Dean F. Leblanc v. Jenny A. Hulin Leblanc

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

05-212

DEAN F. LEBLANC

VERSUS

JENNY A. HULIN LEBLANC

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APPEAL FROM THE
SIXTEENTH JUDICIAL DISTRICT COURT
PARISH OF IBERIA, NO. 72107
HONORABLE GERARD B. WATTIGNY, DISTRICT JUDGE

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ULYSSES GENE THIBODEAUX
CHIEF JUDGE

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Court composed of Ulysses Gene Thibodeaux, Chief Judge, Michael G. Sullivan, and
Elizabeth A. Pickett, Judges.

AFFIRMED IN PART, REVERSED IN
PART, AND REMANDED FOR TRIAL
ON THE MERITS.

Gordie Ray White
P. O. Box 10137
New Iberia, LA 70562
Telephone: (337) 364-5846
COUNSEL FOR:
Defendant/Appellee - Jenny A. Hulin Leblanc

R. Michael Moity, Jr.
The Moity Law Firm
114 West Washington Street
New Iberia, LA 70560
Telephone: (337) 367-7727
COUNSEL FOR:
Plaintiff/Appellant - Dean F. Leblanc

THIBODEAUX, Chief Judge.

In this community property dispute, an ex-wife brought a petition to

partition the community property more than ten years after the couple had obtained

a divorce judgment terminating their community. In the partition, she included

several pieces of movable property and also requested an accounting and partition of

her ex-husband’s retirement account. Additionally, she requested reimbursement

from her ex-husband’s separate estate for payments made from the community on a

mortgage against his separate property, as well as for money spent on renovations to

a room on that same property. Her ex-husband argues that her efforts to obtain

partition and reimbursement have prescribed. The trial court dismissed his exception

of prescription.

Louisiana jurisprudence holds that until community is partitioned, the

parties remain as co-owners of any unpartitioned property. There is no prescription

period applicable to the right of a co-owner of property to bring a petition to partition

that property. Moreover, Louisiana law clearly holds that the portion of a retirement

account earned during the existence of the community is community property and,

therefore, subject to partition. Thus, we affirm the trial court’s judgment dismissing

the exception of prescription as to the accounting and partition of the retirement

account. The claim for reimbursement, however, is not subject to the principles of

co-ownership because it is a claim of one spouse against the other, not against the

community itself. Thus, the ten-year liberative prescription period applicable to

personal actions applies to a claim for reimbursement. We, therefore, reverse the trial

court’s judgment dismissing the ex-husband’s exception of prescription as to the

claim for reimbursement. That claim is prescribed.

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I.

ISSUE

We must determine whether the trial court erred in concluding that Mrs.

Street’s claims for an accounting of community assets and for reimbursement had not

prescribed.

II.

FACTS

Jenny Hulin LeBlanc and Dean LeBlanc divorced on January 10, 1991.

On October 31, 1991, they obtained a judgment of divorce, but neither Mrs. Hulin

LeBlanc (now Mrs. Street) nor Mr. LeBlanc moved to partition their community

property at that time. In July 2003, Mrs. Street filed a petition for judicial partition

of their community property. The petition also alleged that separate funds had been

used for the benefit of the community and requested a reimbursement. The court

ordered the parties to submit their detailed descriptive lists of all community property,

in accordance with La.R.S. 9:2801. Mrs. Street submitted her descriptive list in

September 2003. Her list included various items of movable and immovable

property, including a retirement plan in the name of Dean LeBlanc in existence

during their marriage. She also requested a reimbursement to the community from

the separate estate of Mr. LeBlanc for payments made on a mortgage against Mr.

LeBlanc’s separate property, as well as for expenditures made to renovate a small

room in Mr. LeBlanc’s separate property. Mr. LeBlanc did not submit a detailed

descriptive list.

In January 2004, Mrs. Street filed a Rule to Show Cause why her

detailed descriptive list should not be deemed to constitute a judicial determination

of the community assets and liabilities. Mr. LeBlanc then filed an exception of

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prescription and no right of action, arguing that either Mrs. Street’s claims for

reimbursement and accounting have prescribed or that the property at stake is Mr.

