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Lepine v. Lepine

Court of Appeals of Louisiana, Fifth Circuit

March 14, 2018

MINDY SIMON LEPINE
v.
TROY JOSEPH LEPINE

          ON APPEAL FROM THE TWENTY-FOURTH JUDICIAL DISTRICT COURT PARISH OF JEFFERSON, STATE OF LOUISIANA NO. 753-766, DIVISION "O" HONORABLE DANYELLE M. TAYLOR, JUDGE PRESIDING

          COUNSEL FOR PLAINTIFF/APPELLEE, MINDY SIMON LEPINE Jennifer C. deBlanc

          COUNSEL FOR DEFENDANT/APPELLANT, TROY JOSEPH LEPINE Blaine M. Hebert Loan H. Do

          Panel composed of Judges Susan M. Chehardy, Marc E. Johnson, and Marion F. Edwards, Judge Pro Tempore

          EDWARDS, JUDGE PRO TEMPORE, J.

         Appellant, Troy Lepine ("Troy"), appeals an adverse judgment rendered by the trial court on July 25, 2017, partitioning co-owned property in full ownership to Appellee, Mindy Lepine ("Mindy"), and granting Mindy the right to refinance the property solely in her own name. For the following reasons assigned, we affirm the trial court's judgment.

         FACTUAL BACKGROUND AND PROCEDURAL HISTORY

         Troy and Mindy Lepine were co-owners of immovable property located at 2746 Bayou Lours Court, Marrero, Louisiana, having purchased the property together on June 27, 2003, prior to their marriage on September 30, 2003. In September 2015, Mindy filed a petition for divorce. By judgment dated November 19, 2015, Mindy was granted exclusive use and occupancy of the family home, and both parties were ordered to pay one-half of the monthly mortgage obligation. Troy failed to timely pay his owed portion of the mortgage on several occasions; namely, amounts due for June and December 2016.

         On June 25, 2017, Mindy filed a rule to show cause why Troy should not be held in contempt for failing to timely pay his portion of the mortgage obligation and why the home should not be made subject of a partial partition of the community in order that one party could assume the home and its mortgage. A hearing was set for July 12, 2017, and was continued to July 21, 2017.

         After pre-qualifying to refinance the home, Mindy offered to do so in her namely only, thereby assuming the entirety of the liability and reimbursing Troy for his share of the equity in the home. Troy refused Mindy's offer. Given Troy's failure to make timely mortgage payments in the past, and his unstable employment situation creating the possibility that he may be unable to make timely payments in the future, Mindy feared that the home was in danger of foreclosure and her ability to refinance in jeopardy. Mindy lives in the home with the couple's two minor children, one of whom has special needs. The children attend public schools in the local school district where the home is situated.

         On July 12, 2017, pursuant to the provisions of La. C.C. art. 807, Mindy filed a petition to partition the co-owned property, stating that she had qualified to refinance the property and that the refinance closing date was scheduled for the first week of August. The record reflects that counsel for Mindy served a certified copy of the petition to partition upon Lila Samuel, Troy's counsel of record, via FedEx Priority Overnight Mail, which was received and accepted on July 17, 2017. By agreement between counsel of record for the respective parties at that time, the partition of the co-owned property was set for trial on July 21, 2017, because other pending motions in the case were already set for hearing that same day.

         After receiving the petition to partition and agreeing to the matter being tried on July 21, and after having personally met with Troy, Lila Samuel filed a motion to withdraw as his attorney of record. Contained in the motion to withdraw, filed on July 18, 2017, was notification to the trial court that there were matters set for hearing in the case for July 21, 2017, which matters expressly included the petition to partition the co-owned property. The record reflects that the motion to withdraw was granted the same day it was filed. Troy retained new counsel on the evening of July 18, 2017. On July 20, 2017, Troy filed a motion to continue the matters set for hearing on the following day on the basis that his newly retained counsel needed additional time to prepare a proper defense.[1]

         On the morning of July 21, 2017, prior to hearing the partition matter, the trial court heard argument from counsel regarding Troy's motion to continue. After denying the motion to continue the partition proceeding, the court proceeded with the trial to partition the co-owned property.[2] The trial court heard testimony from both parties, received evidence, and heard argument from counsel for both parties. At no time during the trial did counsel for Troy object to the use of summary proceedings to resolve the matter or object as to the sufficiency of citation or service of process of the petition to partition. At the close of the hearing, the trial judge ordered that the co-owned property be partitioned to Mindy Lepine in full and that she be allowed to refinance the property solely in her name. Additionally, the trial judge reserved to both parties the right to make any claims for reimbursement, offset, equalizing payments, or any other claims either party may have to assert related to the co-owned or community property.

         The trial judge's ruling was reduced to judgment and signed on July 25, 2017. This timely appeal followed.

         ISSUES PRESENTED FOR REVIEW

         Troy presents the following three issues for review on appeal: (1) whether the trial court erred in allowing Mindy's petition to partition co-owned property to proceed via summary proceeding rather than ordinary proceeding; (2) whether the July 25, 2017 judgment is an absolute nullity since the petition to partition was tried without citation, service, or an answer or other responsive pleading having been filed; and, (3) whether the ...


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