Simmons v. Simmons

109 So. 3d 10, 2012 La. App. LEXIS 1355, 2012 WL 5349412
CourtLouisiana Court of Appeal
DecidedOctober 31, 2012
DocketNo. 47,416-CA
StatusPublished

This text of 109 So. 3d 10 (Simmons v. Simmons) 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
Simmons v. Simmons, 109 So. 3d 10, 2012 La. App. LEXIS 1355, 2012 WL 5349412 (La. Ct. App. 2012).

Opinions

WILLIAMS, J.

The plaintiff, Gloria Annette Simmons (now “Annette Turner”), appeals a judgment partitioning the community property of her former marriage to the defendant, Gaylon Simmons. The trial court awarded each party the net value of $823,879.34. For the following reasons, we amend and affirm as amended.

FACTS

In November 1958, Annette Turner and Gaylon Simmons were married. In February 2000, Turner filed a petition for divorce seeking use and occupancy of the former matrimonial domicile located in Jackson Parish, Louisiana. In March 2000, the district court entered a consent judgment allowing Turner the continued use of the matrimonial home, pending further orders of the court. Turner and Simmons were divorced by judgment rendered in September 2000.

After the divorce, the parties entered into several agreements regarding the partial partition of their community estate. In a February 2001 consent judgment, the parties divided $1,000,000 from a money fund and agreed that each party would pay one-half of their joint litigation expenses in connection with the Riddle v. Simmons case, which was pending at the time in the Second Judicial District Court. In the January 2004 judgment, the trial court ordered Turner to pay $160,333.48 as her [12]*12share of attorney fees incurred in the Riddle litigation. This court affirmed the judgment on appeal. Simmons v. Simmons, 38,871 (La.App.2d Cir.9/22/04), 882 So.2d 714. Later, in an agreement of partial partition filed with the trial court in March 2002, the parties divided the amount of five million dollars ($5,000,000) in cash and securities from an investment account.

In September 2006, the trial court appointed W. Deryl Medlin, an attorney, as expert and special master to assist the court in the partition of community property, including the classification and allocation of the parties’ assets and liabilities. In February 2010, the parties filed their detailed descriptive lists of community property and debts. Attorney Medlin considered their lists and other financial information that they submitted concerning the community property in preparing his initial report, which was filed in March 2011. After receiving additional information, Medlin filed a supplemental and superseding report on May 13, 2011, the date of the partition hearing. At the hearing, Medlin was cross examined by counsel for both parties about the recommendations in his report.

Subsequently, the trial court rendered judgment adopting the special master’s “Final Detailed Descriptive List” as the definitive statement of all community assets and liabilities and allowable reimbursement claims. The court awarded Turner 5/12ths of the community’s one-fourth ownership interest in a tract of land referred to as the Timoz property, the movable property in her possession and an equalizing payment of $11,496.33. The court awarded Simmons $103,400 in rental payments for Turner’s occupancy of the marital home, reimbursement of $154,484.75 in legal fees for the Riddle v. Simmons litigation and the remainder of the community property. The court also ordered him to pay the community debt of $1,592,847.71. Turner appeals the judgment.

DISCUSSION

In two assignments of error, Turner contends the trial court erred in granting Simmons a “credit” for his payment of certain legal fees. First, Turner argues that she is entitled to reimbursement of one-half of the attorney fees that Simmons paid to the law firm of Hargrove, Pesnell & Wyatt (“Hargrove”), which represented Louisiana Energy and Development Corp. (“LEDC”), a co-defendant in the Riddle v. Simmons litigation, because such fees were not an obligation of the community.

The trial court has broad discretion in partitioning community property in a divorce proceeding. Howard v. Howard, 43,178 (La.App.2d Cir.4/30/08), 981 So.2d 802. A trial court’s factual findings and credibility determinations made in the course of valuing and allocating assets and liabilities in the partition of community property may not be set aside absent manifest error. Nesbitt v. Nesbitt, 44,413 (La.App.2d Cir.6/24/09), 15 So.3d 1229.

