Baron T. Drayton v. Segen Mesmer-Drayton

Judgment rendered September 22, 2021.
Application for rehearing may be filed
within the delay allowed by Art. 2166,
La. C.C.P.

No. 54,034-CA

COURT OF APPEAL
SECOND CIRCUIT
STATE OF LOUISIANA

*****

BARON T. DRAYTON Plaintiff-Appellant

versus

SEGEN MESMER-DRAYTON Defendant-Appellee

*****

Appealed from the
Twenty-Sixth Judicial District Court for the
Parish of Bossier, Louisiana
Trial Court No. 116807

Honorable Charles A. Smith, Judge

*****

HESSER & FLYNN, LLP Counsel for Appellant
By: David C. Hesser

THE MARLER LAW FIRM, LLC Counsel for Appellee
By: Hannah Marler

LAW OFFICE OF KELLY L. LONG
By: Kelly L. Long

*****

Before STONE, STEPHENS, and HUNTER, JJ.

HUNTER, J.

This appeal arises as a dispute over valuations assigned by the trial

court in a partition of community assets formerly existing between

plaintiff/appellant, Baron T. Drayton, and defendant/appellee, Segen

Mesmer-Drayton. 1 For the following reasons, we affirm in part, reverse in

part, and remand with instructions.

FACTS

Plaintiff/appellant, Baron T. Drayton (“Drayton”), is a retired member

of the United States Air Force (“USAF”). Drayton is a native of Greenville,

Mississippi, and he enlisted in the USAF on September 11, 1989, and was

stationed at Ramstein Air Force Base in Germany. While in Germany,

Drayton met defendant/appellee, Segen Mesmer-Drayton (“Mesmer-

Drayton”), who was a German National. The parties began living together

in Kaiserslautern, Germany, and they subsequently married on June 27,

1997.2

In October 2002, the USAF issued a “Permanent Change of Station”

and transferred Drayton to Barksdale Air Force Base in Bossier City,

Louisiana. The parties purchased a house on Le Oaks Drive in Bossier City

and established their domicile in Louisiana. The couple resided together in

Bossier City until they separated in May 2004.

Drayton filed a petition for divorce on April 7, 2005, alleging he was

a domiciliary of Louisiana. He also alleged he and Mesmer-Drayton had

“voluntarily lived separate and apart since on or about May 10, 2004.” The

1
In some portions of the record, defendant’s name is spelled “Segen”; in other
portions, it is spelled “Segan.”
2
The parties had two children, both of whom have reached the age of majority.

judgment of divorce was granted on October 27, 2005; a final judgment of

divorce was signed on November 28, 2005. Drayton was awarded exclusive

use of the matrimonial domicile and was ordered to pay child and spousal

support to Mesmer-Drayton. The judgment of divorce reserved the rights of

both parties to future reimbursement claims.

Following the separation, Drayton continued to live in the former

matrimonial domicile approximately five years. In January 2011, he leased

the house to a tenant, collected rent, and allegedly continued to pay the

monthly mortgage in the amount of $1,262.53. The tenant died in January

2013, and, according to Drayton, left the house in disrepair and “unlivable.”

In June 2013, Drayton moved to Texas and enlisted his neighbors to assist

him in monitoring and maintaining the house. Drayton maintained he

attempted to sell the house, but he never listed it for sale, and the house

remained empty from January 2013 until January 2020.

Over the years, both parties have filed multiple petitions to partition

the community property with detailed descriptive lists.3 However, the

proceedings stalled due to numerous delays and changes in legal

representation by both parties.

On December 5, 2018, Drayton filed the instant Petition to Partition

the Community Property and Detailed Descriptive List. On February 12,

2019, a judgment was entered terminating the community property regime

retroactive to October 27, 2005 (the original petition for divorce was filed

3
On May 26, 2006, Mesmer-Drayton filed a petition for partition of community
property. On January 17, Drayton filed a petition for judicial partition of community
property and detailed descriptive list. On September 3, 2008, Drayton filed a second
petition for judicial partition of community property and a second detailed descriptive
list. On November 5, 2008, Mesmer-Drayton filed a detailed descriptive list. On
December 18, 2013, Mesmer-Drayton filed another petition to partition community
property and rule to show cause.
2

April 7, 2005; the judgment of divorce was granted October 27, 2005).

