Michael Glass v. Patricia M. Glass

DO NOT PUBLISH

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

07-124

MICHAEL GLASS

VERSUS

PATRICIA M. GLASS

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APPEAL FROM THE
NINTH JUDICIAL DISTRICT COURT,
PARISH OF RAPIDES, NO. 213,870
HONORABLE HARRY F. RANDOW,
DISTRICT JUDGE

**********

J. DAVID PAINTER
JUDGE

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Court composed of Michael G. Sullivan, Billy Howard Ezell, and J. David Painter,
Judges.

AFFIRMED IN PART, REVERSED IN PART, AND RENDERED.

Jeffrey H. Thomas
P.O. Box 548
Natchitoches, LA 71458-0548
Counsel for Defendant-Appellant:
Patricia M. Glass

Terry Aubin
3600 Jackson St., Ste. 107
Alexandria, LA 71303
Counsel for Plaintiff-Appellee:
Michael Glass

PAINTER, Judge.

Patricia Glass appeals the trial court’s judgment partitioning the community

of acquets and gains formerly existing between her and Michael Glass. Michael

Glass answers the appeal.

FACTS AND PROCEDURAL HISTORY

Michael and Patricia Glass were married on February 2, 1997, in Alexandria,

Louisiana. Michael filed a petition for divorce on July 21, 2003, praying for a

partition of the community property and debts. A judgment of divorce was entered

on February 9, 2004. The partition was heard in November 2005. The trial court

gave extensive written reasons and entered judgment as follows:

ORDERED that judgment is rendered allocating to Patricia Glass
the following community assets:

1. A certain piece, parcel or lot of ground, together with all
buildings and improvements thereon located, and all rights, ways
and privileges thereunto appertaining, being, lying and situated in
Alexandria, Rapides Parish, Louisiana, and being more
particularly described as Lot Nineteen (19) of the Riverwynd
Subdivision, being a subdivision of Lot Four (4) of the Culpepper
& Hundley Subdivision of Flowerton Plantation in Section 23,
Township 3 North, Range 1 West, Rapides Parish, Louisiana, all
as is more fully shown by official plat of survey recorded at Plat
Book 17, Page 108, Records of Rapides Parish, Louisiana;

2. A certain piece, parcel or lot of ground, together with all
buildings and improvements thereon located, and all rights, ways
and privileges thereunto appertaining, being, lying and situated in
Alexandria, Rapides Parish, Louisiana, and being more
particularly described as Lot Twenty (20) of the Riverwynd
subdivision, being a subdivision of part of Lot Four (4) of the
Culpepper & Hundley Subdivision of Flowerton Plantation in
Section 23, Township 3 North, Range 1 West, Rapides Parish,
Louisiana, all as is more fully shown by official plat of survey
recorded at Plat Book 17, Page 108, records of Rapides Parish,
Louisiana;

3. Hibernia account 77374216;

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4. Those monies already received by her from the sale of the parties’
airplanes and related business;

5. That certain 1993 Buick automobile in her possession; and

6. The miscellaneous funds remaining in the bank account(s) of
Patricia Glass; it is further

ORDERED that judgment is rendered allocating to Michael Glass
the following community assets:

1. A certain piece, parcel or tract of land, together with all buildings
and improvements located thereon, and all rights, ways and
privileges, thereunto appertaining, being, lying and situated in
Rapides Parish, Louisiana and being more particularly described
as follows, to-wit:

Lot Two (2) of Chester Place, as per plat thereof recorded in Plat
Book 2, Page 129, of the records of Rapides Parish, Louisiana;
subject to restrictions servitudes, right-of-ways and outstanding
mineral rights of record affecting the property;

2 A certain piece, parcel or tract of land, together with all buildings
and improvements located thereon, all rights, ways, privileges,
thereunto appertaining, being, lying and situated in Parish of
Rapides, State of Louisiana and being more particularly described
as follows:

Part of Lot Two (2), Square Two (2) of Wheadon-Powers
Subdivision, as per plat thereof recorded in Plat Book 2, Page
128, records of Rapides Parish, Louisiana being more fully shown
within dark lines on Certificate of Survey by Daniel D. Sandefur
dated September 16, 1977, attached to Act of Cash Sale dated
September 29, 1977 filed and recorded September 30, 1977,
Conveyance Book 915, Page 796, records of Rapides Parish,
Louisiana;

