Fastabend v. Fastabend

606 So. 2d 794, 1992 WL 275583
CourtLouisiana Court of Appeal
DecidedOctober 6, 1992
Docket91-600
StatusPublished
Cited by4 cases

This text of 606 So. 2d 794 (Fastabend v. Fastabend) 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
Fastabend v. Fastabend, 606 So. 2d 794, 1992 WL 275583 (La. Ct. App. 1992).

Opinion

606 So.2d 794 (1992)

Mary Ann FASTABEND, Born Forman, Plaintiff-Appellee,
v.
Carl Patrick FASTABEND, M.D., Defendant-Appellant.

No. 91-600.

Court of Appeal of Louisiana, Third Circuit.

October 6, 1992.
Writ Denied December 11, 1992.

*795 Scofield, Gerard, etc., J. Michael Veron, Lake Charles, for plaintiff-appellee.

Lorenzi & Sanchez, Walter M. Sanchez, Lake Charles, for defendant-appellant.

Before DOUCET, YELVERTON and CULPEPPER[*], JJ.

DOUCET, Judge.

This is an appeal from a judgment partitioning the community of acquets and gains formerly existing between the parties.

The plaintiff, Mary Ann Forman Fastabend, and the defendant, Carl Patrick Fastabend, M.D., were divorced by a judgment rendered on February 3, 1986. The judgment terminated the community of acquets and gains formerly existing between the Fastabends retroactive to September 25, 1985, the date that the petition for divorce was filed. On December 30, 1988, Mrs. Fastabend filed a petition to partition the community property. A hearing on the petition was held on August 30, 1989. On March 29, 1991, the trial judge rendered judgment partitioning the property as follows:

                      Assets
   a. Cash (Bank accounts)                            $ 23,945.40
   b. Merrill Lynch Cash Account                         1,410.00
   c. Retirement Plan (vested benefit)                  55,675.10
   d. IRA (Carl P. Fastabend, M.D.)                     10,916.72
   e. IRA (Mary Ann Fastabend)                          11,022.10
   f. Stock (Clinic Realty, Inc.)                       51,831.11
   g. Partnership interest in Lake Charles Medical
            & Clinic Partnership                       153,580.00
   h. Real Estateâ  703 W. Sale Rd.                      310,000.00

*796
   i. CCIP Account                                    $  2,500.00
   j. Rent Receivable (Mary Ann Fastabend)             110,000.00
   k. Rent Receivable (Carl Fastabend, M.D.)           125,000.00
   l. Stock in Carl P. Fastabend, M.D., APMC            25,686.00
   m. Interest on Cash Accounts                         17,440.90
   n. Income Tax benefit on home mortgage interest
              deduction                                 64,600.00
                                                      ___________
                              TOTAL ASSETS            $963,607.55
                    Liabilities
   a. Reimbursement due Dr. Fastabend on deferred
             taxes                                    $ 47,507.00
   b. Reimbursement due Dr. Fastabend on taxes
       paid from liquidation of Carl P. Fastabend,
             M.D., (APMC)                               14,561.00
   c. Mortgage balance on 703 W. Sale Rd.              284,701.24
   d. Reimbursement due Dr. Fastabend for
        mortgage payments to March 1989 on 703
        W. Sale Rd.                                    184,240.00
   e. Reimbursement due Dr. Fastabend for
        mortgage payments through August 1989
        on 703 W. Sale Rd.                              25,000.00
   f. Reimbursement due Mary Ann Fastabend
        on mortgage payments on 703 W. Sale             14,480.00
                                                      -----------
                        TOTAL LIABILITIES             $570,489.24
                       Recapitulation
   Total Assets.......................................$963,607.55
   Total Liabilities..................................-570,489.24
                                                     ------------
   Net Value of Community.............................$393,118.31
   Value of One-half (―) of community...............$196,559.15

2. Ordering a partition in kind of the above property as follows:

a. The defendant is to have possession and ownership of all interests in and to any corporation and/or partnership in which the community had interest, and the plaintiff is ordered to assist in any way necessary to accomplish the transfer of her interest to the defendant;

b. The defendant is entitled to ownership of the real property bearing municipal address 703 West Sale Road, Lake Charles, Louisiana, and the plaintiff is ordered to assist in any way necessary to accomplish the transfer of her interest to the defendant;

c. Each party is to receive the IRA account presently in his or her name and relinquish all interest in the account bearing the other's name;

d. All stock previously held in the names of both parties will be transferred to the defendant, and any stock held in indivision will be held by the defendant solely, with the plaintiff required to execute whatever documents are necessary to accomplish this transfer;

e. The defendant, CARL PATRICK FASTABEND, M.D., is ordered to make a cash payment of TWENTY-FIVE THOUSAND AND NO/100 ($25,000.00) DOLLARS to the plaintiff, MARY ANN FASTABEND, within thirty (30) days of the signing of this judgment;

f. The defendant is likewise required to transfer the sum of TWENTY-SEVEN THOUSAND SEVEN HUNDRED EIGHTY-FOUR AND 86/100 ($27,784.86) DOLLARS from the Lake Charles Medical & Surgical partnership retirement plan to the plaintiff's IRA within thirty (30) days of the signing of this judgment;

g. The defendant is ordered to provide a promissory note for the balance of the *797 plaintiff's remaining undivided one-half(―) interest in the community estate in the amount of ONE HUNDRED THIRTY-THREE THOUSAND SEVEN HUNDRED FIFTY-THREE AND 19/100 ($133,753.19) DOLLARS, payable at the rate of eight (8%) percent per annum for a period of eight (8) years in equal monthly installments of ONE THOUSAND EIGHT HUNDRED NINETY AND 82/100 ($1,890.82) DOLLARS, with the first payment due thirty (30) days from the signing of this judgment and each remaining payment due on the same day of each succeeding month thereafter until paid;

* * *

The defendant, Carl P. Fastabend, appeals.

RENTAL VALUE OF THE HOME

Dr. Fastabend contends that the trial court incorrectly set the rental value of the family home at the amount of the mortgage payment.

A trial judge has the discretion to order a spouse who has used or occupied the community owned family home to pay rent to the other spouse. La.R.S. 9:374(C), formerly La.R.S. 9:308(B). Rental value of property is a factual question.

When there is evidence before the trier of fact which, upon its reasonable evaluation of credibility, furnishes a reasonable factual basis for the trial court's finding, on review the appellate court should not disturb this factual finding in the absence of manifest error.

Canter v. Koehring Co., 283 So.2d 716 (La.1973).

In this case, each spouse had the exclusive use of the family home for a period of time prior to the partition of the community of acquets and gains. Mrs. Fastabend occupied the house for a period of 22 months; Dr. Fastabend for a period of 25 months.

At the hearing, Michael P. Terranova, a C.P.A., testified on behalf of Mrs. Fastabend as to the value of the community. He calculated the rental value of the house at $5,000.00. Daniel R. Plauche, a real estate appraiser, testified on behalf of Dr. Fastabend. He estimated the rental value of the house at $1,000.00 to $1,200.00 per month. However, it appears from his testimony that the property used by Plauche for comparison was not as large or as valuable as the Fastabend house, and lacked many of its design features.

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Cite This Page — Counsel Stack

Bluebook (online)
606 So. 2d 794, 1992 WL 275583, Counsel Stack Legal Research, https://law.counselstack.com/opinion/fastabend-v-fastabend-lactapp-1992.