Despite the error in the judgment, the trial judge and all counsel of record

signed the judgment, and it was filed into the record.4

A trial on the partition was held September 21, 2020. After hearing

the testimony and reviewing the evidence, the trial court rendered judgment

as follows:

IT IS HEREBY ORDERED that effective October 2013
and continuing each month thereafter, SEGEN MESMER
DRAYTON is awarded 17.36 percent (currently $423.57) of
BARON T. DRAYTON’S net disposable military retired pay.
Accruing the monthly amount due from October 2013 through
September 2020, BARON T. DRAYTON owes unto SEGEN
MESMER DRAYTON the aggregate sum of $35,579.88.

IT IS FURTHER ORDERED that beginning October 30,
2020, [BARON] T. DRAYTON is to forward directly to
SEGEN MESMER DRAYTON 17.36 percent (currently
$423.57 per month) representing her community share of his
net disposable military retired pay. This payment is due by the
30th calendar day each month.

IT IS FURTHER ORDERED that BARON T.
DRAYTON shall receive a credit against the $35,579.88 owed
to SEGEN MESMER DRAYTON in the amount of $5,581.80.
This amount represents one half of the reduction in principal on
the mortgage associated with the former matrimonial domicile
for the mortgage payments made from February 2013 until
January 2020. For the period of time from April 7, 2005 until
January 2013, BARON T. DRAYTON was not awarded
reimbursement for payment of the mortgage and SEGEN
MESMER DRAYTON was not awarded rental reimbursement
as those amounts were found to be equal claims offsetting each
other.

IT IS FURTHER ORDRED that BARON T. DRAYTON
shall receive a credit against the $35,579.88 owed to SEGEN
MESMER DRAYTON in the amount of $1,733.80. This
amount represents one half of costs of repairs to the former
matrimonial domicile that are accepted by the court.

4
Thereafter, Mesmer-Drayton filed a detailed descriptive list and traversed the
detailed descriptive list filed by Drayton. On September 4, 2020, Drayton filed an
amended and supplemental descriptive list and traversal.

3

IT IS FURTHER ORDERED that the funds held in
Magnolia Title escrow account in the amount of $24,964.45
shall be distributed to SEGEN MESMER DRAYTON.
BARON T. DRAYTON shall receive credit against the
$35,579.88 owed to SEGEN MESMER DRAYTON in the
amount of $12,482.23. This amount represents one half of the
proceeds from the sale of the former matrimonial domicile.
***
Drayton now appeals.

DISCUSSION

Drayton contends the trial court erred in finding the parties, who were

not domiciled in Louisiana for the first five years of their marriage, were

subject to Louisiana’s community property regime prior to becoming

domiciled in the state. He argues he and Mesmer-Drayton did not establish

a domicile in Louisiana until they moved here in October 2002. According

to Drayton, the military retirement he earned from June 1997, until October

2002, are subject to the laws of Mississippi, his state of origin, or to the laws

of Germany, the country where the parties were married and initially

resided.

10 U.S.C.A. § 1408(c) provides, in pertinent part:

(1) Subject to the limitations of this section, a court may treat
disposable retired pay payable to a member for pay periods
beginning after June 25, 1981, either as property solely of the
member or as property of the member and his spouse in
accordance with the law of the jurisdiction of such court. ***
***
(4) A court may not treat the disposable retired pay of a
member in the manner described in paragraph (1) unless the
court has jurisdiction over the member by reason of (A) his
residence, other than because of military assignment, in the
territorial jurisdiction of the court, (B) his domicile in the
territorial jurisdiction of the court, or (C) his consent to the
jurisdiction of the court.
***

The legal regime of community of acquets and gains applies to

spouses domiciled in this state, regardless of their domicile at the time of

4

marriage or the place of celebration of the marriage. La. C.C. art. 2334. The

Official Revision Comments to Article 2334 provides in part:

***
(b) Under this provision, spouses not domiciled in Louisiana at
the time of their marriage become subject to the provisions of
this article from the moment they become Louisiana
domiciliaries. *** (Emphasis added).

