Bordenave v. Bordenave

869 So. 2d 249, 2003 La.App. 4 Cir. 1534, 2004 La. App. LEXIS 421, 2004 WL 389434
CourtLouisiana Court of Appeal
DecidedFebruary 25, 2004
DocketNo. 2003-CA-1534
StatusPublished
Cited by1 cases

This text of 869 So. 2d 249 (Bordenave v. Bordenave) 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.

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Bordenave v. Bordenave, 869 So. 2d 249, 2003 La.App. 4 Cir. 1534, 2004 La. App. LEXIS 421, 2004 WL 389434 (La. Ct. App. 2004).

Opinion

DAVID S. GORBATY, Judge.

Sheila1 Cantrell appeals a judgment in a community property dissolution suit filed by her ex-husband, Michael Bordenave, arguing that the trial court erred in not allocating the ownership of the parties’ movable property, in not allocating the parties’ respective retirement benefits, and in calculating an equalizing payment to be made by her to her ex-spouse. For the following reasons, we remand.

FACTS:

Sheila Cantrell and Michael Bordenave were married in September of 1969. Sheila filed for legal separation in November of 1988, establishing the date that the community terminated. The couple was granted a divorce in November of 1989.

Both Sheila and Michael work for Bell-South. Michael began working on January 3, 1972, and Sheila on November 26, 1973. Each party has contributed to a retirement account, and, at the time of trial, each was still actively employed by BellSouth.

| ^Michael left the family domicile in November of 1988. At some point, Sheila was awarded the use and occupancy of the family home.2 She has continued to live in the home, paying the first and second mortgage notes, and maintaining the residence. Michael testified that he paid the mortgage notes in December of 1988 and January of 1989, but offered no documentary proof. Sheila did not dispute his testimony at trial, but on appeal argues that she also paid the January notes.

At the beginning of the trial, the parties stipulated that the family home was valued at $100,000, that Sheila had possession of community movables valued at $2,450, and that Michael had possession of community movables valued at $2,860.

Michael testified that he initially filed a petition to partition the community in 1989, but for various reasons, the matter never got to trial. The trial court acknowledged that it had reviewed the entire record and agreed with Michael’s testimony, commenting that “... this is unconscionable that it has taken 13 years to get this case tried. The justice system is not supposed to work like this.”

At trial Sheila argued that she was entitled to reimbursement for the mortgage note payments, principal and interest, she had made through the date of trial. Michael argued that he should not have to reimburse Sheila for any payments because she had enjoyed exclusive use of the home since their separation, and had intentionally caused the long delay in partitioning the property. However, if the court deemed reimbursement was appropriate, he should only have to pay half of the principal payments because Sheila benefited from the tax credits.

|3The trial court rendered judgment awarding Sheila the family home, and ordering her to pay Michael an equalizing payment of $10,000. The court reasoned that accepting either party’s argument would result in a substantial injustice against the non-prevailing party. The court stated that it relied on La.Rev.Stat. 9:2801 A(4)(c) and 9:2801 A(4)(d) to reach its decision. However, neither the community’s movable assets nor the parties’ retirement accounts was allocated or even mentioned in the judgment. Notably, in its reasons for judgment, the trial court [252]*252stated “[t]he parties have one asset, the former matrimonial domicile.”

DISCUSSION:

In her first assignment of error, Sheila argues that the trial court erred in not rendering judgment awarding each party the movable community property they possessed. She relies on La.Rev. Stat. 9:2801 A(4)(c) which requires the trial court “to allocate or assign to the respective spouses all of the community assets and liabilities.” Michael asserts that because the community movables remaining in each party’s possession was negligible, the court did not err in neglecting to include the items in the judgment.

The record indicates that each party filed into the record a Detailed Descriptive List listing numerous items of movable property in his own and each other’s possession. The parties stipulated at trial as to the value of the movables in their possession as of the time of trial. Although the parties were not contesting what property the other had in his possession or asking the court to redistribute the property item by -item, La.Rev.Stat. 9:2801 A(4)(c) does mandate the trial court to allocate or assign all of the community assets and liabilities. Thus, it was error for 14the trial court to omit from the judgment the allocation of movables between the parties.

Similarly, Sheila argues that the trial court erred in not rendering judgment as to each party’s respective rights to the other party’s retirement benefits. She again cites the mandate that the trial court allocate all of the community assets and liabilities. La.Rev.Stat. 9:2801 A(4)(c). Her position is that the court had sufficient evidence before it to render a judgment and issue a QDRO using the fixed percentage method of calculation.

Michael argues that because the parties both worked for BellSouth for the same amount of time during the existence of the community, the trial court was free to assume that the retirement accounts were of relatively equal value, obviating the need to allocate those assets. He also argues that there was no evidence introduced at trial regarding the parties’ pension plans; therefore, this Court should not review the issue. We disagree for two reasons. First, there is testimonial evidence that Michael began working for BellSouth on January 3, 1972, and that Sheila did not begin working for BellSouth until November 28, 1973, a difference of almost 23 months. Even if the parties were being paid the same salary, this difference in length of service is substantial enough to warrant the trial court’s consideration of this asset. Second, there was evidence introduced sufficient for the court to make a fixed percentage calculation.

Both parties testified that they worked for BellSouth and contributed to a retirement account during the existence of the community. Both parties were still working for BellSouth at the time of trial. This is sufficient evidence to utilize the fixed percentage method of calculation set forth in Sims v. Sims, 358 So.2d 919 (La. 1978). The trial court erred in not calculating the fixed percentage each party | Bwas entitled to receive from the other’s retirement account, and ordering a QDRO for each. In her final assignment of error, Sheila argues that the trial court erred in not ordering Michael to reimburse her for his half of the mortgage payments made on the family home. Further, the trial court erred in ordering her to pay Michael an equalizing payment of $10,000. According to Sheila, she has paid $52,900 for notes on the first and second mortgages, $748 in property taxes, $4,377.50 in homeowners and flood insurance premiums, and [253]*253$100 for an appraisal on the house.

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869 So. 2d 249, 2003 La.App. 4 Cir. 1534, 2004 La. App. LEXIS 421, 2004 WL 389434, Counsel Stack Legal Research, https://law.counselstack.com/opinion/bordenave-v-bordenave-lactapp-2004.