PAMELA S. SMITH Plaintiff-Appellee
JAMES H. SMITH Defendant-Appellant
from the Twenty-Sixth Judicial District Court for the Parish
of Bossier, Louisiana Trial Court No. 139801 Honorable Parker
CLARENCE MCDONALD LELAND, LTD. Clarence McDonald Leland
Counsel for Appellant.
FLOWERS & LONG, LLP Kelly L. Long Counsel for Appellee.
MOORE, GARRETT, and COX, JJ.
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.
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.
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
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.
December 18, 2014, James filed a rather unintelligible and
quite lengthy pleading. 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. 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.
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.
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,
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. ...