Lacombe v. Lacombe

85 So. 3d 721, 11 La.App. 3 Cir. 1178, 2012 WL 280705, 2012 La. App. LEXIS 131
CourtLouisiana Court of Appeal
DecidedFebruary 1, 2012
DocketNo. 11-1178
StatusPublished
Cited by3 cases

This text of 85 So. 3d 721 (Lacombe v. Lacombe) 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
Lacombe v. Lacombe, 85 So. 3d 721, 11 La.App. 3 Cir. 1178, 2012 WL 280705, 2012 La. App. LEXIS 131 (La. Ct. App. 2012).

Opinion

THIBODEAUX, Chief Judge.

|, The defendant, Paul Lacombe, appeals from judgments which judicially accepted the sworn detailed descriptive list of the plaintiff, Freda Lacombe, for use in partitioning the community property. Finding that the trial court’s decision was correct, but that the language in the judgment was too expansive, we affirm in part and reverse in part the judgments of the trial court.

I.

ISSUES

We will decide whether the trial court manifestly erred in accepting the plaintiffs sworn descriptive list for use in partitioning the community of assets and liabilities between the parties.

II.

FACTS AND PROCEDURAL HISTORY

In 2001, Freda filed a petition for divorce under La.Civ.Code art. 102.1 She averred that she was in need of and entitled to “spousal support as agreed” in the amount of $1,400.00 per month “to pay bills of the community and to live.” Freda asked to remain in the family home, sought temporary and permanent spousal support, and requested a rule to show cause on these issues. Paul and Freda had previously executed a hand-written [723]*723agreement regarding the $1,400.00 payments and certain items of community property. A judgment of divorce was granted in May 2002.

In February 2009, Paul petitioned for a judicial partition of the remaining community property, seeking reimbursement for payments made and funds expended by him for the benefit of the community. On February 17, 2009, |2the parties were ordered to file Detailed Descriptive Lists within forty five days. Neither party complied.

In September 2009, Freda filed a “Rule for Final Support.” She asserted that, pursuant to the mutual agreement in 2001, Paul had paid the $1,400.00 per month (in the form of a payment of $700.00, a payment of $270.00, and payment of the house note at $430.00); however, he stopped the payments in November of 2008, “suddenly and without warning.”

After a hearing, the trial court entered a written judgment on April 30, 2010, ordering Paul to pay Freda spousal support of $1,000.00 per month.

In May 2010, Paul hired a new attorney and filed another petition for partition, offset, reimbursement, reduction of support, and misappropriation of funds, seeking an offset for the $1,400.00 payments to Freda, pursuant to the hand-written agreement. He also asserted that Freda had used the funds for personal use instead of paying off community debts.

On June 7, 2010, Freda filed á motion for contempt, asserting that Paul had not paid any of the ordered support of $1,000.00 per month. Freda further asserted that Paul was in contempt; that her income was only $343.00 per month [social security disability]; and that she was entitled to attorney fees. Freda filed various exceptions to Paul’s petition for partition, arguing that issues of income and peremption were res judicata, having been decided in a previous hearing. She further argued that Paul had no right of action to file a duplicative petition for partition, having filed a petition for partition of the same property in February 2009.

On December 29, 2010, the trial court entered judgment finding Paul in contempt of court for failure to pay Freda spousal support in the amount of $5,266.67. The judgment awarded Freda reimbursement from Paul, to be deducted from Paul’s one-half interest in the proceeds from the sale of the marital home. |sThis judgment attached “Written Stipulations” signed by the parties on December 10, 2010, and “approved and affirmed” by the trial court on December 29, 2010.2

On April 4, 2011, Freda filed a detailed descriptive list indicating that the home had been sold as of March 29, 2011. The movable property included a one-half interest in the $59,606.82 proceeds of the sale of the home already deposited in the registry of the court. Freda estimated total remaining community liabilities at $7,500.00. She calculated net community assets at $48,781.82. She claimed total reimbursements of $50,757.16 ($40,700.00 for one half of bills paid to seven creditors over eighty-nine months; $3,291.19 for one half of cost of home improvements; and $6,765.97 in closing costs). Freda’s de[724]*724scriptive list showed that she owed reimbursement to Paul of $12,806.00 for bills over a twenty-eighth-month period, but it provided no detail as to the source of these bills. Paul still had not filed a sworn descriptive list.

On April 28, 2011, Freda filed a rule to show cause why her descriptive list should not be accepted and deemed a judicial determination of the community assets and liabilities. The rule was set for May 31, 2011.

Paul’s attorney, due to various missteps in his law office, did not appear for the hearing or file a detailed descriptive list. In oral reasons at the hearing, the trial court granted Freda’s request to have her descriptive list judicially accepted in determining the assets and liabilities of the former community property regime. Freda prepared a written judgment which was not signed at the time.

A week after the hearing, Paul’s attorney filed Paul’s descriptive list, asserting that Paul was due a one-half interest in the sale proceeds of the home; |4that there were no remaining community debts; and, that Paul had paid community liabilities of $82,227.07, for which he was due a one-half reimbursement of $41,113.54. Paul’s attorney also filed a motion to have the rule reset, asserting that' his law office had moved the previous October to 219 W. Bridge Street, Breaux Bridge, that Freda’s attorney had used the old address at 1454 E. Bridge Street for service, and that his office had never been served with the rule date. He also filed a motion to compel the discovery deposition of Freda, which was ultimately granted.

Freda filed motions to quash the deposition, to request sanctions pursuant to La. Code Civ.P. art. 863, and to oppose the rule to reset the hearing on the descriptive list, asserting that her rule to show cause on her descriptive list was faxed to and received by Paul’s attorney on March 31, 2011. She attached a copy of the fax confirmation page, which supports the assertion, but the date was April 25, 2011. She also attached a cover-letter of that date to the clerk of court showing the filing of Freda’s descriptive list. Freda further attached proof of payment to the sheriffs office for physical service of the May 31, 2011 rule date. The sheriffs return shows service at the old office address of Paul’s attorney on May 5, 2011, but it also shows that Robin Constane, a secretary in his law office, signed for and accepted the service.

Paul’s attorney filed a memorandum on the community property partition asserting that he paid $1,400.00 per month for six and one half years and paid the house note for ten years, while Freda lived in the family home. He acknowledged his new secretary’s receipt of service on the rule on Freda’s descriptive list while he was out of the office for surgery; he acknowledged his office’s failure to calendar the hearing, and he provided documentation that he was in court on another matter on May 31, 2011, at the time of the actual hearing on Freda’s descriptive list. Freda filed a reply memorandum which included a request |5to have a written judgment, memorializing the oral judgment accepting her descriptive list, signed and executed by the trial court.

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Cite This Page — Counsel Stack

Bluebook (online)
85 So. 3d 721, 11 La.App. 3 Cir. 1178, 2012 WL 280705, 2012 La. App. LEXIS 131, Counsel Stack Legal Research, https://law.counselstack.com/opinion/lacombe-v-lacombe-lactapp-2012.