McCarroll v. McCarrollMcCarroll v. McCarroll
Lead Opinion
This is а suit to rescind the partition of community property on the grounds that the partition agreement was lesionary.
FACTS
Plaintiff, Margarette McCarroll, and defendant, Donald McCarroll were married on July 25, 1958. At all times during the mar
DONALD McCARROLL takes as his part, and MARGUERITE MARTIN McCARROLL does hereby transfer to DONALD. McCARROLL, all of her right, title and interest in and to:
1. A lot 218 feet on the North side of Highway 190 by a depth of 131 feet in Section 23, TownsMp 6 South, Range 6 East, being the property purchased from Holland heirs in COB 182, Page 332 of the Livingston Parish Clerk and Recorder’s Office.
2. Any and all movable property in the name of DONALD McCARROLL or in Ms possession that was acquirеd during the commumty of aquets and gains.
MARGUERITE MARTIN McCAR-ROLL further acknowledges that she has received the sum of $5,000.00 in cash.
MARGUERITE MARTIN McCAR-ROLL takes as her part, and DONALD McCARROLL does hereby transfer to MARGUERITE MARTIN McCARROLL, in addition to the $5,000 previously mentioned, all right, title and interest in and to
Any and all movable property in the name of MARGUIERITE MARTIN McCARROLL or in her possession.
The remaining property belonging to the parties shall be held in indivisión.
Upon his retirement, Mr. McCarroll received benefits from Chevron’s retirement and profit sharing plans. A dispute arose as to whethеr the benefits were partitioned in the ^foregoing settlement, and in June of 1992, Mrs. McCarroll filed a petition for partition of commumty property. Following Mr. McCarroll’s answer, Mrs. McCarroll filed an amended petition seeking to rescind, on the basis of lesion, the commumty property settlement agreement entered into on March 3, 1990. When the matter came to trial, the trial judge bifurcated the issues first hearing the issue of whether the settlement agreement included the retirement and profit sharing benеfits. Following that portion of the trial, the trial judge, in his reasons for judgment stated that:
After a careful review of the testimony, the record, and the parole evidence presented in conjunction with the March 30, 1990, Commumty Property Settlement executed by both parties, the Court finds from the most credible evidence, that the parties intended to partition all commumty property, mcluding all movables, immov-ables, corporals, incorporáis, save and except oMy the commumty home. The parole evidence clearly established that the plaintiff, Margarette McCarroll, was to and did receive the exclusive use of and possession of the family home.
The trial judge then heard testimony on the second issue regarding recission of the property settlement on the basis of lesion. Following tMs portion of the trial, the trial judge concluded that the commumty was effectively terminated on November 16, 1976, that the fair rental value of the commumty home was $425.00 per month and the fair market value of the home was $52,500.00. The trial judge also concluded that the settlement was not lesionary, that Mrs. McCarroll was not entitled to reimbursement for maintenance of the commumty home, but that both parties were entitled to reimbursement for monthly house payments. Finally, the trial judge issued directives for the partition of the commumty home.
Mrs. McCarroll appealed raising eight assignments of error which can be summarized .as follows:
(1) Whether the trial judge erred in allowing parole evidence.
(2) Whether the Chevron benefits and the rental value of the home should have been considered as part of the commuMty property settlement agreement.
(3) When did the commumty property regime terminate.
*685 (4) Whether the trial judge erred in calculating the rental amount and in failing to allow Mrs. McCarrolTs reimbursement claims.
(5) Whether the trial judge erred in his lesion analysis.
14(6) Whether all community property should have been partitioned by the trial judge.
ISSUES ONE AND TWO
Mrs. McCarroll contends that the agreement was by authentic act and is therefore full proof between the parties. Thus, the trial judgе erred in allowing parol evidence to vary the terms of the contract to include the Chevron benefits and the rental value of the family home.
