Brenda Bordelon v. Gregory D. Bordelon

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

06-537

BRENDA BORDELON

VERSUS

GREGORY P. BORDELON

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APPEAL FROM THE
FOURTEENTH JUDICIAL DISTRICT COURT
PARISH OF CALCASIEU, NO. 2001-2164
HONORABLE GUY ERNEST BRADBERRY, DISTRICT JUDGE

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ULYSSES GENE THIBODEAUX
CHIEF JUDGE
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Court composed of Ulysses Gene Thibodeaux, Chief Judge, John D. Saunders,
Jimmie C. Peters, Elizabeth A. Pickett, and J. David Painter, Judges.

PAINTER, J., DISSENTS IN PART AND ASSIGNS WRITTEN REASONS.

REVERSED AND RENDERED.

Jack W. Caskey
704 Ryan Street
Lake Charles, LA 70602
Telephone: (337) 439-8854
COUNSEL FOR:
Plaintiff/Appellant - Brenda Bordelon

Nathan A. Cormie
Todd Holman Melton
Nathan A. Cormie & Associates
616 Kirby Street
Lake Charles, LA 70601
Telephone: (337) 439-2422
COUNSEL FOR:
Defendant/Appellee - Gregory P. Bordelon

THIBODEAUX, Chief Judge.

Brenda Bordelon, the former wife of Gregory Bordelon, appeals the trial

court’s denial of her reimbursement requests in this property partition dispute.

During their marriage, Gregory and Brenda Bordelon built a new home on Gregory’s

separately owned property. The couple used community funds and donated their

labor in constructing the house, significantly increasing the value of the property.

In partitioning the property after their divorce in 2001, Brenda Bordelon

sought reimbursement under La.Civ.Code art. 2366 for one-half of the community

funds expended and under La.Civ.Code art. 2368 for one-half of the enhanced value

of the property. After a bench trial, the trial court denied Brenda Bordelon’s requests

for reimbursement.

We conclude that the trial court erred in failing to reimburse Brenda

Bordelon one-half of the community construction funds under La.Civ.Code art. 2366

and in failing to reimburse her one-half of the enhanced value of the property under

La.Civ.Code art. 2368, subject to offsets for the funds expended and the balance due

on the community debt. Accordingly, we reverse the judgment of the trial court and

render specific awards for reimbursements as fully set forth below.

I.

ISSUES

We must decide:

(1) whether the trial court erred in failing to award
Brenda Bordelon one-half of the community funds
expended on the separate property of Gregory P.
Bordelon pursuant to La.Civ.Code art. 2366; and

(2) whether the trial court erred in failing to award
Brenda Bordelon one-half of the increase to the
value of the separate property of Gregory P.
Bordelon pursuant to La.Civ.Code art. 2368.

II.

FACTS AND PROCEDURAL HISTORY

At the time of the marriage in 1983, Gregory Bordelon owned a lot

which was his separate property. The lot contained two buildings, a shop and a

storage building, that are also Gregory’s separate property.

In 1989, the couple built a house on the lot and subsequently lived in it

with their children as the family residence. This home is the subject of the current

dispute. During the construction of the home, Gregory, who was a carpenter,

provided most of the labor in constructing the house, along with the couple’s friends

and family members who donated their time and assistance. Brenda cooked meals for

the builders, organized and cleaned up the construction site, purchased materials and

supplies, kept the financial records, paid the bills for the construction, and raised the

children of the marriage. The house was built in approximately three months. Labor

was performed in the days and evenings and on weekends. During this time, Gregory

maintained his employment with Tomassi Construction. Brenda did not work outside

the home at that time.

Most of the labor on the home was donated except for checks written to

individuals for laying bricks and flooring and for finishing sheetrock, for a total of

$2,940.50. Brenda wrote checks to cash and to Gregory, indicating some hourly

work; she did not write checks to herself for hourly work. Notwithstanding the

description on the checks as hourly work, the parties specifically stipulated that these

checks were part of the $38,000.00 used to buy materials and goods to build the

house. All of the construction costs were paid from community funds obtained from

the proceeds of a community loan. The family lived in and maintained the home for

eleven or twelve years after its construction.

