STATE OF LOUISIANA COURT OF APPEAL, THIRD CIRCUIT
11-1178
FREDA J. GRAVES LACOMBE
VERSUS
PAUL WILRAY LACOMBE
**********
APPEAL FROM THE TWENTY-SEVENTH JUDICIAL DISTRICT COURT PARISH OF ST. LANDRY, NO. 01-C-1780-D HONORABLE DONALD WAYNE HEBERT, DISTRICT JUDGE
ULYSSES GENE THIBODEAUX CHIEF JUDGE
Court composed of Ulysses Gene Thibodeaux, Chief Judge, John D. Saunders, and J. David Painter, Judges.
REVERSED IN PART; AFFIRMED IN PART.
W. Glenn Soileau P. O. Box 344 Breaux Bridge, LA 70517 Telephone: (337) 332-4561 COUNSEL FOR: Defendant/Appellant - Paul Wilray LaCombe
Laura L. Davenport Laura L. Davenport, LLC 730 Jefferson Street Lafayette, LA 70501 Telephone: (337) 231-1397 COUNSEL FOR: Plaintiff/Appellant - Freda J. Graves LaCombe THIBODEAUX, Chief Judge.
The defendant, Paul Lacombe, appeals from judgments which
judicially accepted the sworn detailed descriptive list of the plaintiff, Freda
Lacombe, for use in partitioning the community property. Finding that the trial
court’s decision was correct, but that the language in the judgment was too
expansive, we affirm in part and reverse in part the judgments of the trial court.
I.
ISSUES
We will decide whether the trial court manifestly erred in accepting
the plaintiff’s sworn descriptive list for use in partitioning the community of assets
and liabilities between the parties.
II.
FACTS AND PROCEDURAL HISTORY
In 2001, Freda filed a petition for divorce under La.Civ.Code art.
102. 1 She averred that she was in need of and entitled to “spousal support as
agreed” in the amount of $1,400.00 per month “to pay bills of the community and
to live.” Freda asked to remain in the family home, sought temporary and
permanent spousal support, and requested a rule to show cause on these issues.
Paul and Freda had previously executed a hand-written agreement regarding the
$1,400.00 payments and certain items of community property. A judgment of
divorce was granted in May 2002.
In February 2009, Paul petitioned for a judicial partition of the
remaining community property, seeking reimbursement for payments made and
funds expended by him for the benefit of the community. On February 17, 2009, 1 When there are no minor children, as in this case, La.Civ.Code arts. 102 and 103.1 require proof of living separate and apart for 180 days after service of process of the petition. the parties were ordered to file Detailed Descriptive Lists within forty five days.
Neither party complied.
In September 2009, Freda filed a “Rule for Final Support.” She
asserted that, pursuant to the mutual agreement in 2001, Paul had paid the
$1,400.00 per month (in the form of a payment of $700.00, a payment of $270.00,
and payment of the house note at $430.00); however, he stopped the payments in
November of 2008, “suddenly and without warning.”
After a hearing, the trial court entered a written judgment on April 30,
2010, ordering Paul to pay Freda spousal support of $1,000.00 per month.
In May 2010, Paul hired a new attorney and filed another petition for
partition, offset, reimbursement, reduction of support, and misappropriation of
funds, seeking an offset for the $1,400.00 payments to Freda, pursuant to the hand-
written agreement. He also asserted that Freda had used the funds for personal use
instead of paying off community debts.
On June 7, 2010, Freda filed a motion for contempt, asserting that
Paul had not paid any of the ordered support of $1,000.00 per month. Freda
further asserted that Paul was in contempt; that her income was only $343.00 per
month [social security disability]; and that she was entitled to attorney fees. Freda
filed various exceptions to Paul’s petition for partition, arguing that issues of
income and peremption were res judicata, having been decided in a previous
hearing. She further argued that Paul had no right of action to file a duplicative
petition for partition, having filed a petition for partition of the same property in
February 2009.
On December 29, 2010, the trial court entered judgment finding Paul
in contempt of court for failure to pay Freda spousal support in the amount of
$5,266.67. The judgment awarded Freda reimbursement from Paul, to be deducted
from Paul’s one-half interest in the proceeds from the sale of the marital home.