A serviceman’s domicile, once established, does not change merely

because of his move of physical residence while in the service of his

country. Messer v. London, 438 So. 2d 546 (La. 1983); Blackwell v.

Blackwell, 606 So. 2d 1355 (La. App. 2 Cir. 1992). A person’s domicile of

origin continues until another is acquired. Blackwell, supra; In re

Kennedy, 357 So. 2d 905 (La. App. 2 Cir. 1978). A change in domicile

requires the physical presence of the individual in the new domicile coupled

with a present intent to permanently reside in the new domicile. Messer,

supra; Blackwell, supra. A serviceman may abandon his domicile and

establish a new one upon complying with the two prongs set forth in Messer

v. London, supra, i.e., physical presence and intent to remain

permanently. Blackwell, supra; Howard v. Howard, 499 So. 2d 222 (La.

App. 2 Cir. 1986).

In the instant case, Drayton’s “domicile of origin” was Greenville,

Mississippi. Although Drayton was stationed in Germany from 1989 until

2002, there is no evidence or assertion he changed his domicile to Germany.

Based on the pleadings filed in this case, Drayton became domiciled in the

State of Louisiana. However, that event did not occur until he was

transferred to Barksdale AFB in October 2002. Thus, Drayton became

subject to Louisiana’s community property regime when he became

domiciled in Louisiana in October 2002. As a result, we find Louisiana
5

community property law controls the classification of Drayton’s military

retirement benefits beginning October 2002, and the law of the State of

Mississippi, Drayton’s domicile of origin, controls the classification of the

retirement benefits from the time the parties married on June 27, 1997, until

they became domiciled in Louisiana in October 2002.

Mississippi is a not a community property state. McLaurin v.

McLaurin, 853 So. 2d 1279 (Miss. 2003); Owen v. Owen, 798 So. 2d 394

(Miss. 2001). To offset the inequities which often result in a separate

property regime, the Mississippi Supreme Court has adopted the theory of

“equitable distribution” to divide marital assets after the dissolution of a

marriage. Ferguson v. Ferguson, 639 So. 2d 921 (Miss. 1994); Draper v.

Draper, 627 So. 2d 302 (Miss. 1993). In Ferguson, supra, the Mississippi

Supreme Court described the doctrine of equitable distribution as follows:

While the issue can be simply stated, it is impossible to give a
precise definition to the phrase “equitable distribution.”
Basically, the doctrine refers to the authority of the courts to
award property legally owned by one spouse to the other
spouse, and recognizes that a non-working spouse’s efforts
contribute to the acquisition of the marital estate. Divorce-
Equitable Distribution, 41 ALR 4th 481, 484. Under the
equitable distribution system, the marriage is viewed as a
partnership with both spouses contributing to the marital estate
in the manner which they have chosen.

Id., fn. 4.

Under Mississippi law, the chancery court5 has the authority to order

an equitable division of property that was accumulated through the joint

efforts and contributions of the parties. Ferguson, supra; Brown v.

Brown, 574 So. 2d 688 (Miss. 1990). However, there is no automatic right

5
In Mississippi, chancery courts have jurisdiction over non-jury disputes
involving “equity,” such as divorces and other domestic matters.
6

to an equal division of jointly-accumulated property, but rather, the division

is left to the discretion of the court. Gerty v. Gerty, 296 So. 3d 704 (Miss.

2020); Sproles v. Sproles, 782 So. 2d 742 (Miss. 2001). Mississippi courts

utilize the following factors in evaluating the division of marital assets:

1. Substantial contribution to the accumulation of the property.
Factors to be considered in determining contribution are as
follows:

a. Direct or indirect economic contribution to the
acquisition of the property;
b. Contribution to the stability and harmony of the
marital and family relationships as measured by
quality, quantity of time spent on family duties
and duration of the marriage; and
c. Contribution to the education, training or other
accomplishment bearing on the earning power
of the spouse accumulating the assets.

2. The degree to which each spouse has expended, withdrawn
or otherwise disposed of marital assets and any prior
distribution of such assets by agreement, decree or
otherwise.

