NOT DESIGNATED FOR PUBLICATION
STATE OF LOUISIANA COURT OF APPEAL, THIRD CIRCUIT
18-44
JOYCE ANGEL CAZELOT
VERSUS
WILFRED A. CAZELOT
**********
APPEAL FROM THE TWELFTH JUDICIAL DISTRICT COURT PARISH OF AVOYELLES, NO. 2014-883-A HONORABLE KERRY LYNDON SPRUILL, DISTRICT JUDGE
CANDYCE G. PERRET JUDGE
Court composed of John E. Conery, D. Kent Savoie, and Candyce G. Perret, Judges.
APPEAL CONVERTED TO APPLICATION FOR SUPERVISORY WRIT; WRIT GRANTED; JUDGMENT REVERSED IN PART, AMENDED, AND AS AMENDED, AFFIRMED IN PART, AND REMANDED FOR TRIAL ON THE MERITS. Norris Joseph Greenhouse Attorney at Law P.O. Box 444 Marksville, LA 71351 (318) 253-6394 COUNSEL FOR PLAINTIFF-APPELLEE: Joyce Angel Cazelot
Cory O. Roy Brandon J. Scott Benjamin D. James Renee Y. Roy Roy & Scott P. O. Box 544 Marksville, LA 71351 (318) 240-7800 COUNSEL FOR DEFENDANT-APPELLANT: Wilfred A. Cazelot PERRET, Judge.
This case arises from a petition to partition the parties’ community property
following a divorce judgment. The judgment appealed was rendered after a
hearing was held for the limited determination of the classification and valuation of
settlement funds obtained by the parties during their marriage. The trial court
concluded the funds consisted of both separate and community property, had not
been commingled, and divided the proceeds accordingly to compensate the parties
for their personal injuries sustained in the accident. For the reasons set forth
below, we convert this appeal to a supervisory writ, grant the writ, and render an
opinion reversing the trial court’s judgment in part, amending, and affirming it in
part, as amended.
FACTS AND PROCEDURAL BACKGROUND
Joyce Cazelot (“Ms. Cazelot”) filed for divorce on August 26, 2014, and a
final judgment of divorce was rendered on May 5, 2015. Wilfred Cazelot (“Mr.
Cazelot”) filed a petition to partition the community property and for
reimbursement on January 27, 2015, which is currently still pending. On May 23,
2017, a hearing was held for the limited determination of the classification and
valuation of settlement proceeds obtained by the parties during their marriage from
a lawsuit wherein both parties were plaintiffs.1
The testimony and evidence adduced at the hearing was that on August 19,
2010, both parties were involved in a motorcycle accident in Tennessee and both
sustained injuries, though Ms. Cazelot argues her injuries were far more severe.
The parties filed suit in federal court in Tennessee for damages, both were named
1 As noted below, we interpret this hearing to have been a bifurcation of the reimbursement portion of the partition hearing, not a trial of the traverses as erroneously stated in the judgment. as plaintiffs, and the suit resulted in a settlement for the defendants’ liability limits
for a total sum of $400,000.00. The settlement documents did not allocate money
to specific injuries or plaintiffs. After related fees were deducted as itemized in the
settlement documents, which were admitted as joint exhibits, the net settlement
totaled $206,202.13, which was deposited into the parties’ joint checking account
in April 2012.
At the hearing Mr. Cazelot argued, as he does on appeal, that the funds were
“hopelessly comingled [sic]” after being deposited into the parties’ joint account
along with other sources of income and used indiscriminately by both parties for
various expenses. Additionally, he argued Ms. Cazelot was not able during her
hearing testimony to identify what funds, settlement funds or other, were used for
various purchases following the deposit of the settlement funds into the parties’
joint checking account.
The bank statements and testimony submitted at the hearing showed that
typically, in one month, there would be a deposit of roughly $722.00 representing
Ms. Cazelot’s social security disability benefits after the motorcycle accident, and
two checks, between $930.00 and $1,200.00 each, representing Mr. Cazelot’s
payroll earnings. The parties paid for their living expenses out of this account,
having roughly $200.00 left over each month prior to the settlement. Following
the settlement deposit, large expenditures were made by checks drawn on the joint
account. Each check included a notation of what was purchased or paid for with
the funds. Various purchases included paying off the home mortgage, which was
approximately $54,000.00, the construction of a shop adjacent to the home, and the
purchase of vehicles and vehicle accessories. However, as of the October 2012
bank statement, the ending balance for that period was back down to roughly
2 $200.00 after the typical deposits and withdrawals for daily living expenses.