2 This judgment attached “Written Stipulations” signed by the parties on December
10, 2010, and “approved and affirmed” by the trial court on December 29, 2010.2
On April 4, 2011, Freda filed a detailed descriptive list indicating that
the home had been sold as of March 29, 2011. The movable property included a
one-half interest in the $59,606.82 proceeds of the sale of the home already
deposited in the registry of the court. Freda estimated total remaining community
liabilities at $7,500.00. She calculated net community assets at $48,781.82. She
claimed total reimbursements of $50,757.16 ($40,700.00 for one half of bills paid
to seven creditors over eighty-nine months; $3,291.19 for one half of cost of home
improvements; and $6,765.97 in closing costs). Freda’s descriptive list showed
that she owed reimbursement to Paul of $12,806.00 for bills over a twenty-eighth-
month period, but it provided no detail as to the source of these bills. Paul still had
not filed a sworn descriptive list.
On April 28, 2011, Freda filed a rule to show cause why her
descriptive list should not be accepted and deemed a judicial determination of the
community assets and liabilities. The rule was set for May 31, 2011.
Paul’s attorney, due to various missteps in his law office, did not
appear for the hearing or file a detailed descriptive list. In oral reasons at the
hearing, the trial court granted Freda’s request to have her descriptive list judicially
accepted in determining the assets and liabilities of the former community property
regime. Freda prepared a written judgment which was not signed at the time.
A week after the hearing, Paul’s attorney filed Paul’s descriptive list,
asserting that Paul was due a one-half interest in the sale proceeds of the home;
2 The first four signed stipulations, attached to the December 2010 judgment, state that: (1) Freda did not misappropriate funds because there was never an order commanding her to pay community obligations with funds paid to her by Paul; (2) the court’s January 11, 2010 oral judgment found that prescription/peremption did not apply to Freda’s request for spousal support; (3) the same judgment found that Paul’s payments of $1,400.00 per month were voluntary spousal support payments; (4) no material change of circumstance had occurred which would warrant modification of spousal support at the time. 3 that there were no remaining community debts; and, that Paul had paid community
liabilities of $82,227.07, for which he was due a one-half reimbursement of
$41,113.54. Paul’s attorney also filed a motion to have the rule reset, asserting that
his law office had moved the previous October to 219 W. Bridge Street, Breaux
Bridge, that Freda’s attorney had used the old address at 1454 E. Bridge Street for
service, and that his office had never been served with the rule date. He also filed
a motion to compel the discovery deposition of Freda, which was ultimately
granted.
Freda filed motions to quash the deposition, to request sanctions
pursuant to La.Code Civ.P. art. 863, and to oppose the rule to reset the hearing on
the descriptive list, asserting that her rule to show cause on her descriptive list was
faxed to and received by Paul’s attorney on March 31, 2011. She attached a copy
of the fax confirmation page, which supports the assertion, but the date was April
25, 2011. She also attached a cover-letter of that date to the clerk of court showing
the filing of Freda’s descriptive list. Freda further attached proof of payment to the
sheriff’s office for physical service of the May 31, 2011 rule date. The sheriff’s
return shows service at the old office address of Paul’s attorney on May 5, 2011,
but it also shows that Robin Constane, a secretary in his law office, signed for and
accepted the service.
Paul’s attorney filed a memorandum on the community property
partition asserting that he paid $1,400.00 per month for six and one half years and
paid the house note for ten years, while Freda lived in the family home. He
acknowledged his new secretary’s receipt of service on the rule on Freda’s
descriptive list while he was out of the office for surgery; he acknowledged his
office’s failure to calendar the hearing, and he provided documentation that he was
in court on another matter on May 31, 2011, at the time of the actual hearing on
Freda’s descriptive list. Freda filed a reply memorandum which included a request
4 to have a written judgment, memorializing the oral judgment accepting her
descriptive list, signed and executed by the trial court.
On July 11, 2011, the trial court heard arguments on Paul’s motion to
reset, and on Freda’s motions to quash, execute judgment, and request sanctions.
Support staff members of both attorney’s law offices testified regarding whether
service was effected on Paul’s attorney for the May 31, 2011 rule to show cause on
Freda’s descriptive list. No testimony was introduced regarding the merits of
partition or the content of the two disparate descriptive lists. At the end of the
hearing, the trial court found that service had been properly effected on Paul
through his attorney, pursuant to La.Civ.Code art. 1235(B), that the attorney failed
to appear and failed to timely file a descriptive list.
The trial court stated that he reacknowledged his oral order making
Freda’s detailed descriptive list the one to be used by the trial court in any partition
proceeding. He then signed the judgment that Freda had prepared six weeks
earlier, after the hearing on May 31, 2011, which purported to memorialize his oral
ruling on that date.3 This is shown in the record as the judgment under appeal.
However, the trial court then signed another judgment denying Paul’s motion to
reset the hearing on the descriptive list and granting Freda’s request for execution
of the first judgment. Paul attaches both judgments, and since they are both the
result of the July 11, 2011 hearing and are incorporated with each other by
reference, we will consider them together.
