Huckabay v. Huckabay

514 So. 2d 732, 1987 La. App. LEXIS 10534
CourtLouisiana Court of Appeal
DecidedOctober 28, 1987
DocketNo. 19073-CA
StatusPublished
Cited by2 cases

This text of 514 So. 2d 732 (Huckabay v. Huckabay) 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
Huckabay v. Huckabay, 514 So. 2d 732, 1987 La. App. LEXIS 10534 (La. Ct. App. 1987).

Opinion

MARVIN, Judge.

The wife appeals a 1986 judgment rejecting her demands to enforce a community property partition and settlement that was “approved” and recognized in a 1977 separation judgment.

She contends that certain provisions of the 1977 agreement entitle her

—to $24,500, the proceeds from community cattle that the husband sold shortly before the 1977 partition, and
—to one-half of the husband’s retirement pay he began receiving in 1979.

We reverse and render judgment granting some of the wife’s demands.

THE 1977 CONTRACT AND ITS IMPLEMENTATION

The contract, reproduced as an appendix with paragraphs numbered by us, did not mention the debts of the community and did not partition 53 acres on which the family home and other improvements were located or unconditionally partition retirement benefits which were to be paid to the husband by his former employer when the husband retired. In this respect, the contract did not discharge or relieve the litigants from any further accounting to the community or fully and finally settle the litigants’ claims, as the contract purports and declares in its penultimate paragraph.

About two months before the 1977 contract and judgment the husband sold all of the community cattle for $24,500 (paragraph 1) and applied that money to community debts. The wife did not learn of this until after the contract was signed. She contended that some of the cattle were sold after the 1977 contract.

When the contract was signed in 1977, the husband was paying more than $500 in monthly alimony and support payments. The judgment of separation provided that after a divorce, the husband shall pay monthly $200 permanent alimony and $300 child support. The litigants do not dispute that they were divorced on December 8, 1978, although that judgment is not in the record lodged in this appeal.

On the 1979 rule of the husband, filed about a month after the divorce, a judgment was signed reducing permanent alimony to $100 per month and continuing the child support at $300 per month. That judgment was not appealed. The husband paid the alimony and child support that judgment ordered until the minor daughter of the marriage reached the age of 18.

In August 1983 when the daughter turned 18, the husband filed a rule to terminate alimony and child support. This rule was not called for a hearing and was still pending when the wife filed her action in October 1984. In Huckabay v. Huckabay, 485 So.2d 165 (La.App. 2d Cir.1986), we reversed the trial court’s ruling on an exception of prescription and remanded for [734]*734proceedings which resulted in the 1986 judgment that is here appealed.

After his daughter reached 18, the husband has periodically paid to or for her living and education expenses a total of at least $6,282 through June 1986. The husband said these payments were made in response to a verbal agreement with his wife in 1983, made after he filed the rule to terminate alimony and child support, to the effect that if he would pay for the daughter’s living expenses and college education, the wife would not demand anything of him other than the $100 per month permanent alimony. The trial court believed the husband’s testimony and did not believe her assertions that she did not verbally make such an agreement and that she at no time agreed to give up her right to claim one-half of her husband’s retirement pay (paragraph 3(B)).

The husband retired in April 1979. His monthly retirement pay, initially $833, gradually increased to $978 by July 1986. The husband has paid to his wife $100 per month permanent alimony as ordered by the trial court in 1979. The wife’s initial demand, for a part of the husband’s retirement pay was made in her petition of October 11, 1984.

SUSPENSIVE CONDITION RE: RETIREMENT BENEFITS

The 1977 contract clearly conveys to the wife one-half interest in the husband’s retirement credits, even though the husband did not retire until 1979. Paragraph 3B. That paragraph suspends her right to receive her interest by stating:

as long as [the husband] is paying $500 per month alimony [$200] and support [$300], [she] shall not receive any additional income from the Retirement System. (Our bracketed material.)

The trial court’s judgment reducing the monthly permanent alimony from $200 to $100 was signed March 15, 1979, shortly before the husband retired. The wife did not appeal that judgment or later claim any arrearage under the 1977 contract. This circumstance lends credence to the trial court’s assessment of credibility affecting the issue of whether the 1977 contract was verbally modified in 1983.

Also pertinent to this issue are the facts that the wife acknowledged that she knew that the husband began providing the daughter’s monthly living and education expenses after she reached adulthood in August 1983, and that the husband continued to pay $100 per month alimony even though he had filed a rule to terminate it.

We give great weight to the trial court on matters of credibility and proof of corroborative circumstances relevant to the existence of an agreement or contract. CC Art. 1846; Feazel v. Feazel, 471 So.2d 851 (La.App. 2d Cir.1985).

The trial court reasoned that the wife was not entitled to retirement pay because the 1977 contract was “superseded” by the 1979 judgment reducing permanent alimony to $100 and because of the 1983 “verbal” modification of the 1977 contract. The wife contends that the trial court erred in this respect because she and the husband affirmatively testified that they did not expressly consider or discuss the contractual provision about retirement when the child support was discussed in 1983. We must agree, as we shall explain.

The husband’s testimony about the 1983 verbal agreement was that he understood his wife to effectively say that if he would provide for the daughter’s living and education expenses she would be satisfied with and would not demand any more of him other than the $100 monthly alimony he had been paying since 1979. The wife denies that she made such an agreement and contends any verbal modification of the community property settlement would be invalid because that agreement was a “compromise” which by CC Art. 3071 must be reduced to writing. This agreement is not a true “compromise” but rather is a non-judicial partition between co-owners. Any compromise language is surplusage. See Gates v. Gates, 485 So.2d 114 (La.App. 2d Cir.1986). The formality requirements of Art. 3071 for a compromise do not apply here.

[735]*735The testimony of the litigants regarding their respective intent at any given time with respect to child support, permanent alimony, and sharing of the husband’s retirement pay demonstrates only that the minds of the litigants barely met on some things and not at all on other things. The testimony also demonstrates that the contract, as written in 1977, leaves much to be desired.

Neither party expressly considered nor discussed the retirement pay matter in 1979 or in 1983. In this respect we cannot agree with the trial court’s ultimate holding.

Interpretation of a contract is the determination of the common intent of the parties. CC Art. 2045.

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Cite This Page — Counsel Stack

Bluebook (online)
514 So. 2d 732, 1987 La. App. LEXIS 10534, Counsel Stack Legal Research, https://law.counselstack.com/opinion/huckabay-v-huckabay-lactapp-1987.