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Smith v. Smith

Court of Appeals of Louisiana, Second Circuit

January 10, 2018

PAMELA S. SMITH Plaintiff-Appellee
JAMES H. SMITH Defendant-Appellant

         Appealed from the Twenty-Sixth Judicial District Court for the Parish of Bossier, Louisiana Trial Court No. 139801 Honorable Parker Self, Judge

          CLARENCE MCDONALD LELAND, LTD. Clarence McDonald Leland Counsel for Appellant.

          FLOWERS & LONG, LLP Kelly L. Long Counsel for Appellee.

          Before MOORE, GARRETT, and COX, JJ.

          GARRETT, J.

         In this community property partition case, the ex-husband appeals from a judgment which was amended by the trial court to increase the amount he owed his ex-wife by more than $11, 000. He claims that the amendment was substantive and thus prohibited under La. C.C.P. art. 1951. We affirm the trial court's amended judgment.


         Pamela S. Smith and James H. Smith were married in 1993 and separated in August 2011. For most of the marriage, James served in the United States Air Force. On August 23, 2012, Pamela filed for divorce. In her petition, she requested a partition of the community property, pursuant to La. R.S. 9:2801. In a consent judgment signed September 20, 2012, the divorce was granted. The community was terminated retroactively to August 23, 2012. Joint custody of their two minor children was granted; Pamela was designated as the domiciliary parent and James was ordered to pay monthly child support of $500. Pamela was also granted exclusive use of the matrimonial domicile in Haughton. The judgment further provided that James would waive any interest or claim he had to any profit from the sale of the home, as well as any rental claim. Pamela waived any reimbursement claim she had for her payment of any encumbrances on the house.

         At some point after the divorce was granted, James retired from the Air Force. He began receiving all of the military retirement benefits, despite the fact that a portion of the benefits clearly belonged to Pamela. As explained below, James continued to receive 100% of the retirement benefits for 39 months.

         On March 31, 2014, Pamela filed a petition for judicial partition of community property because she and James were unable to reach an amicable community property partition and settlement of all claims arising from the matrimonial regime. In her detailed descriptive list ("DDL"), she listed only two things: as an asset, retirement and pension pay from the United States Armed Forces; and as a reimbursement claim, "47% of any and all retirement and pension payments" James had received since June 1, 2013.

         On December 18, 2014, James filed a rather unintelligible and quite lengthy pleading.[1] He alleged that Pamela failed to list all community debts and assets and that she was attempting "piecemeal litigation" with the two items she did list. The lesion claim arose from the provision in the consent decree pertaining to the house and a subsequent quitclaim deed filed by Pamela in the Bossier Parish public records. James also alleged that he was reserving the right to assert a nullification action due to defects of form of the quitclaim deed. He further demanded an accounting from Pamela for all assets under her control. In the event Pamela was successful in obtaining a percentage of his military pension, James demanded recalculation of child support. James also included his initial DDL of community property.[2] The trial court ordered Pamela to answer James's request for discovery associated with his demand for accounting. James did not request that a hearing be set on the exception he filed.

         At Pamela's request, the exception was set for hearing on April 20, 2015. She also filed her own amended DDL, her traversal of James's initial DDL, and a memorandum in opposition to his pleading of December 18, 2014. In her traversal, she again claimed her entitlement to her share of the military retirement benefits and the payments being received by James. The exception was submitted on briefs. On May 4, 2015, the trial court issued a written opinion/order. It found that Pamela's filing of the traversal rendered the exception moot. It also set deadlines for discovery. Subsequent mediation was unsuccessful, and Pamela requested that the matter be set for trial.

         The parties subsequently entered into an interim order, which was signed in open court on April 21, 2016, that directed that Pamela would receive 47% of James's military retirement benefits immediately upon the Military Retired Pay Division Order being executed and accepted by the Defense Finance and Accounting Services ("DFAS"). Her claim for her portion of the retirement benefits received by James from August 1, 2013, through her first payment from DFAS was expressly reserved to be determined at trial after assessing other assets and reimbursement claims that James might have. If James was found to owe Pamela any retroactive retirement pay, the amount would be based on his after-tax pay. The order further decreed that Pamela would not be entitled to any of James's funds which were determined to be combat-related disability. The trial was set for October 31, 2016.

         The Military Retired Pay Division Order was also signed in open court on April 21, 2016. It stated that Pamela was married to James for 6901 of the 7318 days he served in the Air Force, a period in excess of ten continuous years and representing 94.3% of the total time in duty. It then awarded her 47% of James's disposable military retirement pay, effective August 1, 2013. ...

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