3 The first judgment was filed by Freda on June 7, 2011, following the hearing that Paul missed on May 31, 2011. It contained a typographical error on the first line wherein it states that the matter was heard on March 31, instead of the correct date of May 31. The trial judge did not sign this judgment until the end of the hearing on July 11, 2011, on Paul’s motion to reset the rule. He did not make note of the typographical error. 5 III.
STANDARD OF REVIEW
An appellate court may not set aside a trial court’s findings of fact in
absence of manifest error or unless it is clearly wrong. Stobart v. State, Through
DOTD, 617 So.2d 880 (La.1993); Rosell v. ESCO, 549 So.2d 840 (La.1989).
IV.
LAW AND DISCUSSION
Paul Lacombe assigns twelve errors on appeal and cites no
jurisprudence in support of his arguments. Some of his arguments are premature
since no partition proceeding has been held and since he has been granted the right
to take Freda’s deposition. Some of the issues argued by Paul have been
determined by stipulation between the parties, or they were previously ruled upon
and not appealed. We find and will address three central issues: (1) the
peremption of Freda’s claims for spousal support; (2) the trial court’s judicial
acceptance of Freda’s sworn detailed descriptive list; and, (3) the handling of the
parties’ reimbursement claims.
Paul asserts that the trial court was wrong in ordering him to pay
spousal support more than eight years after the divorce and without having been
ordered to pay spousal support or voluntarily paying spousal support.
As a threshold matter, Paul asserts that, as a result of the trial court’s
judgment accepting Freda’s descriptive list, Paul will have to pay again bills that
he has already paid between 2001 and 2008. He argues that the entire $1,400.00
per month that he sent Freda was to go toward community debts. This is not
correct. The agreement between Paul and Freda indicates that the funds were for
debts and living expenses. Moreover, in an earlier hearing, the trial judge did not
find a meeting of the minds within the agreement, and both parties entered into
6 written stipulations, one of which stated that Freda did not misappropriate funds
because there was never an order commanding her to pay community debts with
the funds paid to her by Paul.
“A stipulation has the effect of a judicial admission or confession,
which binds all parties and the court. Stipulations between the parties in a specific
case are binding on the trial court when not in derogation of law. Such agreements
are the law of the case.” Becht v. Morgan Bldg. & Spas, Inc., 02-2047, p. 5 (La.
4/23/03), 843 So.2d 1109, 1112, cert. denied, Morgan Bldg. & Spas, Inc. v. Becht,
540 U.S. 878, 124 S.Ct. 289 (2003) (quoting R.J. D’Hemecourt Petroleum, Inc. v.
McNamara, 444 So.2d 600, 601 (La.1983), cert. denied, 469 U.S. 820, 105 S.Ct.
92 (1984)). Accordingly, if the $1,400.00 payments were not court-ordered, they
were voluntary.
Consequently, Paul’s arguments must fail regarding the peremption of
Freda’s claim for spousal support under La.Civ.Code art. 117(3). 4 While Paul
argues that Freda waited eight years to petition for spousal support, this simply is
not true. She asked for spousal support in her initial petition for divorce in April
2001, even though the parties had agreed, without court order, that Paul would
send monthly payments of $1,400.00. When Paul stopped the voluntary payments
in November 2008, Freda filed a rule for final support in September 2009. Hence,
4 The right to claim after divorce the obligation of spousal support is subject to a peremption of three years. Peremption begins to run from the latest of the following events:
(1) The day the judgment of divorce is signed.
(2) The day a judgment terminating a previous judgment of spousal support is signed, if the previous judgment was signed in an action commenced either before the signing of the judgment of divorce or within three years thereafter.
(3) The day of the last payment made, when the spousal support obligation is initially performed by voluntary payment within the periods described in Paragraph (1) or (2) and no more than three years has elapsed between payments.
La.Civ.Code art. 117. 7 she was well within the three-year period required by Article 117(3) when she filed
for final support ten months after the last voluntary payment was made.
In fact, the stipulations attached to the December 29, 2010 judgment
admit that the January 11, 2010 oral judgment had already adjudicated that the
$1,400.00 payments were voluntary and that peremption did not apply.
Accordingly, the stipulations attached to the judgment and referenced in the
judgment by the trial court constitute a written judgment. See McIntyre v. Becker,
05-0257 (La.App. 4 Cir. 8/3/05), 918 So.2d 40.
