Hodson v. Hodson

• Decision Date: 19 March 1974
• Docket Number: No. 12243,12243
• Citation: 292 So.2d 831
• Parties: Jane Darling HODSON, Plaintiff-Appellee, v. Myrl Jamison HODSON, Defendant-Appellant.
• Court: Court of Appeal of Louisiana — District of US

Page 831

292 So.2d 831

Jane Darling HODSON, Plaintiff-Appellee, v. Myrl Jamison HODSON, Defendant-Appellant.

No. 12243.

Court of Appeal of Louisiana, Second Circuit.

March 19, 1974.

Rehearing Denied April 23, 1974.

Writ Refused June 7, 1974.

Hal V. Lyons, Glen H. Smith, J. Edwin Bailey, Jr., Shreveport, for defendant-appellant.

Love, Rigby, Dehan & Love, by Kenneth Rigby, Shreveport, for plaintiff-appellee.

Before AYRES, BOLIN and PRICE, JJ.

AYRES, Judge.

Plaintiff and defendant were formerly husband and wife. In the present proceedings instituted by her against him, plaintiff seeks a liquidation and settlement of the community of acquets and gains theretofore existing between them. Plaintiff particularly seeks (1) to be recognized as the owner of an undivided community interest in certain described assets, real and personal, rights and credits; (2) an inventory of the estate; (3) an accounting by her former husband of her interest in the community estate; (1) a partition of the property by licitation; and (5), after payment of costs of the proceedings and the community debts, that she be paid her share of the proceeds.

After trial, there was judgment recognizing plaintiff as the owner of an undivided one-half interest in and to the remaining net value as of October 4, 1965, of $2,235.93 and of $3.159.90 in two described accounts of Investors Syndicate of America, Inc., together with an undivided one-half interest in and to all dividends and accruals thereon; and further judgment in her favor against the defendant in the sum of $23,166.94, with 5% Per annum interest thereon from November 6, 1966, until paid, and for all costs of this suit. From the thus rendered and signed, defendant prosecutes a devolutive appeal.

Plaintiff-appellee, by answer to defendant's appeal, prays for judgment in her favor against the defendant for the additional sum of $13,692.88, with 5% Per annum interest on all awards in her favor from March 7, 1966, the date of the dissolution of the community estate, until paid, and for damages for a frivolous appeal by the defendant under the provisions of LSA-C.C.P. Art. 2164. In her answer to the appeal, plaintiff-appellee further alleges that since the perfecting of this appeal, she has learned for the first time that defendant-appellant is a participant in the Investors Diversified Services, Inc.'s Career Distributors Retirement Plan, to which there accrued credits and benefits to the defendant of approximately $9,000.00; that this community asset was not inventoried nor was its existence disclosed by the defendant upon trial of the accounting; and that her rights to assert her claims with reference thereto should be reserved unto her.

The record establishes that plaintiff and defendant were married on October 22, 1942, in the State of Texas. They moved to Louisiana in 1953 and established their residence in Caddo Parish where they continued to live together as man and wife until their separation on May 5, 1965. An action for a separation a mensa et thoro was instituted by the wife against the husband on October 4, 1965. A reconventional demand for a judgment of separation in his behalf was filed by the defendant on March 7, 1966, and it was on his behalf that a judgment predicated upon his reconventional demand for a decree of separation was rendered and signed on April 29, 1966.

No appeal was taken from the aforesaid judgment of separation. In due course the judgment became final. The legal effect was that the community of acquets and gains formerly existing between the husband and the wife was dissolved as of the date of the filing of the reconventional demand upon which the judgment was based, that is, on March 7, 1966. See Sciambra v. Sciambra, 153 So.2d 441, 443 (La.App., 4th Cir., 1963--writs denied, 244 La. 900, 154 So.2d 768 (1963)).

In commenting on a situation in the Sciambra case, similar to the one existing here, our brethren of the Fourth Circuit, through Judge Yarrut, as the author of the opinion, pointed out:

'Since the wife's suit was dismissed, the date of the filing of her suit is of no importance and considered as never filed. However, the date of filing of the husband's reconventional demand, resulting in judgment in his favor, became the date of suit.

'The case of Gastauer v. Gastauer, 143 La. 749, 79 So. 326, holds that a suit for separation or divorce, which has been dismissed, is considered as not having been filed.

'The case of Ohanna v. Ohanna, La.App., 129 So.2d 249, is merely confirmatory of LSA-C.C. Art. 150 that the husband cannot contract a debt binding the community during the pendency of the suit, and has no application to a debt contracted by the husband before the filing of his successful suit.'

