David v. David

• Decision Date: 29 May 2013
• Docket Number: No. 12–1051.,12–1051.
• Citation: 117 So.3d 148
• Parties: Dione W. DAVID v. Richard G. DAVID.
• Court: Court of Appeal of Louisiana — District of US

117 So.3d 148

Dione W. DAVID
v.
Richard G. DAVID.

No. 12–1051.

Court of Appeal of Louisiana,
Third Circuit.

April 10, 2013.
Rehearing Denied May 29, 2013.

[117 So.3d 150]

Ed W. Bankston, Lafayette, LA, for Defendant/Appellant, Richard G. David.

L.E. “Tony” Morrow, Jr., The Law Offices of Tony Morrow, Lafayette, LA, for Plaintiff/Appellee, Dione W. David.

Court composed of ULYSSES GENE THIBODEAUX, Chief Judge, BILLY HOWARD EZELL, and JAMES T. GENOVESE, Judges.

THIBODEAUX, Chief Judge.

[3 Cir. 1]The defendant, Richard G. David, appeals the trial court's judgment of partition of community property. He asserts that his former spouse, the plaintiff, Dione W. David, was allocated more in assets and reimbursements than the amounts authorized by law. For the reasons that follow, we affirm as amended the judgment of the trial court. We do not consider Dione's request for attorney fees based on her assertion of a frivolous appeal as no Answer was filed to Richard's appeal.

I. ISSUES

We must decide:

(1) whether the trial court manifestly erred in partitioning the community assets and liabilities under La.R.S. 9:2801;

(2) whether the trial court manifestly erred in awarding reimbursements claimed by the parties.

II. FACTS AND PROCEDURAL HISTORY

Richard and Dione David, domiciliaries of New Iberia, Louisiana, were married for thirty-six years. At the time of their divorce, there were five businesses and nine pieces of real estate at issue for partition. Richard and Dione stipulated to appraised values of six of the nine real properties, the values on eight vehicles and other movables, Richard's reimbursement of mortgage, tax, and insurance payments on some community properties, and Dione's reimbursement of attorney fees. The parties also stipulated that four of the businesses,

[117 So.3d 151]

David [3 Cir. 2]Mortuary, Inc., David Marble and Granite, Inc., Beau Pre Memorial Park Cemetery, and Limousines, LTD, were the separate property of Richard David.

The community's business, Dede's Wholesale Florist, Inc. (Dede's), was run primarily by Dione throughout the marriage, and she was given occupancy and use of the store location at 1203 Trotter Street in New Iberia. This asset is next door to the David Funeral Home and became the greatest source and subject of discord, restraining orders, and alleged abuses between the parties. Dede's also had a closed-down, non-operating store at 110 Glaser Drive in Lafayette, which was considered rental property.

The community's other New Iberia assets include rental houses at 6605 Old Spanish Trail (sometimes referred to as “OST” or “Highway 182” property), 407 Dahlia Street, 407 Wayne Street, 4208 Northside Road, and 508 Prioux Street. The community's family home was located at 506 Prioux Street. Richard was given the use and occupancy of the family home as his residence. The parties stipulated, by consent judgment, to Richard's waiver of expense reimbursement claims and to Dione's waiver of rental reimbursement claims on this property. The couple also owned a two-story camp at 111 Cove Row, Cypremont Point, Louisiana. Richard was also given use and occupancy of the camp.

On the above-described community property, Richard asserted 331 claims for reimbursement of expenses totaling $305,572.00. Before trial, the court engaged the services of a hearing officer, Paul Landry, to meet with the couple and their attorneys to address occupancy issues and the reimbursement claims of the parties. The hearing officer conferences (HOC) on reimbursement claims were held over four days, immediately preceding trial, during which Richard's 331 [3 Cir. 3]claims and documentation were individually discussed, then grouped and categorized on spreadsheets, providing easier access during trial, and providing the HOC evaluations and recommendations on each claim.

After a lengthy trial, the trial court issued a four-page judgment of partition of community property. Richard appeals the trial court's allocation of community assets and liabilities, the appraisals of the camp, its contents, and contents at other locations, the amount of certain “mortgage” debt, and the trial court's awards of reimbursements to both parties.

III. STANDARD OF REVIEW

An appellate court may not set aside a trial court's findings of fact in absence of manifest error 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).

