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Bulloch v. Bulloch

Court of Appeals of Louisiana, Second Circuit

January 18, 2017

LYDIA CLARE BULLOCH Plaintiff-Appellant
v.
ROBERT BRIAN BULLOCH, M.D. Defendant-Appellee

         Appealed from the Fourth Judicial District Court for the Parish of Ouachita, Louisiana Trial Court No. 2013-2820 Honorable Wilson Rambo, Judge

          DONALD L. KNEIPP Counsel for Appellant

          ROBERT S. TEW Counsel for Appellee

          Before MOORE, GARRETT and CARAWAY (ad hoc), JJ.

          MOORE, J.

         The 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.

         FACTS

         Lydia 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.

         The 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.

         DISCUSSION

         By her 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.

         Lydia 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.

         A panel 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 So.2d 149.

         To 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.[1] Therefore, she maintains that the trial court committed legal error by failing to follow the statute and jurisprudence, and, accordingly, the award should be reversed.

         Our 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.

         At the 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.

         Subsequently, 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.

         Accordingly, 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.

         At 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.

         Our 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.

         We find 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).

         We find no error in the trial court's award of fair rental value for the former matrimonial domicile to ...


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