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Berthelot v. Berthelot

Court of Appeals of Louisiana, First Circuit

July 18, 2018

JEFFREY MIKAL BERTHELOT
v.
HEATHER LEIGH BERTHELOT

          On 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 Presiding

          Nicole R. Dillon April Ford Jackson Hammond, LA Attorneys for Plaintiff/Appellee Jeffrey Mikal Berthelot

          Mary E. Heck Barrios Denham Springs, LA Attorney for Defendant/Appellant Heather Leigh Berthelot

          BEFORE: HIGGINBOTHAM, HOLDRIDGE, AND PENZATO, JJ.

          HOLDRIDGE, J.

         This appeal arises from a trial court judgment partitioning the community property formerly existing between Heather Leigh Berthelot and Jeffrey[1] Mikal Berthelot. For the reasons that follow, we affirm in part and reverse in part the trial court judgment.

         FACTS AND PROCEDURAL HISTORY

         Heather 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.[2] 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.[3] 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 of trial.

          On 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.

         On 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.[4]

         A trial 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.[5]

         Heather 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.

         APPLICABLE LAW

         When 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).

         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. 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).

         A trial 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.

         Under 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.

         In the 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. 2016).

         DISCUSSION

         Rental Property Reimbursement

         When a 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.

         In her 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.[6] 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 (La. 1993).

         Because 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.

         In her 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 equalizing payment.

         In 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 ...


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