3. The US savings bonds in his possession;

4. The Ameritrade account in his name;

5. The entirety of those funds presently maintained in the trust
account of The Aubin Law Firm, a Professional Corporation;

6. Red River Bank account 2067171;

7. Red River Bank account 2067189;

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8. Hibernia account 773104190;

9. Those monies already received by him from the sale of the
parties’ airplanes and related business; and

10. First Colony Life Insurance Company policy number 2926311; it
is further

ORDERED that the parties shall execute all documents necessary
to implement the allocation of assets set forth above; it is further

ORDERED that the following community liabilities are allocated
to Michael Glass:

1. Debt secured by mortgage and owed to Red River Bank, account
number 1000258402;

2. Debt owed to Hibernia Bank, account number 85742221; and

3. Debt owed to Red River Bank, account number 1000254803; it
is further

ORDERED that the parties’ respective reimbursement claims
totaling $256,530.33 for Michael Glass and $301,198.49 for Patricia
Glass; it is further

ORDERED that Patricia Glass owes Michael Glass a cash
equalizing sum for the difference in net assets allocated, and that cash
equalizing sum is $41,384.00;

Accordingly, considering the net reimbursement owed and also
considering the cash equalizing sum owed, all as mentioned above, it is
further

ORDERED that single money judgment is hereby rendered
herein, representing net reimbursement owed and also representing the
cash equalizing sum, in favor of Patricia Glass and against Michael
Glass in the principal sum of $3,284.16 plus legal interest thereon from
August 22, 2006 until paid in full; it is further

ORDERED that all other claims of each of the parties regarding
assets and debts and also regarding reimbursement are denied; . . . .

Neither party disputes the trial court’s apportionment of the assets or the

conclusion reached as to the amount of the cash equalizing payment due as a result

of the unequal apportionment of those assets. The only matters before this court

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concern the reimbursement claims of the parties. Patricia appeals the trial court’s

rulings regarding certain reimbursement claims. Michael answers the appeal also

disputing the trial court’s treatment of certain reimbursement claims and the trial

court’s denial of his claim that Patricia mismanaged a community business after the

termination of the community.

DISCUSSION

Standard of Review

Appellate courts review trial court findings of fact under the
manifest error, clearly wrong standard. Rosell v. ESCO, 549 So.2d 840
(La.1989). Unless the trial court committed manifest error or was
clearly wrong in its findings of fact, those findings will not be disturbed
on appeal. Aymond v. Aymond, 99-1372 (La.App. 3 Cir. 3/1/00), 758
So.2d 886 . . . .

Appellate review of a question of law is simply a
decision as to whether the lower court's decision is legally
correct or incorrect. Phoenix Assur. Co. v. Shell Oil Co.,
611 So.2d 709 (La.App. 4 Cir.1992). If the trial court's
decision was based on its erroneous application of law,
rather than on a valid exercise of discretion, the trial court's
decision is not entitled to deference by the reviewing court.
Kem Search, Inc., v. Sheffield, 434 So.2d 1067 (La.1983).

Ducote v. City of Alexandria, 95-1269, p. 2 (La.App. 3 Cir.
7/17/96), 677 So.2d 1118, 1120.

Young v. Young, 06-77, pp. 3-4 (La.App. 3 Cir. 5/31/06), 931 So.2d 541, 544.

Where an error of law skews the trial court’s findings of fact or causes the court

to pretermit other issues, the appellate court must make a de novo review of the

record, apply the correct law, and render judgment, if possible. However, if the trial

court’s error of law does not interdict the fact finding process, de novo review is not

necessary. C.R.W. v. State, Dept. of Soc. Servs., 05-1044 (La.App. 1 Cir. 9/1/06), 943

So.2d 471, writ denied, 06-2386 (La. 12/21/06), 944 So.2d 1289.

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“A trial court's findings as to whether reimbursement claims have been

sufficiently established are reviewable under the manifest error standard. See Kline

v. Kline, 98-1206, p. 4 (La.App. 3 Cir. 2/10/99), 741 So.2d 670, 672.” Corkern v.

Corkern, 05-2297, p. 10 (La.App. 1 Cir. 11/3/06), 950 So.2d 780, 787, writ denied,

06-2844 (La. 02/02/07), 948 So. 2d 1083.

