Ricky A. Carver v. Pamela Ann Sumler Carver

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

17-1055

RICKY A. CARVER

VERSUS

PAMELA ANN SUMLER CARVER

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APPEAL FROM THE
THIRTIETH JUDICIAL DISTRICT COURT
PARISH OF VERNON, NO. 82,362
HONORABLE C. ANTHONY EAVES, JUDGE

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JOHN D. SAUNDERS
JUDGE

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Court composed of Ulysses Gene Thibodeaux, Chief Judge, John D. Saunders and
Van H. Kyzar, Judges.

AFFIRMED.

David C. Hesser
Hesser & Flynn, A Limited Liability Partnership
2820 Jackson Street
Alexandria, LA 71301
(318) 542-4102
COUNSEL FOR PLAINTIFF/APPELLEE:
Ricky A. Carver

Howell D. Jones, IV
Jones Law Firm
P. O. Box 14558
Alexandria, LA 71315
(318) 442-1515
COUNSEL FOR DEFENDANT/APPELLANT:
Pamela Ann Sumler Carver

SAUNDERS, Judge

In this case, the appellant challenges the partition of community property

formerly existing between the parties.

FACTS AND PROCEDURAL HISTORY:

Plaintiff, Ricky Carver (“Ricky”), and Defendant, Pamela Ann Sumler

Carver (“Pamela”), were married on August 31, 1978. Ricky filed for divorce on

December 9, 2009. Judgment of divorce was rendered on January 10, 2011. Of

the Carvers’ marriage, three children were born, one of whom remained under the

age of majority at the time of divorce.

On May 11, 2010, Pamela filed a Motion to Partition Community Property,

followed by a Sworn Detailed Descriptive List of all Community Property filed on

January 24, 2011. Ricky filed a separate Sworn Detailed Descriptive List of all

Community Property on March 9, 2011, to which Pamela filed a Traversal on

October 14, 2011. Ricky responded by filing his own Traversal on December 12,

2011, and finally, by filing a Traversal/Amended Sworn Detailed Descriptive List

on October 3, 2012.

Following a trial on the traversals, the trial court found in favor of Ricky and

issued its written reasons on April 23, 2013. On October 11, 2013, Pamela filed a

Motion to Reconsider, to which Ricky filed a Peremptory Exception of No Cause

of Action. On December 18, 2014, the trial court issued written reasons for

denying Pamela’s Motion to Reconsider. A written judgment was not created until

December 1, 2016. At the conclusion of the hearing, the trial court gave an oral

ruling wherein it:

1. Fixed the fair market value of the community matrimonial home at
$153,500.00;

2. Denied Pamela’s request for reimbursement for rental value of the
former matrimonial domicile;

3. Denied each of the Carvers’ requests for reimbursement of costs of
improvements made to the former matrimonial domicile;

4. Decreed that all items contained in the residence at the time of
separation are community;

5. Denied Ricky’s claim for maintenance of the former matrimonial
domicile;

6. Denied Pamela’s request for reconsideration of rental
reimbursements;

7. Ordered Ricky to cooperate upon his retirement, to affect a
Qualified Domestic Order according to the Sims formula.

Pamela timely filed a motion for devolutive appeal. Pursuant to that motion,

Pamela is presently before this court alleging three assignments of error.

ASSIGNMENTS OF ERROR:

1. The trial court erred by fixing a value for the community home
contrary to the evidence.

2. The trial court erred in denying the reimbursement of rental value
in and to the former matrimonial domicile.

3. The trial court erred by including as community property that
which was inherited by and donated to Pamela from her
ascendants.

ASSIGNMENT OF ERROR NUMBER ONE:

In her first assignment of error, Pamela argues that the trial court erred in

fixing the value of the former matrimonial domicile. We find no merit to this

contention.

An appellate court may not set aside a trial court’s findings of fact in

absence of manifest error unless it is clearly wrong. Stobart v. State, Through

DOTD, 617 So.2d 880 (La.1993); Rosell v. ESCO, 549 So.2d 840 (La.1989).