The community property settlement agreement is in authentic form, having been executed before a notary public and two witnesses in conformity with La.Civ.Code art. 1833. Therefore, under La.Civ.Code art. 1835 the document is full proof of the agreement between the contracting parties. Courts are bound to give legal effect to such written сontracts according to the true intent of the parties, and this intent is to be determined by the words of the contract when they are clear, explicit, and lead to no absurd consequences. Oberfell v. Oberfell,
In the instant ease, the terms of the community property settlement agreement do not itemize the specific property to be partitioned. While the agreement divides “all movable property,” such a generic phrase should not be read to automatically include retirement and profit sharing benefits. Because of the uncertainty regarding the inclusion of these benefits, the trial judge properly admitted parol evidence to determine whether the parties intended to divide this asset.
Upon considering the parol evidence offered by both parties, the trial judge found that the parties intended to partition all the community property, including the retirement and profit sharing benefits, save and except the community home. The trial judge further found, that as additional consideration for the settlement, Mrs. McCarroll was granted exclusive use and | gpossession of the family home. These findings of fact were based on the trial judge’s determinations of witness credibility.
A court of appeal may not set aside a trial court’s or a jury’s finding of fact in the absence of “manifest error” or unless it is “clearly wrong,” and where there is a conflict in the testimony, reasonable evaluations of credibility and reasonable inferеnces of fact should not be disturbed upon review. Weatherford v. Commercial Union Insurance, 94-1793, 94-1927, p. 5 (La. 2/20/95),
Where there are two permissible views of the evidence, the factfinder’s choice between them сannot be manifestly erroneous or clearly wrong. Ferrell v. Fireman’s Fund Insurance, 94-1252, p. 4 (La. 2/20/95),
After reviewing the record in this case in its entirety, we cannot say. that the trial judge’s findings were manifestly erroneous. Mr. MeCarroll presented proof that the phrase “all movable property” was intended to include his retirement and profit sharing benefits. He and two witnesses stated that as far back as 1979, the parties had verbally agreed that Mr. MeCarroll would retain his benefits, and in exchange, Mrs. MeCarroll would have the exclusive use and possession of the family home. Mr. MeCarroll stated that the 1990 written agreement merely reflects the prior intent of the parties. While Mrs. MeCarroll acknowledged that she was given exclusive use and |6possession of the family home, she denied that she ever surrendered her rights to the retirement or profit sharing benefits. The trial judge found Mr. MeCarroll’s version more credible and concluded that by the written agreement, the parties intended to divide the benefits as per the prior verbal agreement'. Accordingly, Mr. MeCarroll retained the benefits and, as additional consideration, Mrs. MeCarroll received use and possession of the family home. We cannot say that the trial judge committed manifest error in choosing Mr. McCarroll’s version over Mrs. McCarroU’s.
In an alternative argument, Mrs. MeCarroll asserts that according to
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 spоuse for rental for the use and occupancy, unless otherwise agreed by the spouses or ordered by the court.
In Wochomurka v. Wochomurka,
When thеre is no evidence of court ordered rent or an agreement between the parties, the occupying spouse is not hable for rent. See McElwee v. McElwee, 93-1010 (La.App. 1st Cir. 8/17/94),
|7The present case is distinguishable from McElwee and Wochomurka. In those cases, there was no evidence that the occupying spouse gave any consideration for the use and occupancy of the community home. Herein, the record reflects that at the time she began occupying the home, Mrs. McCar-roll verbally agreed that in exchange for the retirement аnd profit sharing benefits, she would receive exclusive use of the community home. We note that because
For the foregoing reasons, we affirm that portion of the trial judge’s decision holding that the community property agreement included Mr. MeCarroll’s retirement and profit sharing benefits. We also affirm the finding that as additional consideration, Mrs. McCar-roll received the exclusive use and possession of the family home.
ISSUE THREE
Mrs. MeCarroll also contends that the trial judge erred in concluding that the community property regime terminated on November 16,1976.
