Debra Parish Philmon v. Jake C. Philmon

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

CA 04-673

DEBRA PARISH PHILMON

VERSUS

JAKE C. PHILMON

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APPEAL FROM THE
FOURTEENTH JUDICIAL DISTRICT COURT
PARISH OF CALCASIEU, NO. 99-8358
HONORABLE GUY ERNEST BRADBERRY, DISTRICT JUDGE

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JOHN D. SAUNDERS
JUDGE

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Court composed of Sylvia R. Cooks, John D. Saunders, and Oswald A. Decuir,
Judges.

AFFIRMED IN PART, REVERSED IN PART AND RENDERED.

W alter M arshall Sanchez
Attorney At Law
P. O. Box 3305
Lake Charles, LA 70602-3305
(337) 436-8401
Counsel for: Defendant/Appellee
Jake C. Philmon

Kathleen Kay
Attorney at Law
P. O. Box 2042
Lake Charles, LA 70602-2042
(337) 439-7616
Counsel for: Plaintiff Appellant
Debra Parish Philmon

SAUNDERS, J.

Issues before the court arise out of a community property partition in which

Mrs. Haymark seeks the rental value of the home for the period during which Mr.

Philmon resided in the home. Mr. Philmon seeks reimbursement for mortgage

payments he made on the home between February 2001 until June 2003. Moreover,

the trial court appointed an appraiser to value the home and Mrs. Haymark challenges

that action by the court.

FACTS

Debra Haymark and Jake Philmon were married on June 2, 1972. After twenty-

eight years of marriage, the couple divorced on August 4, 2000. In Mrs. Haymark’s

petition for divorce, she requested the use and occupancy of the family home, which

the court granted. She also requested interim spousal support. Mr. Philmon was

ordered to pay interim spousal support in the form of the mortgage payment, the van

note and $350.00 cash per month. Once the van note was paid in full, Mr. Philmon

would then pay $600.00 a month plus the mortgage. In that agreement, she waived

her right to reimbursement of the mortgage payment, and he waived his right to rental

reimbursement. The interim spousal support was set to terminate on January 31,

2001. Upon termination, she requested final periodic support, which the court

granted to last until some point in 2004. The final periodic support no longer

provided for Mr. Philmon to pay the mortgage payment on the family home as part

of the support award. The amount ordered was less than the mortgage payment on

the home. In February 2001, Mrs. Haymark left the family home, and that same

month, Mr. Philmon moved into the family home. On March 30, 2001, she requested

that Mr. Philmon be awarded use and occupancy of the family home and that she be

granted the fair rental value for his use of the home. The parties agreed to defer these

issues to the community property partition.

The trial on the community property partition was held on June 18, 2003, and

disposed of all the issues except (1) the fair market value of the home, (2) Mr.

Philmon’s entitlement to reimbursement for mortgage payments made between

February 1, 2001 through June 18, 2003, and (3) Mrs. Haymark’s entitlement to rental

value of the home during Mr. Philmon’s occupancy. Mrs. Haymark’s appraiser,

David Bordelon, appraised the fair market value of the home at $158,000.00. Mr.

Philmon’s appraiser, Michael Mitchell, appraised the home at $134,000.00. In

September 2003, in the written reasons for judgment, the court granted Mr. Philmon

mortgage payment reimbursement, denied Mrs. Haymark’s request for rental

reimbursement, and appointed an appraiser to set the value of the home. The court

appointed appraiser valued the home at $115,000.00.

PROCEDURAL HISTORY

The parties were divorced on August 4, 2000. On September 23, 2003, the trial

court denied the plaintiff’s claim for rental reimbursement, granted the defendant’s

request for reimbursement of mortgage payments, and appointed an appraiser to value

the home without affording an opportunity to the parties to cross examine the

appraiser. The plaintiff filed a timely suspensive appeal on April 2, 2004.

