Opinion
NUMBER 2012 CA 0250
12-21-2012
MARION H. HUNT, JR. v. CHARLA JONES HUNT
Jeffery G. Rice Lynn E. Williams Baton Rouge, LA Counsel for Plaintiff/Appellant, Marion H. Hunt, Jr. Nancy Sue Gregorie Emily G. Andrews Baton Rouge, LA Counsel for Defendant/Appellee, Charla Jones Hunt
NOT DESIGNATED FOR PUBLICATION
Appealed from the
Family Court
In and for the Parish of East Baton Rouge, Louisiana
Docket Number 160,812
Honorable Lisa Woodruff White, Judge Presiding
Jeffery G. Rice
Lynn E. Williams
Baton Rouge, LA
Counsel for Plaintiff/Appellant,
Marion H. Hunt, Jr.
Nancy Sue Gregorie
Emily G. Andrews
Baton Rouge, LA
Counsel for Defendant/Appellee,
Charla Jones Hunt
BEFORE: WHIPPLE, McCLENDON, AND HIGGINBOTHAM, JJ.
WHIPPLE , J.
This is an appeal from five partial judgments, dated November 9, 2010, February 2, 2011, August 15, 2011, August 29, 2011, and September 8, 2011, of the Family Court of East Baton Rouge Parish, partitioning the community assets and liabilities of the parties following their divorce and ordering an equalizing payment. The parties, Marion H. Hunt, Jr. and Charla Jones Hunt, were married on January 21, 1989, and divorced on April 21, 2008. Thereafter, seven days of trial proceedings to partition the assets and liabilities of the former community were conducted at three different settings over the course of almost eight months, with the family court rendering partial judgments after each setting, classifying and partitioning certain assets and ruling on the parties' reimbursement claims. The family court rendered its final partial judgment, signed on August 29, 2011, wherein it ordered Mr. Hunt to pay Mrs. Hunt an equalizing payment.
Although the August 29th judgment is actually dated "29th of August, 2010," it is clear that the judgment was actually signed on August 29, 2011, given the dates of the partition proceedings, the fact that the judgment references judgment having been rendered in open court on August 9, 2011, and the fact that the judgment was filed with the clerk of court in August 2011. Thus, we take judicial notice that this was clearly a clerical error and an inadvertent entry and should read 2011. See Ferguson v. Sugar, 2005-0921 (La. App. 4th Cir. 6/25/08), 988 So. 2d 816, 822 n.3, writ denied, 2008-2179 (La. 12/12/08), 996 So. 2d 1118. We will thus refer to it as the "August 29, 2011 judgment."
We also note that subsequent to signing the August 29, 2011 judgment, the family court signed an additional judgment on September 8, 2011, which was identical in substance to the August 29, 2011 judgment. Because the September 8, 2011 judgment was identical to the earlier August 29, 2011 judgment, it was superfluous and unnecessary and, consequently, invalid. See St. Pierre v. St. Pierre, 2008-2475 (La. App. 1st Cir. 2/12/10), 35 So. 3d 369, 370 n.1, writ not considered, 2010-0587 (La. 3/17/10), 29 So. 3d 1243.
In three assignments of error, Mr. Hunt appeals certain aspects of the judgments that classified and partitioned assets and awarded reimbursement, and the resulting equalizing payment. In the first assignment of error, he challenges the family court's rulings as to three reimbursement claims. Initially, he challenges the family court's determination in the February 2, 2011 judgment that Mrs. Hunt was entitled to reimbursement of one-half of a $3,000.00 cash gift and a $10,000.00 cash gift, both from her mother.
If separate property of a spouse has been used to satisfy a community obligation, that spouse, upon termination of the community property regime, is entitled to reimbursement of one-half of the amount or value of the property at the time it was used. LSA-C.C. art. 2365. The proof is on the party claiming reimbursement, and a trial court's findings as to whether reimbursement claims have been sufficiently established are reviewable under the manifest error standard. Corkern v. Corkern, 2005-2297 (La. App. 1st Cir. 11/3/06), 950 So. 2d 780, 787, writ denied, 2006-2844 (La. 2/2/07), 948 So. 2d 1083.
In the instant case, while Mr. Hunt claimed to have no knowledge of the $3,000.00 gift, the testimony and evidence submitted by Mrs. Hunt established that her mother gave her $3,000.00 cash to purchase a 2000 Chevrolet Impala, a community vehicle. Despite the conclusory briefing of this issue, we have considered the merits of Mr. Hunt'sassignment of error and find no manifest error in the family court's finding that Mrs. Hunt proved this reimbursement claim based on the testimony and evidence she submitted.