3. The market value and the emotional value of the assets
subject to distribution.

4. The value of assets not ordinarily, absent equitable factors to
the contrary, subject to such distribution, such as property
brought to the marriage by the parties and property acquired
by inheritance or inter vivos gift by or to an individual
spouse;

5. Tax and other economic consequences, and contractual or
legal consequences to third parties, of the proposed
distribution;

6. The extent to which property division may, with equity to
both parties, be utilized to eliminate periodic payments and
other potential sources of future friction between the parties;
7. The needs of the parties for financial security with due
regard to the combination of assets, income and earning
capacity; and,

8. Any other factor which in equity should be considered.

Ferguson, supra.

7

In Hemsley v. Hemsley, 639 So. 2d 909 (Miss. 1994), the chancery

court awarded 50% of the former husband’s military retirement and civil

service retirement benefits to the former wife. The chancery court stated:

The wife contributed her share by rocking the cradle, keeping
the house, and caring for the children. Although the husband
was bringing in the income, still marriage is pretty much a
50/50 partnership as to property acquired during the marriage
regardless of the role played by the parties. Certainly, we
recognize that Mississippi is not a community property state,
but many of our cases indicate that the Court still should make
an equitable division of the property acquired during the marital
relationship. Equity means equal fairness.

Id. at 914. The Mississippi Supreme Court found the chancery court did not

err, stating:

[T]oday in acquiring a marital estate, courts cannot tell who is
the most important, the man or the woman. Presently the law
often deals with a fiction that the parties are deemed to enter
into marriage with two separate estates. Most parties enter into
marriage with no estate and proceed to build an estate together.
Therefore, in the event of a divorce, there is more often than not
one estate. If the breadwinner happens to be the husband and
has all property in his name, this serves to relegate the non-
breadwinner wife to the equivalent of a maid—and upon
division of the marital estate entitled to a minimum wage credit
for her homemaking service. We abandon such an approach.

We, today, recognize that marital partners can be equal
contributors whether or not they both are at work in the
marketplace.

We define marital property for the purpose of divorce as being
any and all property acquired or accumulated during the
marriage. Assets so acquired or accumulated during the course
of the marriage are marital assets and are subject to an equitable
distribution by the chancellor. We assume for divorce purposes
that the contributions and efforts of the marital partners,
whether economic, domestic or otherwise are of equal value.

Id., at 915.

In Young v. Young, 796 So. 2d 264 (Miss. Ct. App. 2001), the

chancery court conducted a Ferguson analysis and awarded to the former

wife 25% of the former husband’s military retirement benefits, and 100% of
8

her 401K retirement. The former husband appealed, arguing the distribution

of the property was inequitable. The court of appeal affirmed, stating:

This was a difficult position for both parties to be placed,
however, there was very little to distribute. [The chancery
court] equitably divided all of their property, including the
marital home, retirement accounts and personal items, with the
Ferguson factors and established case law in mind. The
chancellor committed no error.

Id., at 268.

In the instant case, both Drayton and Mesmer-Drayton testified at

trial, and their testimony primarily centered around the house, the cost of the

mortgage, and costs associated with repairing and maintaining the house.

However, the record is completely devoid of evidence pertaining to Mesmer-

Drayton’s contribution to the marriage, the family relationships, family

duties, or the accumulation of the marital assets. Consequently, based on

our finding that the parties did not become subject to Louisiana’s community

property regime until they became domiciled in Louisiana in October 2002,

we reverse the trial court’s judgment as it relates to the amount of military

retirement benefits to which Mesmer-Drayton is entitled. We remand this

matter to the trial court with instructions to conduct an evidentiary hearing to

equitably distribute Drayton’s military retirement benefits, from June 27,

1997, until October 2002, in accordance with Mississippi law, applying the

factors set forth in Ferguson, supra, and other relevant Mississippi statutes

and jurisprudence.

Drayton also contends the trial court erred in calculating his

reimbursement claim for the payment of the community mortgage debt. He

argues he used his separate funds to pay the mortgage from January 2013

until the house was sold in January 2020, and Mesmer-Drayton admitted she

9

did not contribute to the payment of the mortgage. According to Drayton, he

is entitled to reimbursement for one-half of the $45,252.76 he paid toward

the mortgage on the former matrimonial domicile.

