CONNIE S. LEBLANC
MICHAEL MCKINLEY ELAM, THE LOUISIANA DEPARTMENT OF PUBLIC SAFETY AND CORRECTIONS, AND THE LOUISISIANA STATE EMPLOYEES' RETIREMENT SYSTEM
APPEAL FROM THE TWENTIETH JUDICIAL DISTRICT COURT NUMBER
44943, DIVISION B, PARISH OF EAST FELICIANA STATE OF
LOUISIANA HONORABLE WILLIAM G. CARMICHAEL JUDGE
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.
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.
AND PROCEDURAL BACKGROUND
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."
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.
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.
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.
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.
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 ...