Paul Lacombe states in his brief that “good cause was shown when the
court refused to allow Paul Lacombe to file a Sworn Descriptive List when both
parties failed to file within 45 days and both were over two years late in filing.”
Citing no jurisprudence, Paul argues that, under La.R.S. 9:2801, both descriptive
lists were filed over two years late, but that only he was punished when the court
refused to accept his list setting forth different liabilities and reimbursements due.
Paul further argues that he had shown good cause for missing the hearing which
his attorney failed to calendar.
Louisiana Revised Statutes 9:2801 provides in pertinent part:
(A) When the spouses are unable to agree on a partition of community property or on the settlement of the claims between the spouses arising either from the matrimonial regime, or from the co-ownership of former community property following termination of the matrimonial regime, either spouse . . . may institute a proceeding, which shall be conducted in accordance with the following rules:
(1)(a) Within forty-five days of service of a motion by either party, each party shall file a sworn detailed descriptive list of all community property, the fair market value and location of each asset, and all community liabilities. For good cause shown, the court may extend the time period for filing a detailed descriptive list. If a party fails to file a sworn detailed descriptive list timely, the other party may file a rule to show cause why its sworn detailed descriptive list should not be deemed to constitute a judicial determination of the community
8 assets and liabilities. At the hearing of the rule to show cause, the court may either grant the request or, for good cause shown, extend the time period for filing a sworn detailed descriptive list. If the court grants the request, no traversal shall be allowed.
La.R.S. 9:2801 (emphasis added).
In this case, on February 17, 2009, following Paul’s first petition for a
judicial partition of community property, both parties were ordered to file detailed
descriptive lists within forty-five days. Neither did so. Over a year later, after
various motions, hearings, and rulings on spousal support, Paul hired a new
attorney and filed a second petition for partition in May 2010, which also sought
offset, reimbursement, reduction of support, and a ruling on misappropriation of
funds. Almost a year later, after filing various motions, exceptions, and
reconventional demands, Freda filed her detailed descriptive list on April 4, 2011.
Freda’s list therefore was filed over two years after the court’s order to do so in
February 2009, as correctly argued by Paul. Paul, however, still had not filed his
sworn descriptive list. On April 28, 2011, Freda filed a motion for a rule to have
her list deemed a judicial determination of the community assets and liabilities, and
a hearing was set for May 31, 2011. Paul did not file his list prior to the hearing,
nor did his attorney appear at the hearing. At the end of the hearing, the trial court
orally ruled that Freda’s list was judicially accepted and would be used in
determining the community assets and liabilities.
While the record does not contain a transcript of that hearing, La.R.S.
9:2801(A)(1)(a) appears to have been followed, at least orally. When a party fails
to file a list timely, the other party may file a rule to show cause why her list
should not be used. At the hearing on the rule to show cause, the judge can grant
her request or grant the other party an extension for good cause shown. If,
however, after the hearing, the court grants the request of the one seeking the rule
on her list, “no traversal shall be allowed” from the other party. La.R.S.
9 9:2801(A)(1)(a). That is exactly what happened in this case. The consequences to
Paul are not a result of filing his list over two years after the order to do so in 2009.
His failure is in not filing a list until after Freda availed herself of La.R.S.
9:2801(A)(1), and, until after the hearing had occurred and was ruled upon and his
right to traversal was foreclosed. Moreover, when Paul finally filed his list on June
6, a week after the missed hearing on May 31, the court had already accepted
Freda’s list and was not required to grant Paul a new hearing. This is supported by
the jurisprudence.
Pursuant to Fontana v. Landry, 09-322 (La.App. 3 Cir. 10/7/09), 20
So.3d 578, the trial court was required to hold an evidentiary hearing on whether
Paul had received service and notice of the rule to show cause, which was done in
this case. However, the court was not required to grant a new trial on the list as it
pertained to assets and liabilities. In fact, in Charles v. Charles, 05-129 (La.App. 1
Cir. 2/10/06), 923 So.2d 786, the first circuit found that it was legal error to
address traversal of the assets and liabilities listed in the wife’s sworn descriptive
list since those had already been deemed a judicial determination of the community
of assets and liabilities. With regard to Paul’s arguments that he should not be
punished for his attorney’s failure to appear, “Louisiana jurisprudence . . . does not
consider delay or error in the attorney’s performance of his duty, even if
inadvertent, as grounds for granting a new trial.” Gauthier v. Gauthier, 04-198,
pp. 12-13 (La.App. 3 Cir. 11/10/04), 886 So.2d 681, 689.
