Patin v. Patin

462 So. 2d 1356
CourtLouisiana Court of Appeal
DecidedJanuary 30, 1985
Docket84-93
StatusPublished
Cited by29 cases

This text of 462 So. 2d 1356 (Patin v. Patin) 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
Patin v. Patin, 462 So. 2d 1356 (La. Ct. App. 1985).

Opinion

462 So.2d 1356 (1985)

Gayle Younce PATIN, Plaintiff-Appellant,
v.
Connie PATIN, Defendant-Appellee.

No. 84-93.

Court of Appeal of Louisiana, Third Circuit.

January 30, 1985.
Writ Denied April 1, 1985.

*1357 Stanford B. Gauthier, II, of Gauthier and Cedars, Breaux Bridge, for defendant-appellee.

Charles Brandt, Lafayette, for plaintiff-appellant.

Before DOMENGEAUX, STOKER and KING, JJ.

DOMENGEAUX, Judge.

These proceedings eminate from the separation and the resulting partition of the community of acquets and gains which formerly existed between the parties. Although this case was decided separately from the case of Patin v. Patin, 462 So.2d 1362 (La.App. 3rd Cir.1983), the two cases have been consolidated on appeal. We will consider issues involved in both cases herein but will render a separate opinion in No. 84-807.

The reviewable issues herein deal with the trial court's decision concerning the separation of community property pursuant to La.R.S. 9:2801.

After an extensive review of the records we have determined that this case, No. 84-93, deals with the actual partition of the community property and case No. 84-807 deals with a subsequent proceeding to *1358 make executory a judgment rendered in No. 84-93.

These proceedings originated when Gayle Patin filed a petition for legal separation on January 25, 1982. An answer was filed by the defendant.

A rule for alimony was fixed for March 5, 1982. After hearing a judgment was signed which awarded Mrs. Patin the use of the family domicile up to and until the partition of the community. The judgment further ordered the defendant-husband to continue payment of all existing community obligations except for one $500.00 annual note.

The trial for the legal separation was set and heard on May 11, 1982. As a result of that trial, a judgment was signed granting a legal separation based upon the mutual fault of the parties. This judgment also ordered the defendant, Mr. Patin, to pay all community obligations except for a $260.00 per month note and a $500.00 per year note. The judgment further ordered that an inventory of all property of the community be taken and that the property was to be partitioned in accordance with law.

On February 18, 1983, pursuant to a rule filed by defendant, the trial court ordered each party to submit sworn detailed descriptive lists and set a trial date for the traversal of each parties' list. In due time a partition of the community was held. The judgment resulting therefrom awarded Mr. Patin the community home and awarded Mrs. Patin the community automobile and virtually all other property belonging to the community. From this judgment the wife has appealed and the husband has answered her appeal. The wife's contention brings before us 9 alleged errors on the part of the trial court. The husband alleges 3 assignments of error.

WIFE'S ASSIGNMENTS OF ERROR

Mrs. Patin first argues that the trial court erred when it failed to order a private sale of the community home. The trial court exercising its legislatively mandated discretion under La.R.S. 9:2801, allocated the community home to Mr. Patin and ordered that Mrs. Patin be given a credit for her one-half share. This credit was ordered secured by a vendor's lien and special mortgage.

Under La.R.S. 9:2801(4)(c) the trial court is authorized to allocate to one party or the other a particular asset, and if this results in an unequal net distribution, the court is directed to order the payment of an equalizing sum of money. This method was chosen by the trial court. It is true that La.R.S. 9:2801(4)(d) does provide that a community asset may be sold at a private sale, but the fact that the trial judge chose one method over the other is not an abuse of discretion.

Secondly, Mrs. Patin assigns as error the trial court's award of a credit to Mr. Patin for her prior use and occupancy of the community home. In its judgment the trial court charged the wife for her use of the community home for a period of 15 months—from the date of the legal separation until the order partitioning the community.

Under La.C.C. Art. 2369, a spouse owes an accounting to the other spouse for community property under his control at the termination of the community property regime. Further, La.C.C. Art. 2364 provides that when community property has been used to satisfy the separate obligation of one spouse, the other spouse is entitled to reimbursement upon termination of the community property regime for one-half of the amount or value that the property had at the time it was used.

The community existing between the parties was terminated by the judgment of separation and from that point on, but for her use of the community home Mrs. Patin would have been forced to pay rent, as Mr. Patin was forced to do. The funds that she would have been forced to pay as rent have remained in her control for investment purposes. This use has benefited her separate estate and Mr. Patin was properly reimbursed for one-half the value of the community property used at the time it was used to benefit Mrs. Patin's separate estate.

*1359 The uncontradicted testimony of Mr. Robert Domingue, who was accepted by the Court as an expert in the rental value of homes, was that the rental value of the house was $750.00 a month. The trial court accepted the value and properly awarded Mr. Patin a credit for one-half of $750.00 per month.

By the third assignment of error Mrs. Patin contends the trial court erred in awarding Mr. Patin recovery out of his wife's share, of one-half of all amounts paid by him on the house note and other community debts.

The wife lived in the community owned home and used practically all of the community owned movables, from the time the community was terminated until the signing of the judgment of partition, and although the husband was denied use of all the community property during this time he was nevertheless ordered to make these payments "in lieu of alimony".

"Our long settled jurisprudence is that following termination of the community between a husband and wife the two parties become owners in indivision of the immovable property which had belonged to the community; each owner in indivision is entitled to possess or use the common property without the obligation to pay rent therefor, provided that such possession or use is not to the exclusion of his co-owner; and each co-owner has the obligation to maintain and preserve the property or, vis-a-vis each other, pay his share of the cost thereof."

Lentz v. Lentz, 411 So.2d 59 (La.App. 4th Cir.1981) [Footnote omitted].

In the instant case the community property could not have been maintained and preserved without payment of the mortgage principal, interest, taxes, and insurance. Without payment of all of these components the property would have been lost. Accordingly, we hold the trial court correctly reimbursed Mr. Patin out of his wife's share of the funds to be distributed, one-half of the amounts paid by him. The wife contends that no credit should have been allowed because these payments constituted alimony. It is true as pointed out by her that alimony payments are not reimbursible even when by subsequent judgment the alimony is disallowed. Miller v. Miller, 405 So.2d 564 (La.App. 3rd Cir. 1981). However, here each time the wife sought alimony pendente lite the trial court expressly denied that request. He did, however, order the husband to pay these community debts.

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Bluebook (online)
462 So. 2d 1356, Counsel Stack Legal Research, https://law.counselstack.com/opinion/patin-v-patin-lactapp-1985.