DARLENE R. DURDEN
DAVID A. DURDEN
[Copyrighted Material Omitted]
APPEAL FROM 25TH JDC, PARISH OF PLAQUEMINES. NO. 56-749, DIVISION " B" . Honorable Michael D. Clement.
Elaine Appleberry, LAW OFFICE OF ELAINE APPLEBERRY, Gretna, LA, COUNSEL FOR PLAINTIFF/APPELLANT.
Court composed of Judge Terri F. Love, Judge Max N. Tobias, Jr., Judge Rosemary Ledet.
Max N. Tobias, Jr.
[2013-1154 La.App. 4 Cir. 1] Darlene Durden (" Darlene" ) appeals from a judgment in favor of her divorced husband, David A. Durden (" David" ), that effectively, but not directly, declares the property upon which their family home is situated (32446 Highway 23, Empire, Louisiana) (hereafter, " the Property" ), is David's separate property and orders her to vacate the Property. An action for a partition of the community property is currently
pending in the trial court. On appeal, Darlene avers that the trial court erred in granting David's motion for the return of separate property when David failed to show that he is the owner of the property and the one entitled to its possession. For the following reasons, we vacate the judgment of the trial court in part, reverse the judgment of the trial court in part, and remand the matter for further proceedings consistent with this opinion.
Factual Background and Procedural History
Darlene and David were married on 25 April 1998. It is undisputed that in 1982, before the marriage, David began residing in a mobile home that he solely owned, which he moved onto the Property. Prior to and after the marriage, David [2013-1154 La.App. 4 Cir. 2] and Darlene lived together in David's mobile home with their two minor children, until it was completely destroyed by Hurricane Katrina in 2005. Following the hurricane, the parties used community funds received from the Federal Emergency Management Agency (" FEMA" ) and charitable organizations to have a new home constructed on the Property.
On 28 April 2009, Darlene filed a petition for divorce wherein she alleged that " the family residence located [on the Property] is community property," and requested that she be awarded the exclusive right to use and occupy the family residence " until such time as the community property has been partitioned."  Darlene was awarded the use and occupancy of the family home pursuant to a protective order signed on 2 June 2009 and confirmed by judgment dated 6 October 2009. On 1 June 2010, a judgment of divorce was rendered reserving all [2013-1154 La.App. 4 Cir. 3] rights of the parties to later seek a partition of the community. Darlene and the two children continue to
occupy the family residence on the Property.
In 8 December 2010, in anticipation of the expiration of the protective order on 2 February 2011, Darlene filed a motion, seeking, among other things, continued use of the family home and a partition of the community property. An order was issued by the trial court on 13 December 2010, requiring the parties to each file, within forty-five days, a sworn descriptive list of all community property and community liabilities, and scheduled a hearing on all pending matters for 1 February 2011. The record on appeal does not contain or reflect that a sworn descriptive list has been filed by either party. The 1 February 2011 hearing was continued to 1 March 2011.
On 17 February 2011, David filed a summary proceeding entitled " Motion for Return of Separate Property" (hereinafter, the " Motion" ), alleging that the Property, including the family residence situated thereon, was his separate property, and asking the court to issue an order requiring Darlene to vacate the Property. According to David, Darlene was continuing to live on his separate property, which he had not " donated, sold, or transferred any right to the [P]roperty" to her. David averred that he began occupying the Property in 1982 when he moved a mobile home thereon, which he solely owned prior to his 1998 marriage to Darlene. As the sole proof for his right to the requested relief, David relied upon requests for admissions that he propounded to Darlene and her responses thereto; these were attached to a memorandum in support of his Motion filed in February 2013. The Motion was originally scheduled for hearing on 1 [2013-1154 La.App. 4 Cir. 4] March 2011, the same day as Darlene's motion for continued exclusive use of the family home and to partition the community property (and other pending motions), but it, too, was continued on several occasions -- at least ten times -- over the next two years.
According to the minute entries contained in the record, a " bench trial" was held on 22 February 2013. It is unclear exactly what matters were being tried that day, but apparently the parties reached a consent agreement that was read into the record and recorded in the minutes of court. A transcript of the parties' consent agreement is not included in the record, but the minutes reflect that the parties agreed to sell community/jointly owned property located in St. Landry Parish, with David agreeing to transfer his half of the proceeds to Darlene for any and all outstanding support obligations then due and owing. The parties also reserved their rights to argue the Motion and to submit memoranda to the court addressing same.
On 20 February 2013, Darlene filed a memorandum in support of her claim that the family home was community property. Darlene's argument was threefold:
(1) Though the mobile home in which they lived from 1998 through 2005 was owned by David prior to their marriage, she personally utilized her separate funds
to make significant improvements and renovations to it;
(2) The records in the Plaquemines Parish assessor's office indicate that the rightful owner of the land on which the mobile home was situated is the estate of [2013-1154 La.App. 4 Cir. 5] Celestine Durden, whose succession had never been opened and no judgment of possession rendered declaring David to be a legal heir to the Property, rather he lived as a squatter on the Property;  and
(3) Community funds were used to build the family home located on the Property after David's mobile home was destroyed, the source of which was solely from Darlene's efforts to secure financing from FEMA and various charitable organizations.
