from the Fourth Judicial District Court for the Parish of
Ouachita, Louisiana Trial Court No. 2013-2820 Honorable
Wilson Rambo, Judge
L. KNEIPP Counsel for Appellant
S. TEW Counsel for Appellee
MOORE, GARRETT and CARAWAY (ad hoc), JJ.
plaintiff, Lydia Clare Bulloch, appeals a judgment of
partition pursuant to her divorce from the defendant, Robert
Brian Bulloch, M.D. She alleges six factual and legal
assignments of error in the trial court's division of the
community assets. Dr. Bulloch answers the appeal, and alleges
two assignments of error of his own. For the following
reasons, we amend the judgment below in part, reverse in
part, and affirm in part.
Clare Bulloch ("Lydia") and Robert Brian Bulloch
("Brian") were married on August 8, 1992. Lydia
filed a petition for divorce on September 12, 2013. The
parties were divorced on October 31, 2014.
parties appeared before a hearing officer pursuant to local
rules on the partition action on January 9, 2015. The hearing
officer issued a report and recommendation on March 2, 2015.
Both parties filed objections to the hearing officer's
recommendation. Those objections were tried before the court
in a three-day trial ending on September 4, 2015. The court
issued written reasons for judgment on February 26, 2016,
which was followed by a formal judgment pursuant to those
written reasons signed on April 15, 2016.
first assignment of error, Lydia contends that the trial
court erred as a matter of law when it ruled that Brian was
entitled to reimbursement of the rental value of the former
matrimonial domicile. Contrary to the hearing officer's
recommendation, the court awarded Brian a reimbursement sum
of $18, 700, representing one-half of the fair rental value
of the former matrimonial domicile for the period from
October 2014 (the month of the divorce judgment) to the date
of the partition judgment (April 15, 2016). Lydia contends,
however, that the issue of rent was determined when she was
awarded sole occupancy and exclusive use of the home by a
court order issued by Judge Benjamin Jones on October 30,
2013. At that time, the court did not award the rental value
of the home, nor was the issue of rental value deferred by
agreement for a decision in future partition proceedings.
Therefore, she argues, Brian waived his right to receive fair
rental value pursuant to La. R.S. 9:374(C), which reads:
A spouse who, in accordance with the provisions of Subsection
A or B of this Section, uses and occupies or is awarded by
the court the use and occupancy of the family residence . . .
shall not be liable to the other spouse for rental for the
use and occupancy, except as hereafter provided. If the court
awards use and occupancy to a spouse, it shall at that time
determine whether to award rental for the use and occupancy,
and if so, the amount of the rent. The parties may agree to
defer the rental issue for decision in the partition
proceedings. If the parties agreed to at the time of the
award of use and occupancy to defer the rental issue, the
court may make an award of rental retroactive to the date of
the award of use and occupancy.
cites several cases holding that the assessment of rent under
La. R.S. 9:374(C) requires an agreement between the spouses
or a court order for rent contemporaneous with the award of
occupancy. In Racca v. Racca, 1999-2948 (La.App. 1
Cir. 12/22/00), 775 So.2d 689, the court held that when there
is no evidence of court-ordered rent or an agreement between
the parties, the spouse occupying the family home is not
liable for rent. In Manno v. Manno, 2001-2138
(La.App. 1 Cir. 10/2/02), 835 So.2d 649, the court rejected
an assignment of error raised by the appellant alleging that
the trial court erred by denying her request to file an
amended descriptive list to assert a claim for reimbursement
for the rental value of the family home occupied by her
former husband. The court ruled that because there was no
agreement or court order for rent for use and occupancy of
the family residence, by the clear terms of La R.S. 9:374(C),
the appellant's husband was not liable for rent.
from this court in Mason v. Mason, 40, 804 (La.App.
2 Cir. 4/19/06), 927 So.2d 1235, writ denied,
2006-1524 (La. 10/13/00), 939 so. 2d 366, explained:
In McCarroll v. McCarroll, 1996-2700 (La. 10/21/97),
701 So.2d 1280, the Louisiana Supreme Court held that rental
payments may not be retroactively assessed under La. R.S.
9:374(C) unless otherwise agreed by the spouses or ordered by
the court. The court reasoned that the use and management of
a thing held in indivision is determined by agreement of all
the co-owners. A co-owner is entitled to use the thing held
in indivision according to its destination, but he cannot
prevent another co-owner from making such use of it.
Nevertheless, it is well established that a co-owner need not
pay rent to another co-owner for his exclusive use of the
co-owned property. The assessment of rent under La. R.S.
9:374(C) requires an agreement between the spouses or a court
order for rent contemporaneous with the award of occupancy.