The record indicates that .the parties first filed a petition for legal separation on November 16, 1976, and that a legal separation was granted in 1977. The parties then reconciled but did not file a notarial act or execute a matrimonial agreement reestablishing the community property regime. They separated again and an amended petition for divorce was filed on September 12, 1979. A judgment of divorce was entered on January 28,1980.
At the time that the parties filed the first petition for legal separation, in 1976, La.Civ. Code art. 155 provided that the community regime was not reestablished upon reconciliation unless the parties executed and recorded a notarial act. Effective January 1, 1980, this article was amended to allow for the reestablishment of the community regime by matrimonial agreement. The article was again amended by Acts 1985, No. 525 § 1, effective September 6, 1985, to allow for automatic reestablishment of the community regime upon reconciliation of the parties. IgHowever, this amendment was not applied retroactively. See Conner v. Conner,
In 1990, the legislature again changed the law in Acts 1990, No. 1009 § 7, effective January 1, 1991. The legislature enacted
Recently in Acts 1995, No. 1233 § 1, effective August 15, 1995, the legislature specifically limited the retroactive effect of
As a general rule, appellate courts are bound to adjudge a case before it in accordance with the law existing at the time of its decision. Segura v. Frank, 93-1271, 93-1401 (La. 1/14/94),
In the absence of contrary legislative expression, substantive laws apply prospectively only. Procedural and interpretive laws apply both prospectively and retroactively, unless there is a legislative expression to the contrary.
Application of Article 6 requires that we first ascertain whether in the enactment, the legislature expressed its intent regarding the retrospective or prospective application
The legislature’s power to enact retroactive laws is limited by the due procеss and contract clauses of both the United States and Louisiana Constitutions.
Section 2 of Act 1233 states that the act is remedial and shall be applied retroactively. Retroactive application in the present case does not impair any contractual obligation or disturb any vested rights of the parties. At all times prior to the final judgment of divorce on January 28, 1980, La.Civ.Code art. 165 required that to reestablish the community property regime, the parties had to either file a notarial act or execute a matrimonial agreement. Neither of these actions were taken by the McCarroll’s. Automatic reestablishment of the community was not instituted until approximately five years after the final divorce. Considering these facts, retroactive application of Act 1233 is permissible as it does not disturb any rights of the parties. Because the McCarroll’s reconciled prior to September 6, 1985, there is no automatic reestablishment of the community property regime.
For these reasons, we agree with the trial judge’s determination that the community property regime terminated on November 16,1976.
ISSUE FOUR
We next address Mrs. McCarroll’s arguments that the trial judge erred in calculating the fair rental value of the community home, in charging her for 190 months of rent and in denying her reimbursement. The trial judge concluded that Mrs. McCar-roll began occupying the community home in January of 1980. After finding that the fair rental value of the home was $425.00 per month, and reducing this amount by one-half, the trial judge concluded that over the 190 months of exclusive use, Mrs. McCarroll received a total of $40,375.00 in rental value.
We find no error in the trial judge’s conclusion that the fair rental value of the home was $425.00 per month. This determination was based on the expert testimony offered at trial.
Furthermorе, we find no error in charging Mrs. McCarroll for 190 months of rent. Mrs. McCarroll contends that she can only be charged for use of the community home up to the date that the parties entered into the community property agreement, that would be 121 months.
IiqAs a general rule, the proper way to determine lesion is to first determine the partitioned property’s true value as of the date of the contract and to then determine whether a party received three-fourths of his share. Oberfell,
Finally, we address the trial judge’s denial of Mrs. McCarroll’s reimbursemenVoffset claim. First, we find that the trial judge properly refused Mrs. McCarroll’s claim for the rental value of the Albany property.
