Gisleson v. Deputy

122 So. 3d 1089, 2013 La.App. 4 Cir. 0150, 2013 WL 4017390, 2013 La. App. LEXIS 1610
CourtLouisiana Court of Appeal
DecidedAugust 7, 2013
DocketNo. 2013-CA-0150
StatusPublished
Cited by2 cases

This text of 122 So. 3d 1089 (Gisleson v. Deputy) 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
Gisleson v. Deputy, 122 So. 3d 1089, 2013 La.App. 4 Cir. 0150, 2013 WL 4017390, 2013 La. App. LEXIS 1610 (La. Ct. App. 2013).

Opinion

MAX N. TOBIAS, JR., Judge.

hThe defendant/appellant, Steven Russell Deputy, M.D., appeals from a judgment that settled the remaining issues in this divorce case between Dr. Deputy and his former wife, Susan Marie Gisleson. For the reasons that follow, we affirm the judgment.

Ms. Gisleson and Dr. Deputy met in San Francisco, California while he was in medical school and Ms. Gisleson was an undergraduate. They subsequently married in June 1992 in San Francisco. Before the [1092]*1092marriage, Dr. Deputy had borrowed money (student loans) to attend school. The loans were repaid during the marriage. After he completed his residency, he, his wife, and their infant son moved to New Orleans where they remained married for 19 years.

In 2009, Dr. Deputy was diagnosed with cancer. He was given chemotherapy and underwent a bone marrow transplant in April 2010. When he returned from his treatment in California, Ms. Gisleson told him she wanted to separate. She moved out of the home on 1 July 2010. The parties attended ^counseling for a few months without success. Thereafter, Ms. Gisleson informed Dr. Deputy that she was not returning to the marriage.

After living separate and apart for one year, Ms. Gisleson filed for divorce pursuant to La. C.C. art. 103 and sought permanent spousal support, a division of the community of acquets and gains, and reimbursement for the value of Dr. Deputy’s student loans that were paid off during the marriage.

A trial was held in which both parties testified. In its 7 November 2012 judgment, the trial court: (1) held that the student loan debt incurred by Dr. Deputy before the marriage in the amount of $105,000 and satisfied with $171,000 of community funds was his separate debt; the court awarded Ms. Gisleson reimbursement of $85,500, being one-half of the community funds used to satisfy the debt in full; (2) held that the interest paid on Dr. Deputy’s student loans was not a community obligation and thus no reimbursement was owed to Dr. Deputy from community funds; (3) found that the student loan incurred by Ms. Gisleson during the marriage was a community obligation; (4) found that Ms. Gisleson was entitled to permanent spousal support; and (5) awarded Ms. Gisleson spousal support in the amount of $655 per month for 18 months.

Dr. Deputy appeals the judgment, arguing that the trial court erred in all of its rulings. In addition, he maintains that the trial court erred in excluding a writing that Ms. Gisleson admitted was written by her and upon which she was questioned. The document was proffered by Dr. Deputy. Finally, he contends that the trial Iscourt failed to issue reasons for judgment after a timely written request to do so. We dispose of this last issue first.

La. C.C.P. art.1917 requires the trial court, when requested by a party, to give written findings of fact and reasons for a contested judgment where the judgment may be appealed, provided the request is made not later than ten days after the mailing of the notice of the signing of the judgment. Dr. Deputy timely filed a request for written reasons on 19 November 2012. (The trial court’s duty under Article 1917 is mandatory.) However, it is “well settled” that the proper remedy for the trial court’s failure to comply with an article 1917 request is to apply for supervisory review or move for remand to compel the trial court’s compliance. Hall v. Folger Coffee Co., 03-1734, p. 5 n. 9 (La.4/14/04), 874 So.2d 90, 96 n. 9. No remedy was sought in this case. Therefore, this issue is waived.

Our review of the remainder of this case is governed by the manifest standard/clearly wrong standard of review. Thus we accord appropriate deference to the trial court’s decision.

Dr. Deputy’s first assignment of error is that the trial court erred when it awarded Ms. Gisleson reimbursement of $85,500 for his medical student loans incurred before the marriage and paid by the community. In essence, Dr. Deputy argues that, although the debts were in[1093]*1093curred by him before the marriage, his medical education allowed him and his family a higher standard of living. Both the parties testified that his increased earning power allowed them a comfortable |4life and permitted Ms. Gisleson an opportunity to stay at home with their children and complete her college degree.

La. C.C. art. 2363 states in pertinent part:

A separate obligation of a spouse is one incurred by that spouse prior to the establishment of a community property regime, or one incurred during the existence of a community property regime though not for the common interest of the spouses or for the interest of the other spouse. [Emphasis supplied.]

The statute leaves no room for interpretation. Dr. Deputy admits that his student loans were his separate obligation. Admittedly, his education benefited the marriage but that does not convert the student loans into a community debt. In addition, both parties admit that community funds were used to satisfy the obligation.

In Katner v. Katner, 09-0974, p. 11 (La. App. 4 Cir. 12/23/09), 28 So.3d 566, 574-75, this court was presented with an identical situation:

Mr. Katner made one claim for reimbursement of the community funds in the amount of $14,004 for the payment of the separate debt of Ms. Katner. La. C.C. art. 2364 provides:
If community property has been used to satisfy a separate obligation of a spouse, the other spouse is entitled to reimbursement upon termination of the community property regime for one-half of the amount or value that the property had at the time it was used.
Prior to her marriage, Ms. Katner obligated herself for student loans for her legal education. During the marriage, Mr. Katner clearly testified from financial records and his personal knowledge that community funds were used to repay some of the outstanding principal and interest indebtedness. Ms. Katner agrees that the community paid more than $11,000, but quibbles about the difference. However, she did not offer any | ¡^documentary evidence to contradict Mr. Katner’s offer. Again, the trial court did not commit manifest error in accepting the evidence offered by Mr. Katner and finding that community funds in the amount of $14,004 were used to pay Ms. Katner’s separate obligation. [Footnote omitted.]

We find no reason to deviate from our holding in Katner. Thus, this assignment of error is without merit.

Next, Dr. Deputy asserts that the trial court erred in failing to find that the interest paid on his student loans was a community obligation for which no reimbursement was due. In making this argument, Dr. Deputy cites, inter alia, La. C.C. art. 2339 and Gill v. Gill, 39,406 (La.App. 2 Cir. 3/09/05), 895 So.2d 807.

Article 2339 states in pertinent part:

The natural and civil fruits of the separate property of a spouse, minerals produced from or attributable to a separate asset, and bonuses, delay rentals, royalties, and shut-in payments arising from mineral leases are community property. Nevertheless, a spouse may reserve them as his separate property as provided in this Article.

Dr. Deputy contends that the interest is the cost of the civil fruit that was his increased earning power. While this is an interesting argument, it is unsupported in the law or jurisprudence.

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Bluebook (online)
122 So. 3d 1089, 2013 La.App. 4 Cir. 0150, 2013 WL 4017390, 2013 La. App. LEXIS 1610, Counsel Stack Legal Research, https://law.counselstack.com/opinion/gisleson-v-deputy-lactapp-2013.