STATE OF LOUISIANA COURT OF APPEAL, THIRD CIRCUIT
14-126
DIONE W. DAVID
VERSUS
RICHARD G. DAVID
**********
APPEAL FROM THE SIXTEENTH JUDICIAL DISTRICT COURT PARISH OF IBERIA, NO. 113919 HONORABLE CHARLES L. PORTER, DISTRICT JUDGE
JIMMIE C. PETERS JUDGE
Court composed of Jimmie C. Peters, Marc T. Amy, and Elizabeth A. Pickett, Judges.
AFFIRMED IN PART AND REVERSED IN PART.
Ed W. Bankston P. O. Box 53485 Lafayette, LA 70505 (337) 237-4223 COUNSEL FOR DEFENDANT/APPELLANT: Richard G. David
L. E. “Tony” Morrow, Jr. 323 E. University Avenue Lafayette, LA 70503 (337) 233-9515 COUNSEL FOR PLAINTIFF/APPELLEE: Dione W. PETERS, J.
The defendant, Richard G. David (Richard), appeals from a trial court
judgment ordering him to pay a money judgment to his former wife, Dione W.
David (Dione), within fifteen days or serve ninety days in jail. For the following
reasons, we affirm the trial court judgment in part and reverse in part.
DISCUSSION OF THE RECORD
This marital dispute between Richard and Dione is not new to this court,
having been before us numerous times on appeal or application for supervisory
writs. Richard’s current appeal has as its origin the judicial partition of community
property following the parties’ 2006 divorce. The judicial partition proceeding
resulted in a complicated and extensive December 12, 2011 trial court judgment
partitioning the community assets and allocating the community debts. After
allocating the assets and debts, the trial court judgment awarded Dione and Richard
reciprocal sums that each was to pay the other “to equalize the allocation of
community property and satisfy any and all reimbursement claims.” 1 With regard
to the ultimate payment of these sums, the judgment further provided that Dione
and Richard would exchange unsecured promissory notes in the amount of the
equalizing sum due to each party.2
Richard timely appealed this judgment, asserting a number of errors in the
trial court’s allocation of the assets and debts of the community as well as its
calculation of the reimbursement amounts. In considering Richard’s appeal of the 1 The appellate record before us is woefully inadequate and the information concerning the specifics of the judgment itself as well as the procedural history of this matter are derived from the appellate record of David v. David, 12-1051 (La.App. 3 Cir. 4/10/13), 117 So.3d 148, in which Richard appealed the particulars of the December 12, 2011 partition judgment. 2 Richard was instructed to execute a promissory note payable to Dione in the amount of $232,530.92, payable over ten years in monthly payments of $2,466.35, bearing interest at the rate of five percent per annum, with the first payment due on January 1, 2012. Dione was instructed to execute a promissory note payable to Richard in the amount of $11,431.92, bearing interest at the rate of two-and-one-half percent per annum, with the first payment due on October 1, 2011. partition judgment, this court reallocated some of the community assets and debts,
and reduced the equalizing payment due to Dione from Richard to $104,368.46.
David v. David, 12-1051 (La.App. 3 Cir. 4/10/13), 117 So.3d 148, writ denied, 13-
1541 (La. 10/4/13), 122 So.3d 1023. For the purposes of this opinion, we adopt as
our own the factual and procedural history set forth in that opinion:
Richard and Dione David, domiciliaries of New Iberia, Louisiana were married for thirty-six years. At the time of their divorce, there were five businesses and nine pieces of real estate at issue for partition. Richard and Dione stipulated to appraised values of six of the nine real properties, the values on eight vehicles and other movables. Richard’s reimbursement of mortgage, tax, and insurance payments on some community properties, and Dione’s reimbursement of attorney fees. The parties also stipulated that four of the businesses, David Mortuary, Inc., David Marble and Granite, Inc., Beau Pre Memorial Park Cemetery, and Limousines, LTD, were the separate property of Richard David.
The community’s business, Dede’s Wholesale Florist, Inc. (Dede’s), was run primarily by Dione throughout the marriage, and she was given occupancy and use of the store location at 1203 Trotter Street in New Iberia. This asset is next door to the David Funeral Home and became the greatest source and subject of discord, restraining orders, and alleged abuses between the parties. Dede’s also had a closed-down, non-operating store at 110 Glaser Drive in Lafayette, which was considered rental property.