Private and Social Security Disability Benefits and Settlement

Patricia argues that the trial court erred in failing to find that Michael’s social

security disability benefits, those benefits he received from private disability

insurance, and a lump sum settlement from his private disability insurer, received

between February 1997 and April 3, 1998, were commingled with community funds

to such an extent as to make them community.

The mere mixing of separate funds and community funds in a
bank account does not alone convert the entire account into community
property. Sharp v. Sharp, 01-0969 (La.App. 4th Cir.10/2/02), 830 So.2d
328, 330, writ denied, 02-3250 (La.3/14/03), 839 So.2d 45. However,
when separate funds are commingled with community funds
indiscriminately so that the separate funds cannot be identified or
differentiated from the community funds all the funds are characterized
as community. Id. The burden of proof is on the party claiming the
reimbursement to show that separate funds existed and that those funds
were used for the use or benefit of the community. Id.

Gill v. Gill, 39,406, p. 24 (La.App. 2 Cir. 3/9/05), 895 So.2d 807, 820.

The trial court explained its determination with regard to the commingling of

the monthly private and social security disability benefits, as follows:

The Court finds that Mr. Glass has proven, by a preponderance of
the evidence, that these funds were used for community obligations or
to benefit the community. Michael Glass testified that the parties used
account number 3883 as their primary bank account out of which they
paid their day to day living expenses. Mr. Glass also introduced bank
statements and photocopies of checks which show how the money in
account number 3883 was spent. While it is true that community funds
were also deposited into this account, there is a “presumption that
withdrawals from an account into which community and separate funds

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are commingled are presumed to come first from separate funds.”
Reinhardt v. Reinhardt, 31,174 (La. App. 2d Cir. 1/20/99) 728 So.2d
503. Therefore, because Michael Glass adequately traced these funds
going into the account and adequately proved what the funds in this
account were spent on the Court awards Mr. Glass reimbursement . . . .

Additionally, Michael received a settlement from his private disability insurer

of $355,000.00 in June 1998. The record shows that this money was initially

deposited into the account from which community expenses were paid. Three

certificates of deposit in the amount of $100,000.00 each were purchased with a

portion of the funds. The remaining $55,000.00 was left in the account. The trial

court applied the presumption that separate funds are the first to be withdrawn and

concluded that the funds were used to pay community obligations or to otherwise

benefit the community.

Patricia argues that only $185,468.57 of the remaining $300,000.00 can be

traced. The trial court found, and the parties agree, that CDs purchased with these

funds were pledged to secure a line of credit with Hibernia Bank in the amount of

$295,000.00. The CDs matured in 1999 with each yielding $103,679. 97. A part of

the proceeds of one CD was used to pay off the balance due on the Hibernia line of

credit in the amount of $69,930.03. The parties agree that Michael is entitled to

reimbursement of one-half of that amount. T h e r e ma i n d e r o f t h e f i r s t C D ,

$33,748.94, and the $103,679. 97 proceeds of the second CD, were deposited into

Patricia’s Hibernia account. Of this amount, it is clear that only $130,068.97

represents Michael’s separate funds, the interest of $3,679.94 earned on each of the

CD’s being community funds. La.Civ.Code art. 2339.

The trial court found that Michael had shown that a check to him from this

account in the amount of $13,000.00 was used for community expenses.

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Additionally, the parties agree that $100,803.64 was written from this account to pay

for community real estate. The remainder was unaccounted for and thus must be

considered to have been commingled with the community funds.

The proceeds of the third CD were deposited into an account in Red River

Bank, then transferred into another account in Michael’s name. Of this amount, the

parties agreed that $15,538.57 was spent on community real estate. The trial court

found that Michael established that an additional $2,000.00 was deposited into the

community account and used for community expenses. Michael testified that he

loaned $37,000.00 from the proceeds of the CD to his former sister-in-law. The court

found that the documentary evidence sufficiently established that these funds were

deposited into the community account when repaid. However, it found that the

evidence established community use of only $25,530.87 of the funds.

The trial court additionally found that although Michael spent $2,800.00 to

improve his separate property and $4,380.00 to generate community income from his

separate rental property, he is entitled to reimbursement because the expenditures

resulted in a benefit to the community by increasing the rental value of the property.