In Williams v. Williams, 07-541 (La.App. 3 Cir. 10/31/07), 968 So.2d
1234, we discussed Charles and our decision in Gauthier, articulating as follows:
Louisiana law provides a procedure for a former spouse to have their sworn detailed descriptive list deemed a judicial determination of the community assets and liabilities if the other spouse fails to file their own detailed descriptive list. La.R.S. 9:2801(A). . . . [T]he trial court cautioned Thomas Williams that… he would be stuck with what happened if he failed to file pleadings
10 within the prescribed time frame. At the close of the hearing, the trial court orally ruled that Joyce Williams’s sworn detailed descriptive list was being judicially recognized as the community of assets and liabilities; it noted, however, that Thomas Williams would be able to offer some input as to how the items on the list would be divided at trial on the merits.
Williams, 968 So.2d at 1237 (footnote omitted).
The Williams court further stated that in Gauthier, 886 So.2d at 688, a
panel of the court had held that, “[O]nce the court had adopted [the wife’s] list as
the judicial determination of the community property, [the husband] could not
traverse that list. La.R.S. 9:2801. The court then referenced Charles, 923 So.2d at
788, where the first circuit stated:
Because the trial court had deemed at the [] hearing that [the wife’s] sworn detailed descriptive list constituted a judicial determination of the community assets and liabilities, at the trial on the merits, the only issues before the trial court were the valuation of the [] truck and the patio cover, the distribution of these assets, the distribution of the [bank] loans, any resulting equalizing payment that may have been due subsequent to the partition, see La. R.S. 9:2801 A(4), and [the wife’s] claim for reimbursement.
Williams, 968 So.2d at 1238 (footnote omitted).
In Williams, we explained that, “[d]espite the fact that the trial court
had previously deemed the detailed descriptive list filed by Joyce Williams a
judicial determination of the community, Thomas Williams was free to challenge
the reimbursement claim of his former wife at the [subsequent] partition trial.” Id.
Here, we note from the record that the partition trial has not taken
place, and the trial court has previously entered a ruling that Paul would be allowed
to depose Freda. Therefore, ostensibly, Paul is being permitted to gather evidence
to challenge Freda’s reimbursement claims at the trial on the merits of the partition
of community property, in keeping with the above jurisprudence. However, that is
11 not what the judgment under appeal provides, and to that extent we must reverse a
portion of the language in the judgment.
More specifically, the judgment, prepared by Freda following the May
31, 2011 hearing and signed by the trial court on July 11, 2011, stated as follows:
IT IS ORDERED, ADJUDGED AND DECREED that the Detailed Descriptive List of Freda J. Graves Lacombe in its entirety, including the reimbursement claims contained in the List, are accepted as true and are deemed to constitute a judicial determination of the community assets and liabilities.
Based upon the foregoing jurisprudence and La.R.S. 9:2801, a party
can obtain a rule to have its descriptive list accepted as a judicial determination of
the community’s assets and liabilities, pursuant to (A)(1), but the parties remaining
claims and the allocation of the assets and liabilities are partitioned in accordance
with La.R.S. 9:2801(A)(4) and its subparts (a) through (f). Accordingly, the
judgment prepared by Freda, and signed by the court over a month later, should not
have included language ordering that Freda’s list be accepted in its “entirety,
including the reimbursement claims contained in the List.”
Because the trial court granted Paul the right to depose Freda, and
because the court referenced future partition proceedings, we believe that the trial
court inadvertently accepted the language in the judgment, including the
misstatement of the hearing date. This is true because a pure acceptance of Freda’s
entire list, including her reimbursement claims, would essentially negate the need
for further proceedings, evidence, or depositions. We, therefore, affirm the trial
court’s acceptance of Freda’s descriptive list as it pertains to the assets and
liabilities of the community, and we reverse the portion of the first judgment,
signed on July 11, 2011, to the extent that the judgment indicates a blanket
acceptance of her claims on reimbursement. In this case, the parties’
12 reimbursement claims should be addressed at the partition proceedings on the
merits.
With regard to the second judgment resulting from the July 11, 2011
hearing, signed on July 19, 2011, in the interest of judicial economy, we affirm that
judgment. As explained above, the trial court did not err in denying Paul’s request
to reset the hearing and allow him to traverse Freda’s list as it pertains to the assets
and liabilities owned by the former community. Likewise, the award of attorney
fees in the second judgment is statutorily allowed under La.R.S. 9:2801(C).
V.
CONCLUSION
Based upon the foregoing, we reverse in part, and affirm in part the
first judgment of July 11, 2011. We affirm the second judgment signed on July 19,
2011, as a result of the hearing on July 11, 2011. Costs are assessed to Paul Wilray
Lacombe.