LARRY SYLVESTER COLA, JR.
TONYA LEATHERMAN COLA
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.
M. Vessell Katherine Wheeler Zachary, LA, ReAzalia Allen
Baker, LA Attorneys for Defendant -Appellant, Tonya
BEFORE: HIGGINBOTHAM, PENZATO AND LANIER, JJ.
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.
AND PROCEDURAL HISTORY
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."
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.
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."
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.
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 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
2. The trial court erred in denying Tonya's right to
present testimony and evidence at trial rebutting Larry's
claim that the Ligon ...