Tasha Pulley Anthony v. Jared David Anthony, Sr

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STATE OF LOUISIANA

COURT OF APPEAL

FIRST CIRCUIT

2019 CA 1198

TASHA PULLEY ANTHONY

VERSUS

JARED DAVID ANTHONY, SR.

Judgment Rendered:
MAY 2 6 2020

On Appeal from the Family Court
In and for the Parish of East Baton Rouge
State of Louisiana
Docket No. F192185, Div. B

Honorable Lisa Woodruff -White, Judge Presiding

Kathleen M. Wilson Counsel for Plaintiff/ Appellant,
Baton Rouge, Louisiana Tasha Pulley Anthony

Jared David Anthony, Sr. Defendant/ Appellee,
Baton Rouge, Louisiana In Proper Person

BEFORE: WHIPPLE, C. J., GUIDRY, AND BURRIS,' JJ.

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Judge William J. Burris, retired, serving pro tempore by special appointment of the
Louisiana Supreme Court.

BURRIS, J.

The plaintiff appeals a judgment, signed on June 14, 2019, that retroactively

granted her use and occupancy of the community residence and retroactively

awarded rental reimbursement to the defendant, the plaintiff's ex- husband, from

the date the petition for divorce was filed in 2014 through the date the home was

destroyed in 2016. For the reasons that follow, we vacate that portion of the

judgment that awarded the plaintiff retroactive use and occupancy and awarded

the defendant retroactive rental reimbursement in the amount of $46, 800. 00 and

remand to the trial court to recalculate the equalization payments owed to the

parties. The judgment is affirmed in all other respects.

FACTS AND PROCEDURAL HISTORY

Tasha Pulley Anthony and Jared David Anthony, Sr. were married in

December 1998; three children were born during their marriage. 2 On November

71 2013, Tasha filed a petition for divorce pursuant to La. Civ. Code art. 102 and

sought ancillary matters, including exclusive use of the parties' community

residence or, alternatively, fair market rental value of the home if Jared was

awarded exclusive use. Her request for incidental relief was set for contradictory

hearing on December 10, 2013.

Jared filed an answer and reconventional demand in response to Tasha' s

petition for divorce on December 6, 2013, wherein he sought, among other relief,

that Tasha, as defendant -in -reconvention, be granted exclusive use of the parties'

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community residence. Jared reserved his right to reimbursement of the fair

market rental value of the home and the right to have the rental value determined

Z
Tasha' s petition for divorce states that the couple married in December 2008; however, Jared
denied this factual allegation in his answer and reconventional demand, stating that the couple
married in December 1998. Both agree that three children were born during their marriage.
Because their youngest child was born in 2001, we use December 1998 as the date of marriage.
3
During the partition proceeding, the trial court incorrectly interpreted Jared' s pleading as a
request for exclusive use of the family home. However, based on our review of Jared' s answer
and reconventional demand, it appears that he requested that Tasha be given exclusive use and
occupancy, subject to his right to receive rental reimbursement.

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at a later date. A contradictory hearing on Jared' s request for incidental relief was

set for January 14, 2014.

Both Tasha and Jared, along with their respective counsel, appeared in court

on December 10, 2013 and agreed to pass the issue concerning the use of the
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community home and right to rental reimbursement until January 14, 2014. It

appears that court was not held on January 14th due to inclement weather, and

the matter was reset to January 28, 2014. However, the record is void of any

evidence that a hearing took place on January 28th. The record reflects that the

parties appeared in court several times over the next few years, but entitlement

to exclusive use and occupancy of the community residence and rental

reimbursement were not addressed. A judgment of divorce was entered on March

19, 2015. Tasha filed a petition for judicial partition of the parties' community

property on May 12, 2016.

It is undisputed that Jared moved out of the family home in November 2013

and never returned with the intent to reside there. 5 It is further undisputed that

Tasha remained in the home, located in Baton Rouge, with the couple' s minor

children until August 12, 2016, when the home was destroyed in the flood that

devastated many parts of the area. The home remained vacant until it was sold

in March 2018. 6

A judgment determining use and occupancy and entitlement to rental

reimbursement was not entered prior to August 12, 2016. Instead, these issues

were not considered by the court until January 3, 2019, during the trial on the

partition of community property. After hearing testimony from Jared and Tasha

4
An interim judgment was signed on March 13, 2014, memorializing the agreements reached
by the parties during the December 10, 2013 proceeding. The interim judgment also decreed a
separation of property pursuant to La. Civ. Code art. 2374( C).
5
Although Tasha changed the locks on the home prior to Christmas 2013, Jared did not testify
that he would have or intended to return to the home to reside there but for Tasha' s actions.
6
The parties reached an amicable agreement regarding the division of the proceeds from the
sale of the home.