Thereafter, under date of December 8, 1967, a judgment was rendered and signed as prayed for ordering a partition of the community estate formerly existing between plaintiff and defendant, partially by licitation and partially in kind, as recommended by the notary taking the inventory. Rights were reserved to both parties to cause to be subsequently partitioned any property excluded from or not included in the inventory, and to urge all appropriate claims predicated thereon.

Under the demand for an accounting, defendant did not 'account' in his responsive pleadings. Therefore, on September 22, 1970, plaintiff, by motion, sought to compel defendant to 'account' and, in the alternative, prayed for a summary judgment. On January 6, 1971, defendant was further ordered to account for checks and sums of money named in the petition for accounting and received by him during the year of 1963 and subsequently thereto. An accounting was rendered by the defendant on January 22, 1971. After a hearing and trial, there was judgment in favor of plaintiff and against the defendant as hereinabove set forth.

The record in this case is comprised of 480 pages of testimony, together with numerous boxes of exhibits. The issues are factual in character. We find that our learned brother below was ingenuous in the development of the pertinent facts. Therefore, we adopt as our own the major part of his reasons for judgment:

'The pleadings on file and the evidence has convinced me that the serious marital discord did not begin until sometime in 1963. For this reason, Mr. Hodson was compelled to account for sums of money received by him from 1963 and subsequently thereto. Since Mr. Hodson had the burden of proof in this matter any sums received by him and not properly explained created a liability for said amount. Previous to 1963 the burden of proof rested with Mrs. Hodson as to the specific items mentioned in her petition in accordance with the last paragraph of Civil Code Article 2404. See Broyles v. Broyles, (La.App.) 215 So.2d 526, at p. 529; Oliphint v. Oliphint (219 La. 781) 54 So.2d 18, at p. 24; 25 L.L.R. 518.

'On the trial of the accounting and opposition to the inventory the Court learned that the 1966 ledger of Myrl Jamison Hodson which showed his ledger book of stock transactions for that year had been destroyed since it was last produced in Court. The explanation was that Mr. Hodson's present wife accidently destroyed it since it had been stored in the attic. In addition, Mr. Hodson transferred immovable property to a third person in order to keep from having to account for the same to his wife; however, he re-transferred it back on advice of counsel. These facts compel the Court to accept only that portion of Mr. Hodson's accounting for the period subsequent to January 1, 1963, that can be substantiated by independent means.

'On March 15, 1965, Mr. Hodson drew out $12,548.20 from his stock account and cashed the check at the First National Bank of Shreveport. In addition, on the same date, he sold stock in his account with Merrill Lunch, Pierce, Fenner & Smith for $10,520.80. Of these amounts only $6,000.00 can be traced or established as properly accounted for, leaving $17,069.00 unaccounted for. Of this amount Mrs. Hodson would be due a credit of $8,534.50.

'On May 3, 1965, he drew $5,997.16 from three investment accounts, part of which was $1,647.37 from an account that has been established to be the separate property of Mrs. Hodson. This $5,997.16 is unaccounted for, and Mrs. Hodson would be due a credit of $3,822.37.

'On March 15, 1965, plaintiff sold 100 shares of stock and netted $260.29. Mrs. Hodson is due one-half thereof in the amount of $130.15.

'Plaintiff's Exhibit No. 27 reveals checks received in 1963, 1964, 1965 and 1966 as not having been deposited or accounted for by Mr. Hodson. These checks amount to a total of $10,782.35, and Mrs. Hodson is due credit for one-half thereof in the amount of $4,319.92.

'Plaintiff's Exhibit No. 18 reveals a $720.00 payment from Mrs. Winter in the year 1966 which has not been accounted for and Mrs. Hodson is due a credit of one-half thereof, or $360.00.

'The separate accounts of Mrs. Hodson are due reimbursement for $1,750.00 which was taken on January 25, 1965, and $1,000.00 which was taken on July 26, 1963.

'On September 10, 1963, $500.00 was received by Mr. Hodson yet not deposited it the bank or elsewher, for which Mrs. Hodson is due reimbursement of one-half thereof, or $250.00.

'Mrs. Hodson is also due credit for the remaining net values as of October 4, 1965, of $1,029.91 in Acct. No. 20--26466, the entire amount of which has been shown to be her separate property; one-half of $2,235.93 from Acct. No. 20--200576, or $1,117.97; one-half of $3,159.90 from Acct. No. 81--321294, or $1,579.95, from which will be deducted the amount of $1,029.91 from Acct. No. 20--26466 since the entire amount has not been withdrawn by her.

'In March of 1959, Mr. Hodson received a check from one of the investment accounts and endorsed it to his father, E. L. Hodson. The evidence has convinced me that Mrs. Hodson has shown this to be a part of community funds and she is entitled to credit for one-half thereof, or $1,500.00.

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