Arterburn v. Arterburn

• Decision Date: 07 October 2015
• Docket Number: No. 15–22.,15–22.
• Citation: 176 So.3d 1163
• Parties: James Nicholas ARTERBURN v. Karen Ann Powers ARTERBURN.
• Court: Court of Appeal of Louisiana — District of US

176 So.3d 1163

James Nicholas ARTERBURN

v.Karen Ann Powers ARTERBURN.

No. 15–22.

Court of Appeal of Louisiana, Third Circuit.

Oct. 7, 2015.

Philip Collins Kobetz, Lafayette, LA, for Plaintiff/Appellee, James Nicholas Arterburn.

Theodore Glenn Edwards, IV, Lafayette, LA, for Defendant/Appellee, Andre Doguet, Gordon & Assoc., ACCPA.

Karen Ann Arterburn, In Proper Person, Johns Creek, GA, for Defendant/Appellant, Karen Ann Powers Arterburn.

Opinion

THIBODEAUX, Chief Judge.

Karen Ann Powers Arterburn appeals from a judgment partitioning the community property between herself and her former husband, James Nicholas Arterburn. For the following reasons, we amend the judgment to decrease the amount owed by Karen Ann Powers Arterburn to James Nicholas Arterburn from $458,029.79 to $204,874.85, and we affirm in all other respects.

I.ISSUES

We must decide:

(1) whether the trial court's partition of community property was fundamentally erroneous;

(2) whether the trial court manifestly erred in not considering the appellant's alleged disability in partitioning the community property;

(3) whether the trial court manifestly erred in denying the appellant an opportunity to call witnesses; and

(4) whether the trial court erred in denying the appellant's motion to compel discovery.

II.FACTS AND PROCEDURAL HISTORY

This matter involves protracted litigation over the partition of community assets and liabilities between Karen Ann Powers Arterburn (Karen) and James Nicholas Arterburn (Jim). The family's sole income derived from Jim's medical practices. Expenditures had been lavish and exceeded the husband's income. Finances immediately became a battleground. Temporary custody and use of the family home was first granted to Karen, and Jim was ordered to pay $15,000.00 per month in spousal and child support. He was also ordered to pay all loans on the heavily mortgaged property, all debts, lines of bank credit, credit card payments, and all community expenses. Jim also paid cash advances to Karen on her share of the community.

After their daughter reached majority, Jim was granted custody of their son and also use of the family home. Jim remarried in May 2010. Karen was ordered to vacate the family home in May 2011. She relocated to Georgia, unilaterally moving seven tons of home furnishings from the family home to another state with her, in violation of the court's order. She was found in contempt and ordered to pay for an inventory of the movables and to pay for double-locked storage facilities.

The trial to partition the property was conducted in two parts, five days in April 2013, and four days in March/April 2014. In August 2014, the trial court issued a four-page judgment allocating assets and liabilities to each party and rendering a money judgment in favor of Jim and against Karen for $458,029.78. The trial court issued a thirty-one page opinion explaining its reasons for judgment, charting the community's assets and liabilities, along with each party's reimbursement claims, and setting forth with detail the trial court's calculation of the offsets and the equalizing sum owed by Karen.

On appeal, Karen assigns no errors, but objects narratively, and without specification, to the trial court's overall division of assets. In her brief, Karen cites no law, pleading that she is a pro se litigant without access to legal resources. She lists, however, eight law firms who have previously represented her in this matter. In her brief, she points to no evidence in the record, which consists of nine volumes of pleadings, twelve volumes of exhibits, and eight volumes of a sealed record and exhibits from a prior appeal in this court. In spite of approximately 7,000 pages of documents in this appeal record, Karen asserts that she has no evidence to support her factual allegations. She does assert four issues for review, the first of which is a broad and general assertion that the trial court engaged in a fundamentally erroneous deliberative process. Karen further asserts that the trial court failed to acknowledge her disability, refused to allow her to call witnesses, and denied her motion to compel discovery. Because Karen is currently a pro se litigant who lacks formal training in the law and its rules of procedure, we will treat her issues as assignments of error and review them as such. See Bernard v. Lafayette City–Parish Consol. Gov't.,11–816 (La.App. 3 Cir. 12/7/11), 80 So.3d 665, writ denied,13–971 (La.6/14/13), 118 So.2d 1088.

For the reasons that follow, we affirm the judgment in favor of Jim and against Karen but reduce the amount of the money judgment based upon a typographical error in one reimbursement claim, and based upon record evidence in three other reimbursement claims.