We can find no authority which would allow reimbursement of a spouse for separate

funds expended on separate property. Even if the law so provided, the record does

not contain evidence of the rental value of the property either before or after the

improvements. Therefore, there can be no reimbursement of this expenditure.

Michael seems to argue that he is owed reimbursement for one-half of the

entirety of the funds received from the private and social security disability benefits

and settlement, except those amounts he admitted were expended on separate debts.

He seems to be arguing that application of the presumption that all debts incurred

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during the marriage are community would mean that anything the money was spent

for was a community debt unless proven otherwise. However, since these funds were

put into accounts containing community funds, the burden was on Michael to trace

the use of the funds. Funds not traced become community by commingling. See Gill,

895 So.2d 807.

Michael also disputes several instances in which the trial court found that he

had not adequately traced funds for which he claims that a reimbursement is due. He

asserts that he loaned $14,000.00 from these separate funds to family friends, the

Stevensons, and that, upon repayment, the funds were deposited in the community

account and used for community debts. The trial court found as follows:

On March 8, 1999 Michael Glass transferred $14,000.00 out of account
number 4216 into account number 3883. He then loaned this money to
friends of the family, the Stevenson’s. Mr. Glass testified that the
Stevenson’s paid the loan back in full and that he deposited the money
back into account number 3883. However, Mr. Glass testified that once
the loan was repaid he was not sure if the funds were spent on
community debts or his separate debts. After reviewing the evidence the
court is in no better position to determine where these funds were spent.
Therefore, the Court finds that Michael Glass has not adequately traced
these funds and denies his reimbursement claim as to the $14,0000.00.

Michael now argues that the money could only have been spent on community

obligations.

Michael further contends that the trial court erred in denying reimbursement

for a payment of $10,000.00 from his separate funds on September 3, 1999, to fund

his law practice. Michael asserts that although his law practice is his separate

property, income from the practice benefits the community. Therefore, he argues that

he should get a reimbursement from the community of his separate funds. The trial

court found that:

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On September 3, 1999 Michael Glass transferred $10,000.00 form
account number 4216 to Legal Source, Inc., his separately owned
business. Mr. Glass testified that these loans were returned to him either
as repayment of a loan or as salary. He testified that at the end of each
year, he paid himself a bonus from the corporation and that this bonus
payment essentially withdrew all funds remaining in the corporation’s
operating account. Michael Glass also testified that he would have used
these funds to pay either community debts or his separate debts. Mr.
Glass has not introduced any further evidence to show the Court where
those funds were spent. Therefore, the Court denies Michael Glass’s
reimbursement claim on this issue.

Michael’s argument now is that those funds were taken back out of the law

practice and were spent in ways that benefitted the community.

After reviewing the testimony of record, we find that the record supplies

sufficient support for the trial court’s conclusion that these funds were not sufficiently

traced. We find no manifest error and decline to overturn the trial court’s

determination in this regard.

Michael also asserts that the trial court erred in denying reimbursement for a

$10,000.00 payment to MBNA which Michael asserts was used to pay community

credit card debt. The trial court found:

[Exhibit] P-21 shows a withdrawal of $10,000.00 from account number
3883 on September 9, 1999 but lists the payee as “unknown.” Mr. Glass
testified that these funds were used to pay off the couple’s MBNA credit
card, but offers no supporting proof. There was also a $12.50 wire
transfer fee related to this $10,000.00.

After reviewing the record, we find that Michael produced documentary

evidence showing that this payment was an electronic payment on an MBNA credit

card account. Therefore, we find that Michael is entitled to reimbursement in

connection with this payment.

With the exception of the $4,380.00 expenditure for separate rental property,

and the $10,000.00 credit card payment, we find that the trial court’s conclusions with

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regard to the private and social security disability benefits and settlement are correct

and supported by the record.

Patricia’s Inheritance

Patricia asserts that the trial court erred finding that $57,398.00 of her

inheritance from her father was used to pay community obligations. She argues that

the court should have enforced an agreement between the parties that the funds

inherited by her would be used to pay Michael’s separate debt.

