Appealed from the Second Judicial District Court for the Parish of Bienville, Louisiana. Trial Court No. 40,739. Honorable Jimmy Cecil Teat, Judge.
SEAN D. MILLER, Counsel for Appellant.
JAMES L. FORTSON, JR., Counsel for Appellee.
Before BROWN, WILLIAMS, and PITMAN, JJ.
[49,523 La.App. 2 Cir. 1]
BROWN, CHIEF JUDGE.
Twenty-eight years after a judgment of marital separation and an entry of community property settlement, and upon defendant Mack Allen McCoy's retirement, plaintiff, Claudine Mason McCoy Delaney, filed a supplemental petition for partition of community property seeking a pro rata share of defendant's retirement benefits based on the number of years of marriage. The district court sustained defendant's exception of res judicata. This court reversed and remanded in Delaney v. McCoy, 46,103 (La.App.2d Cir. 04/13/11), 63 So.3d 327, finding that defendant had failed to introduce the community property settlement and other evidence of the prior proceeding. On remand, the district court received the evidence and denied exceptions of no cause or right of action but again sustained the exception of res judicata. This court again reversed and remanded for trial. See Delaney v. McCoy, 47,240 (La.App.2d Cir. 06/20/12), 93 So.3d 845.
Now, plaintiff appeals from the trial court's judgment in favor of defendant which found that, in accord with Hare v. Hodgins, 586 So.2d 118 (La. 1991), plaintiff was entitled to retirement benefits based upon the rank of driver which defendant, who retired as deputy chief, held with the Shreveport Fire Department at the termination of the community regime in 1979. We affirm in part, reverse in part, and remand for further proceedings.
Facts and Procedural Background
Defendant began working for the Shreveport Fire Department on [49,523 La.App. 2 Cir. 2] November 17, 1969. Through his employment with the department, defendant accrued retirement benefits. From May 1, 2004, through April 30, 2007, defendant was in a Deferred Retirement Option Plan (" DROP" ). He retired from the department on January 1, 2008, having accumulated a total 38.1232 years with the department, of which 35.2321 were creditable service years. The three years in the DROP plan do not count as creditable service, as the employee actually retires and draws his retirement benefits which are paid into a savings account, and he continues to work, drawing his regular salary for up to three years.
The parties were married on November 16, 1973. On June 27, 1979, defendant filed a petition for separation. On July 10, 1979, a judgment of separation was entered terminating the community property regime between the parties. On September 19, 1979, plaintiff filed a petition for settlement of the parties' community property. During the course of the proceedings, plaintiff propounded interrogatories to defendant regarding the existence of a retirement plan, profit sharing, or stock purchase plan. He answered, " the parties have no vested interest in any retirement plan."
On December 14, 1979, a judgment was entered ordering that the community property be partitioned. The trial court at that time found that defendant had no retirement benefits which were community property. On January 16, 1980, the parties entered into an extrajudicial agreement partitioning the community property in kind. On January 29, 1980, on joint motion of the parties, the trial court signed a judgment dismissing the case with prejudice.
[49,523 La.App. 2 Cir. 3] At the time of the termination of the community property regime in 1979, defendant ...