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Cola v. Cola

Court of Appeals of Louisiana, First Circuit

December 27, 2019

LARRY SYLVESTER COLA, JR.
v.
TONYA LEATHERMAN COLA

          On Appeal from The Family Court In and for the Parish of East Baton Rouge State of Louisiana Trial Court No. 212, 604 Honorable Pamela J. Baker, Judge Presiding

          Vincent A. Saffiotti Baton Rouge, LA Attorney for Plaintiff -Appellee, Larry Sylvester Cola, Jr.

          Heidi M. Vessell Katherine Wheeler Zachary, LA, ReAzalia Allen Baker, LA Attorneys for Defendant -Appellant, Tonya Leatherman Cola

          BEFORE: HIGGINBOTHAM, PENZATO AND LANIER, JJ.

          HIGGINBOTHAM, J.

         In this community property dispute, Tonya Cola appeals the judgment of the trial court finding that the former matrimonial domicile is the separate property of Larry Cola, Jr.

         FACTS AND PROCEDURAL HISTORY

         On December 28, 1996, Larry Cola, Jr. and Tonya Cola were married. About five years later, on February 5, 2002, Larry purchased through a cash sale a home and the surrounding five acres located at 21839 Ligon Rd. in Zachary, Louisiana, that would become their matrimonial domicile, (the Ligon Rd. property) The cash sale provided that the property was being purchased as Larry's separate property under his own separate administration and control. Tonya intervened in and signed the cash sale "for the sole purpose of acknowledging that the property being purchased...is [Larry's] separate property." On that same day, Larry entered into a collateral mortgage and collateral pledge for a loan in amount of $182, 282.00 granting to American General Financial Services a security interest in the form of a mortgage on the Ligon Rd. property. Tonya also intervened in and signed the collateral mortgage for limited purpose of concurring with the granting of the mortgage on the "separately owned property."

         On March 2, 2018, Larry filed a "Petition for Divorce and for Partition of Community Property." In his petition, he requested, among other relief, that he be awarded exclusive use of the former matrimonial domicile, and he alleged that the Ligon Rd. property was his separate property. Tonya filed an answer and reconventional demand and also requested exclusive use of the former matrimonial domicile. In her answer, Tonya asserted a general denial to Larry's statement in his petition that the Ligon Rd. property was his separate property. In her reconventional demand, Tonya stated that the parties never had a separate property regime, the Ligon Rd. property was purchased after the marriage, and community funds were used to pay the mortgage. Further, she contended that the defendant fraudulently induced her to sign the act of sale by which the parties acquired the Ligon Rd. property.

         Thereafter, Larry filed his Sworn Detailed Descriptive List, again identifying the Ligon Rd. property as his separate property. Tonya filed her Sworn Detailed Descriptive List, which did not list the Ligon Rd. property as a community asset, but listed a "claim for reimbursement of V2 of $10, 000 loan by community used as down payment for purchase of separate property at 21839 Ligon Road, Zachary, LA."

         The matter came before the trial court for partition of community property on September 5, 2018. During the hearing, Tonya's attorney attempted to question Larry about his classification of the Ligon Rd. property as separate. In response, Larry's attorney objected to that line of questioning, arguing that it was beyond the scope of the pleadings. The trial court sustained the objection by Larry's attorney and stated that this ruling meant that the separateness of the Ligon Rd. property would not be attacked. At the end of the hearing, Tonya's attorney proffered evidence regarding the classification of the Ligon Rd. property for the record.

         After the completion of the trial, on September 18, 2018, the trial court signed a judgment partitioning the community property and ordering, "that the property located at 21839 Ligon Rd., Zachary, Louisiana is hereby adjudged and declared to be the separate property of [Larry]." Additionally, the judgment ordered Tonya to vacate the former matrimonial domicile by September 15, 2018. Prior to the signing of the judgment, Tonya filed a motion for new trial and to enjoin Tonya's eviction from the matrimonial domicile. After a hearing, the trial court denied Tonya's motion by a judgment signed on October 9, 2018. It is from the September 18, 2018 judgment as well as the October 9, 2018 denial of her motion[1] that Tonya appeals asserting the following assignments of error:

1. The trial court erred in designating the Ligon Rd. property as Larry's separate property solely on the basis of a defective recital of separate property in the act of sale purchasing the property under La. Civ. Code art. 2342 because it did not say that the property was acquired with separate funds.
2. The trial court erred in denying Tonya's right to present testimony and evidence at trial rebutting Larry's claim that the Ligon ...

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