Callender v. Callender

625 So. 2d 257, 1993 WL 392139
CourtLouisiana Court of Appeal
DecidedSeptember 28, 1993
Docket93-CA-222
StatusPublished
Cited by6 cases

This text of 625 So. 2d 257 (Callender v. Callender) 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
Callender v. Callender, 625 So. 2d 257, 1993 WL 392139 (La. Ct. App. 1993).

Opinion

625 So.2d 257 (1993)

Helen B. CALLENDER
v.
Joseph I. CALLENDER.

No. 93-CA-222.

Court of Appeal of Louisiana, Fifth Circuit.

September 28, 1993.
Rehearing Denied November 17, 1993.

*258 Helen B. Callender, in pro. per.

R. Scott Buhrer, New Orleans, for appellee.

Before GOTHARD and CANNELLA, JJ., and THOMAS F. DALEY, J. Pro. Tem.

THOMAS F. DALEY, Judge Pro Tem.

Appellant, Helen Barios Callender, appeals a trial court judgment partitioning community property between herself and the appellee, Joseph Callender, her former husband.

Appellant and Appellee were divorced on March 14, 1991. On September 3, 1991, a Petition for Partition of the community property was filed by Mr. Callender. A judgment partitioning the community property was signed by the trial judge on June 10, 1992.

Appellant then filed a timely Motion for Partial New Trial challenging portions of the partition judgment. By judgment signed on December 8, 1992, the trial court modified the earlier community property partition judgment to reflect a reduction in the amount of reimbursement due the husband for use of his separate funds to retire the separate mortgage obligation of the appellant. The Motion for Partial New Trial was denied in all other respects.

Mrs. Callender now appeals the above judgments rendered by the trial court asserting that the trial judge erred in her valuation and classification of many of the community assets thereby improperly dividing the marital community, and she assigns eight (8) errors as follows:

I. Classification of a ONE THOUSAND ($1,000.00) DOLLAR certificate of deposit held in Post Office Employees' Credit Union as community property.
II. Valuation of community household furnishings and appliances.

III. Valuation of improvements made to appellant's separate house.

IV. Valuation and classification of silver and gold coins.

V. Valuation and classification of separate owner-financed mortgage of Joseph Callender.

VI. Valuation of Boeing Petroleum Retirement Account.

*259 VII. Denial of Request for Reimbursement of Helen B. Callender's separate pre-marital contribution to the U.S. Postal Service Retirement Account.

VIII. Denial of delayed maintenance for use of Helen Callender's separate house as community residence.

In addition to appealing from these two judgments of the trial court, Mrs. Callender indicated in her Motion and Order for Appeal that she intended to appeal from the trial judge's rulings on numerous other motions which were filed in this case. She failed to pursue an appeal of these rulings in her brief; therefore, those issues are considered abandoned by this court pursuant to Rule 2-12.4 of the Uniform Rules-Courts of Appeal. Nevertheless, we have reviewed the rulings of the trial court on the following motions:

1. Motion to Continue.
2. Motion to Suspend Judgment on Plaintiff's Motion for Partial New Trial and to Compel Answers to Interrogatories and Requests for Production of Documents.
3. Motion and Order to Rescind Judgment of June 10, 1992, in Respect to Award of the Boeing Petroleum Retirement and Savings Plan and to Reinstate and Extend Temporary Restraining Order of September 1, 1992.
4. Motion for Partial New Trial.

We find no errors in the rulings of the trial court on the above motions.

Appellee has submitted an answer to the appeal challenging portions of the original partition assigning the following three errors:

I. The trial court erred in awarding reimbursement to Helen Callender for use of community funds to pay Joseph Callender's child support obligation.
II. The trial court erred in classifying the Boeing Petroleum Services Employees Credit Union Personal Loan and the Boeing Employees Credit Union E-Z Rite Loan as separate obligations of Joseph Callender.
III. The trial court erred in allocating the Boeing Petroleum Retirement and Savings Plan to Joseph Callender without discounting the value of the plan to reflect federal and state income taxes and penalties.

For the following reasons, we affirm in part, remand in part, and modify in part the rulings of the trial court and remand for future proceedings.

A. Appeal

I. Classification of a ONE THOUSAND ($1,000.00) DOLLAR Certificate of Deposit held in Post Office Employees Credit Union

At the termination of the community, three (3) ONE THOUSAND ($1,000.00) DOLLAR certificates of deposit were in the possession of appellant. The trial judge classified all three as community property. Mrs. Callender challenges this determination of the judge with respect to one of the certificates. The certificate at issue here was purchased with Mrs. Callender's last paycheck prior to her separation from Mr. Callender and was classified by the trial judge as community property. Appellant claims that the certificate should have been classified as her separate property. In the alternative, Mrs. Callender argues that Mr. Callender's paychecks for the same time period should have also been included in the list of community assets existing at the date of the partition.

Article 2338 of the Louisiana Civil Code provides:

The community property comprises: property acquired during the existence of the legal regime through the effort, skill, or industry of either spouse; property acquired with community things or with community and separate things, unless classified as separate property under Article 2341; property donated to the spouses jointly; natural and civil fruits of community property; damages awarded for loss or injury to a thing belonging to the community; and all other property not classified by law as separate property.

In addition, article 2340 provides that things in the possession of a spouse during the existence of the community are presumed to be community property. Turner v. Turner, 533 So.2d 31 (La.App. 4th Cir.1988). At the trial, Mrs. Callender admitted that the certificate was purchased with her earnings during *260 the existence of the community. Since the earnings of either spouse during the community is community property, the certificate which was purchased with those earnings was properly classified as a community asset by the trial judge. See Shel-Boze, Inc. v. Melton, 509 So.2d 106 (La.App. 1st Cir.1987).

Although appellant's assignment of error relates to the trial judge's classification of the above certificate as community property, she proposes an alternative argument in the event that this court determines the certificates were properly classified. Mrs. Callender suggests for purposes of the partition this court should allocate to Mr. Callender a community asset (cash) in the amount of his paychecks during the separation. While it is true that a spouse's earnings during the separation are community property (See LSA-C.C. art 2338), there is no evidence in the record that Mr. Callender possessed any community funds from his paychecks when the community terminated in June of 1990.

This assignment of error lacks merit.

II. Valuation of community household furnishings and appliances

The trial judge assigned a value of FIVE THOUSAND ($5,000.00) DOLLARS to community movables.

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625 So. 2d 257, 1993 WL 392139, Counsel Stack Legal Research, https://law.counselstack.com/opinion/callender-v-callender-lactapp-1993.