IV. LAW AND DISCUSSION

Richard contends that the trial court erred in partitioning the community property under La.R.S. 9:2801 which requires “that each spouse receive [ ] property of an equal net value.” La.R.S. 9:2801(A)(4)(b). He asserts that the trial court allocated seventy-eight percent of the community's net assets to Dione, in the amount of $891,084.94, while allocating only twenty-two percent of the assets, in the amount of $249,123.40, to himself. We disagree with Richard's analysis, though we have found some mathematical errors and omissions in the [3 Cir. 4]judgment. Accordingly, we affirm as amended the trial court's judgment of partition.

[117 So.3d 152]

Preliminary Matters

As a threshold matter, we find no merit in Richard's attempts to revise the mathematical schedules in the trial court's thirty-page written reasons for judgment. This is a voluminous case, and there are various mathematical errors in the trial court's working tables that do not appear in the final judgment. The appellate court reviews the judgment, not reasons for the judgment. Johnson v. Henderson, 04–1723 (La.App. 4 Cir. 3/16/05), 899 So.2d 626. In general, if the appellate court believes that the trial court reached the proper result, it will affirm the judgment. Id. Here, Richard corrects and revises only certain figures in the trial court's reasons and omits others. We amend the judgment, not the reasons.

We further note that, pursuant to La.Code Civ.P. art. 2128, Richard has designated “such portions of the record which he desires to constitute the record on appeal.” Accordingly, we must render a judgment which is just, legal, and proper, based upon the record on appeal, but we cannot receive new evidence. La.Code Civ.P. art. 2164. Richard has attached numerous exhibits to his appellate brief, but the attached exhibits are not part of the record on appeal. C & B Sales & Serv., Inc. v. Slaughter, 04–551 (La.App. 3 Cir. 10/20/04), 885 So.2d 683.

This is also true of memoranda and exhibits that appear in the record just because they were filed in the trial court record; however, if they were not also introduced into evidence, we cannot consider them as part of the record on appeal. See State ex rel. Guste v. Thompson, 532 So.2d 524 (La.App. 1 Cir.1988); Leyva v. Laga, 549 So.2d 914 (La.App. 3 Cir.1989).

[3 Cir. 5]Here, the designated record contains documents that were filed into the record after the last day of trial on August 10, 2011. The record is not to remain open after trial except for very limited filings specifically identified and allowed by the trial court. See Dugas v. Bayou Teche Water Works, 10–1211 (La.App. 3 Cir. 4/6/11), 61 So.3d 826. The trial court exhibited great patience in receiving and re-hashing evidence, particularly on Richard's reimbursement claims, even after engaging a hearing officer. The court did not leave the record open after August 10, 2011. We limit our review to documents filed into evidence before the end of trial.

Further, we will not consider the $82,498.68 in additional reimbursements that Richard asserts on appeal, claiming that he spent these amounts on the properties after trial. We further note that the vast majority of these claims are on property allocated to him, including the family home at 506 Prioux, which was occupied by him, and the property upon which he waived his reimbursement claims.

Finally, it is the appellant's burden to designate support in the record for the assertions and assignments of error raised in his appellate brief. Pursuant to Uniform Rules—Courts of Appeal, Rule 2–12.4 (emphasis added), the appellant's argument “shall include a suitable reference by volume and page to the place in the record which contains the basis for the alleged error.” Most of the references in Richard's brief point to the page number in the trial court's written reasons rather than to a page number in this 1,633–page record that actually contains the evidence upon which we rely. The non-sequential insertion of the documents purporting to support Richard's 331 claims for reimbursement and his failure to provide the location of his proof have made for an unnecessarily difficult review.

[3 Cir. 6]ASSETS AND LIABILITIES ALLOCATED TO DIONE

The trial court's judgment allotted to Dione four rent houses and the camp, the

[117 So.3d 153]

contents of the camp, one car, and Dione's own IRA, for a total of $957,947.50 in gross assets. The trial court also allotted to Dione all of the debt associated with these assets, in the total amount of $299,393.10. The net assets to Dione as reflected in the judgment of partition equal $658,554.40. ¹ The net assets allocated to Richard, later discussed in detail, equal only $437,691.48. The equalizing payments calculated by the trial court do not equalize the distribution of net assets. Therefore, we will amend the judgment based upon our findings on the items appealed.

Rental House—Northside Road—Description of Asset

Richard asserts that the rental house on Northside Road was shown as real estate, but that the asset was in reality the proceeds of the sale of the unimproved real estate. This is correct; but he neither disputes the allocation to Dione, nor its value. Hence, the distinction is of no moment, and the error is of no merit.

[3 Cir. 7]Rental House—508 Prioux Street—Allocation of Asset

Richard contends that the rental property at 508 Prioux Street should have been allocated to him, as was the family home at 506 Prioux Street. He does not dispute that these properties are community property, but he...