Louisiana Revised Statutes 9:2801 sets forth the rules for partitioning

community property and determining a party’s reimbursement claims, and

provides in pertinent part:

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A. When the spouses are unable to agree on a partition of
community property or on the settlement of the claims between the
spouses arising either from the matrimonial regime, or from the co-
ownership of former community property following termination of the
matrimonial regime, either spouse, as an incident of the action that
would result in a termination of the matrimonial regime or upon
termination of the matrimonial regime or thereafter, may institute a
proceeding, which shall be conducted in accordance with the
following rules:

(1)(a) Within forty-five days of service of a motion by either party,
each party shall file a sworn detailed descriptive list of all community
property, the fair market value and location of each asset, and all
community liabilities. For good cause shown, the court may extend
the time period for filing a detailed descriptive list. If a party fails to
file a sworn detailed descriptive list timely, the other party may file a
rule to show cause why its sworn detailed descriptive list should not
be deemed to constitute a judicial determination of the community
assets and liabilities. At the hearing of the rule to show cause, the
court may either grant the request or, for good cause shown, extend
the time period for filing a sworn detailed descriptive list. If the court
grants the request, no traversal shall be allowed.

In Carmichael v. Brooks, 16-93, pp. 7-8 (La.App. 3 Cir. 6/22/16), 194 So.3d

832, 838 (citations omitted) this court noted:

It is well settled in Louisiana that the trier of fact is not bound
by the testimony of an expert, but such testimony is to be weighed the
same as any other evidence. The trier of fact may accept or reject in
whole or in part the opinion expressed by an expert. The effect and
weight to be given expert testimony is within the broad discretion of
the trial court. The decision reached by the trial court regarding expert
testimony will not be disturbed on appeal absent a finding that the trial
court abused its discretion.

In the instant matter, a review of the record reveals that the principal asset of

the community is the former matrimonial domicile. The parties disagree as to its

fair market value and retained experts to determine its value. Pamela’s expert in

the field of appraisal and residential property, George Thibodeaux, testified that the

range of value for the former matrimonial domicile was from $158,000.00 to

$165,000.00. In making this determination, Mr. Thibodeaux included comparables

from the town of Leesville, in addition to comparables in Anacoco, the town in

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which the home is located. He admitted that his report was several years old and

that his values “may be a little high, may be a little low.”

Ricky’s expert in the field of real estate, Zachary Hajighassem, opined a

value range of $152,980.00 to $131,611.00, and that the home should be listed for

sale at $139,944.00. Mr. Hajighassem’s opinion was based on comparable

properties all located in Anococo. Importantly, both experts used comparable sales

from properties sold three to four years prior to trial, both testified that such

discrepancies are common in property appraisals, and both confirmed the value

that each placed on the property. After weighing the two competing expert

opinions, the trial court found a value of $153,500.00. We find it was within its

discretion to do so. The trial court was not required to prefer one expert over the

other. Accordingly, we affirm the trial court’s judgment on this issue.

ASSIGNMENT OF ERROR NUMBER TWO:

In her second assignment of error, Pamela argues that the trial court erred in

failing to award a rental reimbursement for rental value associated with the former

matrimonial domicile. We find no merit to this contention.

Under manifest error or clearly wrong standard of review, an appellate court

must determine whether the trial court made a factual finding that was manifestly

erroneous or clearly wrong and must review the record in its entirety to make this

determination. Blackshear v. Golden Age Nursing Center, LLC, 14-723 (La.App. 3

Cir. 2/4/15), 158 So.3d 179.

