Appeal from the Twenty-First Judicial District Court In and
for the Parish of Tangipahoa State of Louisiana No.
2010-0002845 The Honorable Jeffery T. Oglesbee, Judge
R. Dillon April Ford Jackson Hammond, LA Attorneys for
Plaintiff/Appellee Jeffrey Mikal Berthelot
E. Heck Barrios Denham Springs, LA Attorney for
Defendant/Appellant Heather Leigh Berthelot
BEFORE: HIGGINBOTHAM, HOLDRIDGE, AND PENZATO, JJ.
appeal arises from a trial court judgment partitioning the
community property formerly existing between Heather Leigh
Berthelot and Jeffrey Mikal Berthelot. For the reasons that
follow, we affirm in part and reverse in part the trial court
AND PROCEDURAL HISTORY
Leigh Berthelot and Jeffrey Mikal Berthelot were married on
July 10, 1999. On July 14, 2010, Jeffrey filed a petition for
divorce. The parties' divorce became final on January 23,
2012. However, the parties resumed cohabitating until October
2014 at a home in Autumn Run Subdivision (Autumn Run
Subdivision home) in Tangipahoa Parish. Heather filed a
petition for partition of community property on November 3,
2014. Heather also filed a detailed descriptive list
evidencing the parties' community assets, listing movable
and immovable properties and several reimbursement claims.
Particularly, the detailed descriptive list revealed that the
parties owned immovable property consisting of three tracts
of rental properties in Ponchatoula, Louisiana. Those rental
properties consisted of a mobile home on .5 acres located at
20296 Sisters Road, a mobile home located on 1.6 acres
located at 20302 Sisters Road, and a mobile home located on
.5 acres at 20308 Sisters Road. All three properties were subject
to one single mortgage. The tenant living at 20296 Sisters
Road had been behind on his rent for two years as of the time
April 17, 2015, the parties entered into a stipulated
judgment, granting Jeffrey use of the 2007 Ford F-250 Super
Duty King Ranch truck until the community property partition
and he had to provide monthly accounting of any sums received
and expenses paid associated with the community rentals by
the 15th of each month.
August 12, 2015, the parties submitted a joint detailed
descriptive list of all their community property to the trial
court. The joint detailed descriptive list revealed numerous
reimbursement claims Heather made against Jeffrey including:
(1) use of community funds from the sale of their previous
home in Weinberger Trace for the purchase of the Autumn Run
Subdivision home which became Jeffrey's separate
property; (2) use of the remaining community funds from the
sale of the Weinberger Trace home for the Autumn Run
Subdivision home; (3) use of Heather's separate funds for
the improvements to the Autumn Run Subdivision home; and (4)
profits from the rental properties received by Jeffrey after
July 14, 2010.
was held on November 3, 2016 on the parties' partition of
community property and reimbursement claims. Following
testimonial and documentary evidence presented, the matter
was taken under advisement. The trial court signed its
reasons for judgment on December 8, 2016. On January 31,
2017, the trial court signed a judgment, awarding Heather .5
acres and mobile home located on 20296 Sisters Road valued at
$45, 000.00 and .5 acres and mobile home located on 20308
Sisters Road valued at $62, 000.00. Jeffrey was awarded 1.6
acres and mobile home located at 20302 Sisters Road valued at
$65, 000.00. The trial court ordered that each party was
responsible for their proportionate share of the mortgage on
the immovable properties awarded, and the mortgage had to be
refinanced within 90 days from when the judgment was
rendered. The trial court further awarded Heather the
accounts receivable owed by the tenant at the 20296 Sisters
Road property in the amount of $3, 615.39. Jeffrey was
awarded the 2007 Ford F-250 Super Duty King Ranch truck
valued at $9, 000.00. The trial court denied Heather's
reimbursement claim for the Autumn Run Subdivision home,
stating in its reasons for judgment "[b]y prior
agreement between the parties ... Jeffrey bought Heather out
of the Autumn Run Subdivision home for $45, 000.00. ...
Therefore no reimbursement [was] warranted." The trial
court awarded Jeffrey reimbursement in the sum of $12, 875.00
for Heather's use of the funds from his separate account
for her own personal needs. The trial court further ordered
Jeffrey to reimburse Heather for the net rental income from
the rental properties owned by the community from the time of
the final separation of the parties in October 2014 through
the date of the trial in the sum of $6, 006.35, reimbursable
at one-half, totaling $3, 003.18.
filed a motion for new trial and it was denied by the trial
court. A written judgment was signed on April 4, 2017.
Heather subsequently appealed the January 31, 2017 judgment
and the April 4, 2017 judgment denying her motion for new
trial. On July 31, 2017, this court exproprio motu
issued a rule to show cause order, observing that it appeared
the appeal is untimely. On December 7, 2017, another panel of
this court maintained the appeal.
the spouses are unable to agree on a partition of community
property or on the settlement of the claims between the
spouses arising either from the matrimonial regime, or from
the co-ownership of former community property following
termination of the matrimonial regime, either spouse, as an
incident of the action that would result in a termination of
the matrimonial regime or upon termination of the matrimonial
regime or thereafter, may institute a community property
partition. La. R.S. 9;28Ol(A).
court shall value the assets as of the time of trial on the
merits, determine the liabilities, and adjudicate the claims
of the parties. La. R.S. 9:2801(A)(4)(a). The court shall
divide the community assets and liabilities so that each
spouse receives property of an equal net value. La. R.S.
