APPEAL FROM THE TWENTY-FOURTH JUDICIAL DISTRICT COURT PARISH
OF JEFFERSON, STATE OF LOUISIANA NO. 684-047, DIVISION
"P" HONORABLE LEE V. FAULKNER, JR., JUDGE PRESIDING
COUNSEL FOR PLAINTIFF/APPELLANT, DAVID JOHN VEDROS Shaye R.
COUNSEL FOR DEFENDANT/APPELLEE, KELLI SOILEAU VEDROS Wiley J.
Beevers Shayna Beevers Morvant Steven M. Mauterer
composed of Judges Susan M. Chehardy, Jude G. Gravois, Robert
A. Chaisson, Robert M. Murphy, and Hans J. Liljeberg
A. CHAISSON JUDGE.
an appeal from a trial court judgment partitioning the
community of acquets and gains that formerly existed between
Kelli Soileau Vedros and David John Vedros. For the reasons
that follow, we reverse in part, affirm in part and amend in
Soileau Vedros and David John Vedros were married on March 4,
2002. Two children were born of this marriage, a daughter in
2002, and a son in 2004. On February 26, 2010, Mr. Vedros
filed a petition for divorce, and on April 3, 2012, the
parties were granted a divorce. Each party filed a petition
to partition the community property in accordance with the
provisions of La. R.S. 9:2801. Ms. Vedros filed hers on
August 1, 2011, and Mr. Vedros filed his on May 30, 2014. The
parties also filed sworn descriptive lists and traversals to
the descriptive lists.
trial on the partition of the community property was
conducted over the course of five days in February, March,
and April of 2016. At the conclusion of the proceedings, the
trial court took the matter under advisement. On July 22,
2016, the trial court issued a written judgment, which valued
and granted ownership of certain assets to each party, denied
various reimbursement claims, and ordered Mr. Vedros to make
an equalizing payment to Ms. Vedros in the amount of $151,
750.09. From various aspects of the partition judgment, Mr.
Vedros now appeals.
R.S. 9:2801 provides the procedure for the judicial partition
of community property and settlement of claims after
dissolution of the marriage. The pertinent section of La.
R.S. 9:2801(A) provides for the allocation of assets and
liabilities as follows:
(4) The court shall then partition the community in
accordance with the following rules:
(a) The court shall value the assets as of the time of trial
on the merits, determine the liabilities, and adjudicate the
claims of the parties.
(b) The court shall divide the community assets and
liabilities so that each spouse receives property of an equal
(c) The court shall allocate or assign to the respective
spouses all of the community assets and liabilities. In
allocating assets and liabilities, the court may divide a
particular asset or liability equally or unequally or may
allocate it in its entirety to one of the spouses. The court
shall consider the nature and source of the asset or
liability, the economic condition of each spouse, and any
other circumstances that the court deems relevant. As between
the spouses, the allocation of a liability to a spouse
obligates that spouse to extinguish that liability. The
allocation in no way affects the rights of creditors.
(d) In the event that the allocation of assets and
liabilities results in an unequal net distribution, the court
shall order the payment of an equalizing sum of money, either
cash or deferred, secured or unsecured, upon such terms and
conditions as the court shall direct. The court may order the
execution of notes, mortgages, or other documents as it deems
necessary, or may impose a mortgage or lien on either
community or separate property, movable or immovable, as
well settled that a trial court has broad discretion in
adjudicating issues raised by divorce and partition of the
community regime. The trial judge is afforded a great deal of
latitude in arriving at an equitable distribution of the
assets between the spouses. The trial court's allocation
or assigning of assets and liabilities in the partition of
community property is reviewed under the abuse of discretion
standard. Goines v. Goines, 09-994 (La.App. 5 Cir.
3/9/11), 62 So.3d 193, 198, writ denied, 11-721 (La.
5/20/11), 63 So.3d 984.
Louisiana Supreme Court, in Snider v. La. Med. Mut. Ins.
Co., 14-1964 (La. 5/5/15), 169 So.3d 319, 323,
rehearing denied, 14-1964 (La. 6/30/15), 2015 La.
LEXIS 1501, set forth the well-established guidelines for
reviewing factual determinations of the trial court as
It is well settled that a court of appeal may not set aside a
trial court's or a jury's finding of fact in the
absence of "manifest error" or unless it is
"clearly wrong, " and where there is conflict in
the testimony, reasonable evaluations of credibility and
reasonable inferences of fact should not be disturbed upon
review, even though the appellate court may feel that its own
evaluations and inferences are as reasonable. This test
dictates that a reviewing court must do more than simply
review the record for some evidence that may controvert the
trial court ruling. Rather, it requires a review of the
entire record to determine whether manifest error has
occurred. Thus, the issue before the court of appeal is not
whether the trier of fact was right or wrong, but whether the
fact-finder's conclusion was a reasonable one. The
appellate court must not reweigh the evidence or substitute
its own factual findings because it would have decided the
case differently. Where the factfinder's determination is
based on its decision to credit the testimony of one of two
or more witnesses, that finding can virtually never be
manifestly erroneous. This rule applies equally to the
evaluation of expert testimony, including the evaluation and
resolution of conflicts in expert testimony. (Internal
trial court's findings based on determinations regarding
the credibility of witnesses are undoubtedly entitled to
great deference. However, where documents or objective
evidence so contradict the witness's story, or the story
itself is so internally inconsistent or implausible on its
face, that a reasonable fact finder would not credit the
witness's story, the court of appeal may well find
manifest error or clear wrongness even in a finding
purportedly based upon a credibility determination.