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At the time of the final divorce in September 2001 the parties entered

into a partial settlement wherein the furniture was distributed, and each party

accepted a vehicle and its attendant debt. The only asset in dispute is the house, and

the only debt in dispute is the construction loan for the house.

The parties have stipulated that (1) the lot on which the house was built

is Gregory’s separate property; (2) the value of the materials to construct the house

was $38,000.00; (3) the lot, two buildings, and the home constructed during the

marriage are Gregory’s separate property; and (4) a community loan was taken out

by both parties in February 1989 for $41,440.00, from which the construction

materials were purchased. The remainder of the loan was used to buy furnishings.

Brenda sought reimbursement for one-half of the $38,000.00 in

community funds expended in the construction of the house under La.Civ.Code art.

2366, which is $19,000.00. Brenda, asserting that the house has a value of

$115,000.00, also sought reimbursement under La.Civ.Code art. 2368 for one-half of

the enhanced value of the property due to the construction of the house, which is

$57,500.00. She seeks the total of $19,000.00 plus $57,500.00, or $76,500.00.

After the trial of this matter, the trial court rendered a judgment against

Brenda, awarding her nothing. The court declined to address La.Civ.Code art. 2366

and specifically held that Brenda Bordelon was not entitled to one-half of the

increased value of the property under La.Civ.Code art. 2368. It is from this judgment

that Brenda appeals.

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III.

LAW AND DISCUSSION

Standard of Review

The Louisiana Supreme Court has articulated the standard of review for

findings of law and fact as follows:

An appellate court should not set aside the factual
findings of a trial court absent manifest error or unless
clearly wrong. Arceneaux v. Domin[]gue, 365 So.2d 1330
(La.1978). However, if a court finds that the trial court
committed a reversible error of law or manifest error of
fact, the court of appeal must ascertain the facts de novo
from the record and render a judgment on the merits.
LeBlanc v. Stevenson, 00-0157 (La. 10/17/00), 770 So.2d
766. Although appellate courts should accord deference to
the fact-finder, they nonetheless have a constitutional duty
to review facts. Ambrose v. New Orleans Police Dept.
Ambulance Service, 93-3099 (La. 7/5/94), 639 So.2d 216,
221. Because appellate courts must perform this
constitutional function, they have every right to determine
whether the trial court verdict was clearly wrong based on
the evidence or clearly without evidentiary support. Id.
The reviewing court must do more than simply review the
record for some evidence which supports or controverts the
trial court’s findings; it must instead review the record in
its entirety to determine whether the trial court’s finding
was clearly wrong or manifestly erroneous. Stobart v.
State through Dept. of Transp. & Development, 617 So.2d
880, 882 (La. 4/12/93).

Oubre v. Eslaih, 03-1133, pp. 8-9 (La. 2/6/04), 869 So.2d 71, 76-77.

Reimbursement under La.Civ.Code art. 2366

Brenda contends that the trial court erred in failing to reimburse her one-

half of the $38,000.00 in community funds expended on the construction of the home

on the separate property of Gregory Bordelon pursuant to La.Civ.Code art. 2366.

That article provides as follows:

Art. 2366. Use of community property for the benefit of
separate property

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If community property has been used for the
acquisition, use, improvement, or benefit of the separate
property of a spouse, the other spouse is entitled upon
termination of the community to one-half of the amount or
value that the community property had at the time it was
used.

Buildings, other constructions permanently attached
to the ground, and plantings made on the separate property
of a spouse with community assets belong to the owner of
the ground. Upon termination of the community, the other
spouse is entitled to one-half of the amount or value that
the community assets had at the time they were used.

