Cahill v. Kerins

784 So. 2d 685, 2001 WL 322758
CourtLouisiana Court of Appeal
DecidedApril 4, 2001
Docket34,522-CA
StatusPublished
Cited by18 cases

This text of 784 So. 2d 685 (Cahill v. Kerins) 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
Cahill v. Kerins, 784 So. 2d 685, 2001 WL 322758 (La. Ct. App. 2001).

Opinion

784 So.2d 685 (2001)

Bernadette CAHILL, Plaintiff-Appellee,
v.
David KERINS, Defendant-Appellant.

No. 34,522-CA.

Court of Appeal of Louisiana, Second Circuit.

April 4, 2001.

*686 McKeithen Law Offices, by Bruce B. McKeithen, Monroe, Counsel for Appellant.

Loomis & Dement, by Albert E. Loomis, III, Monroe, Counsel for Appellee.

Before BROWN, GASKINS & PEATROSS, JJ.

PEATROSS, J.

In this partition action, Defendant, David Kerins, appeals the judgment of the trial court ordering partition by licitation of the home co-owned by the parties and *687 holding that each party was entitled to one-half the fair market value of the home less the outstanding mortgage balance. In addition, after applying the value of Mr. Kerins' enjoyment of the home as its exclusive occupant, the trial court concluded that the credit due him for mortgage payments and maintenance and repair expenses was zero. For the reasons stated herein, we amend the judgment in part and, as amended, affirm.

FACTS

Bernadette Cahill and David Kerins maintained a relationship from the late 1970s until approximately Memorial Day of 1996. When the parties separated, they were domiciled in Ouachita Parish, Louisiana. Ms. Cahill and Mr. Kerins were never married. The parties have co-owned a home on Elmwood Drive in Monroe ("the home"), the subject of the instant appeal, since 1991 and have been co-mortgagors on the home since 1996.[1]

On March 20, 1998, Ms. Cahill filed a Petition for Partition of Jointly Owned Property (the home). She sought partition by licitation, averring that the home was not susceptible to division in kind. Mr. Kerins answered and, by way of reconventional demand, alleged that the parties, as a partnership, co-owned additional assets (including automobiles, an airplane and other movable property) and debts and that the properties were susceptible to division in kind. Mr. Kerins sought reimbursement for the "partnership" debts he had paid. Ms. Cahill filed an Exception of Vagueness to the Reconventional Demand which, after argument, was overruled by the trial court. Ms. Cahill's answer to Mr. Kerins' reconventional demand admitted co-ownership of the home and that both parties were obligated for the mortgage payments. She further alleged that any additional co-owned property had been liquidated and pled the affirmative defense of transaction and compromise as to any claims regarding distribution of the property or division of debt, specifically denying that any written partnership had been formed between herself and Mr. Kerins. In October 1999, Ms. Cahill filed an Amended and Supplemental Petition for Partition of Jointly Owned Property, wherein she alleged that, if the trial court found that a partnership existed, then there were additional assets which were jointly owned and should be divided equally. These additional assets included a retirement plan, a Keogh plan, two automobiles and bank accounts in Ouachita Parish and Canada. She further alleged that Mr. Kerins had denied her access to the home and should, therefore, be solely responsible for any maintenance costs for the home. In a pretrial statement, Mr. Kerins withdrew his allegations that the parties had created a partnership. The matter was tried on December 20, 1999.

The testimony at trial revealed that Mr. Kerins has had exclusive occupancy of the home since the parties separated in May 1996. Ms. Cahill made no mortgage payments on the home after moving out in May 1996. The amount refinanced in January 1996 was $80,250 and the payments have varied between $800 and $817 per month. The balance on the loan as of trial was $67,000. Finally, the parties stipulated that, had he testified, real estate expert Robert Horton would have set a reasonable rental value of the home at $850 to $900 per month.

ACTION OF THE TRIAL COURT AND APPLICABLE LAW

Since the parties were never married, the division of property is governed by the *688 articles of the Civil Code dealing with the newly enacted title on "Ownership in Indivision." Article 797 defines ownership in indivision as ownership of the same thing by two or more persons. The following are additional articles relevant to this appeal.

Article 806, Expenses of maintenance and management, provides:

A co-owner who on account of the thing held in indivision has incurred necessary expenses, expenses for ordinary maintenance and repairs, or necessary management expenses paid to a third person, is entitled to reimbursement from the other co-owners in proportion to their shares.
If the co-owner who incurred the expenses had the enjoyment of the thing held in indivision, his reimbursement shall be reduced in proportion to the value of the enjoyment.

Article 807 gives each co-owner the express right to judicial partition of the co-owned property. Article 810, below, requires the court to partition in kind when possible:

The court shall decree partition in kind when the thing held in indivision 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 indivision.

Article 811 goes on to state:

When the thing held in indivision 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.

First, the trial court found that Ms. Cahill did not make a formal demand for co-occupancy and, therefore, was not entitled to fair rental value of the home. This finding has not been made an issue on appeal.[2] Second, applying the above articles, the trial court found that, from May 1996 to December 1999, Mr. Kerins made mortgage payments totaling $36,498.66. The trial court concluded, therefore, that Mr. Kerins was entitled to reimbursement from Ms. Cahill for one-half of that amount, or $18,249.33, subject, however, to reduction in proportion to the value of Mr. Kerins' enjoyment. The trial court further found that the value of Mr. Kerins' enjoyment was "at the very least" one-half of the fair rental value of $850 per month for approximately 45 months, for a total of $19,125. Since the value of his enjoyment exceeded the value of the mortgage payments attributable to him, the trial court awarded Mr. Kerins no reimbursement for mortgage payments. Next, the trial court found that Mr. Kerins was entitled to reimbursement of one-half of the expenses *689 incurred for maintenance which totaled $12,119.07, or $6,059.54, again subject to reduction for the value of his enjoyment. Finding that his reimbursement was totally offset by his enjoyment, the trial court awarded Mr. Kerins no reimbursement for maintenance of the home. Finally, the trial court applied article 811 and ordered partition by licitation with the parties to divide the proceeds equally.

DISCUSSION

Partition in kind or by licitation

Mr. Kerins argues that the broad discretion afforded the trial court would have permitted it to order partition in kind rather than partition by licitation. He suggests that the trial court should have recognized the preference for partition in kind under La. C.Civ. P. art. 4606[3] and awarded sole ownership to Mr. Kerins with Ms. Cahill receiving the benefit of her half of the equity, subject to lawful credits. On the other hand, Ms.

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Bluebook (online)
784 So. 2d 685, 2001 WL 322758, Counsel Stack Legal Research, https://law.counselstack.com/opinion/cahill-v-kerins-lactapp-2001.