Oliphint v. Oliphint, 39209

• Decision Date: 28 May 1951
• Docket Number: No. 39209,39209
• Parties: OLIPHINT v. OLIPHINT.
• Court: Louisiana Supreme Court

Page 18

54 So.2d 18

219 La. 781

OLIPHINT v. OLIPHINT.

No. 39209.

Supreme Court of Louisiana.

May 28, 1951.

Hugh M. Wilkinson, A. Miles Coe and Harry Nowalsky, all of New Orleans, for plaintiff-appellant.

Rosen, Kammer, Wolff, Hopkins & Burke, New Orleans, for defendant-appellee.

McCALEB, Justice.

On May 2nd 1944, plaintiff filed suit against defendant in St. Charles Parish for a separation from bed and board and obtained an injunction restraining him from selling, encumbering or disposing of the community property. On June 8th 1944, she was granted a separation as prayed for and more than a year later, on July 25th 1945, a judgment of final divorce was rendered on her application.

In the course of the proceedings, plaintiff was awarded alimony pendente lite ant permanent alimony was granted to her in the judgment of divorce. Inventories were also taken for and on behalf of plaintiff, under orders of court, of various property allegedly belonging to the community. These inventories revealed assets in Jefferson Parish appraised at $20,425.25; in St. Charles Parish $56,310.89; in Orleans Parish $55,564.75 and in Caddo Parish $267,250. Defendant was not present when these inventories were made and he has at all times protested their accuracy, both as to the property included and the value thereof, it being his contention that the community assets, for the most part, consist of stock in various corporations in which he is either interested or manages and controls, whereas plaintiff, in the inventories made on her behalf, ignores the corporate entities and appraises the assets of these companies as belonging to the community.

With matters in this state, plaintiff, in an endeavor to bring about a winding up and settlement of the community affairs, brought the present action in these proceedings wherein she sought, by rule, a disclosure by defendant of all of the community assets and an accounting therefor. Specifically, plaintiff charged that defendant has in his possession or under his control community assets which he has concealed; that some of this property is held in the name of corporations of which defendant has exclusive control; that he should be required to account for all such property, together with any other property transferred by him to others in an effort to defraud the community before and after its dissolution and the issuance of the injunction, and that, finally, he show cause why the effects listed in the inventories taken in these proceedings should not be adjudged to belong to the conjugal partnership.

In accordance with the prayer of the petition, a rule to show cause issued, coupled with a writ of subpoena duces tecum, ordering the defendant to produce various books, records, ledger accounts, cancelled checks, documents, etc. pertaining to all phases of his personal business and also the books of several corporations allegedly under his dominion and control.

On the day appointed for the hearing, the defendant appeared and filed his return to the rule. In a lengthy answer, he denied plaintiff's charges of fraud and other imputations of ill practices, setting forth that he had at all times during the proceedings endeavored to cooperate with plaintiff in her ascertainment of the community estate; that he had furnished her counsel with full statements of all property standing in his name or in which he had any interest and that he was presently able and willing to furnish a complete accounting. And, attaching to his answer a purported full statement of the community assets and liabilities as of June 8th 1944 (the time of its dissolution by judgment of separation from bed and board) as of July 31st 1947 (approximately a month or two before the rule for an accounting was tried), he prayed that his return be deemed good and sufficient; that it be adjudged that the community property consisted of those assets set forth in the schedule attached to his return and that he be hence dismissed with costs.

After a hearing on the foregoing issues, at which considerable evidence was adduced, the court some months later ¹ entered judgment dismissing the rule at plaintiff's cost. Plaintiff has appealed.

During the argument of this matter on the date of its submission, one of the Justices raised the question as to whether the judgment is appealable, ² it being suggested that it was perhaps an interlocutory decree which did not work irreparable injury since the respective rights of the parties would be reviewable on an appeal from a judgment ordering a partition of the community which must ultimately be obtained. Conformable to this suggestion, the parties have furnished separate briefs covering the appealability of the judgment, defendant maintaining that the appeal should be dismissed.

