Croft v. Croft

634 So. 2d 76, 93 La.App. 4 Cir. 2145, 1994 La. App. LEXIS 587, 1994 WL 110807
CourtLouisiana Court of Appeal
DecidedMarch 15, 1994
DocketNo. 93-CA-2145
StatusPublished
Cited by1 cases

This text of 634 So. 2d 76 (Croft v. Croft) 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
Croft v. Croft, 634 So. 2d 76, 93 La.App. 4 Cir. 2145, 1994 La. App. LEXIS 587, 1994 WL 110807 (La. Ct. App. 1994).

Opinion

BYRNES, Judge.

William and Barbara Croft were married on May 24, 1974. On October 24, 1986 Barbara Croft filed a Petition for Separation. A judgment of divorce was rendered January 8, 1988. This judgment is not contested.

On August 26, 1993 the trial court rendered judgment awarding Ms. Croft 17.4% of Mr. Croft’s disposable military retirement pay. Ms. Croft appeals. Mr. Croft answered the appeal and alternatively moved to remand. We amend and affirm.-

[77]*77I. Ms. Croft Is Entitled To A Portion Of Mr. Croft’s Military Pension

Mr. Croft argues that Ms. Croft is entitled to no portion of his military pension because the community property settlement judgment of January 8, 1988 did not apportion his military pension. Mr. Croft relies on Wirstrom v. Wirstrom, 608 So.2d 216 (La.App. 5 Cir.1992). That reliance is misplaced. In Wirstrom the community property partition did not address either spouse’s interest in pension accounts. The trial court later allowed the wife to litigate her interest in her husband’s pension plans. The correctness of that ruling was not appealed. Only quantum was appealed in Wirstrom. If there is any implication to be drawn from Wirstrom it is that the parties have the right to litigate pension issues subsequent to a community settlement, where that settlement failed to apportion the pension rights.

Hare v. Hodgins, 586 So.2d 118, 121 (La.1991) is controlling:1

“The termination of the community does not have the effect of freezing the value of each spouse’s undivided interest in community assets. Each spouse continues to be a co-owner of the assets until they are partitioned and, as such, is entitled to benefit from any appreciation in their value.” (Emphasis added).

We find no error in the trial court’s decision to allow Ms. Croft to bring this claim.

II. Mr. Croft Failed To Discharge His Burden Of Proof

Ms. Croft seeks to share in Colonel Croft’s increase in retirement benefits resulting from his promotion to colonel. Colonel Croft contends that she is not entitled to share in the increase because his promotion to colonel occurred subsequent to the termination of the community. Ms. Croft counters that Colonel Croft failed to meet his burden of proof that the promotion was not due merely to longevity or to career factors that existed prior to the termination of the community. Hare, supra, at 128.

In Hare the Supreme Court held that: On the other hand, when such an increase results from non-personal elements such as longevity raises, cost-of-living raises,2 forfeitures by terminated employees, and investment returns, the community should participate in that gain. See La.Civ.Code Arts. 2340 ... (Emphasis added). Hare, supra, at 128.

The Supreme Court in Hare established a three part test:

First, the increment must represent a fairly substantial increase in the employee spouse’s post-community earnings. Second, the increment must not be due to a non-personal factor, such as cost-of-living raises, etc. Third, the increment must be attributable to the employee spouse’s [post community] meritorious individual efforts or achievements. (Emphasis added). Hare, supra, at 128.

In applying these three criteria Mr. Croft failed to meet the burden of proof established by Hare:

Moreover, since the employee spouse has the burden of production of the evidence and persuasion, eases of doubt should be resolved in favor of the community and against the employee’s spouse’s separate estate or subsequent marital community. Hare, supra, 586 So.2d at 128.

Colonel Paul Alford, Chief of Staff, Louisiana National Guard testified that there are 70 to 80 lieutenant colonels in the National Guard, but only 17 or 18 full colonels. There is no evidence or testimony in the record to explain this disparity in numbers. Colonel Croft argues that if a promotion to full colonel were the automatic result of longevity one would expect the number of lieutenant colonels and full colonels to be more nearly equal. Therefore, he contends that we should conclude that his promotion to colonel [78]*78was exceptional. The disparity in numbers could just as easily be explained by the retirement or separation from service for countless reasons by lieutenant colonels who just did not hang on long enough to become full colonels.

In response to questioning by Ms. Croft’s attorney, Colonel Alford responded: “If you are telling me or insinuating that you get positions because of years of service, the answer is no.”

Colonel Croft contends that this statement by Colonel Alford is proof that his promotion to colonel was not due to longevity, but to post community meritorious individual efforts or achievements.

Even if this isolated statement by Colonel Alford were proof that Colonel Croft’s promotion was not the result solely of longevity, it is not proof that Colonel Croft’s promotion was the result of post-community meritorious individual efforts or achievements. Hare, supra, at 128. Colonel Alford was speaking only in generalities. It is clear from Colonel Alford’s testimony that he had no personal knowledge of the circumstances surrounding Colonel Croft’s promotion.

Colonel Croft submitted no material evidence to prove that his promotion to colonel was the result of his post-community meritorious individual effort or achievement. The only post-community achievement he could point to other than longevity medals was the “Distinguished Service” medal. However, on cross-examination he was asked:

Q. Now, tell the Judge, if you will, is it a requirement for a promotion, to [colonel] that you have the Distinguished Service medal?
A. Not to my knowledge.

Colonel Croft never testified that this medal had anything to do with his promotion.

We conclude from the balance of Colonel Croft’s testimony that the foundation on which his career advance as a military officer was based was laid during the existence of the community. Hare, supra, at 127.

Finally, Colonel Croft failed to show a substantial increase in post-community earnings as a result of his promotion to colonel. He testified that on October 24,1986 his base pay as a lieutenant colonel was $3,515.00 per month. However, he failed to relate this figure to his compensation as a colonel or any other post-community increases.

Colonel Croft also testified that the initial retirement payment he received of $2,351.00 was based on a lieutenant colonel’s pay. He testified that at the time of trial this amount had increased to $2,710.00. He admitted that some unspecified portion of this increase from $2,351.00 to $2,710.00 was attributable not to his promotion, but to cost of living increases.

In the final analysis this Court is faced with a record very much like that which faced the Wirstrom court, and we reach the same conclusion:

“Mr. Wirstrom has not met his burden of proof in this regard. The only evidence of record concerning earnings is the couple’s 1982 tax return. There was no evidence presented concerning Mr.

Free access — add to your briefcase to read the full text and ask questions with AI

Related

Overton v. Overton
694 So. 2d 491 (Louisiana Court of Appeal, 1997)

Cite This Page — Counsel Stack

Bluebook (online)
634 So. 2d 76, 93 La.App. 4 Cir. 2145, 1994 La. App. LEXIS 587, 1994 WL 110807, Counsel Stack Legal Research, https://law.counselstack.com/opinion/croft-v-croft-lactapp-1994.