MACK BUDDY MAXWELL, JR. Plaintiff-Appellant
BROOKE PAULINE BENNETT MAXWELL Defendant-Appellee
from the Twenty-Sixth Judicial District Court for the Parish
of Bossier, Louisiana Lower Court Case No. 136, 588-F,
Honorable A. Parker Self, Jr., Judge.
RICHARD SNELL Counsel for Appellant.
D. MILLER Counsel for Appellee.
WILLIAMS, MOORE, and PITMAN, JJ.
Mack Buddy Maxwell, Jr., appeals the trial court's
judgment of partition in favor of Defendant-Appellee Brooke
Pauline Bennett Maxwell. For the following reasons, we
21, 2011, Mr. Maxwell filed a petition for divorce pursuant
to La. C.C. arts. 102 and 103.1(2). He stated that he and
Mrs. Maxwell married on October 14, 2001, and separated on
June 14, 2011. On March 16, 2012, the trial court filed a
judgment retroactively terminating the Maxwells'
community of acquets and gains to July 21, 2011. On May 10,
2012, a judgment of divorce was granted. On February 27,
2013, Mrs. Maxwell filed a petition to partition community
on the partition began on July 20, 2015. The parties
introduced into evidence a joint detailed descriptive list.
They stipulated as to the value of the six pieces of
immovable property and established the value and ownership of
trial continued on October 28, 2015. The parties discussed
the Ouachita Independent Bank Money Market Checking Account
#3550 (the "OIB Account"). Mr. Maxwell argued that
this account, which contained $15, 020.29, was his separate
property. He testified that he opened the OIB Account in his
name in September 2010 with a $10, 000 deposit. He stated
that the deposit came from a retirement account he closed,
and he noted that he had the retirement account prior to his
marriage. He explained that he first deposited these funds
into a joint account because he did not have a separate
account and then he wrote a check from the joint account to
open the OIB Account. Mrs. Maxwell testified that Mr. Maxwell
had the retirement account prior to their marriage and that
it was "his separate stuff." The trial court noted
that the funds to open the OIB Account were channeled through
a joint account, which is akin to commingling. It stated that
Mr. Maxwell did not overcome the presumption that property in
the possession of a spouse during the community property
regime is community property and determined that the OIB
Account is community property.
parties then discussed the mortgage debt on their home
located at 1919 Landau Lane in Bossier City (the "Landau
property"). Mr. Maxwell testified that he purchased the
Landau property in July 2001, several months before his
October 2001 marriage to Mrs. Maxwell. He stated that the
original mortgage (i.e., the "Chase Mortgage") was
for approximately $139, 000, and then he refinanced it in
2002. He stated that, after 2002, Mrs. Maxwell never assumed
the debt with him on the Chase Mortgage, noting that she did
not refinance the mortgage with him, that she was not added
as a borrower on the mortgage and that she "had to sign
off on it as saying it was separate property." He
further stated that he was not asking the trial court to
declare the Chase Mortgage a community debt, but noted that
Mrs. Maxwell is on a second mortgage on the Landau property.
Maxwell further testified that, prior to his marriage to Mrs.
Maxwell, he was in the mortgage business and also purchased
and sold real estate. He stated that he used a line of credit
with Regions Bank (the "Regions Debt") to purchase
real estate and continued to use his separate line of credit
after the marriage because Mrs. Maxwell had poor credit and
could not qualify for any type of mortgage. He explained that
he purchased properties on his line of credit in his name and
then refinanced them and added Mrs. Maxwell to the title so
she was a joint owner, but he was responsible for the
mortgage. He stated that they did this for three or four
property purchases until Mrs. Maxwell's credit improved.
In December 2006, they opened a joint line of credit with OIB
to purchase homes (the "OIB Line"), and the Landau
property was collateralized on the OIB Line. He noted that
Mrs. Maxwell worked in the mortgage and real estate business
with him. They purchased 13 properties during the marriage,
and the income from the sales of the properties was put into
a joint Certificate of Deposit (the "CD"). In
September 2004, Mr. Maxwell entered into an agreement with
Mrs. Maxwell to donate to her a one-half interest in the
equity of the Landau property. He testified that, in the
summer of 2009, he developed liver failure and was not
expected to survive. He noted that Mrs. Maxwell drew on the
OIB Line to keep their businesses going. During this time, he
donated additional property to Mrs. Maxwell (the "2009
donation"). He contended that this asset donation was
subject to the debts associated with the property and read
the following from the 2009 donation, which stated: "The
property donated herein shall be subject to any debt on any
outstanding mortgages and liens." He noted that some of
the property was used as collateral on debts, including the
Regions Debt. He stated that Mrs. Maxwell was fully aware of
the debt that existed because she worked with him in the real
estate business. He testified that he received a liver
transplant, and then Mrs. Maxwell donated back to him a
one-half interest in some properties and a full interest in
other properties. He further testified that, on January 3,
2011, he made a draw on the OIB Line for $209, 000, which he
used to pay off his Regions Debt. He noted that, prior to
this transfer, he and Mrs. Maxwell owed approximately $23,
000 on the OIB Line. The next month OIB redeemed the CD to
pay down the OIB Line balance.
parties then discussed the expenses associated with rental
income. Counsel for Mr. Maxwell noted that they had
previously established the amount of the income, but had not
yet presented evidence as to the expenses associated with the
rental property. Counsel for Mrs. Maxwell contended that such
evidence was not timely produced and that it consisted of
handwritten ledgers, but no receipts for expenses or proof of
payments. The trial court allowed Mr. Maxwell to submit
additional documents ("Exhibit M-13"), and Mrs.
parties also discussed Mr. Maxwell's premarital debt and
Mrs. Maxwell's corresponding reimbursement claim. Mrs.
Maxwell's counsel contended that this reimbursement claim
hinged on the trial court's ruling regarding the
classification of the Chase Mortgage. Counsel noted that, if
it is classified as Mr. Maxwell's separate debt, Mrs.
Maxwell may be precluded from receiving the reimbursement
claim because she lived in the Landau property with Mr.
Maxwell. Counsel for Mr. Maxwell argued that, although the
debt began as a separate debt, it evolved into a community
December 11, 2015, the trial court filed its ruling. It
admitted into evidence Exhibit M-13 for the purpose of
determining the credit owed to Mr. Maxwell for the expenses
used for the preservation of community assets. It found that
the Chase Mortgage is a separate debt and obligation of Mr.
Maxwell. Regarding the OIB Line, it found that the evidence
demonstrated the existence of a premarital debt and
post-marital separate debt incurred by Mr. Maxwell and that
certain funds were utilized to satisfy these obligations.
Accordingly, it awarded reimbursement to Mrs. Maxwell for her
half of the community funds utilized to satisfy the separate
obligations of Mr. Maxwell.
March 17, 2016, arguments were held for the purpose of
allocating six pieces of immovable property and one mortgage
debt so that equalization and reimbursement could be
calculated and a written judgment prepared. On April 20,
2016, the trial court filed a ruling in which it allocated
the six pieces of immovable property-assigning three to each
party. It also determined the equalization payment owed and
the reimbursements owed.
16, 2016, the trial court filed a judgment to partition
community property. Relevant to this appeal, the judgment
stated that Exhibit M-13 was admitted as to give credit to
Mr. Maxwell for payment of tax, insurance and repairs
directly related to a community asset; that the Chase
Mortgage was the separate debt of Mr. Maxwell; and that the
OIB Line was the separate debt of Mr. Maxwell.
16, 2016, Mr. Maxwell filed a motion for new trial. Following
a hearing, the trial court ...