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LeBlanc v. Elam

Court of Appeals of Louisiana, First Circuit

November 2, 2018

CONNIE S. LEBLANC
v.
MICHAEL MCKINLEY ELAM, THE LOUISIANA DEPARTMENT OF PUBLIC SAFETY AND CORRECTIONS, AND THE LOUISISIANA STATE EMPLOYEES' RETIREMENT SYSTEM

          ON APPEAL FROM THE TWENTIETH JUDICIAL DISTRICT COURT NUMBER 44943, DIVISION B, PARISH OF EAST FELICIANA STATE OF LOUISIANA HONORABLE WILLIAM G. CARMICHAEL JUDGE

          Robert J. Carter Greensburg, Louisiana Counsel for Plantiff-Appellant Connie S. LeBlanc

          Charles E. Griffin, II St. Francisville, Louisiana Counsel for Defendant -Appellee Michael McKinley Elam

          BEFORE: PETTIGREW, WELCH, AND CHUTZ, JJ.

          CHUTZ, J.

         Plaintiff-appellant, Connie S. LeBlanc, appeals the trial court's judgment sustaining a peremptory exception raising the objection of prescription and dismissing her claims for partition of an asset she maintains was not addressed in the extrajudicial partition of community property into which she entered with her ex-husband, defendant-appellee, Michael McKinley Elam, shortly after their divorce in 2012. We reverse the trial court's judgment and deny the relief Mr. Elam requested in his answer.

         FACTUAL AND PROCEDURAL BACKGROUND

         The following is undisputed. The parties married on January 3, 1981 and divorced on March 5, 2012. On March 30, 2012, the parties entered into an extrajudicial partition of their community property. According to the salient terms, the parties declared "that they desire to fully and finally settle and liquidate the community which formerly existed between them." They agreed to transfer all of Ms. LeBlanc's rights, title, and interest in and to "[a]ll movables currently in the possession of Mr. Elam. They concomitantly agreed to a transfer to Ms. LeBlanc of all Mr. Elam's rights, title, and interest in and to a house and land, all the movables currently in Ms. LeBlanc's possession, and certain specified deposits held by third parties. In addition to dividing the community assets, the parties also settled the community debts, with Mr. Elam assuming certain loans and accounts and Ms. LeBlanc assuming others, including the mortgage on the house. Lastly, the parties agreed that the agreement formed "a complete and final settlement of the community."

         On December 20, 2017, Ms. LeBlanc filed a petition seeking a partition of retirement benefits owed to Mr. Elam as a result of his employment during the time of the marriage. In response, Mr. Elam filed a peremptory exception raising the objection of prescription, averring that to the extent Ms. LeBlanc's petition sought either an accounting or a rescission of the voluntary community property partition settlement, her claims were prescribed.[1]

         A hearing was held on January 22, 2018, at which documentary and testimonial evidence was adduced. At the conclusion, the trial court sustained Mr. Elam's exception of prescription. A judgment in conformity with the trial court's ruling was signed on February 7, 2018, dismissing Ms. LeBlanc's claims. Ms. LeBlanc appeals.[2]

         DISCUSSION

         The burden of proof is generally on the party pleading prescription. Tramontin v. Tramontin, 2004-2286 (La.App. 1st Cir. 12/22/05), 928 So.2d 29, 32, writ denied, 2006-0155 (La. 5/26/06), 930 So.2d 20. Evidence may be introduced to support or controvert the peremptory exception raising the objection of prescription pursuant to La. C.C.P. art. 931 when the grounds for the exception do not appear on the face of the petition. Id.

         Mr. Elam filed his exception of prescription without answering the petition. He suggests in his appellate brief and, at trial, offered evidence to support a theory that the retirement benefits he earned while employed during the marriage were within the scope of the extrajudicial partition agreement the parties entered into on March 30, 2012. As such, he urges that Ms. LeBlanc's petition is actually one for rescission of the partition.

         A careful reading of Ms. LeBlane's petition reveals no request by her for an accounting from Mr. Elam of the retirement benefits he earned from his employment. And Ms. LeBlanc's petition has not alleged any cause, such as lesion, for rescission of the original partition. See La. C.C. art. 2369.1 ("[a]fter termination of the community property regime, the provisions governing co-ownership apply to former community property") and La. C.C. art. 814 (providing for rescission if the value of the part received by a co-owner is less by more than one-fourth of the fair market value of the portion he should have received); see e.g., McCarroll v. McCarroll, 96-2700 (La. 10/21/97), 701 So.2d 1280, 1284-85 (applying Article 814 to find that an extrajudicial partition of community property was lesionary). Rather, Ms. LeBlanc alleged only that the retirement benefits Mr. Elam earned during the marriage had been omitted from their March 30, 2012 extrajudicial partition. Such a petition for partition alleging the omission of an item in an earlier partition may be mistaken, and may fail for lack of proof, but it is an action for partition and as such is never subject to an exception of liberative prescription. See La. C.C. art. 817 ...


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