ASSIGNMENT OF ERRORS

1) The plaintiff argues that the trial court erroneously concluded that
Haymark was not entitled to rental value on Philmon’s use of the family
home from time of his occupancy until date of the trial of the partition.

2) The plaintiff contends the trial court erroneously allowed Philmon a
reimbursement of mortgage payments made after termination of the

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community.

3) The plaintiff contends the trial court erroneously appointed an expert
without issuing a rule to show cause as required by La.Code Evid. art.
706, after the close of evidence, and ordered that the value assigned by
that expert would be the value found by the court without allowing any
party an opportunity to cross-examine the expert.

LAW AND ANALYSIS

Findings of the trial court are reviewable on appeal, and the third circuit’s

requisite standard of review has been clearly established. A trial judge’s findings of

fact will not be disturbed unless they are manifestly erroneous or clearly wrong.

Stobart v. State, through Dep’t of Transp. & Dev., 617 So.2d 880 (La.1993). “Absent

‘manifest error’ or unless it is ‘clearly wrong,’ the jury or trial court’s findings of fact

may not be disturbed on appeal.” Sistler v. Liberty Mut. Ins. Co., 558 So.2d 1106,

1111 (La.1990). “If the trial court or jury’s findings are reasonable in light of the

record reviewed in its entirety, the court of appeal may not reverse, even though

convinced that had it been sitting as the trier of fact, it would have weighed the

evidence differently.” Id. at 1112.

ASSIGNMENT OF ERROR NUMBER ONE

The plaintiff requests this court to reverse the trial court’s finding that rental

reimbursement was not appropriate. The starting point for determining whether rent

is appropriate is La.R.S. 9:374(C), which provides:

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 R.S. 9:374(A) or (B) shall not be liable to the other
spouse for rental for the use and occupancy, unless otherwise agreed by
the spouses or ordered by the court.

McCarroll is the leading Louisiana Supreme Court authority interpreting this statute.

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McCarroll v. McCarroll, 96-2700 (La. 10/21/97), 701 So.2d 1280. In McCarroll,

the court stated, “. . . that rental payments may not be retroactively assessed under

La.R.S. 9:374(C) unless otherwise agreed by the spouses or ordered by the court.”

Id. at 1289.

In the present case, Mrs. Haymark abandoned her court ordered use of the

family home in February 2001, and Mr. Philmon, as co-owner, moved in. Mr.

Philmon moved into the home prior to Mrs. Haymark’s petition to place him in

possession of the home. According to La.R.S. 9:374(C), rent is not assessed

retroactively. “Once the community of acquets and gains is dissolved by separation,

the spouses become co-owners in indivision of the marital home.” Kline v. Kline, 98-

1206, p. 5 (La.App. 3 Cir. 2/10/99), 741 So.2d 670, 672.

The use and management of a thing held in indivision is determined by
agreement of all the co-owners. A co-owner is entitled to use the thing
held in indivision according to its destination, but he cannot prevent
another co-owner from making such use of it. Nevertheless, it is well
established that a co-owner need not pay rent to another co-owner for
his exclusive use of the co-owned property.

McCarroll v. McCarroll, 96-2700 (La. 10/21/97), 701 So.2d 1280, 1289 (citations

omitted.)

Once Mrs. Haymark abandoned the home, she could not prevent Mr. Philmon

from using or occupying the property. As co-owners, once her use ended by her own

choice, he had the right to step in and use the property regardless of her request to the

court to grant him the use of the property. As a co-owner, Mr. Philmon does not need

the court’s permission to occupy abandoned co-owned property.

This right of co-owners to possession of the property being equal and
co-extensive, neither becomes indebted to the other for his personal
occupancy and enjoyment, save, probably, that a co-owner, who has

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been deprived of the right of possession by reason of his co-owner’s
exclusive occupancy, may claim damages from the date upon which he
has demanded occupancy and has been refused by the possessor.

Id. at 1290 (citations omitted).

