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Ho v. Nee

Court of Appeals of Louisiana, Fifth Circuit

May 30, 2018

MAN CHING HO
v.
JIMMY W. NEE

          ON APPEAL FROM THE TWENTY-FOURTH JUDICIAL DISTRICT COURT PARISH OF JEFFERSON, STATE OF LOUISIANA NO. 509-555, DIVISION "N" HONORABLE STEPHEN D. ENRIGHT, JR., JUDGE PRESIDING

          COUNSEL FOR PLAINTIFF/APPELLEE, MAN CHING HO Andrew T. Lilly

          COUNSEL FOR DEFENDANT/APPELLANT, JIMMY W. NEE In Proper Person

          Panel composed of Judges Jude G. Gravois, Stephen J. Windhorst, and Marion F. Edwards, Judge Pro Tempore

          STEPHEN J. WINDHORST JUDGE

         Appellant, Jimmy Nee, appeals the trial court's August 26, 2015 judgments signed February 24, 2016 and June 3, 2016. For the reasons stated herein, the August 26, 2015 judgment signed February 24, 2016 is affirmed in part, reversed in part, and vacated in part. We further vacate the August 26, 2015 judgment signed June 3, 2016. This matter is remanded for further proceedings.

         Facts and Procedural History

         Mr. Nee and appellee, Man Ching Ho, were married in 1980 and physically separated on May 9, 1997. One child was born of the marriage in 1981. Ms. Ho filed a petition for divorce on May 27, 1997. Mr. Nee filed an answer and reconventional demand.[1] The trial court granted a judgment of divorce in favor of Ms. Ho on August 23, 1999.

         On March 23, 2012, Mr. Nee filed a petition for partition of community property and the parties filed their respective sworn detailed descriptive lists.[2] Mr. Nee filed an objection to Ms. Ho's sworn detailed descriptive list regarding whether property was separate or community, the value of property, and items not listed.

         After numerous continuances, the parties met with the domestic hearing officer on September 19, 2014 regarding the partition of community property and Mr. Nee's motion to set this case for trial filed August 6, 2014. At the hearing, the domestic hearing officer recommended that 1) Ms. Ho was entitled to receive reimbursement for ½ of all the mortgage payments which she made on or after May 27, 1997, on the property at 2721 David Dr., Metairie, Louisiana; 2) the property at 3008 19th Street, Metairie, Louisiana was the separate property of Ms. Ho because Mr. Nee signed a "Double Declaration" at the time of the act of sale dated January 31, 1991, declaring the same to be the separate property of Ms. Ho; and 3) the property at 3920 Belleview Street, Metairie, Louisiana was the separate property of Ms. Ho because Mr. Nee signed a "Double Declaration" at the time of the act of sale dated April 24, 1989, declaring the same to be the separate property of Ms. Ho. The parties stipulated that this matter would require an evidentiary hearing with an interpreter present and the matter was set for trial. Mr. Nee did not file an objection to the domestic hearing officer's September 19, 2014 recommendations.

         On February 3, 2015, Mr. Nee filed a petition to revoke authentic act and a pleading entitled "Clauses for Inclusion in Petition for Injunction against Alienation or Encumbrance of Community Property." In the petition to revoke, Mr. Nee contended that the acts he executed on April 24, 1989 and January 31, 1991 were invalid because he did not have an interpreter present, and the alleged witnesses and notary were not present when he signed the document. In his other pleading, he sought a temporary restraining order (TRO) enjoining Ms. Ho from alienating, encumbering, donating, wasting, concealing, transferring, or destroying any community property, and a rule to show cause why a preliminary and permanent injunction should not be granted. The TRO was granted and the matter was set February 10, 2015 for a hearing on Mr. Nee's pleading entitled "Clauses for Inclusion in Petition for Injunction against Alienation or Encumbrance of Community Property."

         The parties again appeared before the domestic hearing officer on February 10, 2015 regarding the partition of community property. Because the translator was not present, the parties agreed that the partition of community property be continued until March 12, 2015. The parties also agreed that Multi-Language Solutions of New Orleans be appointed translator in these proceedings, and the cost to be paid by the community.