LeBlanc’s separate property and, therefore, beyond the provisions of La.R.S. 9:2801.

After a hearing on these issues, the trial court denied Mr. LeBlanc’s exception of

prescription and no right of action. The trial court also denied Mrs. Street’s motion

to have her detailed descriptive list deemed the judicial determination of the

community assets and liabilities and ordered Mr. LeBlanc to file his own descriptive

list within fifteen days. Mr. LeBlanc appeals the trial court’s denial of his exception

of prescription.

III.

LAW AND DISCUSSION

Accounting of Retirement Benefits

We must first consider the procedural issue of whether Mr. LeBlanc is

entitled to appeal from the court’s judgment denying his exception of prescription.

The trial court issued its judgment on October 15, 2004. Mr. LeBlanc’s appeal is

timely. Under La.Code Civ.P. art. 1915, a judgment denying an exception of no right

of action and prescription is not a final judgment for purposes of appeal. Because the

judgment is not a final judgment, it is normally decided by supervisory writ, rather

than appeal. Accordingly, the third circuit issued a rule to show cause why the appeal

should not be dismissed as having been taken from a non-appealable interlocutory

judgment. Under our general supervisory authority, however, an appellate court is

entitled to convert the appeal into an application for a supervisory writ of review.

La.Code Civ.P. art. 2164.

After termination of a marital community property regime, but before

partition, each spouse becomes a co-owner of all former community property.

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La.Civ.Code art. 2369.1 (“[a]fter termination of the community property regime, the

provisions governing co-ownership apply to former community property”). If the

parties do not otherwise agree on a distribution of the former community property

between them, a former spouse may then proceed to distribute the property in a

partition proceeding under La.R.S. 9:2801. Until the partition, however, principles

of co-ownership apply to the former community property.

Louisiana Civil Code Article 807 states that the right to request partition

by a co-owner is absolute. Furthermore, La.Civ.Code art. 2369.8 states “[a] spouse

has the right to demand partition of former community property at any time.”

(emphasis added). In Terrebonne v. Theriot, 94-1632 (La.App. 1 Cir. 6/23/95), 657

So.2d 1358, writ denied, 95-2249 (La. 11/27/95), 663 So.2d 743, Mrs. Theriot filed

a petition for supplemental partition of community property, arguing that the original

partition between her and her ex-husband did not address the allocation of certain

property. Her ex-husband claimed her petition had prescribed. The court concluded:

With regard to defendants’ objection of prescription,
if plaintiff’s allegations can be established as true, then to
the extent an ownership interest in [the property] belonged
to the community of acquets and gains existing between
[the parties], it remains undivided and subject to partition.
Since former spouses remain co-owners of property not
partitioned, a claim of liberative prescription cannot be
maintained in a subsequent suit for partition.
Consequently, this claim has not yet prescribed.

Id. at 1362 (citations omitted). The opinion cited Hare v. Hodgins, 567 So.2d 670,

672 (La.App. 5 Cir. 1990), aff’d in part, rev’d in part on other grounds, 586 So.2d

118 (La.1991) (citations omitted), in which the court denied an exception of

prescription, noting that “the law is clear that where there is no transfer of rights in

the partition document, an asset remains owned in indivision by the parties. Any

party may seek a partition of the asset by petition for supplemental partition.”

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Because former spouses continue to own former community property

together as co-owners until partition, inadequate partition or no partition at all permits

the parties to continue as co-owners as to any undivided property. Principles of co-

ownership apply, and since there is no time limit as to when a co-owner may move

to partition his interest in property, former spouses who are co-owners of

unpartitioned property may move to partition at any time.