The community’s other New Iberia assets include rental houses at 6605 Old Spanish Trail (sometimes referred to as “OST” or “Highway 182” property), 407 Dahlia Street, 407 Wayne Street, 4208 Northside Road, and 508 Prioux Street. The community’s family home was located at 506 Prioux Street. Richard was given the use and occupancy of the family home as his residence. The parties stipulated, by consent judgment, to Richard’s waiver of expense reimbursement claims and to Dione’s waiver of rental reimbursement claims on this property. The couple also owned a two-story camp at 111 Cove Row, Cypremont Point, Louisiana. Richard was also given use and occupancy of the camp.
On the above-described community property, Richard asserted 331 claims for reimbursement of expenses totaling $305,572.00. Before trial, the court engaged the services of a hearing officer, Paul Landry, to meet with the couple and their attorneys to address occupancy issues and the reimbursement claims of the parties. The hearing officer conferences (HOC) on reimbursement claims were held over four days, immediately preceding trial, during which 2 Richard’s 331 claims and documentation were individually discussed, then grouped and categorized on spreadsheets, providing easier access during trial, and providing the HOC evaluations and recommendations on each claim.
After a lengthy trial, the trial court issued a four-page judgment of partition of community property. Richard appeals the trial court’s allocation of community assets and liabilities, the appraisals of the camp, its contents, and contents at other locations, the amount of certain “mortgage” debt, and the trial court’s awards of reimbursements to both parties.
Id. at 150-51.
In its opinion addressing the partition judgment, this court amended the trial
court judgment to reallocate the rental property at 508 Prioux Street from Dione’s
ownership to Richard’s; adjusted the value of the camp on Cove Row; adjusted the
allocation of the individual IRAs; deleted a $50,000.00 debt assigned to the Old
Spanish Trail property; and adjusted the reimbursement amounts set by the trial
court. The end result was to reduce Richard’s equalizing payment to Dione from
$232,530.52 to $104,368.46. Id.
The matter is again before us because the litigation between Richard and
Dione did not cease during the appeal of the community-property-partition
judgment. On June 29, 2012, Dione filed a rule for contempt of court, for a money
judgment, and for reimbursement for amounts categorized as rents.3 The trial court
heard the rule on October 23, 2012,4 wherein two witnesses, Morris Peltier, Jr. and
Dione, testified.
3 The record before us does not contain the motion filed by Dione, and the basis for the motion is derived from the language of the judgment arising from the hearing on the motion and the trial court minutes. 4 Neither Richard nor his counsel appeared at the October 23, 2012 hearing. His counsel had submitted a motion for continuance on October 19, 2012, which the trial court received on October 22, 2012. The trial court denied the motion at the beginning of the October 23, 2012 hearing.
3 Mr. Peltier testified that he had been renting the 508 Prioux Street property
for approximately eleven years and, until two months before the trial on the motion,
had always paid his rent monthly to Richard. When he became aware that Dione
had been awarded ownership of the property, he began making his payments to her.
However, Mr. Peltier was never asked the amount of his monthly payments by
Dione’s counsel.
Dione testified that she had been submitting her monthly reimbursement
obligation to Richard, but that he refused to accept the certified letters containing
the payment. 5 When asked if Richard had ever paid her the monthly payment
required of him under the partition judgment, she testified that he had not. Noting
that the judgment provided that the first payment was due January 1, 2012, Dione’s
counsel calculated that he owed her $24,663.50 at the time of the hearing. The
promissory note was not produced, and nothing was said of the interest provided
for by the terms of the partition judgment. At this point, Dione’s counsel requested
that the trial court award judgment on that amount and find Richard in contempt of
court. The trial court awarded the money judgment, found Richard in contempt of
court, and sentenced him to serve ninety days in the parish jail.
With regard to the rental reimbursement issue, Dione testified that Mr.
Peltier paid $900.00 per month for the 508 Prioux Street property, and Richard had
received eight months of payments that he should not have received. Thus, she
sought a $7,200.00 money judgment against Richard. Dione also sought and
obtained money judgments for the camp at 111 Cove Row, Cypremont Point,
Louisiana, for $12,600.00 (seven months at $1,800.00 per month); 407 Wayne
Street, New Iberia, Louisiana, for $5,250.00 (seven months at $750.00 per month);
5 Dione’s counsel handed her documents which Dione suggested were the certified letters she had sent, but the documents were never entered into evidence.