Accordingly, La.Civ.Code art. 2366 provides in paragraph two that

constructions permanently attached to the ground on the separate property of a

spouse, even if constructed with community assets, belong to the owner of the

ground. In this case, there is no dispute, and the parties stipulated to the fact, that the

lot and buildings, including the house constructed on the lot during the marriage, are

the separate property of Gregory Bordelon. However, Article 2366 also provides that

where community property or community funds have been used to improve or benefit

the separate property of the owner spouse, the non-owner spouse is entitled, upon

termination of the community, to one-half of the improvement costs. In this case, the

parties stipulated that the community funds used to buy materials and construct the

house had a value of $38,000.00. Therefore, the amount sought by Brenda Bordelon

under Article 2366 is one-half of the $38,000.00 in community funds expended,

which is $19,000.00.

In Brehm v. Brehm, 00-201 (La.App. 5 Cir. 6/27/00), 762 So.2d 1259,

writ denied, 00-2286 (La. 10/27/00), 772 So.2d 657, the marital domicile was built

with community funds on Mr. Brehm’s separate property during Mr. and Mrs.

Brehm’s marriage. The cost of building the house was $23,588.93. Under

La.Civ.Code art. 2366, Mrs. Brehm was awarded $11,794.47, which was one-half of

5

the initial construction costs of building the house. Similarly, in the present case,

Brenda is entitled to reimbursement under La.Civ.Code art. 2366 of $19,000.00,

which is one-half of the $38,000.00 in construction funds used to build the house.

While the trial court did not address reimbursement under Article 2366,

Gregory admits that he owes Brenda $19,000.00 under this article. However,

Gregory contends that the $19,000.00 that he owes Brenda is cancelled out by the

total amount of reimbursements that she owes him. We will address each of his

assertions regarding the offsets.

The first involves the construction loan. The parties stipulated that the

construction loan of $41,400.00, which supplied the construction funds of

$38,000.00, was a community obligation. Accordingly, Gregory asserts that Brenda

owes him one-half of the balance due on the community loan, which he also asserts

was paid down to $22,913.32. Therefore, Gregory argues that Brenda owes him

$11,456.66 on the loan. In this case, the parties stipulated that the construction loan

was a community debt even though it was largely applied to Gregory’s separate

property. Therefore, the debt is subject to partition, and in the final calculations

Brenda will be obligated to reimburse Gregory $11,456.66 for one-half of the

principal balance of the loan, which is the only community debt at issue herein.

However, in order to simplify matters, we will not apply the offset for this community

liability until we have determined the total amount of community assets at issue.

Gregory also contends that under La.Civ.Code art. 2365 Brenda owes

him reimbursement of one-half of the $17,547.20 in mortgage payments that he made

on the loan after she moved out1 of the house, which comes to $8,773.60. According

1
Brenda was awarded use of the home in the 2001 partial settlement wherein the parties
agreed that she and the children would occupy the home until the last child graduated from high
school, around 2006. The settlement provided that Brenda would pay the notes on the house but that
they would be considered rent and that she would waive any claim to reimbursement for the notes
paid. Brenda subsequently moved out of the home earlier than agreed upon; Gregory moved in and

6

to Gregory’s calculations, this brings Brenda’s indebtedness to $20,230.26, which

cancels out the $19,000.00 that he owes her under Article 2366.

We disagree. Gregory is not entitled to reimbursement under

La.Civ.Code art. 2365 for one-half of the mortgage payments that he made on the

community obligation from his separate funds after the divorce. That article provides

as follows:

Art. 2365. Satisfaction of community obligation with
separate property

If separate property of a spouse has been used to
satisfy a community obligation, that spouse, upon
termination of the community property regime, is entitled
to reimbursement for one-half of the amount or value that
the property had at the time it was used. The liability of a
spouse who owes reimbursement is limited to the value of
his share in the community after deduction of all
community obligations.

Nevertheless, if the community obligation was
incurred for the ordinary and customary expenses of the
marriage, or for the support, maintenance, and education of
children of either spouse in keeping with the economic
condition of the community, the spouse is entitled to
reimbursement from the other spouse regardless of the
value of that spouse’s share of the community.

Gregory began making mortgage payments in February 2002, after the

community regime ended in 2001. Therefore, he made mortgage payments on a

stipulated community debt on an asset in his possession with his own separate funds.

We have held that “the reimbursement scheme contemplated by La.Civ.Code art.