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and argument of counsel, the trial court awarded exclusive use and occupancy of

the community residence to Tasha, retroactively from November 7, 2013, the date

of the filing of the petition for divorce, through August 12, 2016, since she had, in

fact, exercised exclusive use and occupancy of the home during that time. The

court further awarded rental reimbursement to Jared in the amount of $46, 800. 00,

based on the parties' stipulation that the value of the rental reimbursement was

1, 300. 00 per month.' A judgment memorializing this stipulation, along with other

partition agreements reached by the parties, and the trial court's ruling was signed

on June 14, 2019.

From this judgment, Tasha appealed, arguing that the trial court erred by

retroactively awarding both use and occupancy and rental reimbursement.

LAW AND DISCUSSION

A trial court has broad discretion in adjudicating issues raised by divorce and

partition of the community proceedings. Reimbursements are factual

determinations and absent an abuse of discretion, the trial court' s decision should

not be disturbed on appeal. Pierce v. Pierce, 2019- 0689 ( La. App. 1st Cir.

2/ 21/ 2020), 2020 WL 862474, * 6 ( unpublished).

Louisiana Revised Statute 9: 374 governs the right to rental reimbursement

in partition proceedings and provides, in relevant part:

B. When the family residence is community property..., after or
in conjunction with the filing of a petition for divorce or for separation
of property in accordance with Civil Code Article 2374, either spouse
may petition for, and a court may award to one of the spouses, after
a contradictory hearing, the use and occupancy of the family
residence... pending partition of the property or further order of the

court, whichever occurs first...

C. A spouse who, in accordance with the provisions of

Subsection A or B of this Section, uses and occupies or is awarded by
the court the use and occupancy of the family residence... shall not be
liable to the other spouse for rental for the use and occupancy, except
as hereafter provided. If the court awards use and occupancy to a

The parties stipulated to the monthly rental value, but Tasha reserved her right to challenge
the awards of use and occupancy and rental reimbursement.

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spouse, it shall at that time determine whether to award rental for the
use and occupancy and, if so, the amount of the rent. The parties
may agree to defer the rental issue for decision in the partition
proceedings. If the parties agreed at the time of the award of use and
occupancy to defer the rental issue, the court may make an award of
rental retroactive to the date of the award of use and occupancy.

We agree with Tasha that La. R. S. 9: 374( B) does not authorize the trial

court to retroactively award use and occupancy at the partition proceeding.

Instead, subpart ( B) clearly authorizes the trial court to award use and occupancy

to one spouse, after a contradictory hearing, pending partition of the property or

further order of the court, whichever occurs first. Thus, we find the trial court

abused its discretion in awarding use and occupancy of the community residence

to Tasha in January 2019, retroactively from November 2013 through August 2016.

Next, we consider whether the trial court abused its discretion by awarding

retroactive rental payments based on Tasha' s actual use and occupancy of the

family home. We find this court' s decisions in Benoit v. Benoit 2011- 0376 ( La.

App. 1st Cir. 3/ 8/ 12) 91 So. 3d 1015, writ denied, 2012- 1265 ( La. 9/ 28/ 12), 98

So. 3d 838, and Averill v. Averill, 2018- 0299 ( La. App. 1st Cir. 9/ 21/ 18), 2018

WL 4520246, * 4 ( unpublished), are instructive concerning the interpretation and

application of La. R. S. 9: 374( C).

In Benoit, both spouses, Tammy and Troy, requested use and occupancy

of the family residence in their divorce pleadings, and Tammy alternatively

requested rental reimbursement should Troy be granted use and occupancy.$ By

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Although Benoit was decided based on La. R. S. 9: 374( C) as it appeared prior to the 2009
amendment, the relevant portions of this subpart were unchanged by the amendment. See 2009
La. Acts 204, § 2. Prior to the amendment, La. R. S. 9: 374( C) stated:

A spouse who uses and occupies or is awarded by the court the use and occupancy
of the family residence pending either the termination of the marriage or the partition
of the community property in accordance with the provisions of La. R. S. 9: 374( A) or
B) shall not be liable to the other spouse for rental for the use and occupancy, except
as hereafter provided. If the court awards use and occupancy to a spouse, it shall at
that time determine whether or not to award rental for the use and occupancy and,
if so, the amount of the rent. The parties may agree to defer the rental issue for
decision in the partition proceedings. If the parties agreed at the time of the award
of use and occupancy to defer the rental issue, the court may make an award of rental
retroactive to the date of the award of use and occupancy. [ Emphasis added.] Benoit,
91 So. 3d at 1029, n. 7.