4 and 407 Dahlia Street, New Iberia, Louisiana, for $7,700.00 (seven months at
$1,100.00 per month). The individual amounts claimed were not established by
any evidence other than Dione’s self-serving testimony and appear to be the
monthly rental values of the properties rather than the actual rent received by
Richard.6 In fact, Dione testified that with regard to the 407 Wayne Street property,
there was no tenant on the property.7 Thus, with the exception of the 506 Prioux
Street property, the trial court was presented with no evidence of actual amounts
being paid to Richard as rental for the properties. Finally, in addition to the
$32,750.00 total reimbursement amount, the trial court awarded Dione an attorney
fee judgment of $1,500.00.
The trial court executed a judgment based on its findings at the October 23,
2012 hearing on November 5, 2012. The judgment reads in pertinent part:
IT IS HEREBY ORDERED, ADJUDGED AND DECREED that Richard David’s Motion to Continue is denied.
IT IS FURTHER ORDERED, ADJUDGED AND DECREED that Richard David is found to be in contempt of Court for refusing to pay money amounts ordered.
IT IS FURTHER ORDERED, ADJUDGED AND DECREED that Richard David should pay Dione David $24,663.50.
IT IS FURTHER ORDERED, ADJUDGED AND DECREED that Richard David shall pay to Dione David $32,750.00 for rental fees and money taken from Dione David and/or owed.
6 In a footnote to the April 10, 2013 opinion of this court, David, 117 So.3d at 161 n.8, Chief Judge Thibodeaux recorded the following:
The monthly rental values established by appraiser, Robert Beyt, and used by the court for the four rent houses were; $1,000.00 for 508 Prioux Street; $750.00 for 407 Wayne Street; $1,200.00 for 407 Dahlia Street; and $1,7500.00 for 6605 Old Spanish Trail. The rental value of the old Dede’s store location at 110 Glaser Drive was set at $750.00 per month. The rental value of the camp at 110 Cove Row was set at $1,800.00 per month. 7 When Dione made this statement at the trial on the rule, it was not in response to a question from her counsel. He immediately interrupted her and stated, “I’m going to get to that.” However, this comment was never mentioned again. 5 IT IS FURTHER ORDERED, ADJUDGED AND DECREED that Richard David is to pay attorneys fees in the amount of $1,500.00 to The Law Offices of Tony Morrow on behalf of Dione David and all court costs associated with this hearing.
IT IS FURTHER ORDERED, ADJUDGED AND DECREED that all amounts are to be paid within fifteen (15) days of this hearing, or if Richard David fails to do so, he is to be incarcerated for ninety (90) days.8
On November 21, 2012, the trial court granted Richard a suspensive appeal
of its November 5, 2012 judgment, and the matter is now before us on his one
assignment of error: “THE TRIAL COURT ERRED BY ORDERING
DAMAGES AND JAIL TIME FOR FAILURE TO PAY A MONEY
JUDGMENT.”
OPINION
While this suspensive appeal was pending, Dione attempted to expand on
her November 5, 2012 judgment by pursuing Richard for his failure to pay the
monthly payments on the note and other rents he may have collected on property
allocated to her after October 23, 2012. After a hearing, the trial court rendered
judgment reversing its grant to Richard of a suspensive appeal of the November 5,
2012 judgment, increasing the amount rendered in that money judgment to
$67,278.90, and ordering that Richard pay the full amount by February 15, 2013,
or serve ninety days in the parish jail. The trial court reduced this judgment to
writing on February 14, 2013, and Richard perfected an appeal of the judgment on
February 14, 2013, and filed for a supervisory writ on February 27, 2013.9 While
8 This portion of the judgment relative to the incarceration sentence does not correspond to the transcript of the hearing or the minutes of court taken that day. In both of those documents, there is no reference to Richard being able to spare himself the ninety days of incarceration by paying the judgment in full. No explanation exists in the record for the change between the transcript/minutes and the executed judgment. 9 Because this hearing occurred after the appeal before us was perfected, none of the trial court documents are before us, and the facts recited herein are taken from the opinion of this court in David v. David, 13-171 (La.App. 3 Cir. 6/19/13), 115 So.3d 1277. 6 the particulars of this money judgment are not now before us because it arose after
the grant of this appeal, the opinion of this court in David v. David, 13-171
(La.App. 3 Cir. 6/19/13), 115 So.3d 1277, and the supervisory writ decision of this
court in David v. David, 13-202 (La.App. 3 Cir. 3/13/13) (unpublished writ), are
both instructive and helpful.
