Larsen v. Larsen

583 So. 2d 854, 1991 WL 119698
CourtLouisiana Court of Appeal
DecidedJune 27, 1991
Docket90 CA 0524
StatusPublished
Cited by7 cases

This text of 583 So. 2d 854 (Larsen v. Larsen) 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
Larsen v. Larsen, 583 So. 2d 854, 1991 WL 119698 (La. Ct. App. 1991).

Opinion

583 So.2d 854 (1991)

David Edwin LARSEN
v.
Patricia McDonough LARSEN.

No. 90 CA 0524.

Court of Appeal of Louisiana, First Circuit.

June 27, 1991.

*855 David L. Dawson, Jr., Baton Rouge, for plaintiff-appellant David Edwin Larsen.

Marsha Wade, Baton Rouge, for defendant-appellee Patricia M. Larsen.

Before SAVOIE, CRAIN and FOIL, JJ.

SAVOIE, Judge.

This case involves a partition of community property. Plaintiff, David E. Larsen, sought to divide the community property acquired during his marriage to defendant, Patricia McDonough Larsen.

The trial judge decided the matter with written reasons for judgment based on a written stipulation of facts submitted by the parties.[1] From the trial judge's judgment, plaintiff appeals, urging the following three assignments of error:

1. The trial judge erred in giving defendant credit for the entire amount of the mortgage notes paid by plaintiff after the divorce and in not allocating the payments equally to both parties, or in the alternative, in not giving defendant credit for only one-half of the reduction in the principal balance of the mortgage.
2. The trial judge erred in awarding defendant one-half of the non-vested amount in the Thrift fund plaintiff had maintained with his former employer.
3. The trial judge erred in awarding defendant an interest in the annuity plan offered by plaintiff's former employer after the community had terminated.

ASSIGNMENT OF ERROR NO. 1: CREDIT FOR MORTGAGE PAYMENTS

Plaintiff contends that the trial judge erred in finding that defendant could take credit for the entire house note payments made after the divorce. The facts regarding this matter were as follows. When the parties separated, a judgment on rules rendered January 2, 1985 provided that defendant was awarded the use of the matrimonial domicile; that plaintiff pay $150.00 per month as alimony pendente lite and child support; and that plaintiff pay the mortgage note. On March 11, 1985, a judgment of separation was signed whereby both parties were found at fault; defendant continued to have the use of the matrimonial domicile and to be the primary custodian of the children; plaintiff was ordered to pay $400.00 per month as child support; and plaintiff was ordered to pay the mortgage note "with the provision that neither party shall claim a credit at the time of partition of community assets for said payments."

On December 2, 1985, a judgment of divorce was rendered; according to the judgment, "all previous orders and decrees relating to custody, child support, injunctive reliefs and the use of the matrimonial domicile remain in full force and effect pending the hearing scheduled for December *856 17, 1985." A minute entry on January 23, 1986 stated that defendant should be primary custodian of the children and should have use of the former matrimonial domicile; plaintiff was ordered to pay $1,000.00 per month in child support. On February 19, 1986, the court on its own motion amended the minute entry to order defendant to pay the house note. No mention was made of credits. On March 13, 1986, a judgment was signed which provided that plaintiff would pay $1,000.00 per month, "out of which sum PATRICIA MCDONOUGH LARSEN is to pay the house note and mortgage indebtedness affecting the former matrimonial domicile of which she has been given use of." Unlike the earlier minute entry, the judgment did not classify the $1,000.00 as child support. The judgment also did not mention any credits. When defendant failed to pay the house notes, plaintiff began paying them and subtracted that amount from the $1,000.00 per month he paid to defendant.

Plaintiff contends that payment of the house note was always a part of the child support or alimony obligation. Based on this contention, plaintiff argues that the part of the separation judgment decreeing that neither party would obtain credit for payment of the mortgage note when the community was partitioned remained in effect even though the divorce judgment was silent as to credits. Plaintiff contends that because the house note payment was part of the child support, it was not incidental to the separation and therefore did not terminate with the separation judgment.[2] However in this case, we find that based on the judgment of separation, the house note was not part of child support at the time of that judgment. Freeman v. Freeman, 552 So.2d 636 (La.App. 2d Cir.1989); Dupre v. Dupre, 522 So.2d 694 (La.App. 5th Cir.), writ denied, 523 So.2d 1341 (La.1988). Therefore, we find that the provision in the separation judgment regarding credits terminated when the divorce judgment was rendered and was silent as to credits. See Walters v. Walters, 540 So.2d 1026, 1028 (La.App. 2d Cir.1989). In this respect, we agree with the trial judge's finding that the fact that no mention was made in the divorce judgment regarding credits was intentional and that the separation judgment provision regarding credits was no longer in effect.

Plaintiff further contends in the alternative that the trial judge erred in awarding defendant a credit for the full amount of the mortgage payments made after the judgment of divorce. Plaintiff contends that defendant is only entitled to credit for the reduction in the amount of the principal balance on the mortgage due to those specific mortgage payments, based on Lowe v. Lowe, 463 So.2d 755 (La.App. 5th Cir.1985).

In upholding defendant's claim for reimbursement, the trial judge found that plaintiff was paying the house note with defendant's money. Child support payments are considered the property of the spouse to whom paid. McManus v. McManus, 428 So.2d 854, 856 (La.App. 1st Cir.1983). Thus, defendant would be entitled to reimbursement because as the trial judge reasoned, plaintiff was paying the house payments (a community obligation) with defendant's money (her separate property). We find that the house payments were a part of plaintiff's child support obligation. The minute entry for the divorce judgment did expressly provide that the house payments were to come from the child support payments, although the divorce judgment did not classify the $1,000.00 as child support. However, in addition to representing child support, the *857 house note payment also represented a community obligation on a major community asset, which is entirely separate from child support, an obligation based on the needs of the child and the financial ability of the parent. LSA-C.C. art. 227.

In urging that defendant is not entitled to credit for the entire house payments, plaintiff cites Lowe v. Lowe, 463 So.2d 755 (La.App. 5th Cir.1985) and Lovell v. Lovell, 490 So.2d 330, 332 (La.App. 1st Cir.), writ denied, 495 So.2d 302 (La.1986). In Lowe, the separation and divorce judgments required Mr. Lowe to make the house payments as support. The Fifth Circuit relied on Cookmeyer v. Cookmeyer, 354 So.2d 686 (La.App. 4th Cir.1978), which had stated that "[T]he order necessarily envisioned the husband's bearing, as part of alimony and child support, the interest and any tax and insurance components of the monthly mortgage payments (since those items accomplish nothing other than payment, in part, for the use of the double), but not the principal payment.

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Bluebook (online)
583 So. 2d 854, 1991 WL 119698, Counsel Stack Legal Research, https://law.counselstack.com/opinion/larsen-v-larsen-lactapp-1991.