Nichols v. Nichols
This text of 671 So. 2d 1069 (Nichols v. Nichols) 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.
Opinion
Mabel Ebert NICHOLS, Plaintiff-Appellee,
v.
Walter R. NICHOLS, Jr., Defendant-Appellant.
Court of Appeal of Louisiana, Third Circuit.
*1070 Gary W. Sheffield, Alexandria, for Walter R. Nichols Jr.
Dan E. Melichar, Alexandria, for Mabel Ebert Nichols.
Before KNOLL, THIBODEAUX and WOODARD, JJ.
THIBODEAUX, Judge.
This appeal arises from the community property partition proceeding commenced by Walter Reed Nichols. Assigning three errors, plaintiff-appellant challenges the community interest computations derived by the lower court. We amend and affirm for the following reasons.
FACTS
Mabel and Walter Nichols wed on July 4, 1974. During the course of their nine year union, the couple purchased two community homes in Alexandria, Louisiana. The first home was located at 17 Tennessee Avenue, the second at 2108 Kelly Street.
On April 29, 1983, Walter Nichols filed a petition for separation under La.Civ.Code art. 140, a provision repealed by the Louisiana legislature in 1990. When judgment was rendered upon Walter's petition, the couple's community of acquets and gains ended (by operation of law) retroactively from the April 29, 1983 filing date; however, neither Walter nor Mabel filed to partition their community until May 21, 1990. Moreover, this partition suit was not tried until February 18, 1993 nearly ten years after the couple's legal regime ended. Observing this 10 year delay, the trial judge remarked:
Each of the parties, through no fault of their own, had to change attorneys one or more times. The matter was not tried until February 18, 1993, ten years after termination. Needless to say, the testimony at trial was inconclusive on many issues. The parties could no longer recall important details and records had been lost.
On April 28, 1995, the trial court rendered its judgment; therein, the court decreed that the Nichols' community consisted of:
1) house & lot at 17 Tennessee Avenue Alexandria, Louisiana...... $25,000.00
2) house & lot at 2108 Kelly Street Alexandria, Louisiana........ $25,000.00
3) rent collected, Tennessee Avenue property..................... $15,379.39
4) rent collected, Kelly Street property......................... $22,330.00
5) checking account, Rapides Bank & Trust........................ $ 1,177.62
============
TOTAL............................................ $ 88,887.01
The court adjudged each party's community interest to be:
Walter Mabel
1) community assets............................... $44,443.50 $44,443.50
2) reimbursement owed............................. $ 6,373.15 $ 2,300.00
3) reimbursement due.............................. ($ 2,300.00) ($ 6,373.15)
============== =============
TOTAL............................................. $48,516.65 $40,370.35
Further, in satisfying each party's community interest, the court awarded:
*1071
Mabel:
1) total community assets due..................................... $40,370.35
2) house & lot: 17 Tennessee Avenue.............................. ($25,000.00)
3) rent collected: 17 Tennessee Avenue............................ ($15,379.39)
=============
TOTAL ............................................ ($ 9.04)
Walter:
1) total community assets due..................................... $48,516.65
2) house & lot: 2108 Kelly Street................................. ($25,000.00)
3) rent collected: 2108 Kelly Street.............................. ($22,330.00)
4) Rapides Bank checking account.................................. ($ 1,177.62)
=============
TOTAL.................................................. $ 9.03
Accordingly, the trial court ordered Mabel to pay Walter $9.03 to offset the difference between each party's partition total. In this appeal, Walter insists that the trial court erred in:
(1) failing to credit Walter for expending his separate property to pay community debts (i.e. mortgage payments, taxes, upkeep & insurance);
(2) assessing rent against Walter for possessing the couple's Kelly Street property during the period between community termination (4/29/83) and community partition (2/18/93); and
(3) failing to properly calculate each party's community property interest.
Mabel has neither answered nor appealed.
LAW & DISCUSSION
Mortgage Payments
Insofar as Walter's first assignment is concerned, the record reflects that he spent separate funds in the amount of $4,600.00 to purchase the Kelly Street property, $4,638.79 to pay the mortgage note on Kelly, and $3,507.52 to pay taxes, insurance, and repair costs on Kelly. La.Civ.Code art. 2367 provides:
If separate property of a spouse has been used for the acquisition, use, improvement, or benefit of community property, that spouse upon termination of the community is entitled to one-half of the amount or value that the property had at the time it was used. The liability of the spouse who owes reimbursement is limited to the value of his share in the community after deduction of all community obligations.
In response to Walter's Article 2367 claim for reimbursement, the trial court divided $12,746.30 (sum of the foregoing figures) by two and awarded Walter $6,373.15. Walter finds error in the trial court's tabulations and specifically contends that from May 1983 to June 1993, the latter date being the month in which the Kelly Street mortgage was retired, appellant spent $17,612.27 on mortgage payments alone.
In grappling with the amount of separate funds Walter spent on retiring the Kelly Street mortgage, the trial court observed:
Walter testified that he paid the mortgage note on Kelly Street, $3507.52 in repairs and taxes and insurance. He failed to introduce any evidence of the amount of taxes and insurance and only testified he paid "about" $146.00 monthly on the mortgage note, without saying for how many months the note was paid. Mabel, however, testified, and her detailed descriptive list showed, that there was a mortgage note for $4638.79 owed to [Hibernia National Bank] on Kelly Street and Mabel never paid any of this. Thus, the court will conclude this was the amount paid by Walter. He is entitled to reimbursement of one half of ... $4638.79.
Walter now claims that his testimony and detailed descriptive list indicate an expenditure *1072 of $17,612.27. We disagree. Walter's descriptive list recites the same $4,638.79 figure recounted in Mabel's descriptive list, and, like the trial court, we find Walter's testimony alone, without supporting documentation, inadequate proof. Moreover, Walter's assertion that he paid approximately $13,000.00 more on an extinguished principal obligation is hardly tenable.
An appellate court may not set aside a trial court's findings of fact in the absence of manifest error or unless it is clearly wrong. Lewis v. State, Through Dept. of Transp.
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671 So. 2d 1069, 1996 WL 121001, Counsel Stack Legal Research, https://law.counselstack.com/opinion/nichols-v-nichols-lactapp-1996.