2365 pertains solely to debts paid during the marriage, and not those paid after

divorce.” Sheridon v. Sheridon, 03-103, p. 7 (La.App. 3 Cir. 2/4/04), 867 So.2d 38,

44 (en banc) (emphasis added). More specifically, in Sheridon, where the divorce

began paying the notes on the mortgage in February 2002.

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suit was filed in October 1999 and the last day of trial was in November 2001, this

court articulated as follows:

Mr. Sheridon asserts that the trial court erred in requiring
him to reimburse Ms. Sheridon $4,110.25, representing one
half of the amounts she paid between October 5, 1999, and
November 15, 2001, on the note executed to finance the
purchase of the Pontiac Firebird. In asserting this
argument, he relies on this court’s decisions in Bergeron v.
Bergeron, 96-1586 (La.App. 3 Cir. 4/9/97), 693 So.2d 199,
and Preis v. Preis, 94-442 (La.App. 3 Cir. 11/2/94), 649
So.2d 593, writs denied, 94-2939, 94-2942 (La. 1/27/95),
649 So.2d 392.

In Preis, we cited jurisprudence from the other
circuits to conclude that “a spouse who has the exclusive
use of an automobile following the termination of the
community, is not entitled to reimbursement or credit for
notes paid on it.” Preis v. Preis, 649 So.2d at 596.
Bergeron reached the same conclusion.

However, another panel of this court, in Nash v.
Nash, 01-766 (La.App. 3 Cir. 10/31/01), 799 So.2d 829,
writ denied, 01-3154 (La. 2/1/02), 808 So.2d 344,
concluded that La.Civ.Code art. 2365 governed the
reimbursement issue, and declined to follow this court’s
holdings in Preis and Bergeron. The issue is now before
us en banc to resolve the split within this circuit on this
issue. In addressing this issue, we reaffirm our decisions
in Preis and Bergeron.

Louisiana Civil Code Article 2365 provides:

If separate property of a spouse has
been used to satisfy a community obligation,
that spouse, upon termination of the
community property regime, is entitled to
reimbursement for one-half of the amount or
value that the property had at the time it was
used. . . .

The phrase “upon termination of the community
property regime” is crucial to our interpretation of
La.Civ.Code art. 2365. The Article does not say “upon
partition,” but specifically uses the words “upon
termination.” Because of the specific language used, it is
clear that the reimbursement scheme contemplated by
La.Civ.Code art. 2365 pertains solely to debts paid during
the marriage, and not those paid after divorce. Thus, Ms.

8

Sheridon would be entitled, under La.Civ.Code art. 2365,
to reimbursement for community debts she paid with
separate funds before termination of the marriage. As
such, La.Civ.Code art. 2365 is not applicable to the matter
before us, and we specifically overrule this holding in
Nash.

Id. at 44 (emphasis added).

Based upon the foregoing, Brenda does not owe Gregory reimbursement

under La.Civ.Code art. 2365 for one-half of the $17,547.20 (or $8,773.60) in

mortgage payments that Gregory made on the construction loan in 2002 after the

termination of the marriage in 2001.

Therefore, Brenda does not owe greater reimbursements to Gregory than

the $19,000.00 reimbursement that he owes her under La.Civ.Code art. 2366. We

reverse the trial court’s decision to omit adjudication of the parties’ respective

obligations regarding both the community debt and the reimbursement under Article

2366. We now turn to the issue of whether the improvement to Gregory’s property

is subject to partition as a community asset under La.Civ.Code art. 2368.

Reimbursements under La.Civ.Code art. 2368

Brenda contends that the trial court erred in failing to reimburse her one-

half of the value of the improvement to Gregory’s property resulting from the

construction of the house, pursuant to La.Civ.Code art. 2368. We agree that an award

should be made under Article 2368, but we do not agree with Brenda’s calculations.

More specifically, the article provides as follows:

Art. 2368. Increase of the value of separate property

If the separate property of a spouse has increased in
value as a result of the uncompensated common labor or
industry of the spouses, the other spouse is entitled to be
reimbursed from the spouse whose property has increased
in value one-half of the increase attributed to the common
labor.