The burden of proof is on the party claiming reimbursement to show

that separate funds existed and were used to satisfy the community

obligation. Bulloch v. Bulloch, 51,146 (La. App. 2 Cir. 1/18/17), 214 So. 3d

930; Tippen v. Carroll, 47,415 (La. App. 2 Cir. 9/20/12), 105 So. 3d 100.

Where separate funds can be traced with sufficient certainty to establish the

separate ownership of the property paid for with those funds, the separate

status of such property will be upheld. Curtis v. Curtis, 403 So. 2d 56 (La.

1981); Bulloch, supra.

It is well settled a trial court has broad discretion in adjudicating

issues raised by divorce and partition of the community. A trial judge is

afforded a great deal of latitude in arriving at an equitable distribution of the

assets between the spouses. Factual findings and credibility determinations

made by the trial court in the course of valuing and allocating assets and

liabilities in the partition of community property may not be set aside

absent manifest error. Flowers v. Flowers, 52,506 (La. App. 2 Cir. 2/27/19),

266 So. 3d 435; Politz v. Politz, 49,242 (La. App. 2 Cir. 9/10/14), 149 So. 3d

805; Mason v. Mason, 40,804 (La. App. 2 Cir. 4/19/06), 927 So. 2d 1235,

writ denied, 2006-1524 (La. 10/13/06), 939 So. 2d 366.

The court shall determine the community assets and liabilities; the

valuation of assets shall be determined at the trial on the merits. La. R.S.

9:2801(A)(2). The court shall value the assets as of the time of trial on the

merits, determine the liabilities, and adjudicate the claims of the parties. La.

R.S. 9:2801(A)(4)(a). The court shall divide the community assets and
10

liabilities so that each spouse receives property of an equal value. La. R.S.

9:2801(A)(4)(b). The court shall allocate or assign to the respective spouses

all of the community assets and liabilities. La. R.S. 9:2801(A)(4)(c). If

separate property of a spouse has been used either during the existence of the

community property regime or thereafter to satisfy a community obligation,

that spouse is entitled to reimbursement for one-half of the amount or value

that the property had at the time it was used. La. C. C. art. 2365.

In evaluating Drayton’s reimbursement claims, the trial court stated:

[W]ith regard to the house, the mortgage that was paid, the only
evidence put into the record was the payment sheet which
showed that in 2016 there was a principle balance of
$95,852.35 on the home when it was sold on the, I guess, it
would – no, it wouldn’t have been a HUD-1, whatever they’re
calling them now, was [$84,688.75] leaving a difference of
$11,163.60. Half of that is $5,581.80.
***
It comes down to a credibility issue and in this particular case I
did not find the testimony of Mr. Drayton credible. I find my,
this Court’s opinion that he should be given the credit for the
principle reduction of the house but not for the interest that was
paid. The only evidence about principle reduction is as I
previously set forth. If I tried to even figure out what it was in
2013 when allegedly no one had lived in the house I would
purely be guessing and that’s not what I’m gonna start doing.
***

It is undisputed the mortgage on the parties’ former matrimonial

domicile was a community obligation. However, as the trial court noted, the

only evidence Drayton presented was the mortgage payment sheet which

reflected the principal and remaining balances on the home at the time it was

sold. The difference between those sums was $11,163.60. Based upon our

review of the record and the evidence presented, we cannot say that the trial

court manifestly erred in concluding that Drayton was entitled to

reimbursement for one-half of the reduction in principal on the loan

11

associated with the former matrimonial domicile. We conclude, therefore,

this assignment is without merit.

Drayton further contends the trial court erred in calculating the date of

the termination of the community. He argues the date of termination was

changed to October 27, 2005, due to an error in the February 2019 consent

judgment. He also argues the petition for divorce was filed on April 7, 2005,

and pursuant to La. C. C. art. 159, a divorce is retroactive to the date of

filing. Drayton urges this court to “correct the trial court’s error” to reduce

the number of months for the community portion of his military retirement

benefits.

