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McLaughlin v. McLaughlin

Court of Appeals of Louisiana, Fifth Circuit

May 16, 2018

CALLEY CLARK MCLAUGHLIN
v.
JOHN WILLIAMS MCLAUGHLIN

          ON 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

          Panel composed of Judges Susan M. Chehardy, Stephen J. Windhorst, and Hans J. Liljeberg

          HANS J. LILJEBERG JUDGE

         Plaintiff/Appellant, 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 partition proceedings.

         FACTUAL AND PROCEDURAL BACKGROUND

         This 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.

         On 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.

         On 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.[1]

         The 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.[2]

         Following 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.[3] 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.

         DISCUSSION

         In her 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.

         The 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, 742.[4]

         La. 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.

         After 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 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.
(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 private sale.
(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 ...

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