The documentary evidence is as follows. Patricia liquidated an account

containing $57,398.00 inherited from her father on January 7, 2003. She gave the

money to Michael via check dated January 16, 2003. On January 17, 2003, he paid

off his separate debt via wire transfer. On January 28, 2003, he deposited Patricia’s

$57,398.00 check into the community checking account. He admitted at the hearing

that he told her the money would be used, along with other funds, to pay his separate

debt. The trial court, in its written reasons, stated that:

After reviewing the evidence and the testimony of the parties the Court
does not find any intent on the part of Michael Glass to defraud Patricia
Glass out of her inheritance. The parties were married at the time she
gave Mr. Glass the money to pay off the mortgage. Furthermore, Mr.
Glass testified that while he may not have used these funds to pay off the
mortgage they were used to pay other community obligations and debts
of the parties. Michael Glass testified that these funds were deposited
into account No. 3883 which the Court has previously found was the
parties’ account from which they paid their day to day living expenses.
The Court finds Michael Glass’s testimony credible on this matter and
does not find any ill intent on the part of him in regards to these funds.
Therefore, the Court awards Patricia Glass reimbursement in the amount
of one-half of the $57,398.00 . . . .

The testimony is undisputed that it was the intent of the parties that the money

derived from Patricia’s inheritance was to be used to pay some of Michael’s separate

debt. It also appears that both parties thought that this was what had occurred until

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Michael examined the exact sequence of events and he began to assert that Patricia’s

inheritance had been used to pay community debts. Further, Patricia wrote the check

before the payment was made. Although he did not deposit the check until after he

made the payment, he was in possession of the check and controlled the date of

deposit. Therefore, we find that the court erred in finding that Patricia’s inherited

money paid community debts rather than Michael’s separate debt. Accordingly, we

find that Michael must reimburse Patricia the full amount of her separate funds used

to pay his separate debt.

Donations to Benjamin Glass Trust

Patricia next asserts that the court erred in failing to award her a reimbursement

for community funds donated to a trust for the benefit of Michael’s minor son from

a previous marriage. These amounts include funds donated to the trust and an

insurance policy purchased with community funds with the Benjamin Michael Glass

Trust designated owner and beneficiary. Michael admits that between $50,000.00

and $70,000.00 in community funds were donated to his son’s trust during his

marriage to Patricia. He further does not dispute that the life insurance policy was

bought with community funds. Michael argues that both should be considered usual

or customary gifts and, therefore, not reimbursable.

La.Civ.Code art. 2349 provides that “[t]he donation of community property to

a third person requires the concurrence of the spouses, but a spouse acting alone may

make a usual or customary gift of a value commensurate with the economic position

of the spouses at the time of the donation.” Patricia argues that she did not concur in

these contributions or in the purchase of the insurance policy and did not benefit from

them. The trial court found that the amounts donated to the trust and the cost of the

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insurance policy were commensurate with the economic position of the parties at the

time of the donations and were, therefore, usual and customary gifts. Given the

evidence regarding the income and lifestyle of the couple during their marriage, we

find no error in this conclusion by the trial court.

Community Funds Used to Improve Michael’s Separate Property

Patricia argues that the trial court erred in failing to award full reimbursement

for community funds used to improve Michael’s separate rental property. She claims

reimbursement of one-half of $15,000.00 in community funds spent on Michael’s

separate residence which was used as the family home and of $21,978.00 in

community funds spent on his separately owned law office. The court reduced the

amount to be reimbursed to Mrs. Glass for community funds spent on these two

properties by fifty percent finding that Mrs. Glass received a benefit from the

improvements to the buildings in that the home was renovated for her use, and that

she received a benefit from the improvement to the law office in the form of enhanced

rental value.

After reviewing the record herein, we find that no evidence was adduced as to

the value of any of the properties before or after the renovations. Testimony was

adduced as to the amount of rent which was paid to the community for the law office

after the renovations, but no evidence was adduced as to the amount the property

would have rented for before the renovations. Further, no evidence was adduced as

to the value of the use of the home by Michael and Patricia. In the absence of such

evidence, we find that no basis exists on which to reduce the reimbursement due

Patricia under La.Civ.Code art. 2366.

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Patricia also claims a reimbursement for $13,175.57 in community funds spent

on several other rental properties owned by Michael separately. Michael does not

dispute this claim, but only asserts that the amount should be reduced by $2,302.57

spent on a new air conditioning unit. He argues that without this expenditure, the

property could not have been rented, and the community would not have received the

rental income. However, no evidence was submitted to support this claim. Patricia

is entitled to receive a reimbursement in connection with this expenditure of

community funds.