La. C. C. P. art. 1951 provides:

On motion of the court or any party, a final judgment may be
amended at any time to alter the phraseology of the judgment,
but not its substance, or to correct errors of calculation. The
judgment may be amended only after a hearing with notice to
all parties, except that a hearing is not required if all parties
consent or if no opposition has been received.

In Thomas v. Williams, 48,003 (La. App. 2 Cir. 5/15/13), 115 So. 3d

715, this Court stated:

La. C. C. P. art. 1951 contemplates the correction of calculation
in a judgment, but does not allow the substantive amendment of
judgments. Thus, the judgment may be amended by the court
where the amendment takes nothing from or adds nothing to the
original judgment. The proper recourse for an error of
substance within a judgment is a timely application for new
trial or a timely appeal.

It is well settled under our jurisprudence that a judgment which
has been signed cannot be altered, amended or revised by the
judge who rendered it, except in the manner provided by law.
The judge cannot, on his own motion or on the motion of any
party, change a judgment which has been so signed,
notwithstanding it was signed in error.

Id. at 719-20 (internal citations omitted).

12

The judgment in dispute is the consent judgment entered February 12,

2019, which provided, in pertinent part:

IT IS HEREBY ORDERED that that the legal regime of
community acquets and gains existing between Petitioner and
Defendant is terminated retroactive to the filing date of the
October 27, 2005 Petition decreeing each party to be the owner
of an undivided one-half (1/2) interest in and thereto.

The issue with regard to the incorrect date was not raised until the

matter came to trial on the petition to partition. The colloquy was as

follows:

[COUNSEL FOR
MESMER-DRAYTON]: Yes. And you want to stipulate that
the community property estate was
terminated on October 27, 2005,
pursuant to the consent judgment
entered on February 12th of 2019?

[COUNSEL FOR
DRAYTON]: Well, on that issue, Your Honor, and
uh, no, we don’t want to stipulate to
that and here’s why. I was looking at
that judgment, Your Honor *** I
believe that just stated the date wrong.
The petition was actually filed on
April the 7th 2005, and I think that
that was just an – an error as far as the
typographical error because I don’t
believe there was a petition filed on
October 27th unless I’m mistaken. I
wasn’t counsel back then but.
***
Yeah, and I’m saying that the ***
date of the termination should be
April 7th, *** 2005. The date of the
petition, in other words, it does say
the filing date, but the filing date
wasn’t October the 27th as the
judgment states that, I think it
incorrectly stated the date.

THE COURT: Well, on October 27, 2005, the case was
called. Mr. Drayton was represented by Dan
Scarborough, Ms. Drayton was represented
by Jacqueline Scott. Agreement was
reached. Among other things judgment of
13

divorce was granted as prayed for. That was
all on October 27, 2005.
***
Then subsequently, Mr. Goodrich, on behalf
of Mr. Drayton, in the February 12, 2019,
consent judgment fixed the date as October
27, 2005. That’s the date I’m gonna go
with.
***

We have reviewed this record in its entirety. Neither party sought to

amend the February 12, 2019 consent judgment. The judgment resulted

from a stipulated agreement between the parties and was signed by the trial

court and the attorneys for both parties. The parties did not file a timely

motion for new trial and did not timely appeal the judgment, and the delays

to appeal the 2019 judgment have lapsed. Therefore, the consent judgment

is final and will not be addressed by this Court.

CONCLUSION

For the reasons set forth herein, we affirm the portion of the trial

court’s judgment pertaining to the reimbursement claim and the date of the

termination of the community. We reverse the trial court’s judgment as it

relates to the amount of military retirement benefits to which Mesmer-

Drayton is entitled. We remand this matter to the trial court with

instructions to conduct an evidentiary hearing to equitably distribute

Drayton’s military retirement benefits, from June 27, 1997, until October

2002, applying the factors set forth in Ferguson, supra, and other relevant

Mississippi statutes and jurisprudence. Costs of the appeal are assessed

equally to the parties, Baron T. Drayton and Segen Mesmer-Drayton.

AFFIRMED IN PART; REVERSED IN PART; REMANDED

WITH INSTRUCTIONS.

14