Under the principles enunciated in Juneau, a co-owner in exclusive
possession may be liable for rent, but only beginning on the date
another co-owner has demanded occupancy and has been refused. This
underlying principle amply supports the requirement that for the
assessment of rent under La.R.S. 9:374(C), there must be an agreement
between the spouses or a court order for rent contemporaneous with the
award of occupancy. . . . Public policy also weighs heavily against the
retroactive award of rent under La.R.S. 9:374(C). As is plainly
illustrated by the case sub judice [Juneau], when the community is not
partitioned for many years, the retroactive assessment of rent is
extremely prejudicial to the occupying spouse. Such retroactive
assessment deprives the occupying spouse of the ability to make an
informed and meaningful decision regarding his or her finances and
housing budget. There is no corollary prejudice to the non-occupying
spouse under this interpretation of the statute, since that spouse has the
ability to invoke a court proceeding to determine occupancy and rent at
any time. La.Civ.Code art. 105.

McCarroll v. McCarroll, 96-2700 (La. 10/21/97), 701 So.2d 1280, 1290.

Mrs. Haymark willingly and voluntarily left the family home. From that date,

she never demanded to re-occupy the home, but rather requested the court to grant

Mr. Philmon the right to occupy the home. Therefore, we affirm the trial court’s

decision to deny the plaintiff’s request for rental reimbursement for the defendant’s

use of the home while the home remained community property.

ASSIGNMENT OF ERROR NUMBER TWO

The plaintiff requests that this court reverse the trial court’s decision to grant

Mr. Philmon mortgage payment reimbursement. In February 2001, Mrs. Haymark

abandoned her court ordered use and occupancy of the family home. Upon her

abandonment, Mr. Philmon, as co-owner, asserted his right to use and occupancy by

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moving into the home. From February 1, 2001 through June 18, 2003 (date of

partition where he was awarded the home) he lived in the home, maintained the home

and paid all mortgage payments, and also paid Mrs. Haymark’s final periodic support.

Mrs. Haymark contends that Sheridon supports disallowance of reimbursement

for mortgage payments, however, this reading of Sheridon is incorrect. Sheridon v.

Sheridon, 03-103 (La. App. 3 Cir. 2/4/04), 867 So.2d 38. In Sheridon, the court

allowed Mrs. Sheridon to receive reimbursement for mortgage payments made from

October 5, 1999 until November 15, 2001 (period from the date Mrs. Sheridon filed

for divorce until the date of partition). The court disallowed the reimbursement of

mortgage payments made from November 15, 2001 until August 15, 2002 (the date

of partition to the date of judgment). The portion of the opinion Mrs. Haymark

quotes pertains to reimbursement for payments made on a community movable and

does not pertain to a community immovable.

Mr. Philmon maintained the family home and paid all the mortgage payments

from February 2001 through June 2003. This time period is prior to the community

partition and as such, the home remained community property. The Sheridon case

supports our decision today as they allowed reimbursement for the period the home

was community property, but disallowed reimbursement for the period of time

following the partition. Therefore, we affirm the trial court’s decision to award the

defendant reimbursement for mortgage payments made on the family home from

February 2001 until June 2003.

ASSIGNMENT OF ERROR NUMBER THREE

Both Mrs. Haymark and Mr. Philmon supplied the court with a detailed

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appraisal of the home. Mr. Philmon enlisted Michael Mitchell to appraise the home

and his appraisal, conducted on March 15, 2001, valued the home at $134,000.00.

Mrs. Haymark hired Broker’s Price to conduct an appraisal. The home was appraised

at $158,000.00 on June 10, 2003. There is a difference of $24,000.00 between the

two appraisals. The trial court did not consider either appraisal, but merely took note

of the two and after trial ordered an independent appraisal. This appraisal was

ordered to be accepted as the court approved valuation of the home.

