the co-owners, in the |,r,absence of which a co-owner may demand judicial partition. La. C.C. art. 809. Louisiana Civil Code article 810 requires the court to partition in kind when the thing held in indivisión is susceptible to division into as many lots of nearly equal value as there are shares and the aggregate value of all lots is not significantly lower than the value of the property in the state of indivisión. La. C.C. art. 810. When the thing held in indivisión is not susceptible to partition in kind, the court shall decree a partition by licitation or by private sale, and the proceeds shall be distributed to the co-owners in proportion to their shares. La. C.C. art. 811.

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Cite This Page — Counsel Stack

Bluebook (online)
91 So. 3d 1015, 2011 La.App. 1 Cir. 0376, 2012 WL 758961, 2012 La. App. LEXIS 298, Counsel Stack Legal Research, https://law.counselstack.com/opinion/benoit-v-benoit-lactapp-2012.