Therefore, the trial court disagreed with Mr. Cazelot that all the proceeds became
community property because of extensive commingling. Instead, the trial court
concluded that “a large portion of the total net proceeds is readily traceable and
accounted for as set forth above.” Thus, in the interest of justice and because of
La.Civ.Code art. 2344, the trial court divided the settlement proceeds according to
the specific injuries the Cazelots sustained in the motorcycle accident and labeled
the proceeds as community or separate property.
In dividing the proceeds according to injury, the trial court accepted
evidence of the parties’ medical bills and records that correlated to their injuries
sustained in the motorcycle accident. The trial court concluded Ms. Cazelot was
entitled to a larger portion of the settlement for general damages because of her
more severe and disabling injuries. The trial court then classified those sums as
either separate or community property.
Specifically, the trial court determined that $42,240.00 2 of the settlement
was to compensate Ms. Cazelot for her lost income during the community regime
and, therefore, community property. Additionally, $1,194.00 of the settlement was
Mr. Cazelot’s lost income during the community property regime and, therefore,
community property. The trial court further found that the parties had $2,890.98 in
out-of-pocket medical expenses, which were a community obligation, and
designated that amount of the settlement as community property. The trial court
then partitioned these community property amounts evenly between both spouses.
Next, the trial court determined that $153,877.15 of the settlement was to
2 See discussion regarding correction of the trial court’s loss of income calculation in the discussion of Assignment of Error Number 3.
3 compensate Ms. Cazelot for her general damages and her future loss of income
from the settlement, and $6,000.00 of the settlement was to compensate Mr.
Cazelot for his general damages. Accordingly, under La.Civ. Code art. 2344, the
trial court classified both of those amounts as the separate property of Ms. Cazelot
and Mr. Cazelot, respectively.
On appeal, Mr. Cazelot raises three assignments of error: (1) that the trial
court erred in admitting evidence of damages relative to the motorcycle lawsuit to
apportion the settlement proceeds in the current proceedings, (2) that the trial court
erred in finding that the settlement proceeds were not commingled, and (3) that the
trial court erred as a matter of law in allocating the settlement proceeds to each
party for their damages sustained in the motorcycle accident.
DISCUSSION
Interlocutory Judgment:
From a review of the instant judgment on appeal, we conclude that it is an
interlocutory judgment. The judgment appealed arises from proceedings to
partition community property. This Court interprets the hearing from which this
judgment arises as being a bifurcated hearing on a single reimbursement issue,
which was set to resolve the classification and valuation of the settlement proceeds
but did not resolve all partition or reimbursement issues. It is a partial judgment,
not included on the exclusive list of immediately appealable partial final judgments
found in La.Code Civ.P. art. 1915(A). Instead, it is a partial judgment under
La.Code Civ.P. art. 1915(B). See Reynolds v. Reynolds, 33,216 (La.App. 2 Cir.
5/10/00), 759 So.2d 295.
When a court renders a partial judgment . . . as to one or more but less than all of the claims, demands, issues, or theories against a party . . . the judgment shall not
4 constitute a final judgment unless it is designated as a final judgment by the court after an express determination that there is no just reason for delay.
La.Code Civ.P. art. 1915(B)(1). No such designation and determination has been
made in this case. Thus, we must dismiss the instant appeal as being taken from an
interlocutory judgment.
However, this court has permitted appeals to be converted to writs if notice
of appeal was taken within thirty days of the notice of judgment. See Dupuis v.
Avoyelles Par. Corr. Ctr., 17-999 (La.App. 3 Cir. 12/13/17), —So.3d—, 2017 WL
6347955; and LeBlanc v. LeBlanc, 05-212 (La.App. 3 Cir. 11/2/05), 915 So.2d 966.
“[T]he decision to convert an appeal to an application for supervisory writs is
within the discretion of the appellate courts.” Stelluto v. Stelluto, 05-74, p. 7 (La.