McCarroll v. McCarroll, supra. When there
is no evidence of court ordered rent or an agreement between
the parties, the occupying spouse is not liable for rent.
Gay v. Gay, 31, 974 (La.App. 2 Cir. 6/16/99), 741
award Brian's reimbursement claim for one-half of the
rental value, Lydia argues, would be to effectively charge
her for use of her home-assessing her rent for her occupancy
retroactively-without either an agreement by the parties or a
court order to that effect. This would violate La. R.S.
9:374(C) and the rule established in McCarroll v.
McCarroll, supra. Therefore, she maintains that the
trial court committed legal error by failing to follow the
statute and jurisprudence, and, accordingly, the award should
review of the record shows that Lydia was given exclusive use
and occupancy by virtue of an "interim" order
issued by the court on October 30, 2013, the Honorable
Benjamin Jones presiding. Held only six weeks after Lydia
filed the divorce petition, the hearing was not intended to
determine use and occupancy of the family home, but concerned
approximately $500, 000 in community funds which Brian
alleged that Lydia had misappropriated about the time she
filed the divorce petition. During the hearing, Lydia stated
that Brian had been coming to the house when she was not
there, and this made her feel uncomfortable. Otherwise, the
issues of occupancy and exclusive use and rental value were
not raised by either party.
conclusion of the hearing, the court issued its ruling
regarding the funds in question. Then, on its own motion, it
made the following order:
In the interim, since Dr. Bulloch has acquired another
residence-it shouldn't be necessary to say this-but the
court on an interim basis orders that the former
matrimonial domicile will in [sic] the exclusive use of Ms.
Bulloch and the boys.
following the January 9, 2015, partition hearing, Brian's
demand for fair rental value of the family home which he made
in his answer to Lydia's divorce petition and
reconventional demand was rejected by the hearing officer as
a result of the interim order issued by Judge Jones. The
hearing officer's recommendation stated:
Because of the October 30, 2013, judgment, which awarded
exclusive use to the former Mrs. Bulloch, did not also make
an award of rental value, the issue of rent may be considered
at this time, in connection with the partition, only if the
parties agreed to defer the rental value issue to the
partition. Unfortunately, the order signed on October 30,
2013, does not mention any agreement of the parties to defer
the rent claim to the partition.
since there was no evidence of such an agreement to defer the
rent issue to the partition hearing, the hearing officer
recommended that Brian's rent claim could not be
considered and should be denied.
trial, Brian introduced an exhibit regarding the fair market
rental value of the home, and the parties agreed to submit
their arguments in briefs. The trial court found that Judge
Jones did not intend to bar Brian's claim for fair rental
value when he issued the interim order. The focus of the
October 30, 2013, hearing concerned the community funds Lydia
had allegedly appropriated, and Judge Jones entered an order
directing Lydia to account for the funds in question. It
noted that Judge Jones awarded Lydia exclusive use of the
former matrimonial domicile "on an interim basis, "
mindful that a hearing officer conference had already been
scheduled to address this issue. The court concluded that the
record established that Judge Jones did not intend to make a
permanent disposition with respect to exclusive use, but only
issued the order to ensure the welfare of Lydia and the
children pending the scheduled hearing officer conference.
review of the record shows that Lydia requested exclusive use
and occupancy of the family home in her petition, and fair
rental value in case the court awarded Brian use and
occupancy of the family home. Brian demanded fair rental
value of the home in his answer to Lydia's petition and
his reconventional demand. Both parties requested a hearing
to show cause why their requests should not be granted. These
issues and others were slated to be heard at a hearing
officer conference originally scheduled for December 3, 2013.
no legal error in the trial court's ruling. La. R.S.
9:374(B) states, in pertinent part, that "either spouse
may petition for, and a court may award to one of the
spouses, after a contradictory hearing, the use and
occupancy of the family residence . . . pending further order
of the court." (Emphasis added.) Likewise, R.S.
9:374(C), upon which Lydia relies, expressly states that its
provisions apply to the awards of use and occupancy pending
divorce or partition of the community property made "in
accordance with the provisions of R.S. 9:374(A) and R.S.
9:374(B), " which, as noted above, require a
contradictory hearing. Although the court awarded Lydia use
and occupancy of the family home "on an interim
basis" at the October 30, 2013, hearing concerning the
misappropriated funds, the record is clear that there was no
contradictory hearing on the issue of use and occupancy and
whether Brian was entitled to rental value. Brian properly
demanded rental value of the home in his answer and
reconventional demand along with a contradictory hearing on
the matter to which he was entitled under La. R.S. 9:374(B).
no error in the trial court's award of fair rental value
for the former matrimonial domicile to ...