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Averill v. Averill

Court of Appeals of Louisiana, First Circuit

September 21, 2018

MARGARET M. AVERILL
v.
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

          Brian A. Dragon Attorney for Appellee Slidell, LA Plaintiff- Margaret M. Averill.

          Kevin M. Edler Attorney for Appellant Covington, LA Defendant - William Bryan Averill, III.

          BEFORE: PETTIGREW, WELCH, AND CHUTZ, J J.

          WELCH, J.

         William 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 affirm.

         FACTUAL AND PROCEDURAL HISTORY

         Mr. and 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.

         On May 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.

         On 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.

         Thereafter, 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.[1]

         A 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 home.

          LAW AND DISCUSSION

         The award of rental payments for a spouse's use and occupancy of the family home pending a partition of the community is governed ...


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