David filed memoranda on 22 February 2013 and 18 March 2013, respectively, in support of his Motion. According to David, Darlene's admission that he owned " his own home, land, and shed" prior to their marriage was sufficient proof that the Property, including the family residence situated thereon, was his separate property and that, because they had been divorced since 1 June 2010, he was entitled to its return. Moreover, David averred that " [t]he only claim [Darlene] may have is a possible reimbursement claim concerning the partition of community property," but stated " [t]hat matter is not presently before the court." Additionally, while conceding that the Property is " not clearly" in his name, David argued that " it is in fact Durden property" on which he had lived and had his separate home since 1982, and in which Darlene bore no ownership interest.
The Motion came for hearing on 3 September 2013, and, by agreement, was submitted to the trial court on briefs. On 13 September 2013, the trial court rendered judgment, with written reasons, granting the Motion and ordering Darlene [2013-1154 La.App. 4 Cir. 6] to vacate the Property within thirty days from the date of judgment. Citing La. C.C. art. 2366, the trial court, in effect, determined that the land upon which the family residence was situated was owned by David separately at the time the family residence was constructed thereon using community funds, finding no merit to Darlene's contention that the family home was community property. Specifically, the court stated in its reasons that " [r]egardless of whether the [P]roperty actually belongs to Celestin [sic] Durden as alleged by [Darlene] or whether it is [David's] separate property, what is clear is that the [P]roperty is not community property."
Subsequent to the rendition of judgment, Darlene filed a motion for new trial averring that, on 20 September 2013, she obtained a title opinion from Southern Title,
Inc., which states that the Property was acquired by Celestine Durden on 26 March 1926 and, because no succession to date had been opened, the Property currently remained in the estate of Celestine Durden. The title opinion further states that, according to the tax bills, the land and the improvements thereon are billed separately: for the land, the tax bill is directed to Celestine Durden's estate; however, the owners of the improvements are unnamed on the tax bill or the conveyance records. Based on this information obtained post-judgment, Darlene [2013-1154 La.App. 4 Cir. 7] averred that the trial court's decision to return " separate" property to someone who is not the owner or a co-owner ( i.e., the title opinion evidences that David is not the owner), is contrary to law. Because the title opinion shows that the Property does not belong to either the community regime or to David, separately, Darlene argued that the court's reliance on La. C.C. art. 2366 as authority that the house in which she resides is David's separate property and should, therefore, be returned to him was in error. Accordingly, she urged the court to grant a new trial of the matter in order that she could present " true evidence by a licensed expert proving that the subject property is not David Durden's separate property."
Darlene's motion for new trial came before the court on 4 February 2014, was denied on 11 March 2014, and a judgment denying same signed on 10 April 2014. This suspensive appeal followed.
[2013-1154 La.App. 4 Cir. 8] Issues Presented for Review
On appeal, Darlene avers the trial court erred in granting the Motion because (1) David failed to present evidence that he owns the Property and is entitled to its return; and (2) without proof of ownership, David lacked standing to evict her from the Property and was without a right of action to seek its return. Darlene further contends that, based on the evidence she presented at the hearing on her motion for new trial, David is not the owner of the Property; thus, the trial court abused its discretion in failing to grant her motion for new trial.
Prefatory to our discussion of the issues presented for review, we note the complete lack of evidence confirming or establishing that David has an ownership
interest in the Property; any determination by this court addressing the merits of David's claim regarding his right to a return of his " separate property" could be deemed conclusive between the parties. La. R.S. 13:4231(3); see Tolis v. Bd. of Sup'vrs of Louisiana State University, 95-1529, pp. 2-3 (La. 10/16/95), 660 So.2d 1206-1207 (discussing res judicata effect of an appellate review of the merits), and Carriere v. Bank of Louisiana, 95-3058, pp. 11-14 (La. 10/31/97),( on reh'g ), 702 So.2d 648, 668-669 (applying the " law of the case" doctrine to preclude later appellate review of an issue). Because we find that the Motion fails to state a cause of action upon which the requested relief can be granted and because we are unable to render a decision that would be " just, legal, and proper on the record" before us as is required by La. C.C.P. art. 2164, we are required to vacate that portion of the trial court judgment that, in effect, holds that the Property is David's [2013-1154 La.App. 4 Cir. 9] separate property, reverse that portion of the judgment that evicts Darlene from the Property when rightful ownership has not been proven or properly determined, and remand the matter for further proceedings consistent with this opinion.
Property of Married Persons
Property of married persons is generally characterized as either separate or community. La. C.C. art. 2335. La. C.C. art. 2338 provides:
The community property comprises: property acquired during the existence of the legal regime through the effort, skill, or industry of either spouse; property acquired with community things or with community and separate things, unless classified as separate property under Article 2341; property donated to the spouses jointly; natural and civil fruits of community property; damages awarded for loss or injury ...