Generally, where a party fails to brief an issue, the appellate court, pursuant to Uniform Rules—Courts of Appeal, Rule 2-12.4 and 2-12.5, may deem the issue abandoned. Bridges v. Mosaic Global Holdings. Inc., 2008-0113 (La. App. 1st Cir. 10/24/08), 23 So. 3d 305, 308 n.l, writ denied. 2008-2783 (La. 2/20/09), 1 So. 3d 496; Tillery v. State Department of Public Safety and Corrections, 2007-1228 (La. App. 1st Cir. 2/8/08), 984 So. 2d 742, 744.
With regard to the $10,000.00 gift, Mrs. Hunt's mother gave her a check in that amount with the notation "Merry Xmas," and the record establishes, through Mrs. Hunt's testimony and exhibits, including financial records, that she used the majority of those funds to pay off a community credit card debt and the remainder of the funds to pay other household expenses. Moreover, in his appellate brief, and at oral argument of this matter, Mr. Hunt acknowledged that $8,900.00 of the $10,000.00 gift was used to pay off a community credit card debt.
However, while Mr. Hunt suggests on appeal that Mrs. Hunt failed to prove how the remaining $1,100.00 was used, he offered no testimony or evidence at trial to contradict Mrs. Hunt's testimony that the remaining funds were used to pay household expenses. Accordingly, we cannot conclude that the family court was manifestly erroneous in awarding reimbursement to Mrs. Hunt.
With regard to the $1,350.00 in-kind gift, the remaining reimbursement claim Mr. Hunt challenges on appeal, the record establishes, and Mr. Hunt acknowledges, that the family court did not award Mrs. Hunt reimbursement for these sums. Nonetheless, Mr. Hunt contends on appeal that this $1,350.00 figure "may have been used by" the family court in calculating the equalizing payment awarded to Mrs. Hunt in the August 29, 2011 judgment. We note, however, that while Mr. Hunt expresses concern that this figure may have been included in the calculation, he points to nothing in the record to establish that it was. Moreover, we are unable to determine from the record or the argument presented that this sum was erroneously included in the calculation of the equalizing payment. Thus, this assignment of error lacks merit.
We also note Mr. Hunt, through counsel, approved the judgment setting forth the equalizing payment as to form and content.
In his second assignment of error, Mr. Hunt challenges the family court's determination that a John Deere tractor was not community property, but, instead, was the property of Mrs. Hunt's mother. Under Louisiana law, property of married persons is generally characterized as either community or separate. LSA-C.C. Art. 2335. Things in the possession of a spouse during the existence of a community regime are presumed to be community, but either spouse may prove that they are separate property. LSA-C.C. Art. 2340. As a matter or public policy and in the interest of fairness, this community presumption is rebuttable by either spouse upon a showing by a preponderance of the evidence the separate nature of property brought into the community. Hoover v. Hoover, 2010-1245 (La. App. 1st Cir. 3/17/11), 62 So. 3d 765, 770. Moreover, a trial court's finding regarding the nature of property as being either community or separate is a factual determination subject to the manifest error standard of review. Corkern, 950 So. 2d at 785.
Mr. Hunt asserts that the bill of sale and the financing agreement for the tractor together with his testimony establish that the tractor was paid for with community funds and, thus, was community property. Mrs. Hunt, on the other hand, contends that the evidence of record establishes that her mother gave her the funds with which to purchase the tractor, pointing to checks endorsed over to her or made payable to her by her mother. Thus, she contends the family court's ruling was correct.
At the outset, as noted by Mrs. Hunt, we recognize that the record before us lacks a transcript of the first three days of trial of this matter and, thus, lacks the testimony presented with regard to the classification of the tractor. As appellant, Mr. Hunt is charged with the responsibility of completeness of the record for review, and any inadequacy of the record is imputable to the appellant. Luper v. Wal-Mart Stores, 2002-0806 (La. App. 1st Cir. 3/28/03), 844 So. 2d 329, 333 n.3). The appellate court presumes that the trial court's ruling is correct if an inadequate record is transmitted. Luper, 844 So. 2d at 333 n.3. Accordingly, in the absence of the relevant transcribed testimony and in light of the evidence of record, we must presume the family court's determination that the John Deere tractor was not a community asset is correct. This assignment of error also lacks merit.
Finally, in his third assignment of error, Mr. Hunt contends that the family court erred in not allowing him to amend the parties' detailed descriptive list to "reinsert" his claim for attorney's fees, noting that LSA-R.S. 9:2801(A)(l)(b) provides that such amendments "shall" be allowed.
