Gay v. Gay

741 So. 2d 149, 1999 WL 395384
CourtLouisiana Court of Appeal
DecidedJune 16, 1999
Docket31,974-CA
StatusPublished
Cited by14 cases

This text of 741 So. 2d 149 (Gay v. Gay) 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
Gay v. Gay, 741 So. 2d 149, 1999 WL 395384 (La. Ct. App. 1999).

Opinion

741 So.2d 149 (1999)

Rhonda Jean Beck GAY, Plaintiff-Appellant,
v.
Kenneth A. GAY, Defendant-Appellee.

No. 31,974-CA.

Court of Appeal of Louisiana, Second Circuit.

June 16, 1999.

*150 James M. Johnson, Counsel for Appellant.

Campbell, Campbell & Marvin by John C. Campbell, Minden, Counsel for Appellee.

Before STEWART, GASKINS and KOSTELKA, JJ.

STEWART, J.

This matter involves the partition of community property. The appellant, Rhonda Jean Beck Gay appeals the trial court judgment in favor of the appellee, Kenneth A. Gay, 26th Judicial District Court, Webster Parish, the Honorable Dewey E. Burchett, Jr., presiding. The appellant urges two assignments of error. We affirm.

FACTS

Rhonda Jean Beck Gay (Mrs. Gay) and Kenneth A. Gay's (Mr. Gay) community of acquets and gains was dissolved and terminated when Mrs. Gay filed for divorce on November 30, 1994. On March 1, 1996, Mr. Gay filed a petition for partition of the community property. On August 7, 1996, the trial court rendered a judgment of provisional use and occupancy of the matrimonial domicile in favor of Mr. Gay, subject to review by the parties in ninety (90) days. The judgment further ordered that the parties were to agree upon an independent party to provide them with the fair market value of the property, or that they may agree to jointly hire an appraiser to formally establish the fair market value of the former matrimonial domicile, and that the fair market value of the former matrimonial domicile was to be established within thirty (30) days from the date of the judgment.

The appraisal was performed by Robin Beck, MAI, on August 15, 1997. The appraised value of the former matrimonial domicile was $82,000.00. The matter came to trial on the issue of partitioning the former community of acquets and gains on February 19, 1998. An amortization schedule was submitted into evidence showing the schedule of payments. Forty-five payments had been made at the time the community was dissolved. It was undisputed that Mr. Gay made every payment except one-half (½) of one monthly payment made by Mrs. Gay. On July 15, 1998, the trial court rendered an opinion finding the value of the house, pursuant to the appraisal report, to be $82,000, giving Mr. Gay a credit of $12,441.05 and ordering Mrs. Gay to transfer all of her interest in the former community home *151 and acreage and additionally to pay Mr. Gay the sum of eight thousand nine hundred twenty-three dollars and 11/100 ($8,923.11) in cash, which is the total amount due to Mr. Gay from Mrs. Gay before applying all of the credits for each party.

The trial court opinion, in pertinent parts, provides that:
"Mrs. Gay should be given credit for one-half (½) of the $1,500.00 the value the court finds to be the value of the horse Katy's Hot Shot or $750.00 credit to Mrs. Gay ... The court believes Mrs. Gay should be given $3,000.00 credit for the vehicles, the Ford and Nissan, which were eventually sold by Mr. Gay.
The court finds the horse trailer was community property, but does not believe that the value of $700.00 assigned by Mr. Gay would be appropriate since this was really not an arm's length transaction between Mr. Gay and his friend. The court assigns a value of $2,500.00 to the horse trailer, which Mrs. Gay is to be given credit for one half (½) of this amount.
The passbook savings account shows that $4,000.00 was originally deposited by Mr. Gay and eventually the amount of $4,295.00 was withdrawn. One half (½) of the $295.00 should be shown as Mrs. Gay's part of the community ... and she should be given credit for one-half (½) of $295.00.... Mrs. Gay's final reimbursement with regard to the last claim is $76.66."

The sum of three thousand six hundred ninety-eight dollars and 95/100 ($3,698.95) is the net amount due to Mr. Gay from Mrs. Gay after applying all of the credits for each party.

Mrs. Gay now appeals urging that the trial court erred in denying her claim for fair market rent for the period of time Mr. Gay occupied the former matrimonial domicile, from August 7, 1996 until the trial on the matter and by not giving her the proper credits that she should have been allowed.

STANDARD OF REVIEW

La. R.S. 9:2801 governs community property partitions. In allocating community assets and liabilities, the trial court has great discretion to divide a particular asset or liability equally or unequally or to allocate it in its entirety to one of the spouses. The court must consider the nature and source of the asset or liability, the economic condition of each spouse, and any other circumstances that it deems relevant. La. R.S. 9:2801(4)(c); Hare v. Hodgins, 586 So.2d 118 (La.1991); Kambur v. Kambur, 94-775 (La.App. 5th Cir.3/1/95), 652 So.2d 99.

In light of this discretion, the trial court is not required to accept at face value a spouse's valuation of assets or debts, or claims against the community. Cutting v. Cutting, 625 So.2d 1112 (La. App. 3d Cir.1993), writ denied 93-2770 (La.1/7/94), 631 So.2d 453. An appellate court may not overturn the trial court's factual findings or credibility determinations unless clearly wrong or manifestly erroneous. Stobart v. State, Through Dept. of Transp. and Dev., 617 So.2d 880 (La.1993). Barrow v. Barrow, 27,714 (La. App. 2 Cir. 2/28/96), 669 So.2d 622.

PROPER CREDITS

Fair Market Rent

Mrs. Gay urges that the trial court erred by giving Mr. Gay full credit for all mortgage payments he made before and after the August 7, 1996 interim judgment and by not giving her an offset credit for rental credits for the time period that Mr. Gay occupied the former matrimonial domicile, from August 7, 1996 until the trial on the matter. Mrs. Gay further urges that the interim judgment only gave Mr. Gay use and occupancy for ninety days subject to further review. Nevertheless, Mr. Gay remained in the former matrimonial domicile, making monthly mortgage payments. Therefore, Mrs. Gay urges that she is *152 entitled to fair market rental value and that she should be paid no less than $5,000.00 if Mr. Gay is allowed to have full ownership of the former matrimonial domicile.

Mr. Gay argues that neither party ever sought an order from the court directing that the other spouse be liable for rent for the use and occupancy of the home; nor was there any agreement between the parties pertaining to rent. Mr. Gay did not seek rental for the period that Mrs. Gay was in the home and Mrs. Gay did not seek rental credits for the period that Mr. Gay was in the home. Therefore, neither party has a valid claim for rent.

Mr. Gay further argues that the amortization schedule submitted into evidence shows the schedule of payments, that forty-five (45) payments had been made at the time the community was dissolved, that it was undisputed that Mr. Gay made every payment except one-half (½) of one monthly payment which was made by Mrs. Gay and that Mr. Gay's payments totaled $13,872.03 between November 30, 1994 and August 7, 1996 when he was given use and occupancy of the home. Following the August 7, 1996 interim judgment, Mr. Gay resided in the home making payments totaling $11,009.98. Therefore, Mr. Gay was entitled to a credit for one half of the payments he has made following the dissolution of the community to retire this community debt. Accordingly, Mr. Gay sought and was correctly awarded a credit of $12, 441.05 by the trial court for one half of the total payments made by him. See Jones v. Jones,

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Cite This Page — Counsel Stack

Bluebook (online)
741 So. 2d 149, 1999 WL 395384, Counsel Stack Legal Research, https://law.counselstack.com/opinion/gay-v-gay-lactapp-1999.