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(Emphasis added).

To prevail on a claim under Article 2368, the claimant spouse must

prove: (1) that the improved property is separate; (2) that the property increased in

value during the existence of the matrimonial regime; (3) that common or community

labor of the spouses was expended on the separate property; and (4) that the common

labor expended was uncompensated or undercompensated. If established, the burden

shifts to the owner of the separate property to prove that some or all of the

enhancement in value occurred because of factors other than the uncompensated or

undercompensated community labor. The claimant spouse does not have to show that

his or her labor was expended on separate property. It is enough to show that the

labor of either spouse was so expended. Salley v. Salley, 95-0387 (La. 10/16/95),

661 So.2d 437.

Moreover, once the claimant seeking reimbursement has established that

the increase in the separate property of the other spouse is entirely or partially due to

under- or uncompensated community labor of the other spouse, the claimant is

entitled to one-half of the enhanced value of the separate property, even if that value

exceeds the value of the uncompensated labor. Krielow v. Krielow, 93-2539 (La.

4/11/94), 635 So.2d 180.

The rationale underlying Article 2368 is that:

Because property acquired by the effort, skill or
industry of a spouse is community, to the extent that a
spouse’s labor is producing some benefit, the community
ought to share in the profit of that labor. Thus, in the case
where a spouse’s labor increases the value of a separate
asset, the equitable solution is reimbursement for that effort
by awarding the non-owner spouse one-half of the increase
attributable to the common labor. La. C.C. art. 2368. If the
labor is combined with separate capital or other separate
property, equity would suggest a proportional division of
the profits between the community and separate estates of
the spouses. Katherine S. Spaht & W. Lee Hargrave,

10

Louisiana Civil Law Treatise, Matrimonial Regimes, Vol.
16, § 3.8 & 3.49 (2d ed.1997).

McClanahan v. McClanahan , 03-1178 (La.App. 5 Cir. 2/23/04), 868 So.2d 844, 848,

writ denied, 04-1175 (La. 9/3/04), 882 So.2d 609.

With regard to the labors of the owner-spouse, it is further reasoned that

“[a] spouse should not be permitted to deprive the community of a spouse’s earnings

that would be community property when that community labor enhances or increases

the value of the laboring spouse’s separately owned property.” Krielow, 635 So.2d

at 183.

In the present case, the parties stipulated that the property at issue is the

separate property of Gregory. Therefore, the first criterion is met. Likewise, there

is no dispute that the property increased in value during the marriage due to the

construction of the home. Accordingly, the second criterion is met.

The third criterion that Brenda must prove is that the community labor

of either spouse was expended on the separate property. The testimony at trial

reflects that Gregory was an excellent carpenter and an all-around skilled builder and

that he provided labor on the home in numerous capacities, including hanging the

sheetrock. The record also contains testimony that he worked on the house every day

for three months, often working alone and often until ten or twelve o’clock at night.

The record also reflects that Brenda contributed her labor by purchasing supplies;

maintaining the financial records; paying the construction bills; organizing, cleaning

and sweeping the construction site; cooking meals for the helpers; and raising the

children of the community during the construction. Clearly, both spouses contributed

their labor in the construction of the home.

The final criterion that Brenda must prove under Salley, 661 So.2d 437,

is that the common labor expended was uncompensated or undercompensated. At

11

trial, Gregory testified that he never received money and was not paid for the work

he performed on the home. Likewise, there is no allegation or proof that Brenda was

compensated for her labor on Gregory’s separate property. There are checks written

between April and July 1989 on the community construction account made payable

to “cash” for hourly work in the total amount of $3,000.00 and checks made to

Gregory for hourly work in the total amount of $3,743.00. Brenda testified that she

wrote the checks on the construction account and deposited them to their joint

personal account for the family to live on during the construction period. However,

these checks came from the community loan and are part of the $38,000.00 that the

parties stipulated to as costs for construction materials. This $38,000.00 has been

covered in the previous section of this analysis as community funds used to enhance

the separate property of Gregory.