In McCarroll v. McCarroll, 96-2700, p. 16 (La. 10/21/1997), 701 So.2d

1280, 1288 (emphasis in original), the Louisiana Supreme Court stated:

La.R.S. 9:374(C) provides for the award of rental payments for a
spouse’s occupancy of the family residence pending partition of the
community:

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A spouse who uses and occupies or is awarded by the
court the use and occupancy of the family residence
pending either the termination of the marriage or the
partition of the community property in accordance with
the provision of R.S. 9:374(A) or (B) shall not be liable
to the other spouse for rental for the use and occupancy,
unless otherwise agreed by the spouses or ordered by the
court.

The McCarroll court went on to state: “Public policy also weighs heavily

against the retroactive award of rent under La.R.S. 9:374(C) . . . when the

community is not partititioned for many years, the retroactive assessment of rent is

extremely prejudicial to the occupying spouse.” Id. At 1290.

In the instant matter, a review of the record reveals that Ricky enjoyed the

continued use and occupancy of the family home from May 18, 2010, throughout

these proceedings. However, he expended considerable time, labor, and expense in

maintaining the eight-acre property, and there was no rental agreement between the

parties. Moreover, in 2011, the minor child went to live with Ricky and remained

there for a considerable amount of time, and in 2012, Ricky was designated the

minor child’s domiciliary parent. Given the record in its entirety, it was within the

trial court’s discretion to consider the needs and best interest of the child in

addition to the considerable time, labor, and expense used to maintain the property

in denying the retroactive award of rent. Accordingly, we affirm the trial court’s

judgment on this issue.

ASSIGNMENT OF ERROR NUMBER THREE:

In her third assignment of error, Pamela argues that the trial court erred by

including as community property that which was inherited by and donated to her

from her ascendants. We find no merit to this contention.

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An appellate court may not set aside a trial court’s findings of fact in

absence of manifest error unless it is clearly wrong. Stobart, 617 So.2d 880; Rosell

549 So.2d 840.

Louisiana Civil Code Article 2340 provides: “Things in the possession of a

spouse during the existence of a regime of community of acquets and gains are

presumed to be community, but either spouse may prove that they are separate

property.”

Louisiana Civil Code Article 2341 provides:

The separate property of a spouse is his exclusively. It
comprises: property acquired by a spouse prior to the establishment of
a community property regime; property acquired by a spouse with
separate things or with separate and community things when the value
of the community things is inconsequential in comparison with the
value of the separate things used; property acquired by a spouse by
inheritance or donation to him individually; damages awarded to a
spouse in an action for breach of contract against the other spouse or
for the loss sustained as a result of fraud or bad faith in the
management of community property by the other spouse; damages or
other indemnity awarded to a spouse in connection with the
management of his separate property; and things acquired by a spouse
as a result of a voluntary partition of the community during the
existence of a community property regime.

In the instant matter, our review of the record reveals that it is devoid of any

evidence that any of the items contained in the former matrimonial domicile at the

time of separation were inherited by or donated to Pamela individually by her

ascendants. Therefore, we agree with the trial court’s finding that things in the

possession of a spouse during the existence of a regime of community of acquets

and gains are presumed to be community, but either spouse may prove that they are

separate property. Accordingly, we affirm the trial court’s judgment on this issue.

CONCLUSION:

Pamela asserts three assignments of error: (1) the trial court erred by fixing a

value for the community home contrary to the evidence; (2) the trial court erred in

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denying reimbursement of rental value in and to the former community home; and

(3) the trial court erred by including as community property that which was

inherited by and donated to Pamela from her ascendants. Finding no merit to

Pamela’s first assignment of error, we affirm the trial court’s judgment that the fair

market value of the former matrimonial domicile is $153,500.00. Finding no merit

to Pamela’s second assignment of error, we affirm the trial court’s judgment that

Pamela is not entitled to rental value in and to the former matrimonial domicile.

Finally, finding no merit to Pamela’s third assignment of error, we affirm the trial

court’s judgment that Pamela did not overcome the presumption that all movables

in the house at the time of separation are community property.

Costs of these proceedings are assessed to Pamela Ann Sumler Carver.

AFFIRMED.

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