Louisiana Revised Statute 9:2801 sets forth the procedure for judicial partition of community property and settlement of claims after dissolution of the marriage. The statute also provides for specific time periods for filing detailed descriptive lists and traversals. While the statute also provides that the court "shall" allow amendments to the detailed descriptive list, a trial court nonetheless has discretion in setting and enforcing time limits. See Godwin v. Godwin, 533 So. 2d 1009, 1011 (La. App. 1st Cir. 1988), writ denied, 537 So. 2d 1165 (La. 1989); Mathews v. Mathews, 457 So. 2d 746, 746-747 (La. App. 2nd Cir. 1984).
In the instant case, Mr. Hunt filed a motion to amend the joint detailed descriptive list on December 1, 2010, midway through the trial of these partition proceedings. In denying his motion, the family court noted that the sworn joint detailed descriptive list, filed by counsel for Mr. Hunt on November 13, 2009, which did not contain a request for attorney's fees, was initialed by Mr. Hunt on each page and signed by him before a notary public. The family court further noted that Mr. Hunt had ample time to amend the detailed descriptive list prior to trial.
While we recognize that attorney's fees incurred before the date of judgment are a debt of the community, see LSA-C.C. 2362.1 and Smith v. Smith, 95-0913 (La. App. 1st Cir. 12/20/96), 685 So. 2d 649, 655, considering the family court's reasoning and under the particular circumstances herein, including the protracted and lengthy nature of the proceedings, as well as the prior opportunities to amend afforded the parties, we cannot conclude that the family court abused its discretion in denying Mr. Hunt's dilatory request to amend the joint detailed descriptive list in the middle of trial of this matter. This assignment of error also lacks merit.
In Smith v. Smith, 95-0913 (La. App. 1st Cir. 12/20/96), 685 So. 2d 649, 655, this court affirmed the trial court's award of the wife's attorney's fees even though they were not included in her detailed descriptive list or her amended list. In doing so, this court noted that courts are granted and have used their discretionary powers to allow amendment of these pleadings at various stages of the proceedings, even on appeal. However, unlike the instant situation, in Smith, this court recognized that there was no showing under the attendant circumstances that the husband was prejudiced by allowing such a claim and that "[a] refusal by the trial court to allow amendment of the detailed descriptive list to add her attorney's fees would not have altered the community's obligation for such a debt." Smith, 685 So. 2d at 655. As noted above, such determinations regarding amendment are always subject to review under an abuse-of-discretion standard and consideration of the particular circumstances of the case.
CONCLUSION
For the foregoing reasons, the judgments on appeal are affirmed. Costs of this appeal are assessed against plaintiff, Marion H. Hunt, Jr.
AFFIRMED.
2012 CA 0250
MARION H, HUNT, JR.
VERSUS
CHARLA JONES HUNT
HIGGINBOTHAM, J., dissents in part.
I respectfully disagree with the majority's determination that the trial court did not abuse its discretion by refusing to allow Mr. Hunt to amend the joint detailed descriptive list to include his claim for reimbursement of attorney's fees. In all other respects, I agree with the opinion of the majority. Accordingly, I dissent in part.
2012 CA 0250
MARION H. HUNT, JR.
VERSUS
CHARLA JONES HUNT
McCLENDON, J., dissents in part.
Things in the possession of a spouse during the marriage are presumed to be community property, and the burden of overcoming this presumption rests on the party asserting the separate nature of the property. LSA-C.C. art. 2340. The proof of the separate character of the property must be fixed, clear, positive, and legally certain. Manno v. Manno, 01-2138 (La.App. 1 Cir. 10/2/02), 835 So.2d 649, 651.
Based on the record before us, I respectfully disagree with the majority regarding the classification of the John Deere tractor as the separate property of Ms. Jones and not as part of the former community property between Mr. and Mrs. Hunt. The record on appeal does not establish that Ms. Hunt rebutted this presumption by a preponderance of the evidence. See Hoover v. Hoover, 10-1245 (La.App. 1 Cir. 3/17/11, 62 So.3d 765, 770. The bill of sale was signed by Mr. Hunt, and the financing agreement for the tractor was in both the names of Mr. Hunt and Ms. Hunt as buyer and co-buyer. Additionally, the financial statement signed by Mr. Hunt and Ms. Hunt in order to obtain their financing was signed by them as owner and co-owner, respectively. Although the record lacks the transcript of the first three days of testimony, what is in the record fails to rebut this evidence. Accordingly, to this extent, I dissent.