As to labor belonging to the community, Gregory argues that he did not

deprive the community of his paid labor during the building of the private home

because he maintained regular employment with Tomassi Construction during that

period. The record contains checks paid to Gregory by a homeowner for outside

labor with Tomassi Construction during the same time period that he was working on

his own property. At trial, he admitted that those checks did not reflect forty hours

per week every week. In fact, there was only one check for $315.00 in May of 1989.

Mr. Tomassi testified that Gregory guaranteed him forty hours per week during that

construction period in 1989 and indicated that Gregory maintained full-time

employment with him. However, Mr. Tomassi did not have records from 1989 and

testified that he destroyed his records after seven years due to the volume.

Hence, the record supports Brenda’s contention that the house was built

with community funds and with the labor of both spouses that was uncompensated

12

to some degree. Accordingly, the final criterion in Brenda’s burden of proof is met

under Salley, 661 So.2d 437.

The burden shifted to Gregory to prove that some or all of the

enhancement in value occurred because of factors other than the uncompensated or

undercompensated community labor. As a threshold matter, it is simply untenable

to imply that the large majority of the value of Gregory’s property is not due to the

construction of the house. The appraisal in the record values the land and small

buildings at $40,000.000 and the house constructed during the marriage at

$115,000.00. Gregory argues that there is absolutely no reimbursement due under

Article 2368 because the enhanced value occurred due to other factors, not because

of uncompensated community labor but because of the donated labor of friends and

family and contractors paid for their work. The record does not support such a

contention. Only six checks were written to contractors totaling $2,940.50 for cement

floor finishing, bricklaying and sheetrock floating. The record further reveals that,

while friends and family members of the couple assisted Gregory in the building of

the home, Gregory did the majority of the actual construction work on the home. The

only amount paid to contractors was $2,940.50.

Gregory further argues that the value of the labor on the house at the

time that it was built was equal only to the cost of the materials, giving the house a

total value of $76,000.00 in 1989, and that the more recent appraisal of $115,000.00

was due to a market phenomenon. However, Gregory overlooks the fact that the

family lived in the house for eleven or twelve years after it was built, and it was the

community labor of both spouses that maintained the home during that period.

Morever, we note that Brenda lived in the house and maintained it for another year

after the marital regime ended. If left to sit dormant, a house will not maintain its

13

value. If the house had been abandoned after completion in 1989 it would likely not

be worth the materials used to build it. Nature has a way of reclaiming man’s

abandoned constructions. But for the continuing labor of the spouses, the house

would have little value indeed. The photographs accompanying the appraisal depict

a lovely brick-front home, which we find is the result mostly of the under- or

uncompensated labor of both spouses.

In Krielow, 635 So.2d 180, Lynn Krielow established under La.Civ.Code

art. 2368 that Carl Krielow’s undercompensated community labor for his separate

corporation enhanced or increased his separately owned stock. The burden shifted

to Carl, as the owner of the separate property, to prove that some or all of the

enhancement occurred because of other factors. Carl failed to meet his burden of

proof, and the court remanded the case to the trial court for a determination of the

amount of reimbursement to Lynn Krielow. In that case, Carl worked solely for his

own corporation, and he was paid in draws found to be relatively low. Once it was

determined that he was undercompensated for his labor, the supreme court articulated

that Lynn Krielow was entitled to one-half of the enhanced value of the corporate

stock, even if that value exceeded the value of the uncompensated labor. The court

stated that Article 2368 did not impose limitations on recovery and that the claimant

is “entitled to recover the greater amount.” Krielow, 635 So.2d at 185.

The value of assets are determined at the time of trial. La.R.S. 9:2801.

The trial of this matter was held on June 17, 2005. The date on the appraisal is May

23, 2005. Accordingly, we find that the value of the improvement to Gregory’s

separate property due to the construction of the house is $115,000.00. Brenda is

entitled to one-half of that amount attributable to common or community labor under

La.Civ.Code art. 2368. Now we turn to calculating Brenda’s total recovery.

