Barbin v. Barbin
| Decision Date | 28 June 1989 |
| Docket Number | No. 88-296,88-296 |
| Citation | 546 So.2d 609 |
| Parties | Carolyn Rosenbaum BARBIN, Plaintiff-Appellant, v. James Donald BARBIN, Sr., Defendant-Appellee. 546 So.2d 609 |
| Court | Court of Appeal of Louisiana — District of US |
Cole & Guidry, Robert L. Cole, Lafayette, for plaintiff-appellant.
Edwards, Stefanski, Barousse, Cunningham, Stefanski & Zaunbrecher, Stephen Stefanski, Crowley, for defendant-appellee.
Before STOKER, YELVERTON and KNOLL, JJ.
This is an appeal from two holdings of the trial court in a judgment partitioning the community property co-owned by the parties who were formerly husband and wife. The plaintiff is the appellant. There is no complaint as to what the trial court found to be community property, and there is no complaint as to the valuations fixed by the trial court. The appellant's complaints are these: (1) the failure to charge the husband with legal interest on three items of community funds which he had under his control, which interest appellant claims should have been credited to the community, and (2) the awarding of a certificate of deposit and checking account funds to appellant rather than granting a money judgment against the husband for the amounts these funds represented.
The parties in this case were granted a judgment of separation on August 16, 1984 which retroactively terminated the community as of March 31, 1983, the date on which the petition for separation was filed. A trial on the merits to partition the community was held in June 1987 and a judgment of partition was rendered on August 26, 1987. At the trial, the trial court found that the plaintiff wife owed reimbursement for $36,657.01 of community property and the defendant husband owed reimbursement for $151,735.07 of community property. To equalize the partition the court awarded to plaintiff a money judgment against defendant for $92,225.61. In the division of the specific items of the community the trial court awarded the appellant wife two items which stood in her former husband's name, the certificate of deposit and checking account mentioned above.
In this assignment the appellant asserts a novel claim. Mrs. Barbin claims that three separate funds determined by the court to have been community funds were held by Mr. Barbin from the time of dissolution of the community without investment or management so that they would earn interest. Accordingly, Mrs. Barbin asserts that the trial court erred in not charging Mr. Barbin with legal interest on these funds and crediting such interest to the community to be partitioned with all other community property and funds.
The three funds Mrs. Barbin refers to are described in her brief as follows
"(a) Funds removed by JAMES DONALD BARBIN from the community $ 27,234.00
checking account No. 200930 on February 21, 1983 in
the amount of FIFTYTHREE THOUSAND, FOUR HUNDRED &
NO/100 ($53,400.00) DOLLARS. Legal interest claimed by
plaintiff from April 1, 1983 through date of trial on
Item 24 of her Detailed Descriptive List
(b) Legal interest on bonus check received by JAMES DONALD 31,726.00
BARBIN on March 15, 1983 in the amount of SIXTYTWO
THOUSAND, TWO HUNDRED EIGHT & NO/100 ($62,208.00)
DOLLARS, with legal interest computed from April 1,
1983, the date of trial and claimed by plaintiff in
Item 12 of her Detailed Descriptive List:
(c) Legal interest on those funds remaining in the checking 6,406.11
account of JAMES DONALD BARBIN at FIRST NATIONAL BANK,
Crowley, Louisiana, said legal interest computed on the
balance of said account of TWELVE THOUSAND, FIVE
HUNDRED SIXTYONE & NO/100 ($12,561.00) DOLLARS from
April 1, 1983 through date of trial and claimed by
plaintiff in Item 10 of her Detailed Descriptive List:
-----------
TOTAL LEGAL INTEREST CLAIMED $65,366.11 "
The community was terminated as of March 31, 1983 by the judgment of separation. The judgment of partition was signed on August 26, 1987. On the subject of interest the judgment provided:
In his written reasons for judgment, the trial judge found:
We affirm the denial of interest as claimed by plaintiff-appellant. We know of no theory of law that requires a former partner in community to invest community funds prior to partition so that they will earn interest in the interim between dissolution of the community and the date of partition. Plaintiff-appellant relies on the cases referred to by the trial court in its written reasons. In those cases legal interest was allowed from the date of termination of the community under LSA-C.C. art. 1938 () on any balance owed to one spouse to equalize their positions where the spouse owing the equalizing payment has been guilty of fraud in attempting to conceal or misrepresent facts concerning community property. Here, in this case, the plaintiff-appellant seeks to hold the defendant liable to the community (not to her) for allowing community funds to be idle prior to the partition. It is true that plaintiff-appellant charges the defendant with attempted fraud, but her claim is not based the same as those cases represented by Hodson v. Hodson, 292 So.2d 831 (La.App. 2d Cir.), writ denied, 295 So.2d 177 (La.1974), and referred to by the trial court in its reasons for judgment. This being the case, we need not consider whether the Hodson v. Hodson line of cases (the so-called ex delicto cases) represent good law. 1 We hold that appellant's claim for the legal interest in question is groundless. Interest from the date of the partition judgment is not in question.
Plaintiff-appellant contends in her second assignment of error that the trial court erred in awarding to her Certificate of Deposit No. 14842 and defendant's Checking Account No. 2-009-30 instead of a money judgment against defendant for $41,352.99. At oral argument counsel for the parties agreed that at the time of trial the certificate of deposit no longer existed. Under the circumstances, the trial court unwittingly erred in awarding this item to plaintiff-appellant. Consequently, we will...
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93-2366 La.App. 4 Cir. 5/26/94, Howes v. Howes
...(La.1986). Another Third Circuit case held that legal interest is due from the date of the judgment of partition. Barbin v. Barbin, 546 So.2d 609 (La.App. 3rd Cir.1989). In a Fifth Circuit case, legal interest was awarded from the date that the community was terminated. Fouchi v. Fouchi, 54......
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Cutting v. Cutting
...discussion on the correctness of this legal interest award. See, Vice v. Vice, 567 So.2d 774 (La.App. 3rd Cir.1990); Barbin v. Barbin, 546 So.2d 609 (La.App. 3rd Cir.1989); and, compare, Oliver v. Oliver, 561 So.2d 908 (La.App. 2nd RETIREMENT PLAN Jack appeals the trial court's judgment, as......
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97-45 La.App. 5 Cir. 4/29/97, Overton v. Overton
...assets in control of her ex-husband. In reversing the trial court's judgment of interest, the Third Circuit, citing Barbin v. Barbin, 546 So.2d 609, 611 (La.App. 3 Cir.1989), We know of no theory of law that requires a former partner in community to invest community funds prior to partition......
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95-352 La.App. 3 Cir. 12/6/95, Preis v. Preis
...of community property is awarded from the date the judgment is rendered and not from date of judicial demand. Barbin v. Barbin, 546 So.2d 609 (La.App. 3 Cir.1989). This article combined with previous jurisprudence clearly establishes that Ms. Preis should be awarded interest from the date o......