MBNA Payment

Patricia further argues that the trial court erred in giving Michael a

reimbursement for a $20,000.00 check bearing number 778 drawn from the proceeds

of the CDs purchased with the disability settlement which the trial court found was

used to pay off a community credit card debt with MBNA. She asserts that the money

was used to open a money market account rather than to pay a credit card. At trial,

Michael’s testimony was that a payment to MBNA must be a payment of a

community credit card debt. Patricia, on the other hand, introduced into evidence a

copy of check number 778 made out to MBNA America dated February 25, 1999, and

a statement from MBNA showing that an AOPA Goldsavers money market account

was opened on March 5, 1999, with a deposit of $20,000.00. Given this evidence, we

find that the court erred in concluding that the payment was a payment of a

community debt with Michael’s separate funds. Therefore, Michael is not due

reimbursement for this amount.

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Forever Flying

Patricia asserts that the trial court erred in determining the amount of income

generated after the termination of the community by Forever Flying, a community

owned airplane rental and teaching business. She argues that the trial court should

have reduced the amount of income by the amount of personal service income she

earned giving flying lessons. The trial court found that:

After reviewing the evidence submitted on this issue, the Court finds
that D-50 does show $23,300.00 in draws post termination, but it also
shows that Patricia deposited $9,290.48 in cash. Mr. Glass claims that
these funds were generated by the community business and kept off the
books by Mrs. Glass. Patricia Glass asserts that these were her separate
funds. Neither party has introduced any evidence to prove the origin or
source of these funds. Michael Glass argues that Patricia Glass’s
testimony is not credible and therefore he should be reimbursed for one-
half of the $9,290.48. Although Mrs. Glass did admit to not being
truthful in the parties support suit before Judge Foote, the Court does not
find that this creates a presumption per se that her testimony in this
matter is un-credible. Furthermore, Michael Glass has not provided the
Court with any evidence that these funds were generated by the
community business and were not Patricia Glass’s separate funds.
Therefore, the Court finds that Michael Glass is due reimbursement for
one-half of the $23,300.00 less the $9,290.48 or $7,004.76.

Michael now argues that the court erred in treating the $9,290.48 as Patricia’s

separate money. However, no evidence was presented that the $9,290.48 was

generated prior to the divorce. The money was deposited into the Forever Flying

account after the divorce. Therefore, there is no presumption that the money was

community.

Patricia argues that the money she drew out of the account is somehow separate

from the rest of the business income. However, she presented no evidence other than

her own testimony to support this conclusion or to suggest why the money from

flying lessons should be treated differently from the money generated by the aircraft

rentals. It is undisputed that Forever Flying was a community business. Reviewing

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the trial court’s determination under the manifest error standard of review, we cannot

say that the trial court erred in reaching this conclusion.

Michael asserts that the court erred in denying his claim that Patricia

mismanaged Forever Flying in violation of La.Civ.Code art. 2369.3. He argues that

he is entitled to damages under La.Civ.Code art. 2354.

After reviewing the record, we find inadequate support for this claim. The

business made little or no profit from its inception. Michael claims that Patricia

unilaterally shut down the business when it was making more money than ever.

However, the record does not support the conclusion either that she shut the business

down without reason or that the business had become profitable for the long term.

Therefore, we find no error in the trial court’s rejection of the claim for

mismanagement of this community asset.

Separate Funds at Marriage

Patricia asserts that the trial court erred in finding that Michael had $9,364.69

in separate funds at the time of the marriage.

The trial court, in its written reasons for judgment, found as follows:

Michael Glass claims that when the parties were married on
February 1, 1997 that he had on deposit $9,364.69 in separate funds in
bank account numbers 3883, 4216, and 7584. However, Mr. Glass
failed to introduce any bank records which show the balance of these
accounts on February 1, 1997. The account summary for account
number 4216 begins on February 6, 1997 and shows a beginning
balance of $2,517.30. The account summary for account number 3883
begins on February 22, 1997 and shows a beginning balance of
$6,133.69. The account summary for account number 7584 begins on
February 22, 1997 and shows a beginning balance of $713.70. (P-9)
The court has no further evidence as to this issue except for the
testimony of Michael Glass.

