Licciardi v. Licciardi

207 So. 3d 638, 16 La.App. 5 Cir. 289, 2016 La. App. LEXIS 2478
CourtLouisiana Court of Appeal
DecidedDecember 7, 2016
DocketNO. 16-CA-289
StatusPublished
Cited by2 cases

This text of 207 So. 3d 638 (Licciardi v. Licciardi) 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
Licciardi v. Licciardi, 207 So. 3d 638, 16 La.App. 5 Cir. 289, 2016 La. App. LEXIS 2478 (La. Ct. App. 2016).

Opinion

LILJEBERG, J.

| tThis is an appeal from the trial court’s February 1, 2016 Judgment partitioning community property between Sherry Lic-ciardi and Daniel Licciardi. For the reasons stated more fully below, we affirm the trial court’s judgment as amended.

FACTS AND PROCEDURAL HISTORY

Sherry Licciardi and Daniel Licciardi were married in 2003, and have two children born in 2005 and 2007. The parties divorced on June 30, 2015. They share joint custody of their children with Ms. Licciardi named as the domiciliary parent. On November 2, 2015, the trial court ordered Mr. Licciardi to pay $1,121.00 per month in child support.

On January 13, 2016, the trial court conducted a trial on the community property partition and took the matter under advisement. The trial court issued a judgment on February 1, 2016, allocating the family home located in Luling, La., along with the indebtedness due on the home, to Ms. Licciardi. The trial court further ordered Ms. Licciardi to pay an equalizing payment to Mr. Licciardi in the amount of $43,077.49. The trial court established a payment plan for Ms. Licciardi to satisfy the equalization payment by paying $416.00 per month for 120 months, “with said payment being considered paid monthly by offsetting Daniel Licciardi’s monthly child support payment in the amount of $416.00 a month.” The trial court also set forth findings with respect to the value of community assets and liabilities, as well as the reimbursement claims awarded to each party, in “Exhibit—A” attached to its February 1, 2016 Judgment. It is from this judgment that Mr. Licciardi appeals.

jjJLAW AND DISCUSSION

In his first assignment of error, Mr. Licciardi argues the trial court erred by finding he failed to prove his reimbursement claim seeking to recover $10,000.00, which he contends was his separate property used for the benefit of the community.

[641]*641In his sworn descriptive list filed prior to the community partition trial, Mr. Licciardi included the following reimbursement claim for the use of separate property: “One-Half Separate Property Inherited from grandfather’s estate= $10,000.00.” In its February 1, 2016 Judgment, the trial court ruled that any reimbursement claims not specifically addressed in the Judgment were “denied and dismissed per the attached Reasons for Judgment.” The Judgment did not address this $10,000.00 reimbursement claim for Mr. Licciardi’s alleged separate property. In its detailed Reasons for Judgment, the trial court explained that because “the father lacked any supporting documentation to prove his separate funds were used to enhance the community, the Court has no recourse but to find that he has failed in his burden of proof.”

On appeal, Mr. Licciardi argues the trial court erred by finding he failed to satisfy his burden of proof because Ms. Licciardi judicially confessed to his use of separate funds for the benefit of the community in her following trial testimony:

Q: You’d indicated that you reviewed somewhat Mr. Licciardi’s sworn detailed descriptive list. In his list, in his list he indicates that he is entitled to reimbursement of $10,000, half of the 20,000 he received per investments from his grandfather’s estate. You have no reason to dispute that; correct?
A: I have no reason to dispute it. He inherited a house. He turned the house over to his aunt. His aunt gifted him 20,000, and he wants it back. So if I have to, I have to.
Q: Actually gave 20,000?
A: Uh huh (affirmative).
IsQ: That 20,000 was brought into the marriage; correct; while y’all were married.
A: It was spent on three children. Yes.
[[Image here]]
THE COURT:
Where is the third child?
MS. GAUTHIER:
I have a step-daughter.
[[Image here]]
Q: It was spent during your marriage?
A: Uh huh (affirmative).

In response, Ms. Licciardi argues that she did not agree to allow Mr. Licciardi a reimbursement for these funds. She claims that she merely acknowledged that Mr. Licciardi’s aunt gifted him $20,000.00 and the funds were used on three children, including Mr. Licciardi’s daughter from a prior marriage.

La. C.C. art. 1858 provides:

A judicial confession is a declaration made by a party in a judicial proceeding. That confession constitutes full proof against the party who made it.
A judicial confession is indivisible and it may be revoked only on the ground of error of fact.

A judicial confession must be explicit and cannot be implied. Yesterdays of Lake Charles, Inc. v. Calcasieu Parish Sales & Use Tax Dep’t, 15-1676 (La. 5/13/16), 190 So.3d 710, 729; La Louisiana Bakery v. Lafayette Ins. Co., 09-825 (La. App. 5 Cir. 2/8/11), 61 So.3d 17, 26-27, writ denied, 11-493 (La. 4/25/11), 62 So.3d 95; Goines v. Goines, 08-42 (La. App. 5 Cir. 6/19/08), 989 So.2d 794, 797. Judicial confessions must be intentional waivers relating to the opponent’s proof and not merely statements made for some independent purpose, such as for the |4purpose of providing testimony. Roberts v. Owens-Corning Fiberglas Corp., 03-248 (La. App. 1 Cir. 4/2/04), 878 So.2d 631, 643; Jackson v. [642]*642Gulf Ins. Co., 250 La. 819, 199 So.2d 886, 891 (1967).

We do not find that Ms. Licciardi’s trial testimony outlined above qualifies as an explicit admission that Mr. Licciardi used separate funds for the benefit of the community, nor did the testimony serve to waive Mr. Licciardi’s obligation to prove his reimbursement claim. Nevertheless, Ms. Licciardi’s testimony is evidence relevant to the reimbursement claim and therefore, we next consider whether the trial court erred by finding Mr. Licciardi failed to satisfy his burden of proof.

A trial court has broad discretion in adjudicating issues raised by divorce and partition of the community proceedings. Goines v. Goines, 09-994 (La. App. 5 Cir. 3/9/11), 62 So.3d 193, 198, writ denied, 11-721 (La. 5/20/11), 63 So.3d 984. Reimbursements are factual determinations and absent an abuse of discretion, the trial court’s decision should be not be disturbed on appeal. Norman v. Norman, 99-2750 c/w 99-2751 (La. App. 4 Cir. 7/12/00), 775 So.2d 18, 25.

La. C.C. art. 2365 governs the reimbursement claim at issue and provides in pertinent part:

If separate property of a spouse has been used either during the existence of the community property regime or thereafter to satisfy a community obligation, that spouse is entitled to reimbursement for one-half of the amount or value that the property had at the time it was used.
The liability of a spouse who owes reimbursement is limited to the value of his share of all community property after deduction of all community obligations.

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Cite This Page — Counsel Stack

Bluebook (online)
207 So. 3d 638, 16 La.App. 5 Cir. 289, 2016 La. App. LEXIS 2478, Counsel Stack Legal Research, https://law.counselstack.com/opinion/licciardi-v-licciardi-lactapp-2016.