Freeman v. Freeman

552 So. 2d 636, 1989 WL 134346
CourtLouisiana Court of Appeal
DecidedNovember 6, 1989
Docket20910-CA
StatusPublished
Cited by14 cases

This text of 552 So. 2d 636 (Freeman v. Freeman) 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
Freeman v. Freeman, 552 So. 2d 636, 1989 WL 134346 (La. Ct. App. 1989).

Opinion

552 So.2d 636 (1989)

Robert Curtis FREEMAN, Appellee,
v.
Mary Helen Kilpatrick FREEMAN, Appellant.

No. 20910-CA.

Court of Appeal of Louisiana, Second Circuit.

November 6, 1989.

*637 Paul Henry Kidd, Jr., Monroe, for appellee.

Donald R. Brown, Monroe, for appellant.

Before HALL, NORRIS and LINDSAY, JJ.

NORRIS, Judge.

This is an appeal of a community property partition. Pursuant to LSA-R.S. 9:2801, the trial court allocated the assets and liabilities of the former community, considered the parties' respective claims for reimbursement, and calculated an equalizing sum of money which Mrs. Freeman owed to her former husband. Mrs. Freeman appealed, contesting one item of reimbursement to Mr. Freeman; he answered the appeal, urging various errors. Mrs. Freeman filed a reply brief responding to the answer and purporting to raise further errors. We find merit in several issues properly advanced. We therefore affirm the judgment of the trial court insofar as it allocated the assets and debts of the estate; however, we amend the judgment with the effect of increasing the total amount due Mr. Freeman and remand the case for entry of a plan of payment.

Facts and Action of Trial Court

Robert and Mary Freeman were married in 1962. During their marriage they acquired community property. They also had three children. Mrs. Freeman petitioned for legal separation in November 1980. She received a judgment of separation on May 14, 1981. In this judgment she was awarded custody of the children; Mr. Freeman was ordered to pay child support of $450 per month, as well as to pay the mortgage note on the former family home (together with other provisions not relevant to the appeal). The parties were finally divorced by judgment signed on October 6, 1983. The divorce judgment ordered Mr. Freeman to pay child support of $750 per month but did not order him to pay the house note.

In April 1986, Mrs. Freeman ruled her former husband into court for past-due child support. By written reasons filed on April 22, the court issued a warning to Mr. Freeman and gave him a $2,400 credit against arrearages for mortgage payments he made between October 1984 and April 1985. The court found a mutual agreement between the parties that Mr. Freeman *638 was to receive this credit against his child support payments.

On November 24, 1986, Mr. Freeman filed to partition the community estate. Trial was held on June 22, 1987 and reasons for judgment rendered on January 25, 1988. The trial court's reasons and figures are confusing in certain respects and contain several mathematical errors. We will summarize them only generally, and turn closer attention only to the points specifically raised by the parties.

The Freemans' net estate consisted of two immovables and various movables. The immovables included the former family home, which the parties valued at $82,000, and an undivided one-half interest in a 56-acre tract ("White's Ferry Road Property"), which the court valued at $13,950. The trial court found the mortgage balance on the family home, as of July 1, 1987, to be $25,754.32, leaving an equity of $56,245.68. The court therefore valued the net community estate at $77,520.68. It allocated the former family home (with its mortgage obligation) to Mrs. Freeman, and the interest in the White's Ferry Road Property (which was not encumbered) to Mr. Freeman. The movables, valued by the parties at $7,425, were divided in kind evenly between the parties except for a difference of $12.50 owed to Mr. Freeman. In order to correct the uneven asset allocation, the court calculated that Mrs. Freeman owed Mr. Freeman a cash equalization payment of $21,160.34. LRS-R.S. 9:2801(4)(c). This portion of the judgment is not challenged on appeal.

The parties also advanced claims for reimbursement. Mr. Freeman asserted 10 items. By reasons for judgment dated January 25, 1988, the trial court found he was entitled to reimbursement of $17,189.69. The trial court's treatment of four of these is the subject of Mr. Freeman's second assignment of error. Mrs. Freeman asserted seven items. After analyzing these claims, the trial court concluded Mrs. Freeman was entitled to reimbursement of $22,775.38.

Taking into account the cash equalization payment and the respective claims of reimbursement, the trial court calculated that Mrs. Freeman owed Mr. Freeman a total sum of $15,921.66.

At the request of both parties, the court prepared amended reasons for judgment, filed May 4, 1988. The court corrected a math error in Mrs. Freeman's reimbursement claim and increased her reimbursement for home repairs. The court also corrected a math error in Mr. Freeman's reimbursement amounts. The court refused, however, to overturn its decision to allow Mr. Freeman's reimbursement claim of $16,098.76 for mortgage payments. Without showing its calculations, the court concluded that Mrs. Freeman would owe Mr. Freeman a total of $25,797.22, less one-half of all mortgage payments made by her since the date of the court's prior calculations.

Dissatisfied with the amended reasons, Mrs. Freeman filed a motion to reopen the evidence, which was denied. A judgment of partition was signed and filed on July 19, 1988. Mrs. Freeman then moved for a partial new trial; this was also denied.

Mrs. Freeman brought the instant appeal from the July 1988 judgment only, advancing one assignment of error:

(1) The trial court erred in giving Mr. Freeman credit for mortgage payments he made as part of a court-ordered child support scheme.

Mr. Freeman answered the appeal, advancing five assignments of error:

(1) The trial court erred in not awarding him legal interest on the cash equalization award;

(2) The trial court erred in classifying four reimbursement claims as "community debts";

(3) The trial court erred in awarding Mrs. Freeman reimbursement of $8,807.62 for home mortgage payments when she proved payments of only $4,799.63;

(4) The trial court erred in its overall math calculation; and

(5) The trial court erred in reimbursing Mrs. Freeman for mortgage payments since January 25, 1988, since *639 this amounted to continuing and ongoing reimbursement.

Mrs. Freeman then filed a reply brief urging several additional errors in the trial court's plan of partition. We note at the outset that our procedural law provides that a party who seeks to have the trial court's judgment revised, modified, set aside or reversed may bring an appeal. LSA-C.C.P. art. 2082. If the appellee seeks modification, revision or reversal of the judgment, he may answer the appeal. LSA-C.C.P. art. 2133. There is no provision for allowing an appellant, by reply brief, to advance new issues not raised by the original appeal. To allow this would invite an endless sequence of counter-appeals; judicial economy should prohibit this except in extraordinary cases. In fact, our court rules expressly provide:

The appellant may file a reply brief if he has timely filed an original brief but it shall be strictly confined to rebuttal of points urged in the appellee's brief. No further briefs may be filed except by leave of court. URCA-Rule 2-12.6 (emphasis added).

See also 5 C.J.S. Appeal & Error, § 1333 (1958).

Mrs. Freeman's reply brief is not confined to rebutting the answer to appeal; it seeks to raise new issues. We decline to consider the new sub-issues raised by Mrs. Freeman's reply brief. Our discussion will be limited to the issues properly raised.

Mrs. Freeman's Assignment of Error

By her assignment of error, Mrs.

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Bluebook (online)
552 So. 2d 636, 1989 WL 134346, Counsel Stack Legal Research, https://law.counselstack.com/opinion/freeman-v-freeman-lactapp-1989.