6/29/05), 914 So.2d 34, 39. The judgment in this case was signed on September 8,
2017, and mailed to counsel on September 11, 2017. The Motion and Order for
Devolutive Appeal was filed on October 3, 2017, within the thirty-day deadline.
Considering this case has already been fully briefed and orally argued by both
parties, in the interest of justice, we deem the motion and order for appeal in this
matter to be a timely request for the setting of a return date for the filing of a writ
application. Accordingly, we grant the supervisory writ and render an opinion.
Assignment of Error Number 1:
Mr. Cazelot asserts on appeal that the trial court committed manifest error in
admitting medical records and bills from the Tennessee motorcycle accident, as
well as testimony regarding Ms. Cazelot’s injuries, arguing they are parol evidence
and res judicata. An appellate court determines whether the trial court’s decision
on res judicata is legally correct or incorrect. Fogleman v. Meaux Surface Prot.
Inc., 10-1210 (La.App. 3 Cir. 3/9/11) 58 So.3d 1057, writ denied, 11-712 (La.
5 5/27/11), 63 So.3d 995. A trial court’s decision on the admission of parol evidence
is reviewed for abuse of discretion. Geer v. BP Am. Prod. Co., 14-450 (La.App. 3
Cir. 11/5/14), 150 So.3d 621, writ denied, 14-2558 (La. 2/27/15), 159 So.3d 1070.
In support of his res judicata assertion, Mr. Cazelot merely states that “a valid
compromise can form the basis of a plea of res judicata.” We find no res judicata
in the current case. “Except as otherwise provided by law, a valid and final
judgment is conclusive between the same parties[.]” La.R.S. 13:4231 (emphasis
added). The elements to consider when deciding a res judicata issue include
whether:
(1) the judgment is valid; (2) the judgment is final; (3) the parties are the same; (4) the cause or causes of action asserted in the second suit existed at the time of the final judgment in the first litigation; and (5) the cause or causes of action asserted in the second suit arose out of the transaction or occurrence that was the subject matter of the first litigation.
Reed v. Cowboy’s Western Store and Trailer Sales, Inc.16-462, p. 18 (La.App. 3
Cir. 3/1/17), 214 So.3d 987, 998, writ denied, 17-559 (La. 5/19/17), 219 So.3d
1108. “[P]arties are the same when they appear in the same capacities in both
suits.” Myers v. Nat’l Union Fire Ins. Co. of La., 09-1517, p. 7 (La.App. 4 Cir.
5/19/10) 43 So.3d 207, 211, writ denied, 10-2049 (La. 11/12/10), 49 So.3d 892;
see also Burguieres v. Pollingue, 02-1385, p. 8 (La. 2/25/03), 843 So.2d 1049,
1054). The parties, who were both the plaintiffs in the federal suit, do not appear
in the same capacities in this matter, which is ancillary to the parties’ divorce.
Regarding his parol evidence argument, Mr. Cazelot asserts that the trial
court should have only examined the four corners of the settlement contract, and
that “the parol evidence rule protects litigants from having to prove, substantiate,
or otherwise explain why a settlement was reached[.]” However, “[t]he parol
6 evidence rule applies only in cases where the cause of action is the enforcement of
an obligation created by a writing. The parol evidence rule does not apply when
the writing is collateral to the issue involved and the action is not based upon the
writing.” Dawson v. Dawson, 610 So.2d 917, 919 (La.App. 1 Cir. 1992) (citations
omitted). The instant case is not one to enforce an obligation created by the
settlement agreement. The settlement agreement created an obligation between the
Cazelots and the defendants in the federal case: for the Cazelots to forgo their
causes of action against the defendants in exchange for the defendants’ obligation
to pay $400,000.00. The classification of those proceeds in the current case is an
issue collateral to the settlement of the parties’ cause of action against the
defendants in the federal case.
Additionally, La.Civ.Code art. 3078 states: “A compromise does not affect
rights subsequently acquired by a party, unless those rights are expressly included
in the agreement.” As Ms. Cazelot asserts, the parties did not acquire the right to
partition the community property until the legal regime was terminated.
Additionally, both spouses may make a claim for reimbursement for separate
property used for the benefit of the community once the community property
regime is terminated. La.Civ.Code art. 2358. Therefore, we agree that Ms.