14

Calculations, Offsets, and Deductions

In calculating her reimbursements, Brenda cites Loyacono v. Loyacono,

618 So.2d 896 (La.App. 5 Cir. 1993), and asserts that she is entitled to the full

amount of two separate reimbursements, one under Article 2366, and one under

Article 2368. More specifically, Brenda contends that she is entitled to one-half of

the $38,000.00 ($19,000.00) expended in community construction costs under

La.Civ.Code art. 2366, plus one-half of the $115,000.00 ($57,500.00) enhancement

value under La.Civ.Code art. 2368, for a total of $76,500.00. However, she

overlooks the fact that the community construction funds plus the community labor

combined to render an increased value of $115,000.00. Article 2368 provides for

reimbursement, not of one-half the total enhancement value, but for “one-half of the

increase attributed to the common labor.” La.Civ.Code art. 2368. The labor itself is

not worth $115,000.00.

In order to determine the value of the community labor, we would

subtract the community funds from the total enhancement. Accordingly, $115,000.00

minus $38,000.00 equals $77,000.00, which represents the value of the community

labor expended under Article 2368. The value of the labor of $77,000.00 is then

subject to division and reimbursement to the claimant spouse of one-half that amount,

or $38,500.00, under Article 2368. To this amount is added one-half of the

construction funds of $38,000.00, or $19,000.00, under Article 2366. The sum of

$19,000.00 in funds under Article 2366 plus $38,500.00 in labor under Article 2368

equals $57,500.00. Accordingly, Brenda’s total recovery of community funds and

community labor under both articles is $57,500.00.

See also McKey v. McKey, 449 So.2d 564 (La.App. 1 Cir. 1984), where

in a footnote the court articulated the formula as follows:

15

(FN 6.) Where both community improvements to separate
property and enhancement of value by “uncompensated
common labor and industry” are involved, as here, a
formula must be devised to prevent the claiming spouse
from reaping double benefit for the expenses. Although we
do not reach this issue because of our conclusion here, a
fair method of resolving the matter would be to determine
the enhanced value . . . . [t]hen determine the value of the
improvements placed on the separate property and subtract
that amount from the enhanced value before dividing
enhanced value.

Id. at 567, n.6.

Accordingly, while Brenda is entitled to recovery under Articles 2366

and 2368, the construction funds are part of the enhanced value, and recovery under

both cannot simply be stacked. To award construction costs plus the full

enhancement value, without an offset, would be to award the construction costs twice.

In effect, it must be stated that when funds and labor are expended on the same piece

of property resulting in an enhancement to the value of that property, recovery under

Article 2368 is subject to a credit or offset for the recovery awarded under Article

2366.

In Loyacono, during the marriage of the spouses, the husband purchased

a house from his parents designated as his separate property purchased with his

separate funds. He assumed the loan on the separate property, which the court

subsequently designated as his separate loan. During the marriage, the couple and

their two children lived in the house as their primary residence. The community made

improvements to the house, and the community paid notes on the house. The house

increased in value. In partitioning the community after the divorce, the court ordered

reimbursement to the wife under La.Civ.Code art. 2366 for one-half of the cost of the

improvements made with community funds. The court also reimbursed the wife

16

under La.Civ.Code art. 23642 for one-half of the community mortgage payments

attributable to reduction of the principle on the separate loan. Finally, finding that the

increase in the value of the house was the result of community labor, the court

reimbursed the wife “one-half of the enhanced value of the separate property, subject

to a credit for the improvements.” Loyacono, 618 So.2d at 899 (emphasis added).

By analogy, Brenda is not entitled to, nor has she requested,

reimbursement for the community mortgage payments made during the marriage

under La.Civ.Code art. 2364 because the parties stipulated that the loan was a

community obligation, not a separate obligation as found in Loyacono. Otherwise,

the findings in Loyacono apply in the present case and provide another way of

calculating the recovery with the same result. As previously indicated, Brenda is

entitled to reimbursement of $19,000.00 under La.Civ.Code art. 2366 for one-half of

the value of the community funds of $38,000.00 used in the improvement to the

separate property by construction of the house.

