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Vedros v. Vedros

Court of Appeals of Louisiana, Fifth Circuit

October 25, 2017




          COUNSEL FOR DEFENDANT/APPELLEE, KELLI SOILEAU VEDROS Wiley J. Beevers Shayna Beevers Morvant Steven M. Mauterer

          Panel composed of Judges Susan M. Chehardy, Jude G. Gravois, Robert A. Chaisson, Robert M. Murphy, and Hans J. Liljeberg


         This is 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 part.


         Kelli 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.

         The 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.


         La. 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 net value.
(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 security.

         It is 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.

         The 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 follows:

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 citations omitted.)

         The 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.

         Denial of Reimbursement Claims

         In his 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 undisputed.

         La. 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.

         Whether 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 566, 573.

         Lot 14, Fort Leon, Belle Chasse

         This 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.

         At 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.

         Mr. 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.[1]

         Despite 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."

         In 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[2] 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.

         Even 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.

         In her 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.

         Whenever 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.

         In 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.

         Likewise, 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 ...

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