Cazelot is entitled to have the settlement proceeds classified and valued for
purposes of potential reimbursement, and to do so requires a determination of what
injuries those proceeds were compensating. As the settlement agreement lacks any
division of those funds, or any direction on how those funds were intended to be
divided, parol evidence is necessary. Other courts have considered parol evidence
to classify and divide a settlement agreement. See Nesbitt v. Nesbitt, 40,442
(La.App. 2 Cir. 1/13/06) 920 So.2d 326, writ denied, 06-720 (La. 6/2/06), 929
7 So.2d 1255; Ramsey v. Ramsey, 96-481 (La.App. 3 Cir. 10/9/96) 682 So.2d 797;
and Thomas v. Thomas, 539 So.2d 1242 (La.App. 4 Cir. 1989).
Accordingly, we find no error in the trial court’s decision to admit and
consider testimony and evidence regarding the Tennessee motorcycle accident in
order to divide the settlement proceeds between the Cazelots’ injuries for the future
purpose of resolving the parties’ reimbursement claims.3
Assignment of Error Number 2:
In Mr. Cazelot’s second assignment of error, he argues that the trial court
was manifestly erroneous in finding that the settlement proceeds were the parties’
separate and community property, instead of finding that the proceeds had been
commingled, thereby becoming entirely community property. We note that Mr.
Cazelot does not challenge the amounts in the classification of the settlement
proceeds.
“The trial court’s findings regarding the nature of the property is a factual
determination which will not be disturbed absent manifest error.” Dawson, 610
So.2d at 919. “The appellate court must determine not whether the trier of fact was 3 The current judgment on appeal is from a hearing that was a bifurcation of the reimbursement portion of a partition proceeding—not a trial of traverses, despite the language in the judgment erroneously stating otherwise. We find no error in the trial court’s assignment of value to each classification. In order to classify the funds in a useful manner, the trial court necessarily had to assign value to each classification based on the evidence presented. Merely stating that it found the funds to be partially community property and partially the separate property of each spouse would be a waste of judicial resources and unhelpful to the parties. Our opinion should not be seen to support piecemeal determination of assets and liabilities at a trial of the traverses. We note that if this had been a trial of the traverses, the valuation would have been improper. See La.R.S. 9:2801(A)(b)(2) and Williams v. Williams, 06-2491 (La.App. 1 Cir. 9/14/07), 970 So.2d 633.
This statute envisions two possible trials: the first being the preliminary trial of the traverses and the second later trial being the trial on the merits whereupon the assets will be valued and allocated and an accounting rendered. In specifying this procedure, the legislature intended that the assets be valued upon the occasion of the trial on the merits[.]
Williams, 970 So.2d at 638.
8 right or wrong, but whether the factfinder’s conclusion was a reasonable one, after
reviewing the record in its entirety.” Nesbitt, 920 So.2d at 332.
It is presumed in Louisiana that “[t]hings in the possession of a spouse
during the existence of a” community property regime are “community, but either
spouse may prove that they are separate property.” La.Civ.Code art. 2340. The
classification of compensation for personal injury damages received during the
existence of the community as either community or separate property is
specifically addressed by La.Civ.Code art. 2344:
Damages due to personal injuries sustained during the existence of the community by a spouse are separate property.
Nevertheless, the portion of the damages attributable to expenses incurred by the community as a result of the injury, or in compensation of the loss of community earnings, is community property. If the community regime is terminated otherwise than by the death of the injured spouse, the portion of the damages attributable to the loss of earnings that would have accrued after termination of the community property regime is the separate property of the injured spouse.
Under La.Civ.Code art. 2344, the trial court must determine what portion of
compensation for personal injury damages are general damages, and thus separate
property, or special damages, which may be either separate or community
property. See Nesbitt, 920 So.2d 326; Ramsey, 682 So.2d 797; and Thomas, 539
So.2d 1242. However, if
separate funds are mixed or co-mingled with community funds to the extent that the separate funds are no longer capable of identification, and it is impossible to establish what part of the funds belongs either to the separate estate or to the community, then all of said funds are regarded as belonging to the community.
Gregory v. Gregory, 223 So.2d 238, 244 (La.App. 3 Cir. 1969) (emphasis added).
9 Mr. Cazelot asserts that the settlement proceeds were commingled and,
therefore, all community property. Thus, he argues that the trial court’s
classification of the proceeds as separate and community property was manifestly
erroneous. The first circuit in Ellithorp v. Ellithorp, 509 So.2d 178 (La.App. 1 Cir.
