Garcia v. Garcia

491 So. 2d 1350, 1986 La. App. LEXIS 6928
CourtLouisiana Court of Appeal
DecidedMay 12, 1986
DocketNo. 85-CA-704
StatusPublished
Cited by1 cases

This text of 491 So. 2d 1350 (Garcia v. Garcia) 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
Garcia v. Garcia, 491 So. 2d 1350, 1986 La. App. LEXIS 6928 (La. Ct. App. 1986).

Opinion

KLIEBERT, Judge.

The judgment, dated June 5, 1985, devol-utively appealed from by Alma Ludwig Garcia, the wife, effected an accounting of and divided the remainder of the property of the community formerly existing between her and Emilio Garcia, the husband. Based on the accounting, the judgment ordered the wife to pay the husband $54,-987.15 from her one-half of the proceeds of the sale of community real estate.

The first three of the wife’s assignments of error involved the use by the trial court of amounts other than those stipulated to by the parties in computing the sum owed by the wife. In her remaining assignments of error, the wife contends the trial judge erred in considering expenses paid by the husband pursuant to a court order dated September 5, 1980 as reimbursable expenses and in failing to have the husband account for the sum on deposit in a community checking account at the time the petition for separation was filed.

The husband answered the appeal and urged as error the trial court’s award to the husband of $14,931.63 rather than $45,-218.61 as reimbursable expenses for expenditures incurred by the husband in the administration of jointly owned oil and gas interests and in charging the husband with a 100% interest rather than a 50% interest for an oil and gas interest allotted to him in the division of assets. For the reasons hereinafter stated, we amend the judgment and, as amended, affirm.

The parties were judicially separated by a judgment dated September 5, 1980, rendered by the Twenty-fourth Judicial District Court, Parish of Jefferson. A final judgment of divorce was rendered by the Civil District Court for the Parish of Orleans on November 3, 1981. The parties agreed to and effected a partial settlement of the community by a notarial act dated January 22, 1982.

Thereafter, the parties sought to divide in the separation proceeding the remainder of the property of the community formerly existing between them. A substantial portion of the evidence was introduced by stipulation of the parties over several hearings. The stipulation included an agreement to use July 29, 1980, the date on which the separation petition was filed, as the effective date for the partition of the community. The piecemeal settlement and hearings, lack of a full accounting in the record, insufficient explanation of computations and poor assembly of the record and exhibits made an otherwise easy task difficult.

The accounting or computation to arrive at the $54,987.15 the wife was ordered to pay to the husband was contained in the trial judge’s reasons for judgment and provided, in part, as follows:

“The parties have stipulated that Mr. Garcia is entitled to reimbursement of the following expenses:
$ 2,623.67 - Diamondhead lots
33,412.56 - Veterans Highway property
[1352]*1352$ 524.28 - Progress Petroleum
65,407.78 - Income tax payments”

In her first two assignments of error counsel for the wife points to the fact and in brief counsel for the husband agrees that the trial judge erroneously used $33,-412.65 for the Veterans Highway Property expenditures and $65,407.78 as the income tax payments rather than the stipulated amounts of $22,870.15 and $31,428.40. Since the error changes the accounting and hence the amount owed by the wife to the husband, we will hereinafter make the necessary computation and amend the judgment accordingly.

Further, in the accounting and the computation to arrive at the amount owed to the wife by the husband, the trial judge, in his reasons, stated the wife was entitled to reimbursement, among others, of $468.00 received by the husband from the sale of salvage from a jointly owned interest in an oil well. In her third assignment of error the wife contends the trial judge erred because he failed to use the stipulated amount of $1,968.75. In her brief, counsel for the husband concedes the error. We will therefore use the stipulated amount in making our computation and amend the judgment accordingly.

We next consider the wife’s fourth assignment of error; i.e., the trial court erred in awarding to the husband reimbursement for some $102,118.64 of expenses for the farm, vehicles, life insurance and house trailer, ordered paid by the husband under a consent judgment dated September 5, 1980. Although by separate judgment it was apparently rendered at the same time as the judgment of separation. The wife contends this portion of the judgment was in error in that the listed payments were alimentary in nature, hence, not subject to reimbursement. To support her contention, the wife points to consent judgment of September 5, 1980, which provides:

“This matter came before the Court on September 5, 1980 for trial on motions for custody, child support, alimony and preliminary injunctive relief.
IT IS FURTHER ORDERED, ADJUDGED AND DECREED that defendant shall pay all reasonable and necessary expenses attendant to the operation of the White Oaks farm, to the full extent that these expenses have been paid in the past, including utilities, feed and veterinary expenses for the livestock, as well as appropriate insurance, maintenance and operation expenses for the mechanical equipment, all of which expenses are intended to be paid by defendant to the same extent as they have been paid in the past, which payments are not to be construed as alimony.
IT IS FURTHER ORDERED, ADJUDGED AND DECREED that defendant shall continue to pay the monthly notes on all of the immovable property and any vehicles, and to continue to pay the premiums on all existing life insurance without affecting any change in the designated beneficiary thereof, which payments are not to be construed as alimony.”

The wife argues that the preamble of the judgment shows the purpose of the quoted provisions was to provide support. Consequently, the payments are alimentary. To support her contentions, she cites Cox v. Cox, 447 So.2d 578 (1st Cir.1984) where the court was called upon to determine if the Family Court of East Baton Rouge Parish had jurisdiction to order a husband to pay the mortgage notes on the family home. The Cox court concluded it did, and in so doing said:

“Plaintiff first argues that by ordering plaintiff to maintain the home mortgages and specifically stating that such payment does not constitute alimony or child support, the trial judge went beyond his statutory jurisdiction described in La. R.S. 13:1401(7). We disagree.
The word alimony refers to the nourishment, lodging, and support of the person who claims it. La.C.C. art. 230. By ordering plaintiff to maintain the mortgages on the home, the trial judge was providing living accommodations for defendant and her minor child. We find [1353]*1353that the furnishing of the family home without payment by Mrs. Cox is a part of the support for plaintiffs wife and child. The order to pay the mortgages was a means of assuring the continued availability of that family home. As a matter of fact, counsel for appellant informed the court at the beginning of the trial it would have to decide who would be required to pay the house notes. We find no error.” (Footnote omitted)

Here, the trial judge, in his extensive and well reasoned written reasons for judgment said:

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567 So. 2d 774 (Louisiana Court of Appeal, 1990)

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Bluebook (online)
491 So. 2d 1350, 1986 La. App. LEXIS 6928, Counsel Stack Legal Research, https://law.counselstack.com/opinion/garcia-v-garcia-lactapp-1986.