In the present case, pursuant to a February 2001 consent judgment, each party agreed to pay one-half of the Riddle v. Simmons litigation expenses. Turner did not pay her share of the attorney fees owed in that case and Simmons filed a rule for contempt based on her failure to comply with the 2001 judgment. At the contempt hearing in December 2003, Simmons testified that at the time of the sale of the community’s interest in LEDC, the community had agreed to defend LEDC, which was represented by Hargrove. In the January 2004 judgment, the trial court ordered Turner to pay $160,333.48 as her share of litigation expenses. This amount included one-half of the $72,976.41 owed [13]*13to Hargrove in attorney fees. This court affirmed the judgment in Simmons, supra. Thus, the evidence submitted demonstrates Turner’s liability to pay one-half of the attorney fees owed to Hargrove and she is not entitled to reimbursement for any such sums paid. The assignment of error lacks merit.

Turner further argues that the reimbursement of $154,484.75 to Simmons for payment of attorney fees should be reduced because he failed to give Turner full credit for her share of the amounts paid. In her appellate brief, Turner complains that Simmons applied only a 50% credit toward her payment of legal fees owed to the law firm of Gordon, Arata and that he improperly subtracted the amount of tax owed upon withdrawal of other funds from an IRA.

An obligation incurred by a spouse during the existence of a community property regime for the common interest of the spouses is a community obligation. LSA-C.C. art. 2860. Except for separate obligations delineated in Article 2863, all obligations incurred by a spouse during the existence of the community property regime are presumed to be community obligations. LSA-C.C. art. 2361; Skannal v. Bamburg, 44,820 (La.App.2d Cir.1/27/10), 33 So.3d 227.

In the present case, the April 2005 judgment required that community funds of $50,000 be applied to the unpaid attorney fees incurred in the Riddle litigation. Turner acknowledges that Simmons withdrew that amount and credited her with payment of $25,000 as her 50% share of the attorney fees owed by the community. Based upon this record, Turner has not shown any error in crediting her with 50% of that $50,000 payment.

In addition, the trial court’s 2005 judgment authorized Simmons to withdraw and expend funds from the IRA at A.G. Edwards for payment of litigation costs. Because the funds were withdrawn to pay a community debt, each party owed one-half of the taxes due upon withdrawal of the funds. Turner was not charged the entire tax liability, because the tax owed was deducted from the gross amount withdrawn before disbursement of the funds, so that each party paid one-half of the tax. Thus, Turner’s argument lacks merit. However, we note an error in the computation of the reimbursement amount. The January 2004 judgment ordered Turner to pay $160,333.48, not $163,333.48 as stated in Exhibit 10. Using the correct amount, adding interest and subtracting Turner’s payments, results in a balance of $105,457, plus interest of $44,292 (6% annual interest for seven years). Accordingly, the reimbursement to Simmons shall be reduced to the amount of $149,749.

Claim for Rental Value

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Related

McConathy v. McConathy
632 So. 2d 1200 (Louisiana Court of Appeal, 1994)
Howard v. Howard
981 So. 2d 802 (Louisiana Court of Appeal, 2008)
Skannal v. Bamburg
33 So. 3d 227 (Louisiana Court of Appeal, 2010)
Nesbitt v. Nesbitt
15 So. 3d 1229 (Louisiana Court of Appeal, 2009)
Chance v. Chance
694 So. 2d 613 (Louisiana Court of Appeal, 1997)
McCarroll v. McCarroll
701 So. 2d 1280 (Supreme Court of Louisiana, 1997)
Simmons v. Simmons
882 So. 2d 714 (Louisiana Court of Appeal, 2004)

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Bluebook (online)
109 So. 3d 10, 2012 La. App. LEXIS 1355, 2012 WL 5349412, Counsel Stack Legal Research, https://law.counselstack.com/opinion/simmons-v-simmons-lactapp-2012.