Additionally, under La.Civ.Code art. 2368, she is entitled to

reimbursement of $57,500.00 for one-half of the property’s enhancement value of

$115,000.00, subject to a credit or an offset for the improvements, pursuant to

Loyacono. Accordingly, $19,000.00 plus $57,500.00 minus $19,000.00 equals

$57,500.00.

Under either scenario, Brenda’s total reimbursements under Articles

2366 and 2368 come to $57,500.00. However, this is not the amount of her net

recovery. Brenda has also omitted from her calculations the amount due on the

2
Art. 2364. Satisfaction of separate obligation with community property

If community property has been used to satisfy a separate obligation of a spouse, the other
spouse is entitled to reimbursement upon termination of the community property regime for one-half
of the amount or value that the property had at the time it was used.

17

community loan. As previously indicated, from her total reimbursements of

$57,500.00 Brenda Bordelon must reimburse Gregory Bordelon $11,456.66 for her

one-half of the community debt of $22,913.32. Thus, $57,500.00 minus $11,456.66

equals $46,043.34. Accordingly, the amount of the net reimbursement due to be paid

to Brenda Bordelon by Gregory Bordelon is $46,043.34.

IV.

CONCLUSION

Based upon the foregoing, the judgment of the trial court is reversed, and

Gregory Bordelon is hereby ordered to pay Brenda Bordelon the amount of

$46,043.34 in total net reimbursements due to the community’s expenditures of funds

and labor on Gregory’s separate property. The costs of filing this appeal are assessed

against Gregory P. Bordelon.

REVERSED AND RENDERED.

18

STATE OF LOUISIANA

COURT OF APPEAL, THIRD CIRCUIT

06-537

BRENDA BORDELON

VERSUS

GREGORY D. BORDELON

Painter, Judge dissenting.

While I agree with the majority’s opinion herein that Mrs. Bordelon is due a

reimbursement in connection with the construction of the family home, I disagree

with regard to the amount of that reimbursement.

Louisiana Civil Code art. 2368 states:

If the separate property of a spouse has increased in value as a
result of the uncompensated common labor or industry of the spouses,
the other spouse is entitled to be reimbursed from the spouse whose
property has increased in value one-half of the increase attributed to the
common labor.

The court in Brehm v. Brehm, 00-201, p. 4 (La.App. 5 Cir. 6/27/00),762 So.2d

1259, 1263, writ denied, 00-2286 (La. 10/27/00), 772 So.2d 657, explained the statute

as follows:

A claimant spouse under LSA-C.C. art. 2368 has the burden of
proving: (1) the property is separate, (2) the property increased in value,
and (3) the increase in value was based on the uncompensated or
undercompensated labor of the other spouse; the burden then shifts to
the other spouse to prove that the increase in value was due to factors
other than the uncompensated or undercompensated labor. Salley v.
Salley, 95-0387 (La.10/16/95), 661 So.2d 437, 438; Krielow v. Krielow,
93-2539 (La.4/11/94), 635 So.2d 180, 183.

The evidence at trial, however, was that Mr. Bordelon was compensated for his

labor on the house. Therefore, La.Civ.Code art. 2368 does not apply. At trial, Mrs.

Bordelon testified that Mr. Bordelon had been paid for his labor. Checks in the

amount of $6,743.00, made out to Mr. Bordelon or to Cash, and bearing notations that

they were payment for labor on the house were introduced into evidence. While Mr.

Bordelon testified that he was not paid, Mrs. Bordelon had the burden of showing that

the labor was uncompensated. Therefore, the admission should be held against her

rather than him. In the absence of uncompensated labor, I would find that Mrs.

Bordelon is entitled only to reimbursement of one-half the amount used in improving

Mr. Bordelon’s separate property, that is one-half of $38,000.00, as provided by

La.Civ.Code art. 2366: “If community property has been used for the acquisition, use,

improvement, or benefit of the separate property of a spouse, the other spouse is

entitled upon termination of the community to one-half of the amount or value that

the community property had at the time it was used.”

For these reasons, I respectfully dissent from the majority herein.