Burch v. Burch

245 So. 3d 1138
CourtLouisiana Court of Appeal
DecidedJanuary 10, 2018
DocketNo. 51,780–CA
StatusPublished
Cited by10 cases

This text of 245 So. 3d 1138 (Burch v. Burch) 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
Burch v. Burch, 245 So. 3d 1138 (La. Ct. App. 2018).

Opinion

PITMAN, J.

Defendant Jarrell O. Burch appeals the judgment of the trial court which partitioned the community property he held with his former wife, Delores Altheon Burch ("Altheon"). For the following reasons, we affirm and remand for modification of the judgment to include legal descriptions of the immovable property affected by the judgment and to comport with La. C.C.P. arts. 1919 and 2089.

FACTS

Altheon filed a petition for divorce from her husband, Jarrell. A judgment was rendered terminating their community property regime effective February 13, 2009. On December 5, 2009, the trial court appointed a special master, Susan Whitelaw, C.P.A., to assist it with the partition of the property. In the following seven years, Ms. Whitelaw submitted four detailed descriptive lists ("DDL"), which purported to reflect the parties' community and separate property holdings and their values. The last list, the Fourth DDL, was completed in the fall of 2016.

On July 14, 2016, a trial was held at which the Third DDL was admitted into evidence and Ms. Whitelaw was present to testify and identify each item in the list as to its classification and valuation. It was at that time that the attorneys for the parties were to express any objection they had to classification or valuation of any item of property listed. At that hearing, Jarrell's attorney, Mr. Denny, voiced his objections, stating:

And then I'm skipping over the separate property issue other than we do have an issue on sixty-four (A) which is the Mark Ward cash deed. It's listed here as separate.
* * *
And I understand that Ms. Whitelaw has an explanation for that but at this point we object to it.
Mr. Miciotto: But let's make sure-
The Court: To the value?
Mr. Denny: No, not the value, I'm sorry. The-I'm sorry, I'm sorry. Never mind, we do not. I'm sorry. Never mind.
The Court: The value is not-
Mr. Denny: The value is not an issue.
The Court: Okay. But the classification?
Mr. Miciotto: No.
Mr. Denny: No.
Mr. Miciotto: He's withdrawing that objection.
Mr. Denny: Yes.
The Court: Okay.
Mr. Denny: Are fine.
Mr. Miciotto: -are all fine.

On November 30, 2016, the trial court entered a judgment of partition which essentially adopted the Fourth DDL as the judgment of the court, subject to three modifications. Those modifications were:

1. Item number 13, Rent house-2328 Hunter Rd, Mansfield, LA, valued at forty thousand dollars ($40,000), shall be allocated to Delores A. Burch;
*11402. Item number 14, Lot 5 and W ½ Lot 6, Posey rent house, valued at thirty thousand dollars ($30,000), shall be allocated to Delores A. Burch; and
3. Jarrell O. Burch shall make an equalizing payment of seven thousand, seven hundred fifty seven dollars and forty six cents ($7,757.46) to Delores A. Burch.

Jarrell filed a motion for new trial and requested a "clarification" of the judgment, arguing that it did not address the parties' mineral rights. He noted that the parties have been splitting the mineral rights on their former community property on a 50/50 basis and stated that the special master never did a valuation of the mineral rights. He requested that the judgment be amended to include that valuation.

Jarrell's motion also requested the trial court to reconsider its judgment and amend it to exchange the "Earnest Price" house in Logansport for rental property located on Highway 84 in Mansfield. He did not raise the "Mark Ward" property as an issue.

The trial court partially granted the motion for new trial, specifically holding that it was not partitioning any community property mineral rights and that any future community property mineral rights were to be split 50/50. The trial court's judgment did not change with respect to the "Earnest Price" house, which had been previously allotted to Altheon.

Jarrell now appeals.

DISCUSSION

Jarrell argues that the trial court erred by adopting and incorporating by reference the Fourth DDL since it is vague, ambiguous and improperly relies on extrinsic materials and, further, that it erred in adopting the special master's finding that the "Mark Ward" property was Altheon's separate property. He contends that the Fourth DDL was not set up in a proper format to be used as the basis of a partition judgment. The format of the DDL is divided into categories of community assets, community liabilities, separate property and reimbursement claims. Each item of property is given a separate number, and each item has the proposed value of the property beside it. The values are placed in a column indicating whether each item should be deemed Jarrell's or Altheon's property, and he asserts that a few of the values are missing.

Jarrell further contends that the Fourth DDL is vague since there are no itemized legal descriptions of the property even though immovable property constitutes the bulk of the community property. This DDL contains notations by the items such as "legal description in documentation," but he asserts that no such documentation exists anywhere in the record. He also points out that in reference to some immovable property, the Fourth DDL contains an address; however, other property references only state general locations such as, "80 acres in DeSoto Parish" with "legal description in documentation." He argues that the 80 acres could be anywhere in DeSoto Parish and that no member of the public reviewing such a judgment could determine which property was being described. Other examples of inadequate descriptions include "the lot behind Greenleaf Insurance Agency" and "10 acres airport property Mansfield, Louisiana." The airport has several 10-acre tracts. He contends that some of the immovable properties described in the separate property section of the DDL have the same flaw.

Jarrell also argues that the Fourth DDL is defective as a judgment in regard to a claim that he would have against Altheon for reimbursement of New York Life withdrawals since the amount due to him has been left blank. For these reasons, Jarrell *1141contends that the Fourth DDL is too vague to have formed the basis of the trial court's judgment and the reference to "legal description in documentation" would be reference to an extrinsic document not found in the record.

Jarrell further claims that the most problematic entry on the Fourth DDL is number 64(A), the "Mark Ward" property. He points out that the property is listed as item 8 under "Community Property" and as item 64(A) under "Separate Property" with the item being designated as Altheon's separate property. He asserts that the funds Altheon used to purchase the "Mark Ward" property came from a lease bonus of $2,467,004.75 received by the couple in 2008, the year before the partition decree was rendered. The parties equally split the post-tax balance.

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Bluebook (online)
245 So. 3d 1138, Counsel Stack Legal Research, https://law.counselstack.com/opinion/burch-v-burch-lactapp-2018.