Rogers v. Rogers

649 So. 2d 7, 1994 WL 687407
CourtLouisiana Court of Appeal
DecidedDecember 9, 1994
Docket94-CA-541
StatusPublished
Cited by9 cases

This text of 649 So. 2d 7 (Rogers v. Rogers) 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
Rogers v. Rogers, 649 So. 2d 7, 1994 WL 687407 (La. Ct. App. 1994).

Opinion

649 So.2d 7 (1994)

Melvin Karl ROGERS
v.
Karen A. Buzbee ROGERS.

No. 94-CA-541.

Court of Appeal of Louisiana, Fifth Circuit.

December 9, 1994.

*8 Clayton J. Joffrion, New Orleans, for defendant/appellant Karen A. Buzbee Rogers.

Bruce A. Miller, Metairie, for plaintiff/appellee Melvin Karl Rogers.

Before DUFRESNE, WICKER and CANNELLA, JJ.

CANNELLA, Judge.

Defendant/appellant, Karen Buzbee Rogers, appeals from a judgment partitioning the community property which she owned with her former husband, plaintiff/appellee, Melvin K. Rogers. For the reasons which follow, the district court judgment is affirmed in part, amended in part and affirmed as amended.

The parties were married on July 14, 1973. Two children were born of the marriage, Karl and Kiersten. The parties separated and a petition for divorce was filed on October 19, 1989. They were divorced by judgment dated January 4, 1991. Termination of the community related back to the date of the filing of the petition. On May 13, 1991, appellee filed a Petition For Partition Of Community Property. Trial took place on November 10, 1993 and judgment was rendered on January 13, 1994. A Motion for New Trial was denied on March 16, 1994 and appellant filed this appeal.

Appellant assigns eight errors in her appeal, each addressing the trial court's handling of disputed items of property or reimbursement. We will take up each item as presented.

*9 Reimbursement to Mr. Rogers of $9,000.

The trial court ruled that appellee expended $9,000 of his separate funds, for which he is entitled to be reimbursed, in the down payment on the family home. Appellant argues that the trial court erred because appellee did not meet his burden of proof in establishing that $9,000 of his separate funds were used for that community purpose.

The record shows that appellee received a check for $9,000, dated June 16, 1977, from his grandfather's succession. It is undisputedly his separate property. Appellee deposited that check into a checking account which both parties testified contained community funds from their salaries. Neither party could state exactly how much money was in the account when the $9,000 was deposited. Appellee testified that community funds in the account was more than $1,000 but less than $5,000. In August of 1977, the parties purchased their family home, with a total down payment of $10,710. $1,000 was paid in advance as a deposit and a check for $9,710, drawn on the same account where the $9,000 had been deposited, was presented at the act of sale. No bank records for the checking account were placed into evidence. Neither party could say how much money remained in the account after the purchase of the house.

Appellee contends that the $9,710 check consisted of his $9,000 of separate property and was used to purchase a community asset, for which he is now due reimbursement.

La.C.C. art. 2367 provides in pertinent part:

If separate property of a spouse has been used for the acquisition, use, improvement, of 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.

The burden of proof is on the spouse claiming reimbursement of the separate funds which he contends were used for the benefit of the community. La.C.C. art. 2340 creates a presumption in favor of the community. Thus, the burden was on appellee to provide proof, rebutting the presumption in favor of the community and establishing that his separate funds were used for the acquisition of a community asset. We find that the record before us falls short of establishing that appellee's separate funds were used, at least to the extent of the full $9000.

Appellee bears the burden of proof. He introduced no records of the balance of the account either before the deposit of the $9,000 of separate funds or after the purchase of the house. Appellee introduced only the $9,000 check and the $10,710 deposit on the house. The only evidence submitted on this matter was the uncorroborated testimony of the parties. It is impossible to give more weight to the testimony of either party. However, there is a common ground that they share. Appellee testified that there was no more than $5,000 of community funds in the account. Appellant testified that everything in the account, over $10,000, was community. The common ground in the testimony is that there was $5,000 in community funds in the account. Thus, this court finds that there was $5,000 in community funds in the account. Therefore, appellee was only successful in carrying his burden of proof that he was due reimbursement for separate funds used in the acquisition of a community asset, to the extent that the deposit on the house exceeded $5,000, or in the amount of $5,710. To the extent that the trial judge found reimbursement was due for the entire $9,000, he was clearly wrong in doing so as the evidence is insufficient to carry appellee's burden of proof in excess of $5,710. Therefore the part of the judgment ordering reimbursement for $9,000 is reduced to $5,710.

Jefferson Parish School Board Savings Account.

The trial court found that appellee had a Jefferson Parish School Board savings account containing $7,958.07, which was community property. It was credited to appellee as a received asset. On appeal appellant argues that the trial court erred in this ruling, contending that there is no Jefferson Parish School Board savings account, but *10 only her pension fund which was partitioned in another part of the judgment. She argues that the error arose from a misinterpretation of the filed exhibits regarding the School Board fund. We agree.

Appellee filed exhibits 8 and 9 into evidence, purporting to show both a school board pension fund and a school board savings account. Exhibit 8 is a letter from the Teacher's Retirement System stating that the balance in appellant's pension fund as of October 19, 1989, the date of termination of the community, was $2,461.23. This amount was properly considered a community asset and credited as such by the trial court. Exhibit 9, which appellee contends evidences an additional savings account, is in fact a summary of appellants' pension fund through July of 1992. The documents were misinterpreted as evidencing additional community sums in a savings account, when in fact the additional sums referenced in the exhibit were contributions to the pension fund made after termination of the community in October of 1989.[1] Accordingly, we find that the trial court erred in crediting a $7,958.07 community asset to appellant, when no such asset existed.

Ms. Rogers Reimbursement Claim.

The trial court failed to award appellant any reimbursement for her payments on the mortgage note on the community family home following termination of the community. Appellant argues that under La.C.C. art. 2365 she is entitled to the reimbursement.

La.C.C. art. 2365 provides in pertinent part:

If separate property of a spouse has been used to satisfy a community obligation, that spouse, upon termination of the community property regime, is entitled to reimbursement for one-half of the amount or value that the property had at the time it was used.

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Cite This Page — Counsel Stack

Bluebook (online)
649 So. 2d 7, 1994 WL 687407, Counsel Stack Legal Research, https://law.counselstack.com/opinion/rogers-v-rogers-lactapp-1994.