In the opinion rendered in David, 115 So.3d 1277, this court reversed the
trial court’s conversion of our appeal to a devolutive one and reinstated it as a
suspensive opinion. Additionally, because the trial court judgment was based on
nothing more than an extension of the November 5, 2012 judgment now before us
and because the trial court no longer had jurisdiction to act on the matters arising
from that judgment, this court declared the February 14, 2013 judgment to be null
and void. Id.
In the supervisory writ decision, this court held:
The trial court erred in finding the relator in contempt of court and imposing a ninety-day sentence of imprisonment in the parish jail for his failure to pay a money judgment to the plaintiff. The proper avenue for the execution of a money judgment is set forth in Book IV, Title II of the Louisiana Code of Civil Procedure. Additionally, the penalty of imprisonment imposed upon the relator for contempt of court arising from his failure to pay a money judgment to the plaintiff is not provided for by law. Accordingly, the relator’s writ is granted, and the trial court’s ruling issuing a warrant for the relator’s arrest and imprisonment is hereby vacated and set aside, effectively recalling, revoking, and cancelling the warrant.
David, 13-202, p. 1.
Richard divided his assignment of error into two parts: the improper award
of damages, and the imposition of parish jail time for failure to pay a money
judgment. The second issue is easy to resolve. We adopt the reasons stated in the
writ decision and find that the trial court erred in holding Richard in contempt of
court and in ordering a ninety-day prison term should he fail to satisfy the
7 judgment within the fifteen days allowed. Id. Therefore, that portion of the
November 5, 2012 judgment must be reversed.
With regard to the damage issue, it is unclear from Richard’s brief to this
court how he relates that term to the judgment rendered. After setting forth his
assignment of error, Richard defines the issue for review as “WHETHER THE
TRIAL COURT’S JUDGMENT OF NOVEMBER 5, 2012 IS RENDERED
MOOT BY APPELLATE DECISION OF JUNE 19, 2013?” Richard follows this
issue identification with an argument two paragraphs long which says very little
other than to suggest that the trial court’s November 5, 2012 judgment “was based
upon the trial court’s erroneous equalization amount of $232,530.54” and that after
resolving the incarceration sentence for failure to pay a money judgment, this court
in David, 115 So.3d 1277, rendered the November 5, 2012 judgment “moot for
reasons enunciated by this court upon review and in vacating the judgment of
February 8, 2013.”
Dione’s brief to this court is of equally little help. Without citing any law or
jurisprudence in her favor, Dione provides us with six paragraphs of argument.
Three of the six refer this court to exhibits attached to her brief which are not in the
appeal record of these proceeding.10 Two of the remaining paragraphs list part, but
not all, of the appeal and supervisory writ applications in this matter which have
already been before this court. Pointedly missing in the list is David, 115 So.3d
1277, and David, 13-202.11 Basically, Dione’s complete argument on appeal is
summed up in her last argument paragraph, which asks this court to “put an end to
10 Chief Judge Thibodeaux went to great lengths in David, 117 So.3d 148, to point out to the litigants in this extensive litigation that this court cannot receive new evidence on appeal. 11 Both of those decisions were rendered by this court before Dione filed her appellate brief in this matter. 8 the relentless barrage of frivolous attacks” by her former husband and to award her
damages and attorney fees for Richard’s frivolous appeal in this matter.
In addressing the “damage” issue that remains in the matter before us, we
first note that we do not read this court’s opinion in David, 115 So.3d 1277,
regarding the monetary award in the November 5, 2012 judgment to have the
effect suggested by Richard. While that opinion vacated the February 8, 2013
judgment, it did so on a jurisdictional basis and not on the merits. Additionally,
the ruling on the supervisory writ application in David, 13-202, merely gave this
panel the basis on which to reverse the contempt of court and incarceration aspects
of the November 5, 2012 judgment. Still, we find that Richard is entitled to some
further relief.
With regard to the 508 Prioux Street rental property, Dione did establish
through her testimony and the testimony of Mr. Peltier that this property was
rented for $900.00 per month, and that Richard had been paid that monthly rental
for the first eight months of 2012. However, while the December 12, 2011
judgment allocated that property to her, this court reversed that allocation in David,
117 So.3d 148, and awarded it to Richard. Thus, the $7,200.00 money judgment in
favor of Dione with regard to this property must be reversed.