1987), addressed the same issue and found no manifest error in the trial court’s
judgment, which divided the settlement funds despite their deposit into a
community checking account. Although the settlement proceeds in Ellithorp were
specifically allocated between Mr. Ellithorp’s loss of income, his pain and
suffering, and Ms. Ellithorp’s loss of consortium in the settlement document, the
trial court addressed whether the funds were sufficiently commingled, all
becoming community property, when they were deposited into a community
account and used by both parties. On appeal, the appellate court noted:
The characterization of funds as either community or separate, including the personal injury settlement proceeds which were deposited into the pre-existing community checking account and which quickly passed through it, was addressed by the trial court’s taking into account the numerous bank statements and cancelled checks, as well as Kevin’s lengthy request for admissions relating to deposits and expenditures.
Id. at 181. The appellate court found no error in the trial court’s consideration of
the community account balance and withdrawals to trace the settlement funds and
“uncommingl[e]” the proceeds “from the exceedingly sparse community funds in
the community checking account.” Id. at 182.
On the other hand, Mr. Cazelot cites this court’s opinion in Cason v. Cason,
564 So.2d 808 (La.App. 3 Cir. 1990), for the proposition that separate funds
obtained through a personal injury suit, deposited in a joint account and used
indiscriminately so that they are no longer susceptible of identification, are
10 considered community property. In Cason, 564 So.2d at 813, this court reversed
the trial court and concluded that the separate funds were “no longer susceptible of
identification.” Instead, “[a]ll monies received were treated the same during the
three and one-half years the community continued to exist after their receipt” and
for those years, “all funds were treated indiscriminately.” Id. at 814. Therefore,
because this court was “unable to determine how much, if any, of those funds
remain[ed,]” this court found “that, because of extensive comingling, all settlement
funds which remain[ed]” belonged to the community. Id.
We find that the case currently before us is more akin to Ellithorp than
Cason. The Cazelots were both named plaintiffs in the motorcycle personal injury
suit. A lump sum settlement was agreed upon and paid to the Cazelots, which
funds were then deposited into the Cazelots’ joint checking account. The trial
court listed all checks paid out of the joint account following each settlement
deposit, most of which were not typical of the Cazelots’ spending habits.
Additionally, the majority of the checks written following the settlement could not
have been funded with the Cazelots’ typical monthly deposits because the checks
were for significantly more money than the Cazelots’ monthly income. Finally,
each check includes a memo regarding the purpose for which it was written.
Specifically, the trial court stated:
The total for all of the expenditures listed above in (a) through (o) is the sum of $150,055.69. The record further supports a finding that after deducting the checks referenced above from the joint account, along with checks for daily living expenses in August 2012, the account had a balance of $15,223.05. This balance is considered by the trial court to be attributed to the settlement monies concerned as the balances for the same account [prior to the settlement income] . . . were meager and less than $200 for each month. This accounts for $165,278.74 of the total net settlement funds deposited in
11 the sum of $206,202.13. Plaintiff’s trial testimony is credible and supports the finding by the court that the difference in these figures of $40,923.39 was apparently expended by the parties on living expenses.
As in Ellithorp, and unlike Cason, the settlement proceeds passed quickly
through the community account and purchases thereafter are traceable to the
settlement proceeds. The settlement proceeds were received in April 2012. By
October 2012, the Cazelots’ bank account appeared to be back to its typical, pre-
settlement deposits, withdrawals, and ending account balance of $200.00. As in
Ellithorp, the Cazelots issued large checks from the joint account in the immediate
months after the settlement proceeds were received. Accordingly, we find that the
trial court was not manifestly erroneous in determining the settlement proceeds
here were not commingled and instead maintained their separate identity as either
separate or community property.
Assignment of Error Number 3:
In his third assignment of error, Mr. Cazelot argues that the court incorrectly
applied La.Civ.Code art. 2344, finding that it compelled the court to divide the
settlement proceeds to each party. We find no merit to this assignment of error.
