Hardy v. Hardy

273 So. 3d 448
CourtLouisiana Court of Appeal
DecidedFebruary 28, 2019
Docket2018 CA 0487
StatusPublished
Cited by1 cases

This text of 273 So. 3d 448 (Hardy v. Hardy) 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
Hardy v. Hardy, 273 So. 3d 448 (La. Ct. App. 2019).

Opinion

McCLENDON, J.

In this appeal, the appellant challenges a trial court judgment partitioning former community property. The appellee has answered the appeal. For the reasons that follow, we amend the judgment in part and remand for further proceedings consistent with this opinion.

FACTS AND PROCEDURAL HISTORY

Dorothy Matthews Hardy and Elijah John Hardy were married on September 19, 1981. During their marriage they resided in West Feliciana Parish until they separated in August of 2010. On February 8, 2011, Mrs. Hardy filed a Petition for Divorce, and on April 20, 2011, the trial court signed a judgment of divorce. Thereafter, on March 6, 2013, Mr. Hardy filed a Petition for Judicial Partition of Community Property pursuant to LSA-R.S. 9:2801. On December 5, 2013, Mrs. Hardy filed a Motion and Order to Show Cause for Domestic Relations Order, which was set for hearing on January 22, 2014. On January 22, 2014, pursuant to an agreement, the trial court signed a Domestic Relations Order, partitioning the retirement account of Mr. Hardy and awarding fifty percent of his Louisiana State Employees' Retirement System (LASERS) benefits to Mrs. Hardy.1 Neither Mr. Hardy nor Mrs. Hardy were at the hearing.

*452On September 23, 2016, a bench trial on the remaining community property issues, regarding certain immovable property, movable property, and reimbursement claims, was held. The trial court took the matter under advisement and, on October 28, 2016, issued Reasons for Judgment partitioning the remaining community assets of the parties. The trial court signed a judgment on February 15, 2017. Thereafter, Mrs. Hardy filed a motion for new trial, asserting that her reimbursement claims were improperly calculated. Following a hearing, the motion for new trial was denied, and on May 10, 2017, the trial court signed a judgment. Mr. Hardy has appealed the February 15, 2017 judgment, and Mrs. Hardy answered the appeal.

In his appeal, Mr. Hardy contends that the trial court erred in failing to amend the domestic relations order that incorrectly apportioned his retirement account. He further asserts that the incorrect distribution resulted in an inequitable division of the remaining community assets. Mr. Hardy also maintains that the trial court erred in failing to address Mrs. Hardy's LASERS retirement account in connection with the partition and in failing to allow testimony regarding Mrs. Hardy's LASERS retirement account.

Mrs. Hardy answered the appeal and alleges that the trial court incorrectly calculated her reimbursement claim for the mortgage payments she made on the community home. Specifically, she contends that the trial court was incorrect in finding the amount of reimbursement due to her to be one half of the principal amount of the payments, rather than one-half of the entire amount of the payments paid from her separate funds for the community debt. Mrs. Hardy also prayed for reasonable attorney fees in answering the appeal. Mrs. Hardy also filed a Motion and Order for Peremptory Exception of Prescription in this court.

DISCUSSION

The provisions of LSA-R.S. 9:2801 set forth the procedure by which community property is to be partitioned when the spouses are unable to agree. Benoit v. Benoit, 11-0376 (La.App. 1 Cir. 3/8/12), 91 So.3d 1015, 1018, writ denied, 12-1265 (La. 9/28/12), 98 So.3d 838. The statute requires that both parties file sworn detailed descriptive lists and that each party either traverse or concur in the inclusion or exclusion of each asset and liability and the valuation contained on the other party's list. LSA-R.S. 9:2801A(1) and (2). The statute further provides that, at the trial of the traverses, the trial court shall determine community assets and liabilities, and states that valuation of assets shall be determined at the trial on the merits. LSA-R.S. 9:2801A(2). Thereafter, the court shall partition the community in accordance with the rules set forth in the statute. LSA-R.S. 9:2801A(4).2 See *453Watts v. Watts, 15-1985 (La.App. 1 Cir. 10/31/16), 2016 WL 6426443 (unpublished).

It is well settled that a trial court has broad discretion in adjudicating issues raised by the partition of the community. The trial court is afforded a great deal of latitude in arriving at an equitable distribution of the assets between the spouses. Factual findings and credibility determinations made in the course of valuing and allocating assets and liabilities in the partition of community property may not be set aside absent manifest error. Benoit, 91 So.3d at 1019. However, the allocation or assigning of assets and liabilities in the partition of community property is reviewed under the abuse of discretion standard. Id.

In his first two related assignments of error, Mr. Hardy asserts that the trial court erred in the apportionment of his LASERS retirement account, which resulted in an inequitable distribution of the former community assets. However, we note that the domestic relations order was the result of an agreement presented by counsel and signed in open court.3

A consent or a stipulated judgment is a bilateral contract by which the parties adjust their differences by mutual consent, with each party balancing his hope of gain against his fear of loss. M.P.W. v. L.P.W., 13-0366 (La.App. 1 Cir. 11/1/13), 136 So.3d 37, 43 ; see also La. C.C. arts. 3071 and 3072. Its binding force arises from the voluntary acquiescence of the parties rather than the adjudication by the court. M.P.W., 136 So.3d at 44. Generally, there is no right to appeal a stipulated or consent judgment. See Mill Creek Homeowners Ass'n, Inc. v. Manuel, 04-1385 (La.App. 1 Cir. 6/10/05), 916 So.2d 268, 269.

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Cite This Page — Counsel Stack

Bluebook (online)
273 So. 3d 448, Counsel Stack Legal Research, https://law.counselstack.com/opinion/hardy-v-hardy-lactapp-2019.