Rosell v. ESCO, 549 So.2d 840, 844-45 (La. 1989). In
light of these precepts, we will now address the challenged
aspects of the community property partition.
of Reimbursement Claims
first three assignments of error, Mr. Vedros complains that
the trial court erred in denying his claims for reimbursement
for community funds that were used to make mortgage payments
on three separate properties of Ms. Vedros. The separate
nature of these properties and the liabilities thereon are
C.C. art. 2364 governs the reimbursement claims at issue and
provides as follows:
If community property has been used during the existence of
the community property regime or former community property
has been used thereafter to satisfy a separate obligation of
a spouse, the other spouse is entitled to reimbursement for
one-half of the amount or value that the property had at the
time it was used.
a reimbursement claim is allowed is a finding of fact which
is reviewable under the manifest error standard. Katner
v. Katner, 09-974 (La.App. 4 Cir. 12/23/09), 28 So.3d
14, Fort Leon, Belle Chasse
vacant lot was purchased by Ms. Vedros prior to her marriage
to Mr. Vedros and is clearly her separate property. However,
Mr. Vedros maintains that community funds were used to pay
the mortgage on this property, and thus, he is entitled to
reimbursement for one-half of the community funds used to
make payments on this separate lot.
trial, Ms. Vedros testified that she bought the lot before
they were married, that the lot was subject to a mortgage,
and that some of the payments on the lot were made with
community funds. She initially approximated that less than
half of the payments on the lot were made with community
funds. During her examination, Ms. Vedros was presented with
numerous cancelled checks. She acknowledged that the checks
were written during her marriage to Mr. Vedros from their
joint checking account and that these checks were for
payments on her separate lot. During her testimony, she
verified that community funds were used to make the following
payments on the Fort Leon property: 2002 - one payment of
$483.00; 2003 - ten payments of $476.00; 2004 - twelve
payments of $476.00; 2005 - eight payments of $476.00 and one
payment of $500.00; 2006 - nine payments of $476.00 and one
payment of $500.00; 2007 - seven payments of $476.00, one
payment of $1, 500.00, and one payment of $927.71.
Vedros also testified at trial regarding the payments on this
property. He likewise identified the checks that were written
from the community account to make payments on the Fort Leon
lot. It is noted that the cancelled checks were proffered by
counsel for Mr. Vedros but not allowed into evidence because
of a discovery violation.
the uncontradicted testimony presented on this issue, the
trial court denied Mr. Vedros's claim for reimbursement
"for failure of exacting proof, " noting in its
reasons for judgment that "no documentary evidence was
introduced regarding any community funds used to pay on the
mortgage encumbering this property."
challenging this denial of reimbursement on appeal, Mr.
Vedros contends that the district court committed manifest
error in disregarding Ms. Vedros's admission under oath
as to the payments by the community of $25,
806.71 towards her separate obligation. He points
out that the law permits other types of evidence to be
considered other than just documentary evidence. We agree.
though the cancelled checks were not allowed into evidence,
Ms. Vedros testified as to the specific amounts paid by the
community on her separate lot. Given Ms. Vedros's
admission that community funds were used to make payments on
her lot and the uncontradicted testimony on this issue, we
find that the trial court was manifestly erroneous in denying
this particular claim for reimbursement by Mr. Vedros.
appellate brief, Ms. Vedros asserts that even assuming there
was evidence of payments from the community, Mr. Vedros's
claim should still be denied because he offered no proof to
distinguish the amounts paid on principal and interest. This
argument is based on her belief that Mr. Vedros is only
entitled to reimbursement for one-half of the principal
payments made from community funds.
mortgage payments are paid in connection with the marital
home which constitutes the separate property of one spouse,
the community is entitled to reimbursement for principal
only. Payments for interest, taxes, and insurance are
generally not considered as reimbursable expenses to the
community because the community has had the benefit of using
the house as the marital residence. Dillenkoffer v.
Dillenkoffer, 492 So.2d 71, 75 (La.App. 5th
Cir. 1986), writ denied, 494 So.2d 333 (La. 1986);
Bourgeois v. Bourgeois, 09-986 (La.App. 5 Cir.
3/23/10), 40 So.3d 150, 154. While this statement of law
relied upon by Ms. Vedros is accurate, it is not applicable
to the instant situation because the separate property at
issue herein was not used as a marital home and did not
benefit the community in any way.
Munson v. Munson, 00-348 (La.App. 3 Cir. 10/4/00),
772 So.2d 141, the Third Circuit found that the trial court
did not commit legal error by including mortgage interest in
its award to the ex-wife for her half of the community funds
used to pay the mortgage on her ex-husband's separate
property. In reaching this conclusion, the Third Circuit
looked to the actual wording of La. C.C. art. 2364, which
provides for reimbursement for one-half of the amount or
value that the property had at the time it was used, and
stressed, "Article 2364 clearly and
unambiguously provides for the actual value of the used
community property to serve as a restitution measure."
The Third Circuit acknowledged that under the jurisprudence,
the exclusion of interest would be warranted in situations
where the community receives benefits from the separate
property upon which the mortgage attaches. The appellate
court then noted that no such community benefit existed in
its case, and therefore, the inclusion of interest in the
trial court's award was warranted. In so ruling, the
court remarked: "… Mr. Munson's separate
property at issue did not benefit the community …. His
property neither generated any rent, to which the community
property would be entitled, nor was it used as the
Munson's family home." Id. at 146.
the separate property at issue did not benefit the community
and was not used as a marital residence, and therefore, Mr.
Vedros is entitled to one-half of the mortgage payments made
from the community funds for this separate property. In light
of this fact, Ms. Vedros's argument, that Mr.
Vedros's claim for reimbursement should be ...