9:2801(A)(4)(b). The court shall allocate or assign to the
respective spouses all of the community assets and
liabilities. La. R.S. 9;28Ol(A)(4)(c). 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. La. R.S. 9:2801(A)(4)(d).
court's factual findings and credibility determinations
made in the course of valuing and allocating assets and
liabilities in the partition of community property may not be
set aside absent manifest error. McDaniel v.
McDaniel, 35, 833 (La.App. 2 Cir. 04/03/02), 813 So.2d
1232, 1235. An appellate court may not set aside a trial
court's finding of fact unless it is manifestly erroneous
or clearly wrong. Rosell v. ESCO, 549 So.2d 840, 844
(La. 1989). Where there is conflict in the testimony,
reasonable evaluations of credibility and reasonable
inferences of fact, the determination of the trial court
should not be disturbed upon review, even though the
appellate court may feel that its own evaluations and
inferences are as reasonable. Id.
Louisiana law, property of married persons is generally
characterized as either community or separate. La. C.C. art.
2335. Property in the possession of a spouse during the
existence of the community property regime is presumed to be
community, but either spouse may rebut the presumption.
See La. C.C. art. 2340. The spouse seeking to rebut
the presumption bears the burden of proving the property is
separate in nature. Corkern v. Corkern, 2005-2297
(La.App. 1 Cir. 11/3/06), 950 So.2d 780, 785, writ
denied, 2006-2844 (La. 2/2/07), 948 So.2d 1083. A trial
court's findings regarding the nature of property as
community or separate is a factual determination subject to
manifest error review. Moise v. Moise, 2006-876
(La.App. 5 Cir. 3/13/07), 956 So.2d 9, 12.
instant matter, Heather asserts that the trial court
committed legal errors which interdicts the fact-finding
process, and therefore, the de novo standard of
review applies. Where one or more legal errors by the trial
court interdict the fact-finding process, the manifest error
standard is no longer applicable. A legal error occurs when a
trial court applies incorrect principles of law and such
errors are prejudicial. Legal errors are prejudicial when
they materially affect the outcome and deprive a party of
substantial rights. Pruitt v. Brinker, Inc.,
2004-0152 (La.App. 1 Cir. 2/11/05), 899 So.2d 46, 49,
writ denied, 2005-1261 (La. 12/12/05), 917 So.2d
1084. For the reasons that follow, we do not find that the
trial court applied incorrect principles of law, and
therefore, we review this matter under the manifest error
standard of review. See Caballero v. Caballero,
2015-1119 (La.App. 1 Cir. 4/27/16), 2016 WL 2840572, at *4
(unpublished), writ denied, 208 So.3d 376 (La.
spouse uses separate funds to pay a community obligation,
that spouse is entitled upon termination of the community to
reimbursement for one-half of the amount paid. La. C.C. art.
2365. The burden of proof is on the party claiming
reimbursement. Corkern, 950 So.2d at 787. A trial
court's findings as to whether reimbursement claims have
been sufficiently established are reviewable under the
manifest error standard. Id.
first assignment of error, Heather argues that the
uncollected rent from the rental property located at 20296
Sisters Road accumulated to the sum of $3, 615.39 as a result
of Jeffrey's mismanagement following the termination of
the community. Heather argues that the unpaid rent resulted
from Jeffrey failing to evict the tenant. However, after
reviewing the record we have found that no petition for
mismanagement, bad faith, or fraud was ever filed in the
record. "In pleading fraud or mistake, the circumstances
constituting fraud or mistake shall be alleged with
particularity." La. C.C.P. art. 856. It appears from the
record that Heather did not make a claim of mismanagement
until she filed her post-trial memorandum, violating La.
C.C.P. art. 856 and La. C.C. art. 2354. Therefore,
Heather's mismanagement claim was not before the trial
court. The trial court only handled the parties'
partition and reimbursement claims and did not address
Heather's claim that Jeffrey mismanaged the community
property. See Cooper v. Cooper, 619 So.2d 1210
(La.App. 1 Cir. 1993), writ denied, 625 So.2d 1042
Heather did not allege her mismanagement claim until the
filing of her post-trial memorandum, and thus failed to plead
the issue with specificity or particularity as required by
La. C.C.P. art. 856 and La. C.C. art. 2354, we find that the
trial court properly disregarded the claim and similarly, we
will only consider Heather's partition of community
property and reimbursement claims. See Carrier Corp. v.
Cousins, 2015-24 (La.App. 5 Cir. 5/14/15), 170 So.3d
1168, 1176; Goines v., Goines, 2009-994 (La.App. 5
Cir. 3/9/11), 62 So.3d 193, 199, writ denied,
2011-0721 (La. 5/20/11), 63 So.3d 984; Monje v.
Monje, 94-622 (La.App. 5 Cir. 12/28/94), 648 So.2d 1086,
1090. This assignment of error has no merit.
second assignment of error, Heather argues that the trial
court erred in awarding her as an asset the uncollected rent
from the property located at 20296 Sisters Road in the sum of
$3, 615.39. Heather argues that the trial court should have
awarded the uncollected rent to Jeffrey because he was
"responsible for it" and in turn, increase her
deciding to whom an asset or liability shall be allocated,
the court shall consider the nature and source of the asset
or liability, the economic condition of each spouse, and any
other circumstances the court deems relevant. La. R.S.
9:2801(A)(4)(c). The trial court's allocation or
assigning of assets and liabilities in the partition of
community property is reviewed under the abuse of discretion
standard. Legaux-Barrow ...