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.
Chris Oetjens Baton Rouge, Louisiana And Paul L. Billingsley
Hammond, Louisiana Counsel for Defendant/Appellant Elijah
BEFORE: WHIPPLE, CJ., MCCLENDON, AND HIGGINBOTHAM,
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.
AND PROCEDURAL HISTORY
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. Neither Mr. Hardy nor Mrs. Hardy were
at the hearing.
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.
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
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.
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). See Watts v. Watts, 15-1985
(La.App. 1 Cir. 10/31/16), 2016 WL 6426443 (unpublished).
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.
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
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.
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.
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.
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 ...