McCarron v. McCarronMcCarron v. McCarron
This appeal рresents for determination the issues of the date on which a community of acquets and gains ended and whether the “goodwill” of the husband‘s medical praсtice is a community asset.
Kenneth McCarron (hereinafter plaintiff) filed suit against his former wife, Lynn Guidry McCarron (hereinafter defendant) for a partition of their community property. The parties were divorced by judgment dated December 3, 1984. On motions for summary judgment brought by plaintiff and defendant the trial court found that the community between the parties was terminated on March 19, 1984 and that the “goodwill” of the plaintiff‘s medical practice was not a community asset. Both plaintiff and defendant timely perfected a devolutive appeal. We affirm in part, reverse in part, and render judgment.
FACTS
Plaintiff and defendant are both medical doctors. During their marriage the plaintiff practiced as a sole practitioner and the defendant was employed as an infirmary doctor at a university. Defendant filed suit on February 17, 1984, seeking a separation based on the plaintiff‘s fault. On March 19, 1984, the plaintiff answered and reconvеned for a separation based on the fault of the defendant. Defendant filed an answer of general denial to the plaintiff‘s reconventional demand. The suit was tried on the merits on March 19, 1984 and a judgment of legal separation was rendered, based on the mutual fault of both parties, and a written judgmеnt was signed on the same day. That separation judgment was not appealed and became final. A divorce was granted on December 3, 1984. The plaintiff then filed this suit to partition the community property. Plaintiff contends the community was dissolved on February 17, 1984, the date when his ex-wife‘s suit for separation was first filеd. Defendant contends the community was dissolved on March 19, 1984, the date when her ex-husband‘s reconventional demand for separation was first filed and the date on which the judgment of separation was rendered and signed.
We have not found any case in our jurisprudence with precisely these same facts nor has any similar Louisiana case been brought to our attention in oral argument or briefs of the parties.
Thus, it appears that in contested separation and divorce cases the community is dissolved as of the date the successful party files his or her original pleading setting forth the ground upon which the judgment is rendered. See Lambert v. Lambert, 480 So.2d 784 (La.App. 3 Cir.1985); Gray v. Gray, 463 So.2d 14 (La.App. 5 Cir.1985).
In the present case both parties were successful in their original demands as the fault of each, for a separation based on mutual fault, had to be sufficient to grant a separation to each under
In Martinez v. Posner, Martinez and Padgett, 385 So.2d 525 (La.App. 3 Cir. 1980), writ den., 393 So.2d 727 (La.1980), we held that the wife was not a member of her husband‘s medical partnership upon dissolution of their marriage with a continuing intеrest in the partnership of one-half of her ex-husband‘s interest therein. In that opinion we said:
“Except for a pooling of talents and sharing of physicаl facilities, professional partners are no different from sole practitioners. As to a sole practitioner, it seems obvious that the spоuse of the practitioner does not, by the act of marriage, acquire any ownership rights or interest in the knowledge, skill or laboring capacity of the practitioner. Nevertheless, whether a person practices alone or in the partnership it is basic, of course, that once thе practitioner puts the knowledge and skill to work, and thereby earns professional fees, such fees are community income.” (Citations omitted.) Martinez v. Posner, Martinez and Padgett, 385 So.2d 525, at page 528 (La.App. 3 Cir.1980), writ den., 393 So.2d 727 (La.1980).
This cоurt has also held that a wife, who is not licensed to practice medicine, cannot remain as a shareholder of a husband‘s professional mеdical corporation as Louisiana‘s Professional Medical Corporations Law prohibits anyone other than a licensed medical doctor from participating in any of the affairs of a professional medical corporation. See Clement v. Clement, 487 So.2d 759 (La.App. 3 Cir.1986).
On the basis of this jurisprudence we are convinced that the “good will” of thе plaintiff‘s medical practice in this case is not a community asset to be partitioned.
For the foregoing reasons, the judgment of the trial court is affirmed in part. The judgment of the trial court recognizing that the community of acquets and gains formerly existing between the plaintiff and defendant was terminated аs of March 19, 1984 is reversed and set aside and judgment is rendered herein recognizing that the community of acquets and gains formerly existing between plaintiff and defendant was terminated as of February 17, 1984.
All costs of this appeal are assessed equally between the parties.
AFFIRMED IN PART; REVERSED IN PART; AND RENDERED.