Debra D. Ashmore v. Merrell D. Ashmore

• Court: Louisiana Court of Appeal
• Decided: December 7, 2011
• Docket: CA-0011-0538
• Status: Unknown

Opinion

STATE OF LOUISIANA COURT OF APPEAL, THIRD CIRCUIT

11-538

DEBRA D. ASHMORE

VERSUS

MERRELL D. ASHMORE

**********

APPEAL FROM THE NINTH JUDICIAL DISTRICT COURT PARISH OF RAPIDES, NO. 217,396 HONORABLE GEORGE CLARENCE METOYER JR, DISTRICT JUDGE

ELIZABETH A. PICKETT JUDGE

Court composed of Marc T. Amy, Elizabeth A. Pickett, and J. David Painter, Judges.

REVERSED.

J. Phillip Terrell Jr. 1150 Expressway Dr., Ste. 101 Pineville, LA 71360 (318) 561-4340 COUNSEL FOR PLAINTIFF/APPELLEE: Debra D. Ashmore Charles O. LaCroix LaCroix, Levy & Barnett, LLC P. O. Box 1105 Alexandria, LA 71309-1105 (318) 443-7615 COUNSEL FOR DEFENDANT/APPELLANT: Merrell D. Ashmore PICKETT, Judge.

Husband appeals judgment which holds that the community property regime

which existed between him and his ex-wife when judgment of separation was

obtained in 1979 “was reestablished in 1985 upon reconciliation of the parties.” For

the following reasons, we reverse.

FACTS

Debra Domingue Ashmore and Merrell Ashmore were married in 1968. The

parties were legally separated by a judgment dated September 7, 1979. The parties

stated in a joint motion to continue, amend, and reset rule that they reconciled “several

months” after the judgment of separation. On June 18, 2004, Ms. Ashmore filed a

petition for divorce. A judgment decreeing a divorce between the parties was granted

May 11, 2007.

After the divorce, when the Ashmores were attempting to partition the

community property they owned, issues arose as to whether the community property

regime that existed prior to the September 7, 1979 judgment of separation was

reestablished after they reconciled. Unable to resolve the issue, the Ashmores

submitted it to the trial court for resolution. The trial court determined that “the

community property regime was in full force and effect from June 29, 1968,” until

September 27, 1979, and that it “was reestablished in 1985 upon reconciliation of the

parties.”

Mr. Ashmore appealed the trial court’s judgment. He contends on appeal that

the community property regime was never reestablished after the 1979 legal

separation.

DISCUSSION

This appeal presents an issue of law which we review de novo. Kevin Assocs.,

L.L.C. v. Crawford, 03-211 (La. 1/30/04), 865 So.2d 34. When Ms. Ashmore filed

her petition for legal separation in 1979, La.Civ.Code art. 155 provided that the community property regime was not reestablished upon reconciliation unless the

parties executed and recorded a notarial act. In 1979, Article 155 was amended, and,

effective January 1, 1980, it provided for reestablishment of the community property

regime by matrimonial agreement. The article was amended again in 1985 to provide

for automatic reestablishment of the community property regime unless the spouses

executed a matrimonial agreement to the contrary prior to their reconciliation. The

1985 amendment was determined to be substantive and, therefore, was not applied

retroactively. LaFleur v. Guillory, 181 So.2d 323 (La.App. 3 Cir. 1965), writ refused,

248 La. 1099, 184 So.2d 24 (1966). See also Conner v. Conner, 515 So.2d 468

(La.App. 1 Cir. 1987); Freeman v. Freeman, 430 So.2d 673 (La.App. 2 Cir.), writ

denied, 435 So.2d 449 (La.1983).

The law governing the reestablishment of the community property regime was

changed again in 1990, when the legislature enacted La.R.S. 9:384. Effective January

1, 1991, Section 384 contained the same language as Article 1551, recognizing the

automatic reestablishment of the community property regime upon reconciliation, but

made it retroactive for “[reconciled] spouses who were judicially separated by a

judgment signed before January 1, 1991, or by a judgment rendered in an action

governed by R.S. 9:381 [actions commenced before January 1, 1991].” Lastly, the

law was changed in 1995 with regard to “spouses who were judicially separated by a

judgment signed before January 1, 1991” to provide that if they reconciled after

September 6, 1985, the community property regime was automatically reestablished

“unless the spouses execute[d] prior to the reconciliation a matrimonial agreement

that the community [property regime would] not be reestablished upon

reconciliation.” La.R.S. 9:384.

The first circuit observed in McCarroll v. McCarroll, 95-1972, p. 7 (La.App. 1

Cir. 6/28/96), 680 So.2d 681, 687, rev’d on other grounds, 96-2700 (La. 10/21/97),

1 Article 155 was repealed upon enactment of La.R.S. 9:384. 2 701 So.2d 1280, that the 1995 limitation on reconciliation set forth in La.RS. 9:384

“coincides with the 1985 amendment to La.Civ.Code art. 155 which initially provided

for the automatic reinstatement of the community [property] regime upon

reconciliation of the parties. Thus, under this act, community property regimes are

automatically reestablished only when the parties reconciled after September 6,

1985.”

The issue in McCarroll was whether the parties’ reconciliation after their 1977

legal separation, but prior to their 1980 divorce, reinstated the community property

regime which existed between them before the legal separation. After thoroughly

reviewing the changes in the law on this issue and the law governing retroactivity of

legislation, the first circuit determined that “[b]ecause the McCarrolls reconciled prior

to September 6, 1985, there [was] no automatic reestablishment of the community

property regime.” Id. at 688. We agree with the first circuit’s reasoning and conclude

that because the Ashmores reconciled prior to 1985, the community property regime

that existed between them before the 1979 judgment of legal separation was not

automatically reestablished. Accordingly, the judgment of the trial court is reversed.

DISPOSITION

The community of acquets and gains that existed between Debra and Merrell

Ashmore prior to the 1979 legal separation was not thereafter reestablished. All costs

of this appeal are assessed to Debra Ashmore.