The court believes that Michael Glass is entitled to reimbursement
for the funds in accounts 4216, 3883, and 7584 even though the
statements do not list the balances as of February 1, 1997. The Court is

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of the opinion that each of these bank statements are close enough to the
date of marriage to sufficiently establish the amount Michael Glass had
in these accounts at the time of marriage. Furthermore, the Court has no
evidence or testimony from Patricia Glass refuting any of these amounts.
Therefore, the Court finds that Michael Glass is entitled to
reimbursement of one-half of the funds on deposit at the time of
marriage being $4,680.00.

Patricia argues that in the absence of bank records showing the balance on the

date of marriage, the trial court should not have found that Michael had the funds in

accounts 3883 and 7584 on the date of the marriage. Further she argues that the

funds in account 4216 were indiscriminately commingled with funds added to the

account after the marriage. However, in the absence of testimony from Patricia

contesting the amount of funds held by Michael on the date of the marriage, the bank

statements, in addition to Michael’s testimony in this regard, constitute a sufficient

factual basis for the trial court’s conclusion that Michael had $9,364.69 at the time

of the marriage.

Patricia’s Payment of Community Credit Card Debt

Patricia next asserts that the trial court erred in failing to award her a

reimbursement of $7,105.50 she paid on a community credit card after the termination

of the community. The trial court found that the payment was made from community

funds. We find no error in this conclusion. The payment was made by a check on the

Forever Flying account, which, as has been stated, was a community owned business.

However, Patricia asserts that this payment was also shown as a draw by her on the

Forever Flying account. Therefore, she argues that she should be reimbursed for this

payment or that the amount should be accounted for in determining the post-

termination income of Forever Flying.

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After reviewing the record, we find no evidence from which we can determine

whether or not this amount was included in the amount shown as having been drawn

from the business by Patricia. Therefore, we find that the trial court correctly

concluded that no reimbursement was due in connection with this payment.

Post-Hearing Rental Income

Finally, Patricia asserts that since the date of the hearing Michael has failed to

give her the net rental income from the two rental properties designated to her in the

judgment. This matter is not covered in the judgment, has not been considered by the

trial court, and is not before this court on appeal. Therefore, we will not consider this

assignment of error.

Sale of Michael’s Separate Stock

Michael contends that the trial court erred in denying him his full

reimbursement for $78,988.50 in separate funds used to pay a community loan with

Red River Bank. The trial court discussed this payment in its reasons for judgment

as follows:

The parties disagree on the amount of reimbursement Patricia
Glass owes on Red River Bank Loan 8402. Michael Glass asserts that
Patricia Glass owes him reimbursement in the amount of $39,494.00 for
his payments on this loan. However, Mrs. Glass contends that she owes
Mr. Glass only $34,068.00 for his payments. Mrs. Glass reasons that
she does not owe reimbursement for interest paid post termination on the
portion of this loan that was formerly a separate debt of Mr. Glass and
unilaterally converted to a community loan by him. Furthermore, she
argues that because this loan was paid from the property account, which
contained rental income belonging to her that she does not owe
reimbursement for the full one-half of all payments made.

Michael Glass testified that some $38,000.00 was drawn from
their community line of credit (Red River Bank Loan 8402) to pay off
the mortgage on real estate that was Michael Glass’s separate property.
Our jurisprudence holds, if the payment of the loan benefits the
community then the party seeking reimbursement is entitled to one-half
of the principal amount paid but is not entitled to reimbursement for

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interest paid. The courts have found these interest payments to be “no
more than the cost of maintaining such natural and civil fruits which
arise out of a spouses separate property but ultimately accrue to the
community’s use or benefit.” Munson v. Munson, 00-348 (La. App. 3
Cir. 10/4/00) 772 So. 141 at 146. This Court is satisfied that the interest
reimbursement Michael Glass is seeking here did benefit the
community. Accordingly, the Court denies his reimbursement claim as
to any interest and but (sic) awards him reimbursement for the amount
attributable to principal being $34,068.00.

After reviewing the law and the evidence of record, we find no error in the trial

court’s conclusion in this regard.

CONCLUSION

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

in part, and rendered as follows. The reimbursement due Michael, considering the

conclusions reached herein, is $252,150.30. The reimbursement due Patricia,

considering the conclusions reached herein, is $343,682.99.

Costs of this appeal are to be divided equally between the parties.

AFFIRMED IN PART, REVERSED IN PART, AND RENDERED.

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