Mire v. Mire

• Decision Date: 27 September 2006
• Docket Number: No. 06-511.,06-511.
• Citation: 962 So.2d 1
• Parties: Chad Anthony MIRE v. Lacinda Michelle Stewart MIRE.
• Court: Court of Appeal of Louisiana — District of US

962 So.2d 1

Chad Anthony MIRE v. Lacinda Michelle Stewart MIRE.

No. 06-511.

Court of Appeal of Louisiana, Third Circuit.

September 27, 2006.

Gary J. Ortego, Attorney at Law, Ville Platte, LA, for Plaintiff/Appellee, Chad Anthony Mire.

Susan Ford Fiser, Attorney at Law, Alexandria, LA, for Defendant/Appellant, Lacinda Michelle Stewart Mire.

Court composed of OSWALD A. DECUIR, MARC T. AMY, and BILLY HOWARD EZELL, Judges.

DECUIR, Judge.

Lacinda Michelle Stewart Mire appeals the dismissal of her petition for the supplemental partition of community property following her divorce from Chad Anthony Mire. For the reasons assigned, we affirm in part, vacate in part, and remand.

The parties were married in 1988, separated in January of 2003, and divorced in December of 2003. According to the testimony, the family home was sold in July of 2003. On December 22, 2003, the court issued an "order of visitation plan and partition of property" pursuant to an agreement reached by the parties. The vaguely worded and incomplete partition included the following division of property: to Chad, the truck, boat, trailer, lawn mower, four-wheeler, "certain personal items," and one-half of his 401K plan; to Michelle, the Suburban, computer, printer, scanner, "all items presently in the home," and one-half of Chad's 401K plan. No other property, debts, or financial accounts were included in the partition, nor was any mention made concerning the proceeds of the sale of the family home.

In 2005, Michelle petitioned the court for a supplemental partition of the community. At issue in this appeal are two items Michelle contends were inadvertently omitted from the original partition: the remaining amount on a $24,300.00 debt to Michelle's father for the down payment on a home purchased by the couple in 2001, and her share of a deferred compensation plan held by Chad's employer on his behalf which was paid out in 2004 and 2005.

With regard to the $12,000.00 balance owed to Michelle's father, Chad admitted at trial his knowledge of the debt and the couple's ongoing payments with community funds during their marriage. The court found, however, that because the house was not included in the original partition, presumably because of plans to sell it, the parties must have "intended a separate handling" of their financial obligations associated with the house. Accordingly, at the time of the hearing on the supplemental partition in 2005, the court concluded the debt to Michelle's father was no longer a community obligation.

Similarly, the trial court also denied the partition of funds received by Chad from the payout of his deferred compensation plan. Noting that both parties testified as to their knowledge of the deferred compensation plan, the court inferred by analogy their intent to partition all community property in the original partition agreement. The court explained:

In testimony before the court, [Michelle] admitted that she was aware of the deferred compensation payments or accounts at the time of the partition agreement. It would appear logical, then, that, as with the family home, this item was omitted for a reason. This appears especially true in light of the inclusion of the 401K plan in the partition and the fact that [Michelle] had signed Chad's employment contract, thereby acknowledging knowledge of its contents.

. . . .

By analogy, since both parties were aware of their complete financial picture, including presently claimed items of deferred compensation, and the Stewart loan at the time of the partition, the conclusion must be reached that the parties intended a separate handling of their affairs, as with the family home, and, therefore, intended the partition to settle all community property.

In this appeal, Chad urges this court to affirm the trial court's ruling based on Michelle's admitted knowledge of the funds included in the deferred compensation plan. He argues that she is precluded from revisiting the previous judicial partition. Conversely, Michelle argues that the deferred compensation funds and the debt to her father were inadvertently omitted from the original partition and are properly subject to supplemental partition as prayed for.

In Corley v. Baden, 00-1407, p. 2 (La. App. 3 Cir. 2/28/01), 781 So.2d 768, 770, writ denied, 01-0853 (La.5/25/01), 793 So.2d 163, this court held that the parties to a partition agreement do not forfeit any interest each may have in certain community property not included in the settlement:

[W]hile the parties certainly waived the right to recalculate or reapportion community property listed in the settlement, they did not forfeit any interest each may have in community property not included in the settlement.

In Moreau v. Moreau, 457 So.2d 1285 (La.App. 3 Cir.1984), this court allowed a supplemental partition of a husband's military retirement benefits which had been intentionally omitted from the community property settlement due to a mutual mistake of the parties. Likewise, in Succession of Tucker, 445 So.2d 510 (La. App. 3 Cir.), writ denied, 447 So.2d 1077 (La.1984), this court was presented with similar waiver language as in the instant case. We held:

LSA-C.C. art. 1308 provides that an action of partition lies between all persons who hold property in common. LSA-C.C. art. 1401 provides that the mere omission of a thing from the partition is not ground for rescission, but simply for a supplementary partition. The plaintiff here asks for nothing more than a supplementary partition of a community asset omitted from the original community property settlement through mutual oversight. . . . We do not interpret the clause in the partition agreement as a waiver of the plaintiff's right to seek a supplemental partition of an omitted asset which was never considered by the parties at the time of the original agreement. Therefore, the plaintiff has the right to ask for a supplemental partition under C.C. art. 1401.

445 So.2d at 513.

Article 807 of the Louisiana Civil Code provides that "[a]ny co-owner has a right to demand partition of a thing held in indivision." Regarding community property, the jurisprudence of this state holds that "Community property which is not disposed of by a community property settlement agreement remains owned in indivision by the parties. Rollison v. Rollison, 541 So.2d 375 (La.App. 2 Cir.1989)." Heggins v. Heggins, 590 So.2d 647, 649 (La. App. 3 Cir.1991), writ denied, 592 So.2d 1300 (La.1992). Furthermore, in a holding specifically affirmed by the supreme court, the fifth...