Rollison v. RollisonRollison v. Rollison
Dimos, Brown, Erskine, Burkett & Smith by Donald R. Brown, Monroe, for appellee.
Ouida Thompson Rollison and William Gerald Rollison were married on May 29, 1943. Their matrimonial domicilе has always been Louisiana. Following a period of marital discord, they jointly petitioned to terminate the community of acquets and gains and thе matrimonial regime pursuant to
Although Mr. Rollison wаs retired when the community property settlement was agreed upon, it made no mention of his retirement benefits. On April 24, 1987 Mrs. Rollison filed a petition alleging that through error Mr. Rollison‘s retirement benefits from Columbian Chemical had been omitted from the settlement and asking that a supplemental partition be entered recognizing her ownership of a pro rata share of his retirement benefits. By answer, Mr. Rollison denied that the settlement should be supplemented but asserted that if so he should share in the retirement benefits Mrs. Rollison was receiving. He also asked for a divorce. Mr. Rollison subsequently filed an еxception of res judicata.
The trial judge overruled the exception, granted Mr. Rollinson a divorce, found Mrs. Rollinson was precluded from reсeiving alimony, and awarded Mrs. Rollison an amount equal to 47.15% of Mr. Rollison‘s retirement benefits, beginning July 13, 1983, subject to a credit for his share of her retirement benefits and one-half of the $4,993.00 he paid in 1985 federal income tax.
Mr. Rollison appeals with essentially two assignments of error:
(1) The court erred in overruling the exception of res judicata; and
(2) The court erred in supplementing the community property settlement.
Mrs. Rollison answered the appеal, asking that she be awarded legal interest from date of judicial demand until paid on the retirement benefits that Mr. Rollison received beginning June 13, 1983.
We amend and affirm.
Both parties recognize that one spouse‘s retirement benefits are community property in the proportion set forth in Sims v. Sims, 358 So.2d 919 (La.1978). Mr. Rollison began working for Columbian Chemicals on January 3, 1941, and began receiving retirement benefits April 23, 1983. At the time of the trial his benefits totaled $674.57 per month. Mr. Rollison began receiving his retirement benefits shortly
Mr. Rollison‘s first assignment of error is that the triаl judge should not have overruled his exception of res judicata. He cites Thibodeaux v. Thibodeaux, 511 So.2d 102 (La.App. 3d Cir.1987) and Zeringue v. Zeringue, 442 So.2d 1211 (La.App. 5th Cir. 1983), writ denied 445 So.2d 1229 (La.1984) for this proposition. Neither case is applicable to the appeal before us. In both Thibodeaux and Zeringue the plaintiff was attempting to rescind the partition, while in the instant case the plaintiff is only attempting to supplеment it.
The necessary elements of res judicata are set out in
The authority of the thing adjudged takes place only with respect to what was the object of the judgment. The thing demanded must be the same; the demаnd must be founded on the same cause of action; the demand must be between the same parties, and formed by them against each other in ther sаme quality.
Mr. Rollison‘s retirement benefits, the “thing demanded,” were neither discussed in the negotiations nor divided in the prior settlement. Since the thing demanded is not thе same, the exception of res judicata cannot stand. Matter of Succession of Sims, 464 So.2d 991 (La.App. 1st Cir.1985), writs denied 467 So.2d 532, 541 (La.1985). The common law “might have been pleaded” rule is inapplicable in Louisiаna. Ryan v. Grandison Trust, 490 So.2d 317 (La. App. 1st Cir.1986), writ granted 496 So.2d 316 (La.1986). The trial judge did not err in overruling this exception.
Mr. Rollison‘s second assignment of error is that the trial judge erred in ordering the supplemental partition to divide his retirement benefits. He argues that thе supplemental partition was precluded because Mrs. Rollison had waived her right to his retirement benefits in the community property settlement.
Wе are unpersuaded by Mr. Rollison‘s argument that the June 13, 1983 community property settlement contained a residual clause that waived Mrs. Rollison‘s right to clаim the retirement benefits. The portion of the settlement on which he relies states:
The parties hereto agree that an inventory of the assets of the community of acquets and gains existing between them has been taken and that this settlement of the community is fair and equitable to each, and that all aspects of the financial condition at the time of the legal separation between the parties considered, each hаs received substantial equal value herein.
Nothing in this clause transfers the residual rights, nor provides a blanket waiver to prohibit supplementing the settlement.1
There is also no language in the June 13, 1983 community property settlement which would transfer Mrs. Rollison‘s interest in Mr. Rollison‘s retirement benefits. Community propеrty which is not disposed of by the community property settlement
As we have mentioned, the retirement benefits are not included in the community property partition. The uncontradicted testimony at trial was that they were not contemplated or mentioned during negotiations. The supplemental partition was the proper means of resolving the issue. There is no merit in appellant‘s second assignment of error.
Mrs. Rollison answers the appeal2 arguing that the trial court erred in failing to award her legal interest on the sums due her from date of judicial demand until paid. Legal interest which is not prayed for nor provided by law cаnnot be awarded on appeal.
Costs of this appeal are assessed to Mr. Rollison.
AMENDED AND AFFIRMED.