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Hardy v. Hardy

Court of Appeals of Louisiana, First Circuit

February 28, 2019


          On Appeal from the Twentieth Judicial District Court In and for the Parish of West Feliciana State of Louisiana Docket No. 21178 Honorable William G. Carmichael, Judge Presiding

          Charles E. Griffin, II Sydney Picou Walker Robert O. Butler, Jr. St. Francisville, Louisiana Counsel for Plaintiff/Appellee Dorothy Matthews Hardy.

          R. Chris Oetjens Baton Rouge, Louisiana And Paul L. Billingsley Hammond, Louisiana Counsel for Defendant/Appellant Elijah John Hardy


          MCCLENDON, J.

         In this appeal, the appellant challenges a trial court judgment partitioning former community property. The appellee has answered the appeal. For the reasons that follow, we amend the judgment in part and remand for further proceedings consistent with this opinion.


         Dorothy Matthews Hardy and Elijah John Hardy were married on September 19, 1981. During their marriage they resided in West Feliciana Parish until they separated in August of 2010. On February 8, 2011, Mrs. Hardy filed a Petition for Divorce, and on April 20, 2011, the trial court signed a judgment of divorce. Thereafter, on March 6, 2013, Mr. Hardy filed a Petition for Judicial Partition of Community Property pursuant to LSA-R.S. 9:2801. On December 5, 2013, Mrs. Hardy filed a Motion and Order to Show Cause for Domestic Relations Order, which was set for hearing on January 22, 2014. On January 22, 2014, pursuant to an agreement, the trial court signed a Domestic Relations Order, partitioning the retirement account of Mr. Hardy and awarding fifty percent of his Louisiana State Employees' Retirement System (LASERS) benefits to Mrs. Hardy.[1] Neither Mr. Hardy nor Mrs. Hardy were at the hearing.

         On September 23, 2016, a bench trial on the remaining community property issues, regarding certain immovable property, movable property, and reimbursement claims, was held. The trial court took the matter under advisement and, on October 28, 2016, issued Reasons for Judgment partitioning the remaining community assets of the parties. The trial court signed a judgment on February 15, 2017. Thereafter, Mrs. Hardy filed a motion for new trial, asserting that her reimbursement claims were improperly calculated. Following a hearing, the motion for new trial was denied, and on May 10, 2017, the trial court signed a judgment. Mr. Hardy has appealed the February 15, 2017 judgment, and Mrs. Hardy answered the appeal.

         In his appeal, Mr. Hardy contends that the trial court erred in failing to amend the domestic relations order that incorrectly apportioned his retirement account. He further asserts that the incorrect distribution resulted in an inequitable division of the remaining community assets. Mr. Hardy also maintains that the trial court erred in failing to address Mrs. Hardy's LASERS retirement account in connection with the partition and in failing to allow testimony regarding Mrs. Hardy's LASERS retirement account.

         Mrs. Hardy answered the appeal and alleges that the trial court incorrectly calculated her reimbursement claim for the mortgage payments she made on the community home. Specifically, she contends that the trial court was incorrect in finding the amount of reimbursement due to her to be one half of the principal amount of the payments, rather than one-half of the entire amount of the payments paid from her separate funds for the community debt. Mrs. Hardy also prayed for reasonable attorney fees in answering the appeal. Mrs. Hardy also filed a Motion and Order for Peremptory Exception of Prescription in this court.


         The provisions of LSA-R.S. 9:2801 set forth the procedure by which community property is to be partitioned when the spouses are unable to agree. Benoit v. Benoit, 11-0376 (La.App. 1 Cir. 3/8/12), 91 So.3d 1015, 1018, writ denied, 12-1265 (La. 9/28/12), 98 So.3d 838. The statute requires that both parties file sworn detailed descriptive lists and that each party either traverse or concur in the inclusion or exclusion of each asset and liability and the valuation contained on the other party's list. LSA-R.S. 9:2801A(1) and (2). The statute further provides that, at the trial of the traverses, the trial court shall determine community assets and liabilities, and states that valuation of assets shall be determined at the trial on the merits. LSA-R.S. 9:2801A(2). Thereafter, the court shall partition the community in accordance with the rules set forth in the statute. LSA-R.S. 9:2801A(4).[2] See Watts v. Watts, 15-1985 (La.App. 1 Cir. 10/31/16), 2016 WL 6426443 (unpublished).