The parties moved for the former community property to be partitioned, and
both made claims for reimbursement. The trial court has a duty to partition the
former community property under La.R.S. 9:2801. Additionally, both spouses are
entitled to make a claim for reimbursement for separate property used for the
benefit of the community. La.Civ.Code art. 2358. To adjudicate these claims, the
court must determine whether the settlement proceeds are community or separate
property by considering whether Ms. Cazelot overcame the presumption of
community property and proved the proceeds were separate property. La.Civ.Code
12 art. 2340. The trial court, therefore, properly relied on La.Civ.Code art. 2344,
which is instructive on the classification of damages due to personal injury. While
La.Civ.Code art. 2344 states damages due to personal injury are separate property,
it carves out an exception for “the portion of the damages attributable to expenses
incurred by the community as a result of the injury,” and “compensation of the loss
of community earnings” prior to termination of the community property regime,
which are instead community property. Therefore, because the settlement
proceeds were not divided, the trial court was required to determine what portion
of the settlement proceeds were attributable to medical expenses, loss of income,
and general damages in order for the court to adjudicate the parties’ partition and
reimbursement claims.
Additionally, Mr. Cazelot argues that the trial court incorrectly relied on
Ramsey, 682 So.2d 797, in support of the court’s duty to divide the proceeds. Mr.
Cazelot argues Ramsey and “other cases citing Louisiana Civil Code article 2344
concern a division of settlement funds obtained by one spouse into separate and
community aspects[.]” However, while the Ramsey court did not address the
commingling issue asserted by Mr. Cazelot in his second assignment of error, it did
address the mixed nature of personal injury damages and the need to divide the
funds as either separate or community. Specifically, the Ramsey court stated:
We, therefore, hold that the fact that the funds in the instant case were not divided at the time of the settlement did not effect [sic] the mixed nature of the funds nor did it cause the funds to be commingled at that time. It is sufficient to say that the funds could have been equitably divided into loss of earnings and other general damages at the time of the settlement.
Id. at 800. While only Mr. Ramsey was injured, Ms. Ramsey intervened in the suit
three years after it was filed, and the defendant filed an exception of prescription to
13 her claim. However, the case was settled before the exception of prescription was
resolved. Additionally, other Louisiana cases have also involved the division of
funds obtained by both spouses citing La.Civ.Code art. 2344, although they
involved one spouse who was in an accident, and the other spouse who asserted
general damages for loss of consortium.
For instance, in Nesbitt, 920 So.2d 326, the appellate court affirmed the trial
court’s division of settlement proceeds in partitioning the parties’ community
property. In Nesbitt, the husband was involved in a bicycle accident prior to the
parties’ divorce. The parties filed suit to recover damages from that incident,
alleging the husband’s damages for pain and suffering, as well as the loss of his
earnings, and the wife’s claim for loss of consortium. The suit was settled for a
lump sum of $525,000.00. Mr. Nesbitt argued the entire settlement, with the
exception of a smaller amount for Ms. Nesbitt’s loss of consortium claim, was to
compensate him for his pain and suffering. The trial court considered evidence
from Mr. Nesbitt’s CPA and evidence of the toll the accident took on Ms. Nesbitt.
On appeal, the appellate court found no manifest error in the trial court’s
determination that $225,000.00 of the settlement was to compensate the parties for
loss of income and $50,000.00 was to compensate Ms. Nesbitt for her loss of
consortium, making the remainder of the settlement the compensation for Mr.
Nesbitt’s pain and suffering.
The fourth circuit in Thomas, 539 So.2d 1242, also determined the
community property portion of a lump sum settlement that was not divided into
specific damages. The fourth circuit stated: “Since the settlement was not broken
down into categories of past lost income, future lost income, or general damages,
14 we must make some assumptions to equitably resolve this case” before dividing
the settlement into categories for damages. Id. at 1245.
Accordingly, we find that the trial court had a duty to divide the settlement
proceeds and classify the funds as separate or community property so it could
adjudicate the parties’ partition and reimbursement issues. We find no merit to Mr.
Cazelot’s assignment of error three.
However, we do find a typographical error in the amount designated as
compensation for Ms. Cazelot’s lost wages during the community property regime.
The record supports the trial court’s Written Reasons for Ruling, which calculated
Ms. Cazelot’s lost wages as $42,240.00. The judgment, however, states Ms.