Louisiana Code of Evidence article 702 provides when expert testimony may

be used. “If scientific, technical, or other specialized knowledge will assist the trier

of fact to understand the evidence or to determine a fact in issue, a witness qualified

as an expert by knowledge, skill, experience, training, or education, may testify

thereto in the form of an opinion or otherwise.” Also, Louisiana Code of Evidence

article 706(A) provides when the court may appoint an expert.

In a civil case, the court may on its own motion or on the motion of any
party enter an order to show cause why expert witnesses should not be
appointed, and may request the parties to submit nominations. The court
may appoint any expert witnesses agreed upon by the parties, and may
appoint expert witnesses of its own selection. An expert witness shall
not be appointed by the court unless he consents to act. A witness so
appointed shall be informed of his duties by the court in writing, a copy
of which shall be filed with the clerk, or at a conference in which the
parties shall have the opportunity to participate. A witness so appointed
shall advise the parties of his findings, if any; his deposition may be
taken by any party; and he may be called to testify by the court or any
party.

Mrs. Haymark contends and Mr. Philmon concedes that the court abused its

discretion by ordering an expert without an order to show cause. She also contends

that the court abused its discretion when it ordered that the expert’s appraisal would

be the value accepted by the court, thus, denying the parties an opportunity to cross

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examine the expert. “Moreover, that expert, as any other expert, clearly should be

subject to cross examination by the parties. Otherwise, . . . the report is objectionable

and inadmissible as hearsay. The authority of the trial court . . . however broad, does

not include the right ex parte to consider evidence obtained without affording the

parties the opportunity of cross examination.” Petroutson v. First Nat’l Bank of

Jefferson Parish, 631So.2d 1172, 1174 (La.App. 5 Cir.), writ denied, 635 So.2d 1113

(La.1994). Dufhilo states “[a]lthough La.C.E. art. 706(A) does not so provide, it

seems to us that fundamental fairness requires that a court-appointed expert should

be subject to cross-examination.” Dufhilo v. D’Aquin, 615 So.2d 522, 526 (La.App.

3 Cir. 1993).

The trial court did not afford the parties an opportunity to cross examine the

court appointed expert. We therefore reverse the trial court’s appraisal of

$115,000.00 and based on the evidence, we will set the value of the home.

When such a prejudicial error of law skews the trial court’s finding of
a material issue of fact and causes it to pretermit other issues, the
appellate court is required, if it can, to render judgment on the record by
applying the correct law and determining the essential material facts de
novo.
Lasa v. Olin Corp., 625 So.2d 1002, 1006 (La.1993).

Mr. Philmon had the home appraised on March 15, 2001, and it was appraised

at $134,000.00. More than two years later, Mrs. Haymark had the house appraised

and it was valued at $158,000.00. During this two-year period, Mr. Philmon had

performed numerous improvements on the home. He painted the kitchen, changed

the bathroom fixtures, and had the sheet rock repaired. Wallpaper was added, tile

installed and carpet was installed in the living room, the four bedrooms, the hall and

the closets. The total costs of improvements was $7,468.65. These improvements

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added value to the home over that of the first appraisal of $134,000.00 and, as such,

equity would dictate that the costs for improvements should be deducted from Mrs.

Haymark’s appraisal. Deduction for the costs of improvements from Mrs. Haymark’s

appraisal reduces her appraised value to approximately $150,000.00. The difference

between the two appraisals is now $16,000.00. We grant equal weight to the two

appraisals and therefore set the value of the home at $142,000.00.

CONCLUSION

We affirm the trial court’s denial of rental reimbursement to Mrs. Haymark,

and affirm the decision to grant Mr. Philmon mortgage payment reimbursement. We

reverse the trial court’s decision to appoint an appraiser and adopt that value as the

value of the home, and thus set the value of the home at $142,000.00. Costs of this

appeal are to be split between the parties, with Mrs. Haymark paying 2/3 of the costs

and Mr. Philmon to pay 1/3 of the costs.

AFFIRMED IN PART, REVERSED IN PART AND RENDERED.

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