After a careful examination of the pertinent authorities, it is our opinion that the judgment herein rejecting plaintiff's rule for an ascertainment of the community assets and for a complete accounting of all property, including assets allegedly concealed by defendant, is a final judgment which has, for all intents and purposes, disposed of the main controversy between the parties. After the judgment of divorce was granted, the only issue remaining was a partition of the community effects which have been and still are in defendant's possession. Plaintiff's one-half ownership in these effects is fixed by law and, hence, the partition would be a mere formality if the parties were in agreement as to the items of property forming the community. But a serious contest has arisen respecting various property allegedly in defendant's possession or under his control which is claimed by plaintiff as community. The judge, in rejecting her demand, has approved, inferentially at least, the accounting furnished by defendant; he has accordingly fixed the status of the property contained in defendant's schedule as being the true community and has also, by inference, approved the community liabilities as shown by defendant in his account.

It is, of course, true that the judgment is not a final judgment in the sense that it is the last judgment to be rendered in the case. Therefore, it cannot be said to fit exactly within the definition of definitive judgments contained in Article 539 of the Code of Practice. On the other hand, it is apparent that it cannot be regarded as an interlocutory judgment, as defined by Article 538 of the Code of Practice, since it trenches upon the merits of the case and does not merely pronounce on preliminary matters in the course of the proceedings. Albeit, the judgment falls within that zone of decrees which are not defined in the Code of Practice but which really partake of final judgments in that they dispose of issues applicable solely to the merits of the case. The omission of provisions in the Code of Practice relative to this type of judgment has been heretofore commented upon by this court in a number of cases and appeals from such judgments have been sanctioned. See Cary v. Richardson, 35 La.Ann. 505 and Garland v. Dimitry, 164 La. 875, 114 So. 718.

In maintaining that the judgment is interlocutory, counsel for defendant cite, among others, the case of Benham, Ziegler & Co. v. Mouledoux, 175 La. 711, 144 So. 428, ³ where it was held that a judgment ordering an accounting is an interlocutory decree which is not appealable as it does not work irreparable injury. But that decision, and others of the same order, are not authority for the proposition that the judgment appealed from in the case at bar is interlocutory--for, here, the plaintiff is not appealing from the court's issuance of the rule for defendant to account. On the contrary, the defendant says that he has accounted and the trial court has entered judgment approving, in effect, the account which he has rendered. Such a judgment is patently final for, as above stated, it disposes of the real controversy in the case and renders the partition and settlement of the community estate a mere formality.

The merits of the case involve primarily the status of certain property standing in the name of corporations over which defendant has complete control by virtue of stock ownership or the device of voting trusts which he has admittedly employed to advantage. There is also the question of whether the community debts, as shown by defendant in his accounting, are correct. However, as the judge of the district court, by merely dismissing plaintiff's rule, did not formally approve the account rendered by defendant, as prayed for by him, a remand of this portion of the case will be required as we cannot say, from the record before us, that all of the debts listed by defendant as community liabilities are proper.

The pertinent facts of the case are as follows: Plaintiff and defendant were married in 1925. She was his second wife, he being a widower with three children at the time of the marriage. Defendant was a protege of the Saenger brothers, Julian and A. D. Saenger of Shreveport, who were prominent in the theatre and drug business in this State for many years. He has been connected with these businesses, particularly with theatrical enterprises, for a long time and presently is Assistant Secretary of Paramount-Richards Theatres, Inc. and United Theatres, Inc. In addition thereto, he is employed by Mr. E. V. Richards of New Orleans to handle his finances and personal affairs.

It is admitted by the defendant that he owned no separate property at the time of the suit herein and that all of the assets standing in his name belong to the community which existed between plaintiff and himself. The community assets consist, in great measure, of stocks in corporations which are either owned or wholly controlled by defendant. The other assets, over which there is no contest, are minority stock holdings in Paramount-Richards Theatres, Inc., Progressive Industrial Bank, certain real estate located in Jefferson Parish, royalty interests,...