III.STANDARD OF REVIEW

An appellate court may not set aside a trial court's findings of fact in the absence of manifest error or unless it is clearly wrong. Stobart v. State, Through DOTD,617 So.2d 880 (La.1993); Rosell v. ESCO,549 So.2d 840 (La.1989). A two-tiered test must be applied in order to reverse the findings of the trial court: (a) the appellate court must find from the record that a reasonable factual basis does not exist for the finding of the trial court; and (b) the appellate court must further determine that the record establishes that the finding of the trial court is clearly wrong (manifestly erroneous). Mart v. Hill,505 So.2d 1120 (La.1987).

The trial court is vested with great discretion in effecting a fair partition of community property. Collier v. Collier,00–1263 (La.App. 3 Cir. 7/18/01), 790 So.2d 759, writ denied,01–2365 (La.12/7/01), 803 So.2d 30. Even where the appellate court believes its inferences are more reasonable than the fact finders, reasonable determinations and inferences of fact should not be disturbed on appeal. Arceneaux v. Domingue,365 So.2d 1330 (La.1978). Additionally, a reviewing court must keep in mind that if a trial court's findings are reasonable based upon the entire record and evidence, an appellate court may not reverse said findings even if it is convinced that had it been sitting as trier of fact it would have weighed that evidence differently.Housley v. Cerise,579 So.2d 973 (La.1991). The basis for this principle of review is grounded not only upon the better capacity of the trial court to evaluate live witnesses, but also upon the proper allocation of trial and appellate functions between the respective courts. Canter v. Koehring Co.,283 So.2d 716 (La.1973).

IV.LAW AND DISCUSSION

Fundamentally Erroneous Deliberative Process

The lack of specificity in this assertion would require this reviewing court to manufacture errors, which we will not do. But, we will address some of Karen's more discernible complaints scattered throughout her appellate brief. Her complaints regarding the trial court's finding that she was not free from fault in the divorce and, therefore, not entitled to permanent spousal support are res judicata. This court previously found in Appeal No. 12–34 that Karen did not file a timely appeal of the judgment denying permanent spousal support, and the Louisiana Supreme Court denied her application for supervisory writs on June 15, 2012. See Arterburn v. Arterburn,12–34 (La.App. 3 Cir. 2/22/12), 82 So.3d 570 (unpublished opinion) (motion to dismiss granted), writs denied,12–943, 12–1004 (La.6/15/12), 90 So.3d 1066, and 90 So.3d 1068.

Karen further complains that the trial court failed to inform her of her constitutional rights, including her right to counsel. There is no such right to free, court-appointed counsel in civil community property partition cases. Indigent parents in child abuse and neglect cases are afforded legal representation pursuant to La.Ch.Code art. 571, and La.R.S. 15:185.1. The criminally accused indigent is allowed court appointed counsel if his offense is punishable by imprisonment, pursuant to La. Const. art. I, § 13. See also State v. King,97–1249 (La.App. 3 Cir. 3/6/98), 707 So.2d 1374, distinguishing civil versus criminal proceedings and the right, or lack thereof, to free counsel. Karen's contention that she is entitled to free, court-appointed counsel in this partition case is unsupported and without merit in this appeal.

Karen seems to dispute the valuations of the assets, but the record does not support her broad accusations. For example, the appraiser valued the house at $990,000.00,¹and fully explained the comparables he used from the same subdivision. Karen cross-examined him exhaustively, arguing that the house was worth $1.2 million, and that she saw no individual adjustments for the outdoor kitchen and fireplace, and the extra expenses put into the pool. The appraiser explained that he adjusted upward for the outdoor amenities, that they all came under the pool and patio category, and that he gave the maximum addition allowed for the category. He explained that individual embellishments had an enjoyment value that did not translate into dollars in an appraisal context. It is well-settled that a trial court may not substitute its opinion for that of testifying experts or completely disregard such testimony, when the testimony is well grounded and based upon good reasoning. See State, DOTD v. Van Willet,386 So.2d 1023 (La.App. 3 Cir.), writ denied,392 So.2d 692 (La.1980); State, DOTD v. Tynes,433 So.2d 809 (La.App. 1 Cir.), writ denied,437 So.2d 1153 (La.1983); and Domino v. Domino,233 La. 1014, 99 So.2d 328 (La.1957).

Karen further asserts that there was an inequitable distribution of assets but fails to assert error in the trial court's math, its method of calculation, its listing or valuing of any particular asset, the balance owed on any liability, or the court's allowance on any reimbursement, all of which are painstakingly explained and charted in the trial court's thirty-one-page reasons for ruling. It is the appellant's burden to designate support in the record for the assertions and assignments of error raised in the appellant's brief. Pursuant to Uniform Rules—Courts...