         It is well settled that a trial court has broad discretion in adjudicating issues raised by the partition of the community. The trial court is afforded a great deal of latitude in arriving at an equitable distribution of the assets between the spouses. 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. Benoit, 91 So.3d at 1019. However, the allocation or assigning of assets and liabilities in the partition of community property is reviewed under the abuse of discretion standard. Id.

         In his first two related assignments of error, Mr. Hardy asserts that the trial court erred in the apportionment of his LASERS retirement account, which resulted in an inequitable distribution of the former community assets. However, we note that the domestic relations order was the result of an agreement presented by counsel and signed in open court.[3]

         A consent or a stipulated judgment is a bilateral contract by which the parties adjust their differences by mutual consent, with each party balancing his hope of gain against his fear of loss. M.P.W. v. L.P.W., 13-0366 (La.App. 1 Cir. 11/1/13), 136 So.3d 37, 43; see also La. C.C. arts. 3071 and 3072. Its binding force arises from the voluntary acquiescence of the parties rather than the adjudication by the court. M.P.W., 136 So.3d at 44. Generally, there is no right to appeal a stipulated or consent judgment. See Mill Creek Homeowners Ass'n, Inc. v. Manuel, 04-1385 (La.App. 1 Cir. 6/10/05), 916 So.2d 268, 269. That is because "[a]n appeal cannot be taken by a party who confessed judgment in the proceedings in the trial court or who voluntarily and unconditionally acquiesced in a judgment rendered against him." LSA-C.C.P. art. 2085. A consent judgment is a final judgment as between the parties. Mill Creek Homeowners Ass'n, Inc., 916 So.2d at 269.

         Nevertheless, Mr. Hardy argues that he did not know about the domestic relations order, was not aware it had been signed, and never consented to the January 22, 2014 judgment. However, the record establishes that when Mrs. Hardy filed her motion and order to show cause why the proposed domestic relations order should not be signed, Mr. Hardy was personally served with the signed order, together with a copy of the proposed domestic relations order. Additionally, after the trial court signed the domestic relations order, Mr. Hardy was personally served with a certified copy of the signed order.

         Mr. Hardy also asserts that he never authorized his attorney to consent to the judgment. It is undisputed in this matter that Mr. Hardy did not sign the January 22, 2014 judgment. However, it is also undisputed that Mr. Hardy was represented during these proceedings, including the date the judgment was submitted, by the attorney who signed the judgment on Mr. Hardy's behalf. Accordingly, we find that Mr. Hardy's attorney was clearly acting as his agent and representative in submitting the judgment and that Mr. Hardy fully acquiesced in the domestic relations order such that it constituted a valid compromise. See Sullivan v. Sullivan, 95-2122 (La. 4/8/96), 671 So.2d 315, 317-18 (When an agreement is reduced to writing, it must be signed by the parties or their agents); Dozier v. Rhodus, 08-1813 (La.App. 1 Cir. 5/5/09), 17 So.3d 402, 408, writ denied, 09-1647 (La. 10/30/09), 21 So.3d 294 ("If it were necessary for the party to sign the writing that serves as proof of the agreement, often there would be no basis for enforcement, because generally the attorneys rather than the parties negotiate and contract ... agreements"); Daffin v. McCool, 09-0785 (La.App. 1 Cir. 12/23/09), 30 So.3d 120, 122-23 (Defendant's attorney was acting as the defendant's agent and representative when the attorney entered into a compromise in a community property partition matter). Therefore, we find that Mr. Hardy's first two assignments of error lack merit.

         In Mr. Hardy's last two assignments of error, he complains that the trial court erred in failing to consider Mrs. Hardy's LASERS retirement account in the partition of the remaining community assets. The record shows that prior to the trial to partition the community property, each party filed into the record several detailed descriptive lists. The most ...

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