Higginbotham v. Higginbotham

270 So. 2d 247, 1972 La. App. LEXIS 6274
CourtLouisiana Court of Appeal
DecidedNovember 13, 1972
DocketNo. 9017
StatusPublished
Cited by3 cases

This text of 270 So. 2d 247 (Higginbotham v. Higginbotham) 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
Higginbotham v. Higginbotham, 270 So. 2d 247, 1972 La. App. LEXIS 6274 (La. Ct. App. 1972).

Opinion

BLANCHE, Judge.

Both parties have appealed from a judgment ordering the inventory taken by a Notary Public of the community of acquets and gains previously existing between plaintiff husband and defendant wife amended and corrected in certain respects. Plaintiff obtained a judicial separation from defendant by judgment rendered and signed on October 8, 1965, pursuant to a suit for separation filed on September 17, 1965. A suit for partition of the community of ac-quets and gains was filed on October 15, 1965, pursuant to which suit an inventory was taken on November 23, 1965. Both litigants filed objections to this inventory and another inventory was taken on December 15, 1967, and filed on November 18, 1968. The record reflects that plain[249]*249tiff husband was in the trucking business prior to and at the time of the separation, and the trial court concluded from the record and the evidence that both litigants realized that a forced liquidation of the community assets, consisting principally of the trucks, would result in severe financial detriment to both parties. It was agreed by and between the litigants, accordingly, that plaintiff husband would continue to use the trucks pending the suit for partition of the community.

Both litigants likewise took exception to the second inventory, and an evidentiary hearing was held to resolve the disputes. The trial judge ordered the inventory which had been filed on November 18, 1968, amended in certain respects. From this judgment, plaintiff husband has appealed, assigning various specifications of error. Defendant wife has answered the appeal, likewise alleging certain errors committed by the trial judge.

Plaintiff husband’s first specification of error concerns the trial judge’s valuing two trucks falling within the community of acquets and gains at a higher value than was obtained by plaintiff husband when these trucks were sold or traded in following a period of use in the trucking business, while at the same time making plaintiff husband account to the community for the profits derived from the use of these trucks until their disposition. We find merit in this assignment of error.

The trial judge valued a 1964 Chevrolet tandem dump truck, Motor and Serial No. 4M833P100998, at $8,961.58, when the trade-in price which plaintiff obtained for the truck in 1966 was $6,000. Defendant wife stipulated that plaintiff husband obtained the fair market value of the truck when it was traded in, in 1966. Similarly, the trial judge amended the inventory so as to recognize as the value of a 1965 Chevrolet tandem truck, Motor and Serial No. M8335P104175, the sum of $11,700, instead of the sum of $6,022.67, which was the stipulated fair market trade-in value of this truck at the time of its disposition.

At the same time the trial judge recognized as a community asset the sum of $8,-229.21, representing profit made on the operation of the trucks until sold or traded. In so ruling, the trial judge reasoned as .follows:

“The Court has taken the attitude that a partnership or joint venture was continued after separation for the purpose of liquidating the assets thereof, and that profits from the use of those assets are to be attributed to the community for the period ending on the disposal of those assets. The court rejects the contention that a partnership for all purposes and all operation was continued. Any ascription of value on a going business is rejected as not having been proved.
“The Court is somewhat in a quandary in attempting to arrive at the value of the trucks at the time of the separation since the parties did not present any evidence on that point. It has attempted to arrive at a fair figure by adding to the realized value on disposal the amounts paid on the mortgage between the date of separation and the date of disposal on the theory that the amount of payments will approximate the amount of depreciation.
“As noted, this is an inventory of the community at the time of separation except that the profit from the continued operation is included. As a result of this treatment in the final settlement, Mr. Higginbotham should be required to account for the amounts he received for the trucks, but should be given credit for the amounts he paid on the mortgages on the trucks.” (Written Reasons for Judgment, Record, pp. 193, 194.)

While we find no error committed by the trial judge in requiring plaintiff husband to account for the profit derived from the use of the community trucks pursuant to the agreement between the litigants, we do not feel that plaintiff husband [250]*250should likewise be required to account to the community for the value of these trucks as of the time of the termination of the community. It is obvious that the profit derived from the use of these trucks for which the plaintiff husband is being required to account was generated as a consequence of the use of these trucks during the period from the termination of the community until the disposition of the .trucks, which business use obviously resulted in a concomitant diminution in the value of these assets. Defendant wife, having agreed to permit plaintiff husband to continue to use the trucks so that she could share in the profits derived therefrom, cannot now properly expect plaintiff husband likewise to account to the community for the fair market value of the trucks used to generate this profit as of the time of the filing of the suit for separation and thus prior to the use and resulting depreciation. The judgment appealed from, accordingly, will be amended so as to value the 1965 eight-cylinder Chevrolet cab/chassis tandem, Model No M88303, Serial No. M8335P104175, at the sum of $6,022.67. The judgment amending the inventory will similarly be amended to value the 1964 eight-cylinder Chevrolet tandem, Model No. M8303, Motor No. 4M833P100998, at the sum of $6,000.

In reviewing the record, we note that the trial court inventoried a 1963 Chevrolet tandem truck as follows:

"1963 Chevrolet
Tandem truck $4,500.00
$3,364.65 $1,135.35"

At the end of the inventory, however, the trial court listed as the last item comprising community debts the following:

"Balance due on mortgages due on trucks $19,640.99"

This figure comprising the mortgage balances due on trucks represents the balance due General Motors Acceptance Corporation as of September 17, 1965, the date of filing the suit for separation, for all three of these Chevrolet tandem trucks, as follows :

(1) 1963 Chevrolet tandem truck $ 3,534.27
(2) 1964 Chevrolet tandem truck 5,906.72
(3) 1965 Chevrolet tandem truck 10,200.00
Total $19,640.99

The $4,500 figure represents the stipulated trade-in value which plaintiff husband obtained for this 1963 Chevrolet tandem truck. This value should be listed in the inventory, without deducting therefrom the figure $3,364.65, which represented the mortgage balance due General Motors Acceptance Corporation at the time that the truck was traded in by plaintiff husband. We will, accordingly, likewise amend the judgment amending the inventory to this effect.

We also note from our review of the record that the judgment of the trial court lists as an asset of the community the following :

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Related

Cannon v. Baron
289 So. 2d 835 (Louisiana Court of Appeal, 1974)
Clark v. Central Louisiana Electric Co., Inc.
284 So. 2d 621 (Louisiana Court of Appeal, 1973)
Higginbotham v. Higginbotham
272 So. 2d 379 (Supreme Court of Louisiana, 1973)

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Bluebook (online)
270 So. 2d 247, 1972 La. App. LEXIS 6274, Counsel Stack Legal Research, https://law.counselstack.com/opinion/higginbotham-v-higginbotham-lactapp-1972.