However, we do find that the trial judge erred in denying Mrs. McCarroll reimbursement for expenses for maintenance of the family home. The trial judge erred in using La.Civ.Code art. 806 to deny this reimbursement claim. Article 806 does not contemplate a situation such as the present one where a co-owner is granted use of the co-owned property in exchange for other consideration. In determining whether Mrs. McCarroll was entitled to reimbursement, the trial judge should have considered La. Civ.Code art. 2366 and the applicable jurisprudence.
Pursuant to article 2365, Mrs. McCarroll is entitled to one-half the amount of her separate property used to satisfy the insurance payments for the family home. See Williams v. Williams,
ISSUE FIVE
Mrs. McCarroll hаs also alleged that the trial judge erred in his lesion analysis, and therefore, erred in concluding that the partition agreement was not lesionary.
The record establishes the following values for the partitioned community property:
1. Albany property — one-half owned by the McCarroll’s 30,000
2. Chevron retirement 42,437
3. Chevron profit sharing 42,972
4. Movables in Mrs. McCarrofl’s possession 2,000
5. $5,000 cash 5,000
Total Community Property Contained in Partition 122,409
If Mrs. McCarroll did not receive three-fourths of her one-half of the divided community property, the partition agreement is le-sionary. La.Civ.Code art. 814. One-half of the divided community property is $61,-205.00. Three-fourths of this amount is $45,-903.00. Mrs. McCarroll received $7,000.00 in cash and movables. As additional consideration for the agreement, she received exclusive use of the family home for 190 months. If the fair rental value of $425.00 per month is reduced by one-half
Accordingly, we find no error in the trial judge’s conclusion that the partition agreement was not lesionary.
The final issuе raised by Mrs. McCarroll is whether the trial judge erred in failing to partition all of the community property.
In light of our forgoing conclusions regarding the community property agreement we find no error in the trial judge’s conclusion that the family home was the only property remaining to be partitioned.
CONCLUSION
For the foregoing reasons we reverse that portion of the judgment of the trial court dated March 13, 1995, denying Mrs. McCar-roll reimbursement for expenses for maintenance of the property held in indivisión and award Mrs. McCarroll reimbursement in the amount of $5247.50 to be paid at the time of partitioning the community home.
In all other respects, the judgment appealed from is affirmed. Costs of this appeal are to be divided equally between Mr. McCarroll and Mrs. McCarroll.
REVERSED IN PART, AFFIRMED IN PART AND RENDERED.
FITZSIMMONS, J., Concurs & Assigns Reasons.
GONZALES, J., concurs.
Notes
. The McCarroll’s owned a one-half interest in certain commercial property in Albany. Mrs. McCarroll sought to recover a portion of the rent which she alleged was collected by Mr. McCar-roll.
. The record reflects that Mrs. McCarroll spent the following sums: insurance $5749.50; roofing supplies and labor $1736.92; cook top and oven $1048.58; and air conditioner $1960.00.
. Because the agreement is not lesionary regardless of whether Mrs. McCarroll is credited for all or one-half of the rental value, we do not address the issue of which value must be considered in the analysis.
.This analysis, which was also employed by the trial judge, properly omits the rental value from the agreement as a divided community asset. It is the community home itsеlf and not the home’s rental value which is a community asset. The home was the only asset which was not divided in the settlement agreement.
Concurrence Opinion
concurring.
Mrs. McCarroll cites statutory and case law for the proposition that, without a specific agreement for rental payments, the spouse granted use of the home cannot be assessed rental payments for that use. The fact that distinguishes this case from the eases cited by Mrs. McCarroll, is her agreement, at the time of the partition, to trade the exclusive use of the home for her share in the retirement benefits. By so doing, Mrs. McCarroll agreed that the use was an asset to her at the time and had value.
The trial court was faced with finding some method to assign value to this asset. Rather than viewing the trial court’s ruling as an assessment for rental fees, I see the trial court’s calculation using rental fees as a method of assigning a fair value to the exclusive use of the home that could have been envisioned by the parties at the time of the partition. Under the circumstances, the val■ue chosen by the trail court was not clear error or an abuse of discretion.