Relying on principles of co-ownership, the Louisiana Supreme Court

explained in Robinson v. Robinson, 99-3097, p. 8 (La. 1/17/01), 778 So.2d 1105,

1114-15 (citations omitted):

As a general principle, a court partitioning a
community asset is required to classify the property as of
the date of the termination of the community. In the case
of a pension right earned partly during and partly outside
of the community, the process of classification begins at
the termination of the community and continues until a
partition of that asset is effected. . . . [T]he community and
separate fractions of the pension cannot be separated and
classified definitively until the partition.

Furthermore, Louisiana law has clearly held that the portion of

retirement benefits from one spouse’s employment accrued during the marriage

constitute a community asset. In Day v. Day, 02-431, p. 12 (La.App. 1 Cir. 5/28/03),

858 So.2d 483, 491, writ denied, 03-1845 (La. 11/7/03), 857 So.2d 492, the court

specifically considered whether retirement benefits earned by one of the parties were

community property subject to partition subsequent to the settlement agreement. The

court wrote:

Each spouse owns a present undivided one-half
interest in the community during its existence.
La.Civ.Code art. 2336. To the extent that a property right
derives from the spouse’s employment during the existence
of the marriage, it is a community asset subject to division
upon dissolution of the marriage. La.Civ.Code art. 2338.
Consequently, when the community is terminated, the
employee’s spouse is entitled to be recognized as the
owner of one-half of the value attributable to the pension
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or deferred compensation right earned during the existence
of the community. See La.Civ.Code art. 2336. Robinson
v. Robinson, 99-3097 (La. 1/17/01), 778 So.2d 1105, 1114.
When the community is terminated, each spouse becomes
a fully vested co-owner in indivision of all property of the
former community regime, including pension benefits
acquired during the community. See La.Civ.Code art.
2369.2; see also Robinson, 778 So.2d at 1115.

Therefore, because the parties continue as co-owners of the portion of

retirement benefits earned during the existence of the community, Mrs. Street’s claim

for an accounting of the portion of retirement benefits to which she is entitled has not

prescribed, since this property cannot be differentiated until partition occurs.

Reimbursement

Mrs. Street also claimed Mr. LeBlanc’s separate estate owes her

reimbursement for payments made from the community on a mortgage against his

separate property, as well as reimbursement for money spent on renovations to a

small room, also on his separate property. Mr. LeBlanc argues this claim for

reimbursement has prescribed.

Louisiana Civil Code Article 2358 states that “[u]pon termination of a

community property regime, a spouse may have against the other spouse a claim for

reimbursement.” The Civil Code goes on to enumerate specific circumstances in

which reimbursement is permissible, including reimbursement for payments made

from the community to pay down a mortgage held against one spouse’s separate

property and reimbursement for improvements on one spouse’s separate property.

See La.Civ.Code art. 2366; La.Civ.Code art. 2367.1.

The right of reimbursement, however, is a claim of one spouse against

the other, not against the community itself. Louisiana Civil Code Article 2358.1

provides that “[r]eimbursement shall be made from the patrimony of the spouse who

owes reimbursement.” See also Ramsey v. Ramsey, 96-481 (La.App. 3 Cir. 10/9/96),
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682 So.2d 797. The third circuit held in Bordelon v. Cobb, 596 So.2d 268 (La.App.

3 Cir. 1992) that the appropriate time in which to assert a right for reimbursement is

governed by La.Civ.Code art. 3499, which states that a “personal action is subject to

a liberative prescription of ten years.” A reimbursement claim is not embedded in the

partition of the community property and, therefore, is not governed by principles of

co-ownership. The right to bring such a claim is triggered “[u]pon termination” of

the community property regime and does not wait for partition. Because Mrs. Street

brought her claim for reimbursement in conjunction with her petition for partition

more than ten years after the termination of the community, her claim had prescribed.

The trial court erred in dismissing Mr. LeBlanc’s exception of prescription as to the

reimbursement portion of her claim.

IV.

CONCLUSION

For the above reasons, the judgment of the trial court is affirmed in part

and reversed in part. Costs of appeal are assessed equally to each party.

AFFIRMED IN PART, REVERSED IN PART, AND REMANDED

FOR TRIAL ON THE MERITS.

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