Jurgelsky v. Pinac

614 So. 2d 1331, 1993 WL 57661
CourtLouisiana Court of Appeal
DecidedMarch 3, 1993
Docket92-339
StatusPublished
Cited by3 cases

This text of 614 So. 2d 1331 (Jurgelsky v. Pinac) 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
Jurgelsky v. Pinac, 614 So. 2d 1331, 1993 WL 57661 (La. Ct. App. 1993).

Opinion

614 So.2d 1331 (1993)

Debbie Mary JURGELSKY, Plaintiff-Appellee,
v.
Andre L. PINAC, III, Defendant-Appellant.

No. 92-339.

Court of Appeal of Louisiana, Third Circuit.

March 3, 1993.

*1332 Steven J. Dupuis, Lafayette, for Debbie M. Jurgelsky Pinac.

Lawrence B. Sandoz, III, Opelousas, for Andre L. Pinac.

Before GUIDRY, LABORDE and DECUIR, JJ.

GUIDRY, Judge.

This is an appeal of a district court judgment rendered on January 7, 1991, in a partition of community property dividing property which formerly made up the community of acquets and gains of Dr. Debbie Mary Jurgelsky and Dr. Andre L. Pinac III. Dr. Pinac appeals listing seven alleged errors. Dr. Jurgelsky answered the appeal assigning eight alleged errors.

*1333 Drs. Jurgelsky and Pinac were married on May 12, 1985, while both were OB-GYN residents. Dr. Pinac finished his residency first and began to practice in Opelousas. Upon completing her residency in July 1987, Dr. Jurgelsky entered practice with her husband as his partner. Their community of acquets and gains was terminated with court approval by a matrimonal agreement, pursuant to La.C.C. art. 2329, on March 18, 1988. This case is limited to issues dealing with the partition of the assets of the former community following its termination.

DR. PINAC'S SPECIFICATIONS OF ERROR

1) Dr. Pinac first questions the trial court's determination as to the net value of the office equipment owned by the parties and the allocation of the debt owed on the equipment. The trial judge's determinations were based upon an inspection and appraisal of all office equipment by Teri Fontenot, Vernon Schiff and Gwen Trussel; testimony and stipulations at trial; and, upon which party retained possession and enjoyed use of each piece of equipment or furniture following termination of the community. Leased equipment was excluded and the trial judge's final figure was the mathematical average between the value each party placed on the items in question. Our examination of the record reflects no clear error in the trial court's calculations.

2) The next error alleged by Dr. Pinac is the trial court ordering him to pay Dr. Jurgelsky one-half of the value of a community loan to Carol Stephens, Dr. Pinac's nurse and office manager. The loan was in the amount of $265.00. Appellant contends that the debt had been repaid as a result of "services rendered" by Stephens prior to the dissolution of the community. The trial judge found that Dr. Pinac failed to establish repayment of the loan. We find no clear error in this conclusion.

3) Dr. Pinac next complains of the trial court's disallowance of any reimbursement to him for payments made on the office telephone equipment following dissolution of the community. The record reflects that during the aforesaid period Dr. Pinac had exclusive possession and use of such equipment. The telephone equipment was awarded to Dr. Pinac in the partition proceeding.

In disallowing Dr. Pinac's claim, the trial court stated, in pertinent part, as follows:

. . . . .
5. I establish a cutoff date on the items allocated to the parties for the purposes of payments on mortgage, rentals or use fees and upkeep, maintenance, etc. I set this as date of dissolution or date of exclusive use, whichever occurred last.
. . . . .
17. Dr. Pinac's claim of $5088.83 for amount paid to Contel Credit Telephone is denied, except for those made between dissolution and cutoff date.

The telephone equipment in the office at Ventre Boulevard was community property. The payments for which Dr. Pinac seeks reimbursement were made in satisfaction of the debt owed on this equipment. These payments were in satisfaction of a community debt which ordinarily would entitle the payor from separate property to reimbursement. La.C.C. arts. 2358 and 2365. However, the trial court, in disallowing this claim, apparently concluded that Dr. Pinac's exclusive use of this community property during the period from community dissolution to partition on January 7, 1991, had a rental or use value equal to the payments made by him during such period.

We discern no clear error in the trial court's conclusion to disallow Dr. Pinac's claim for reimbursement. As our brethren of the First Circuit observed in Williams v. Williams, 509 So.2d 77 (La. App.1987), upon termination of the community the parties become co-owners with the right to possess or use the common property without the obligation to pay rent, "provided that such possession or use is not to the exclusion of his co-owner". Where the possession is to the exclusion of the co-owner, it necessarily follows that a fair rental value for the period of such exclusive use should be awarded. As we observed *1334 in Queenan v. Queenan, 492 So.2d 902 (La.App. 3rd Cir.1986), writ denied, 496 So.2d 1045 (La.1986), "... [T]he trial court is given broad discretion in settling and adjudicating upon the community regime. Thus, in the interest of equity and justice it would be within the discretion of the trial court to delineate any reasonable time or date for purposes of shearing off, or, for an effective date of a particular transaction, provided that the facts and circumstances of the particular case rendered such times or dates appropriate in order to effect a fair and equitable partition and division between the parties".

4) Dr. Pinac next complains that the trial court erred in classifying the lease subsidy agreement for the 121 Ventre Boulevard office space a community asset. The subsidy or "Agreement Regarding Retention of Physician Services" provided a $1,968.00 monthly subsidy of the rent of the community medical practice offices at 121 Ventre Boulevard for the period April 1988 thru March 1989.

Dr. Pinac argues that in order for continuation of the rent subsidy following termination of the community in March 1988, he had a correlative obligation to continue to occupy the premises and to continue active practice at Doctor's Hospital of Opelousas. In default of his doing so, the subsidy would be considered a loan and subject to repayment. Thus, he argues, the subsidy had no intrinsic value at the termination of the community in March 1988.

Dr. Jurgelsky counters Dr. Pinac's argument urging that the additional year (April 1988—March 1989) of subsidy was allowed because she joined her former husband in medical practice. Thus, she argues, the second year of subsidized rent was an asset which she brought into the community. The deposition of Hospital Director Brian Riddle confirms that this was at least a part of the reason for the extension of the rent subsidy. Further, Dr. Jurgelsky argues that she was forced to leave the community offices at 121 Ventre Boulevard in March 1988 by Dr. Pinac while he continued to exclusively occupy the offices rent free, thus appropriating for his sole use and for the use of his separate estate, one year of rent subsidy, i.e., $23,616.00 in community assets.

The extension of the subsidy agreement was entered into during the existence of the community in July of 1987, when Dr. Jurgelsky joined the community medical practice. It was at that point that the nature of the agreement, as community property, was established. Had Dr. Pinac chosen to discontinue his practice at the Hospital and vacate the Ventre Boulevard offices, then the community would have incurred a debt—the penalty clause in the agreement which required a return of subsidized lease rentals.

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614 So. 2d 1331, 1993 WL 57661, Counsel Stack Legal Research, https://law.counselstack.com/opinion/jurgelsky-v-pinac-lactapp-1993.