Fouchi v. Fouchi
This text of 547 So. 2d 1140 (Fouchi v. Fouchi) 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.
Opinion
Sheila Fry FOUCHI
v.
Frank E. FOUCHI.
Court of Appeal of Louisiana, Fifth Circuit.
*1141 Joan B. Montero, Kenner, for plaintiff-appellant.
Adelaide Baudier, Metairie, for defendant-appellee.
Before BOWES, DUFRESNE and WICKER, JJ.
BOWES, Judge.
Appellant Sheila Fry Fouchi Hornbostel (hereinafter Sheila) appeals a judgment dated October 11, 1988, of partition of the community property previously owned with appellee Frank E. Fouchi (hereinafter Frank). We revise in part and, as revised, affirm.
The tedious procedural history of this case need not be repeated in its entirety here. The salient details are that Sheila filed a petition for separation from Frank on March 4, 1977, and Frank filed an answer and reconventional demand for separation on April 19, 1977. Judgment was ultimately rendered on January 23, 1979, granting a separation based on mutual fault. Numerous proceedings involving alimony, child support, and custody followed and, in 1982, the partition of the community property was originally tried. That judgment was rendered on May 21, 1982, and affirmed in Fouchi v. Fouchi, 442 So.2d 506 (La.App. 5 Cir.1983). Frank filed a petition for nullity on the grounds that the judge who signed the partition judgment of May 21, 1982, was not authorized to do so because of his election to the bench of this Fifth Circuit Court of Appeal. See Fouchi, supra. The original 1982 judgment was subsequently annulled. By order of the court, the matter was submitted on the record, which, as the court stated, was voluminous, including transcripts and documents already in evidence.
Subsequently, on December 7, 1984, the district judge rendered a new judgment which was virtually identical to the prior (null) judgment. The second judgment, like the first, ordered, among other things, a partition by licitation of the community assets, valued and allocated certain assets and recognized particular debts. The judgment also stated in pertinent part:
IT IS FURTHER ORDERED, ADJUDGED AND DECREED that there be judgment herein in favor of Sheila Fry Fouchi Hornbostel and against the defendant, Frank E. Fouchi, ordering him to *1142 pay interest as provided by law from date of judicial demand until receipt by the plaintiff, Shiela [sic] Fry Fouchi Hornbostel, of her interest in the community property;
This judgment was appealed by Frank and affirmed by this court in Fouchi v. Fouchi, 487 So.2d 496 (La.App. 5 Cir.1986). In that appeal, one claim of Frank was that the award of interest made to Sheila on her share of the community was premature since the amount due cannot be determined until the completion of the partition. To this contention, our court stated:
All debts bear interest at the legal rate from the time they are due, La.C.C. art. 1938 (now part of La.C.C. art. 2000) and settlement of the community is due and payable on the date of the community's dissolution. Hodson v. Hodson, 292 So.2d 831 (La.App. 2nd Cir.1974).
The Supreme Court denied writs at 493 So.2d 636 (La.1986).
Prior to a judicial sale, Frank and Sheila entered into a consent judgment dated May 13, 1987, in which Frank agreed to purchase the family home, the only remaining asset, for $36,000 in cash; the proceeds of the sale were to be placed in an interest-bearing account, in the name of the attorneys for the parties, in trust for Frank and Sheila, withdrawals from the account would be subject to further court orders and the judgment finally stated:
IT IS FURTHER ORDERED, ADJUDGED AND DECREED that in all other respects, the judgment and opinion of the Fifth Circuit Court of Appeal for the State of Louisiana rendered on March 10, 1986, writs denied by the Louisiana Supreme Court on September 19, 1986 is incorporated into and made a part of the record of these proceedings as though copied "in extenso".
Frank purchased the home in accordance with the judgment of May 13, 1987. After deducting the sum of $1,374.59 to pay the balance of the mortgage, the money was deposited into an account in Hibernia National Bank. Subsequently, the court ordered, in another consent judgment, payment of notary and appraiser's fees in the sum of $2,133.44.
In October, 1987, Sheila filed a "Motion to Homologate Revised Inventory and Partition Proceeds of Sale", to which Frank responded with a "Motion to Fix Debts to Pay Remaining Debts and Disburse Net Community", attaching his own version of the amended community assets and requesting the court to rescind the order for partition by licitation.
A hearing of these motions was held on January 12, 1988. At the hearing, the parties stipulated as of January 6, 1988, the remaining total in the joint account was $33,638.85, which amount included earned interest; that the total of movables in the possession of Frank was valued at $15,311.50 and these movables possessed by Sheila totalled $845.00; for a net community of $49,795.35.
Subtracted from that total was $22,846.13, the amount stipulated by both parties as being due to Frank for reimbursement of community debts made with his separate property. The net community was therefore stipulated to be $26,948.97, with each spouse's share equalling one-half or $13,474.48. The stipulation further stated that Frank was due $21,009.11, that being the sum of his share of the community ($13,474.48), plus the reimbursement owed him ($22,846.13, minus the value of the movables in his possession ($15,311.50). Sheila was due $12,629.48, that being the remainder of her share of the community ($13,474.48) less the value of the movables in her possession ($845.00). The parties further stipulated that interest accruing in the account was to be divided by the parties according to their proportionate ownership of the account.
Both parties pursued the question of legal interest due on their shares of the community property.
After the hearing was concluded, the trial court rendered judgment partitioning the community, awarding Sheila $12,649.48 and awarding Frank $21,009.11; 38% of the accrued interest was given to Sheila, 62% to Frank, at the interest rate payable by the bank. Legal interest was not awarded (it *1143 simply was not mentioned in the judgment). The court further declined to award Sheila rental value of the community home which had been occupied by Frank.[1]
Sheila has appealed alleging that the trial court erred in not awarding her judicial interest on her portion of the community; in not awarding one-half the rental value of the family home occupied by Frank; and in dismissing the court-appointed attorney (a notary had been appointed in connection with the partition and appraisal of community property). The final assignment of error was not briefed and so we will not consider it on this appeal.
Prior to our discussion of the issues raised on appeal, we note that the date on which the community was dissolved was March 4, 1977, the date on which Sheila filed her initial petition for separation. In contested separation and divorce cases, the community is dissolved as of the date that successful party files his or her original pleading setting forth the ground upon which the judgment is rendered. See Gray v. Gray, 463 So.2d 14 (La.App. 5 Cir.1985). When the separation is granted on mutual fault of both parties, the community should be dissolved retroactively as of the filing of the original petition for separation. McCarron v. McCarron,
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547 So. 2d 1140, 1989 WL 85464, Counsel Stack Legal Research, https://law.counselstack.com/opinion/fouchi-v-fouchi-lactapp-1989.