With regard to the camp at Cypremont Point, the December 12, 2011
partition judgment allocated that property to Dione, and this allocation was upheld
by this court in David, 117 So.3d 148. Dione based her claim for reimbursement
associated with the camp, not on the actual rent being paid, but on the monthly
rental value placed on the property for partition purposes. On appeal, Richard had
sought reversal of the allocation of this asset to Dione based on his argument that
the camp had been in his family before he and Dione married. However, this court
9 rejected that argument based on Dione’s testimony that at the time of trial, “she
still did not have a house; that she would like to have the camp as it was a livable
home and a viable option for her because it was already set up as a house; and it
was close to her mother.” Id. at 155. Dione presented no evidence at the October
23, 2012 hearing to establish that anyone else was occupying the property as a
tenant. At trial, the extent of the testimony on this issue is as follows:
COUNSEL FOR DIONE: The camp and - - Cypremont Point and the Court accepted an amount of eighteen hundred dollars, we request seven months of that rental?
DIONE: Correct.
COUNSEL FOR DIONE: And that would - - Eighteen hundred dollars is twelve thousand, six hundred dollars.
We do not find that Dione carried her burden of proof to establish that anyone else
was renting the property or that Richard was receiving the rental income.
We also find that Dione failed to carry her burden of proof to establish that
anyone was renting the 407 Wayne Street property or the 407 Dahlia Street
property. As was the case with the camp, Dione relied solely on the partition
proceedings to set a rental value for each of these properties, and never testified
that Richard was receiving any rent from either property.12
Considering the record before us, we reverse the entire trial court award of
rental income. We also reverse the trial court award of attorney fees to Dione.
“[A]ttorney fee awards are available only when authorized by statute or contract.”
Taylor v. State of Louisiana, DOTD, 03-0219, p. 13 (La.App. 3 Cir. 6/23/04), 879
So.2d 307, 317, writ denied, 04-1887 (La. 10/29/04), 885 So.2d 595. Dione has
provided us with no authority to suggest that she is entitled to the attorney fee
award. 12 It was the Wayne Street property that Dione referred to when she noted at trial that there was no renter on the property. 10 Finally, Richard argues that the $24,663.50 award pursuant to the
promissory note made a part of the partition judgment, should be set aside because
it was based on an equalizing payment of $232,530.54 and not on the final
equalizing payment of $104,368.46 as established in David, 117 So.3d 148. We
disagree. The opinion in David, 117 So.3d 148, addresses the reallocation of assets
and liabilities and reaches the conclusion that the trial court had erred in its
assessment. However, despite the reduction in the equalizing payment, this court
found that Richard still owed Dione $104,368.46 together with the interest
provided under the note. Richard did not appeal the amount of the monthly
payment required to extinguish his debt, and this court did not address that issue.
He does not dispute the fact that he had paid nothing on the promissory note at the
time of the October 23, 2012 hearing; his appeal of the partition judgment was
devolutive and not suspensive; and, at the end of the day, Richard still owed Dione
more than the judgment rendered against him for the past-due payment. We find
no merit in Richard’s argument that this portion of the judgment should be
reversed.
Finally, Dione requests an award of attorney fees and sanctions for
Richard’s frivolous appeal. Although La.Code Civ.P. art. 2164 provides for the
award of damages, including attorney fees, based on a finding of frivolous appeal,
such an award is inappropriate in the absence of an appeal or answer to appeal by
the appellee. La.Code Civ.P. art. 2133. Innocence Project New Orleans v. New
Orleans Police Dep’t, 13-921 (La.App. 4 Cir. 11/6/13), 129 So.3d 668. Thus,
since Dione has neither appealed nor answered Richard’s appeal, we need not
reach these claims.
11 DISPOSITION
For the foregoing reasons, we affirm that portion of the trial court judgment
awarding Dione W. David $24,663.50 against Richard G. David based on the
failure of Richard G. David to pay the installments due under the promissory note
executed in conjunction with the partition judgment of December 12, 2011. We
reverse the remainder of the trial court judgment, including, specifically, that
portion of the trial court judgment awarding Dione W. David $32,750.00 in rental
reimbursement from Richard G. David; that portion finding Richard G. David in
contempt of court and ordering him to pay the money judgment in full within
fifteen days or be incarcerated for ninety days; and that portion awarding Dione W.
David an attorney fee judgment against Richard G. David in the amount of
$1,500.00. We assess costs of this appeal equally between Richard G. David and
Dione W. David.