MARGARET M. AVERILL
WILLIAM BRYAN AVERILL, III
Appealed from the 22nd Judicial District Court In
and for the Parish of St. Tammany, Louisiana Trial Court
Number 2014-12303 Honorable Dawn Amacker, Judge
A. Dragon Attorney for Appellee Slidell, LA Plaintiff-
Margaret M. Averill.
M. Edler Attorney for Appellant Covington, LA Defendant -
William Bryan Averill, III.
BEFORE: PETTIGREW, WELCH, AND CHUTZ, J J.
Bryan Averill, III appeals a judgment partitioning the
community of acquets and gains formerly existing between him
and Margaret M. Averill, which among other things, awarded
Ms. Averill reimbursement for one-half of the fair market
rental value of the former family home due to Mr.
Averill's exclusive use and occupancy of that home.
Finding no error in the judgment of the trial court, we
AND PROCEDURAL HISTORY
Ms. Averill were married on August 23, 1977. In early January
2014, Ms. Averill discovered that Mr. Averill was having an
adulterous affair. Thereafter, she moved out of the family
home, which was community property. Ms. Averill never
returned to the home, except briefly to retrieve a few items
that she had forgotten. Sometime in May 2014, Mr. Averill
changed the locks to the family home.
19, 2014, Ms. Averill filed a petition for divorce. Therein,
Ms. Averill alleged, among other things, that Mr. Averill had
exclusive use and occupancy of the family home and that he
had allowed his paramour to move into the family home with
him. Therefore, Ms. Averill specifically requested that she
be awarded rent for Mr. Averill's exclusive use and
occupancy of the family home. In the petition, Ms. Averill
also sought a partition of the community of acquets and gains
formerly existing between her and Mr. Averill pursuant to La.
R.S. 9:2801, et seq. On July 8, 2014, Mr. Averill
filed an answer and reconventional demand, wherein he
requested that he be awarded exclusive use and occupancy of
the family home or, alternatively, fair rental reimbursement.
August 1, 2014, the trial court signed a consent judgment
entered into by the parties, which provided that Mr. Averill
was granted the exclusive use and occupancy of the family
home until a judicial partition of community property or
mutual agreement of the parties and that Ms. Averill's
claim for reimbursement for one-half of the fair market
rental value of the family home would be deferred until the
partition of the community.
on August 7, 2017, at the trial to partition the community,
the parties entered into stipulations on most of the issues,
including Mr. Averill's claim for reimbursement in the
amount of $26, 280.00 for the mortgage payments that he made
on the family home with his separate property after the
termination of the community. See La. C.C. art. 2365. A trial
on the merits was also held with respect to the ownership of
the family home and Ms. Averill's claim for reimbursement
from Mr. Averill for one-half of the fair market rental value
of the family home due to his exclusive use and occupancy of
the home. Following the trial, in written reasons for
judgment dated October 16, 2017, the trial court awarded Mr.
Averill full ownership of the family home and also awarded
Ms. Averill rental reimbursement in the amount of $25,
920.00, which represented one-half of the fair market rental
value of the home during the 36 months that Mr. Averill had
exclusive use and occupancy of the home, i.e. from
consent judgment awarding Mr. Averill exclusive use and
occupancy of the home through the partition.
written judgment partitioning the community of acquets and
gains formerly existing between Mr. and Ms. Averill,
including the trial court's ruling on the issue of rental
reimbursement, was signed on November 29, 2017. From this
judgment, Mr. Averill has appealed. On appeal, Mr. Averill
contends that the trial court legally erred in awarding Ms.
Averill rental reimbursement for his exclusive use and
occupancy of the family home because Ms. Averill neither
requested nor was denied use and occupancy of the family
LAW AND DISCUSSION
award of rental payments for a spouse's use and occupancy
of the family home pending a partition of the community is