6;

consent judgment, the determination of use and occupancy was continued

indefinitely, and Tammy' s rule for rental value assessment against Troy was

reserved to her, to be determined at the time of the partition of the community

property. Id. at 1030. The exclusive use and occupancy of the family home was

never awarded to either party by the court, but the parties informally agreed to

allow Troy to continue to reside in the family home during the pendency of the

divorce and partition proceedings. Id. at 1030- 31.

At the conclusion of the partition proceeding, the trial court offset the

amount of reimbursement owed to Troy by the rental value of the family home

owed to Tammy. This court found that, in doing so, the trial court abused its

discretion and concluded that Tammy was not entitled to rental reimbursement.

Id. at 1031. The parties' agreement concerning use and occupancy of the family

home was never reduced to judgment nor was there any evidence that the parties

agreed to defer the rental issue at the time they agreed to Troy's use and

occupancy of the family home. Therefore, the parties did not contemporaneously

agree to defer the rental issue at the time of the award of use and occupancy as

required by La. R. S. 9: 374( C). Id.

More recently, in Averill, this court held that, following the 2004

amendment, La. R. S. 9: 374( C) 9 no longer requires that an agreement or court

order concerning rent be entered at the same time that use and occupancy is

determined. Id. at * 3, recognizing that the substantive amendment to subpart (C)

legislatively overruled that portion of McCarroll v. McCarroll, 96- 2700 ( La.

10/ 21/ 97), 701 So. 2d 1280, which required a contemporaneous award of use and

rent. Now, La. R. S. 9: 374( C) expressly allows for retroactive rent to be assessed

at the partition hearing provided there is an agreement by the parties to defer the

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See 2004 La. Acts, No. 668, § 1, eff. July 5, 2004.

issue, as was done in Averill. 10 In its discussion of the parties' arguments, this

court recognized that La. R. S. 9: 374( C) requires that the determination of whether

to award rent or whether that decision should be deferred must be undertaken at

the time a spouse is awarded use and occupancy. Id. at * 4.

Here, like in Benoit, the informal agreement or arrangement between

Tasha and Jared to allow Tasha to enjoy exclusive use and occupancy of the

community residence was not reduced to judgment, and there is no evidence that

the parties agreed to defer the rental issue at the time they agreed to Tasha' s use

and occupancy of the community residence. Further, as in Benoit, Jared' s

reservation of the right to have the court consider his claim for rental

reimbursement does not satisfy La. R. S. 9: 374( C). Because the parties did not

contemporaneously agree to defer the determination of Jared' s entitlement to rent

at the time Tasha' s use and occupancy was established, we find the trial court

abused its discretion in awarding retroactive rental reimbursement to Jared.

CONCLUSION

For the foregoing reasons, we vacate that portion of the June 14, 2019

judgment that awarded use and occupancy of the community residence to the

plaintiff retroactive to the date the petition for divorce was filed through the date

the home was destroyed by flood. We also vacate that portion of the June 14,

2019 judgment that awarded retroactive rental reimbursement to the defendant

in the amount of $ 46, 800. 00. The matter is remanded to the trial court to

recalculate the equalization payments owed to the parties. The judgment is

io
There, Ms. Averill voluntarily left the community residence, relinquishing use and occupancy
of the home to Mr. Averill. She filed a petition for divorce and requested, among other things,
that she be awarded rent for Mr. Averill' s exclusive use and occupancy of the family home. In
his answer and reconventional demand, Mr. Averill requested that he be awarded exclusive use
and occupancy of the family home or, alternatively, fair rental reimbursement. Averill, 2018 WL
4520246, at * 1. Several months after Ms. Averill' s petition was filed, the parties entered a consent
judgment, which provided that Mr. Averill was granted use and occupancy of the family home
until a judicial partition of the community property or mutual agreement of the parties and that
Ms. Averill' s claim for rental reimbursement would be deferred until the partition of the
community. Id. Thus, the parties did precisely what La. R. S. 9: 374( C), as amended, allows, and
this court affirmed the award of retroactive rental reimbursement to Ms. Averill. Id. at * 4.

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affirmed in all other respects. Costs of this appeal are assessed against the

defendant, Jared Anthony, Sr.

JUDGMENT VACATED IN PART, AFFIRMED IN PART, AND

REMANDED.