         On March 12, 2015, the parties appeared once again before the domestic hearing officer regarding the partition of community property and "injunctions."[3]Ling Shu was present as the interpreter for Mr. Nee. The parties stipulated that the immovable property located at 2721 David Drive, Metairie, was community property, and the domestic hearing officer stated that his recommendations were "contained and expressed in red in the attached exhibit A." Mr. Nee's and Ms. Ho's sworn detailed descriptive lists were attached as Exhibit "A." On Mr. Nee's sworn detailed descriptive list, the domestic hearing officer recommended, and the parties agreed, that the following items were community property: 1) the family home located at 2721 David Drive; 2) the 1993 Ford van; and 3) the 1996 Ford van. The domestic hearing officer also recommended that "Bonnie Nee's Personal Checking Account" was "not a community asset." The domestic hearing officer further recommended that the following assets and claims required a trial on the merits: 1) bank accounts, "existing on May 27, 1997, " specifically, First National Bank of Commerce account #2022-66796, First National Bank of Commerce account #1104-61619, First National Bank account #3009107774, and First National Bank of Commerce accounts #6013-31087 and #2022-66796; 2) the retail merchandise and jewelry stored at 3008 19th Street; and 3) "all money that Man Ching Ho sent out of the United States in a 3 year period." In a handwritten note on Exhibit "A" (Ms. Ho's Sworn Detailed Descriptive List), the domestic hearing officer recommended that payment of the mortgage for the family home located at 2721 David Drive was "to be demonstrated at trial." We note that the domestic hearing officer did not make a recommendation as to whether the family business, MC Trading, or the miscellaneous household items were separate or community property, although they were also listed on Mr. Nee's Sworn Detailed Descriptive List.

         On March 19, 2015, Mr. Nee filed an objection to the domestic hearing officer's recommendation of March 12, 2015, [4] relative to: "a prior stipulation of two (2) homes located at: 3920 Bellview [sic] St., Metairie, La; and 3008 19th Street, Metairie, La. Both homes are community property, being that funds from the community regimine [sic] purchased both houses." [5]

         On March 20, 2015, Mr. Nee filed a "Motion to Refix Hearing." Mr. Nee contended that a hearing on the partition of community property and injunction was set for March 12, 2015; however, the trial court did not address his petition to revoke and his pleading entitled "Clauses for Inclusion in Petition for Injunction against Alienation or Encumbrance of Community Property." The trial court granted Mr. Nee's motion and set his petition to revoke and his pleading entitled "Clauses for Inclusion in Petition for Injunction against Alienation or Encumbrance of Community Property" for March 31, 2015. On March 31, 2015, the parties did not appear and all matters were continued without date.[6]

         On June 26, 2015, Ms. Ho filed a motion to dismiss Mr. Nee's objection and an opposition to his objection. Ms. Ho argued that Mr. Nee's objection, filed on March 19, 2015, was untimely.

         Mr. Nee's petition to partition community property, objection to domestic hearing officer's March 12, 2015 recommendation, and Mrs. Ho's claim for reimbursement were heard by the trial court on August 26, 2015. The trial court's August 26, 2015 judgment signed February 24, 2016, denied Mr. Nee's objection and maintained the domestic hearing officer's March 12, 2015 recommendations. The judgment decreed that Ms. Ho owned 100% of the former community home located 2721 David Drive, the former community 1993 Ford van, and the former community 1996 Ford van. The trial court found and decreed that Ms. Ho owed Mr. Nee $31, 634.50 for his interest in the former community home and for the two vans. The trial court further found and decreed that Mr. Nee owed Ms. Ho a total of $78, 918.27 for her reimbursement claims, and therefore, Mr. Nee owed Ms. Ho an equalizing payment of $47, 283.77.

         Mr. Nee filed a writ of mandamus seeking this Court to order the trial court to rule on his petition to revoke authentic act and his pleading entitled, "Clauses for Inclusion in Petition for Injunction against Alienation or Encumbrance of Community Property, " which he filed in the trial court on February 3, 2015. This Court granted Mr. Nee's writ of mandamus and ordered the trial court to rule upon his pleadings, if it had not already ruled. Jimmy Nee v. 24th Judicial District Court, 16-206 (La.App. 5 Cir. 05/13/16) (unpublished writ disposition). Pursuant to this Court's order, the trial court entered another judgment with written reasons on June 3, 2016, which decreed that Mr. Nee's petition to revoke authentic act and his pleading captioned, "Clauses for Inclusion in Petition for Injunction against Alienation or Encumbrance of Community Property" had been ruled upon and denied at the August 26, 2015 hearing.

         Mr. Nee filed this timely "Petition for Appeal" regarding the trial court's August 26, 2015 judgments signed ...


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