David A. Brick v. Sandra Jo Misiolek Brick

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

08-618

DAVID A. BRICK

VERSUS

SANDRA JO MISIOLEK BRICK

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APPEAL FROM THE
THIRTY-THIRD JUDICIAL DISTRICT COURT
PARISH OF ALLEN, NO. C-2005-409
HONORABLE JOEL G. DAVIS, DISTRICT JUDGE

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OSWALD A. DECUIR
JUDGE

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Court composed of Ulysses Gene Thibodeaux, Chief Judge, and Oswald A. Decuir
and Marc T. Amy, Judges.

AFFIRMED.

Michael B. Holmes
Hebert, Holmes & Bertrand
P. O. Drawer 790
Kinder, LA 70648
(337) 738-2568
Counsel for Defendant/Appellee:
Sandra Jo Misiolek Brick

Judi F. Abrusley
Abrusley Law Office
P. O. Box 1114
Oakdale, LA 71463
(318) 335-9771
Counsel for Plaintiff/Appellant:
David A. Brick

DECUIR, Judge.

David and Sandra Brick were married in 1983 and divorced in 2005. Four

children were born of the marriage, who ranged in age from five to twenty-one at the

time of trial. The parties amicably settled custody, child support, and the partition of

community property and went to trial on two issues only: permanent spousal support

and the classification of David’s post-divorce disability income. Permanent spousal

support in favor of Sandra was denied, and she has not appealed that decision.

Regarding David’s disability income, the trial court determined the disability

payments were meant to replace lost income and were, therefore, separate property

up to the time when David would otherwise become eligible for retirement at age

sixty on February 16, 2021. The trial court further held that after February 16, 2021,

the disability payments will become regular retirement benefits and will be

reclassified as community property.

Both David and Sandra appealed the trial court’s ruling, with David urging this

court to classify the payments as his separate property throughout his life and Sandra

advocating community classification from the initial payment onward. David

presented evidence showing that the disability payments from the Chicago Regional

Council of Carpenters Pension Fund do not convert to normal retirement payments

and will continue to be classified as disability payments throughout his life or until

he is no longer disabled. In fact, an administrator of the pension fund testified that

no provision exists whereby payments under the plan could be converted to

retirement benefits, and the plan would not honor a request or even a court order to

convert disability payments to retirement benefits. Conversely, Sandra argues that

the disability payments are presumed to be community property and David simply

failed to meet his burden of proving otherwise.

The Louisiana Supreme Court addressed a similar issue in the case of Bordes

v. Bordes, 98-1004 (La. 4/13/99), 730 So.2d 443. The court explained its rationale

for classifying post-divorce disability payments as the separate property of the

disabled spouse:

The purpose of paying benefits under a retirement plan is different
when the benefits are payable because the employee spouse becomes
disabled than when the benefits are payable because the employee
spouse reaches normal retirement age. When the divorced employee
spouse receives benefits because of disability, the benefits are paid in
lieu of income that would otherwise be the employee spouse’s separate
property. Basing the classification of benefits upon the purpose of the
payment of the benefits is fair and equitable, and provides ease of
administration. [Footnote omitted.] When the employee spouse
becomes disabled, the benefits replace the working wages he or she can
no longer earn. On the other hand, the non-employee spouse can
continue to earn (and keep) one hundred percent of the wages he or she
was earning when the employee spouse became disabled. Awarding a
share of disability retirement benefits to the non-employee spouse who
does not need to replace wages lost because of inability to work, while
reducing the amount of benefits payable to the disabled spouse who has
such a need, is contrary to the purpose of a disability feature in a
retirement plan.

Id. at 447-448. Citing the Louisiana Civil Law Treatise, the Bordes court noted in a

footnote:

Basing the classification of benefits upon the purpose of the
payment adheres to the real subrogation rule for classification. If the
payment substitutes for income that would be separate property, the
disability payment should also be separate property. Katherine S. Spaht
& W. Lee Hargrave, Louisiana Civil Law Treatise, Matrimonial
Regimes § 3.3 (2nd ed.1997).

Id. at 447. “Real subrogation” in the context of disability benefits has been defined

as monies “payable in lieu of or as compensation for the loss of the earning capacity

of the insured.” Easterling v. Succ. of Lamkin, 211 La. 1089, 31 So.2d 220, 224

(La.1947).

In the present case, the issue of David’s disability was not before the court.

The evidence showed that David has received both social security disability benefits

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and workers’ compensation payments for a total and apparently permanent disability

involving his back. We are convinced, as was the trial court, that David’s pension

fund benefits, which began when he was forty-four years old, were paid as

compensation for the loss of his earning capacity, at least until he reaches retirement

age. Accordingly, we find no merit to the position advocated by Sandra.

The question remains, however, whether David’s disability payments, which

do not convert to regular retirement benefits pursuant to the terms of his pension

fund, should be considered as regular retirement benefits for purposes of community

property classification once David reaches retirement age. We turn to Professors

Spaht and Hargrave:

[The holding of Johnson v. Johnson, 582 So.2d 926 (La.App. 2
Cir. 1991)] was supported by the fact that retirement system regulations
specially provided that disability benefits would be paid only until the
employee becomes eligible for retirement; then, the benefits would be
paid under the retirement system. The same result ought to follow,
however, even if the plan did not so specify. The real subrogation
principle would also support treating the payment as a retirement
benefit from the time of normal retirement age.

Katherine S. Spaht & W. Lee Hargrave, Louisiana Civil Law Treatise, Matrimonial

Regimes § 3.3 (2nd ed. 1997). [Emphasis added.]

Given these authoritative comments, and considering the evidence in the record

before us, we find no error in the trial court’s decision. While the pension fund itself

may always classify David’s benefits as disability payments, the court may

appropriately characterize a portion of those benefits as community property once

David reaches retirement age and is otherwise eligible to receive retirement benefits.

The judgment of the trial court is affirmed. Costs of this appeal are assessed

equally between the parties.

AFFIRMED.

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