APPEAL FROM THE TWENTY-FOURTH JUDICIAL DISTRICT COURT PARISH
OF JEFFERSON, STATE OF LOUISIANA NO. 688-430, DIVISION
"G" HONORABLE E. ADRIAN ADAMS, JUDGE PRESIDING
COUNSEL FOR PLAINTIFF/APPELLANT, CALLEY CLARK MCLAUGHLIN
Richard T. Gallagher, Jr.
COUNSEL FOR DEFENDANT/APPELLEE, JOHN WILLIAMS MCLAUGHLIN
Roland A. Ditta
composed of Judges Susan M. Chehardy, Stephen J. Windhorst,
and Hans J. Liljeberg
J. LILJEBERG JUDGE
Calley Clark McLaughlin, appeals the trial court's
judgment dismissing her Petition for Partition of Community
Property with prejudice. For the reasons set forth more fully
below, we affirm the trial court's judgment in part,
reverse in part and remand to complete the community
AND PROCEDURAL BACKGROUND
case involves the division of community property between a
formerly married couple, Calley McLaughlin and John Williams
McLaughlin. The parties married on March 15, 2008. Ms.
McLaughlin filed a petition for divorce on June 7, 2010, and
a judgment of divorce was granted on August 9, 2012. Ms.
McLaughlin filed a Petition for Partition of Community
Property on June 10, 2013. She submitted discovery to
defendant requesting, in part, bank statements. When Mr.
McLaughlin failed to answer, Ms. McLaughlin filed a motion to
compel on April 28, 2014. On June 10, 2014, the parties
entered into a consent judgment providing for Mr. McLaughlin
to obtain bank statements from the start of the marriage. The
parties agreed to split the costs to obtain the records.
October 15, 2014, Ms. McLaughlin filed a motion to set
deadlines to file sworn detailed descriptive lists. On
October 29, 2014, she also filed a rule for contempt after
Mr. McLaughlin failed to obtain the bank statements as
agreed. On December 11, 2014, the parties agreed to allow him
an additional 45 days to obtain the statements. However, Mr.
McLaughlin never complied with the trial court's order.
January 21, 2015, the parties entered into a consent
agreement providing for each to file sworn descriptive lists
within 45 days and traversals within 60 days of the filing of
the last descriptive list. Ms. McLaughlin filed a sworn
descriptive list of assets on March 31, 2015. Mr. McLaughlin
did not file a list of assets and did not file a traversal of
Ms. McLaughlin's descriptive list. Ms. McLaughlin did not
seek an order to have her list deemed a judicial
determination of the community assets.
parties agreed to set the community property partition for
trial on April 3, 2017. At trial, Ms. McLaughlin argued the
parties purchased several community assets during the
marriage which must be partitioned, and further sought
reimbursement for separate and community funds expended to
improve Mr. McLaughlin's separate residence. The trial
was brief and the parties were the only witnesses to testify.
No exhibits were introduced into evidence and Mr. McLaughlin
did not call any witnesses.
trial, the court allowed the parties time to submit
post-trial briefs and took the matter under advisement. On
May 22, 2017, the trial court entered a judgment dismissing
Ms. McLaughlin's claims against Mr. McLaughlin without
prejudice. Though Mr. McLaughlin agreed during his testimony
that the parties purchased community assets during the
marriage, the trial court did not divide or allocate any of
these assets between the parties. On June 5, 2017, Mr.
McLaughlin filed a timely motion for new trial asking the
trial court to dismiss the matter with prejudice, rather than
without prejudice. On August 14, 2017, the trial court
granted the motion for new trial and set the matter on its
docket for September 1, 2017. On that date, the trial court
amended its prior judgment to dismiss Ms. McLaughlin's
claims with prejudice. On September 1, 2017, Ms. McLaughlin
filed a timely motion and order for appeal, which the trial
court granted the same day.
first assignment of error, Ms. McLaughlin argues the trial
court erred by dismissing her Petition for Partition of
Community Property with prejudice instead of partitioning the
community property. She argues that she filed a sworn
descriptive list and introduced evidence establishing that
the parties acquired community assets during their brief
marriage. She also contends that she introduced evidence
regarding the value of these assets which Mr. McLaughlin
failed to contradict.
provisions of La. R.S. 9:2801 set forth the procedure by
which a trial court is to partition community property when
the spouses are unable to agree on the division of assets and
liabilities. Vedros v. Vedros, 16-735 (La.App. 5
Cir. 10/25/17), 229 So.3d 677, 680, writ denied,
17-2119 (La. 2/23/18), 2018 La. LEXIS 504 and 18-004 (La.
2/23/18), 2018 La. LEXIS 519. The procedures to partition
community property set forth in La. R.S. 9:2801 are
mandatory. La. C.C. art. 2369.8; Tanana v. Tanana,
12-1013 (La.App. 1 Cir. 5/31/13), 140 So.3d 738,
R.S. 9:2801(A)(1)(a) provides that within 45 days of service
of a motion by either party, each party shall file a sworn
detailed descriptive list of all community property, the fair
market value and location of each asset, and all community
liabilities. Within 60 days of the date of service of the
last-filed detailed descriptive list, each party shall either
traverse or concur in the inclusion or exclusion of each
asset and liability and the valuations contained in the
detailed descriptive list of the other party. La. R.S.
9:2801(A)(2). At a trial of the traverses, the court must
determine the community assets and liabilities, and the
valuation of assets is determined at the trial on the merits.
Id. However, as in this case, the court may
determine all issues, including those raised in the
traverses, at one hearing. Id.
determining the community assets, La. R.S. 9:2801(A)(4)
requires the trial court to value and partition these assets
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
(e) In the event that the allocation of an asset, in whole or
in part, would be inequitable to a party, the court may order
the parties to draw lots for the asset or may order the
private sale of the asset on such terms and conditions as the
court deems proper, including the minimum price, the terms of
sale, the execution of realtor listing agreements, and the
period of time during which the asset shall be offered for
(f) Only in the event that an asset cannot be allocated to a
party, assigned by the drawing of lots, or sold at private
sale, shall the court order a partition thereof by
licitation. The court may fix the minimum bids and other
terms and conditions upon which the property is offered at
public sale. In the event of a partition by licitation, the
court shall expressly state the reasons ...