Cazelot’s lost wages totaled $42,120.00. Therefore, we amend the judgment to
reflect that the compensation from the settlement for Ms. Cazelot’s lost income
during the marriage is $42,240.00.
It is worth noting that although we find no manifest error in the trial court’s
classification and valuation of the settlement proceeds, we find it necessary to
address the effect of the judgment considering our findings herein. The trial court
not only classified portions of the settlement proceeds as either community
property or separate property, but it also declared certain sums as “community
reimbursement” and proceeded to seemingly partition the “community
reimbursement” evenly between Mr. Cazelot and Ms. Cazelot. It appears the trial
court did not go so far as to award the parties any part of the community property,
but merely partitioned the community funds to use at the next partition hearing. To
the extent the judgment meant to award the parties any money, doing so would be
premature because no allocation of assets, equalizing payments, or reimbursement
15 awards can be calculated until after the partition hearing. See La.R.S. 9:2801 and
Arterburn v. Arterburn, 15-22 (La.App. 3 Cir. 10/7/15), 176 So.3d 1163.
Additionally, to the extent the judgment partitions the community property
portion of the settlement funds, such partition is also incorrect as those funds were
not an asset of the former community property regime at the time it was
terminated. While it may have been necessary for the trial court to determine what
amount of the settlement proceeds was community property in order to also
determine the portion that was to compensate the parties for their general damages,
and therefore separate property, those community property funds were spent during
the marriage. Therefore, $46,324.98 4 of the settlement proceeds, which were
classified as community property, were not an asset of the community property
regime at the time the regime was terminated and are not an asset to be partitioned
at this time. See La.R.S. 9:2801(A)(4)(A) (emphasis added) (“The court shall
value the assets as of the time of trial on the merits, determine the liabilities, and
adjudicate the claims of the parties.”) Instead, the funds were used for the
purchase of other assets or expenses. Therefore, the trial court could not partition
these sums between the parties as it did. These community funds are not a
disputed or determined asset of the former community property subject to traversal
or partition.
The trial court continued to value $153,877.15 of the settlement funds as the
separate property of Ms. Cazelot, and $6,000.00 as the separate property of Mr.
Cazelot, and we find no error in that valuation and classification. However, the
judgement’s classification and valuation of the settlement funds does not entitle
4 The total amount of the settlement proceeds which were classified as community property: $42,240.00 for Ms. Cazelot’s lost income, $1,194.00 for Mr. Cazelot’s lost income, and $2,890.98 for reimbursement of medical expenses.
16 each party to an award for reimbursement at this time. To succeed on a
reimbursement claim, the claiming party must prove certain elements—namely the
classification of the funds used and the purpose for which the funds were used.
See Arterburn, 176 So.3d 1163. The current judgment merely classifies certain
sums of the settlement proceeds as separate property. Based on the record, the
settlement proceeds were spent during the community property regime. Therefore,
both spouses are entitled to reimbursement if the funds classified as separate
property were used to benefit the community. See La.Civ.Code arts. 2365 and
2367. Once the community has been partitioned, the valuations made in the
current judgment can be used to define the parties’ potential reimbursement claims,
which they will have to prove at trial as explained by this court in Arterburn, 176
So.3d 1163. Accordingly, the current judgment can serve only to classify certain
sums from the settlement proceeds as the separate property of each spouse. The
portion of the judgment purporting to partition the funds classified as community
property is reversed and remanded to the trial court for further proceedings in
accordance with this opinion.
CONCLUSION
Based on the foregoing reasons, we amend the trial court’s judgment to
reflect that the settlement proceeds compensating Joyce Cazelot for her lost income
totals $42,240.00 and, thereafter, affirm as amended the classification and
valuation of the settlement proceeds. Additionally, we reverse that portion of the
judgment purporting to partition the funds classified as community property and
remand to the trial court for further proceedings in accordance with this opinion.
All costs of this appeal are assessed to Appellant, Wilfred A. Cazelot.
17 APPEAL CONVERTED TO APPLICATION FOR SUPERVISORY WRIT; WRIT GRANTED; JUDGMENT REVERSED IN PART, AMENDED, AND AS AMENDED, AFFIRMED IN PART, AND REMANDED FOR TRIAL ON THE MERITS.
This opinion is NOT DESIGNATED FOR PUBLICATION. Uniform Rules—Courts of Appeal, Rule 2-16.3.