Simon v. SimonSimon v. Simon
Sylvan J. Steinberg, Bronfin, Heller, Feldman & Steinberg, New Orleans, for defendant-appellee.
Henry W. Kinney, III, New Orleans, for notary and appraisers.
Before REDMANN, C.J., and SCHOTT and KLEES, JJ.
REDMANN, Chief Judge.
The ex-husband‘s briefs argued primarily the validity of a June 10, 1981 judgment making absolute the notary‘s rule to have the community property sold by the sheriff. The June 10 judgment was not appealed, however, by the ex-husband‘s appeal of March 30. Accordingly, the questions of whether the notary had authority to bring a rule to sell the property and, if not, whether the ex-wife‘s ratification of his doing so is the equivalent of the ex-wife‘s having brought the rule and related questions arising from the June 10 judgment are not before us.1
What is before us is the March 18 judgment. The ex-husband argues that the fixing and ordering payment of the costs of inventory was premature because prior to “final termination” of the partition suit, when
We first observe that it was the ex-wife who, instead of merely filing the “detailed descriptive list” of assets authorized by
We second note that the ex-husband‘s June 18, 1976 answer to that petition annexed a list of the remaining community assets that reasonably complied with
We third note that, for purposes of a partition by judicial sale,
We fourth note that the assets of the community are very few. The husband‘s list‘s apparent omission of three or four items could have been corrected by rule to traverse,
In the absence of some showing that the ex-husband somehow necessitated the formal inventory, we conclude that the costs of the inventory must be borne by the ex-wife because she unnecessarily caused those costs, and the clear, basic principle of the law is that “the party whose behavior unjustifiably causes costs to be incurred ought to pay them,” Bowman v. New Orleans Pub. Svc., Inc., 410 So.2d 270 (La.App. 4 Cir.1982).
The judgment of March 18, 1981 is amended to cast the ex-wife alone for the costs of the inventory. Costs of this appeal are to be equally divided.
The original record in this matter contained no petition for nor order of appeal from the June 10, 1981 judgment and we therefore believed no appeal had been taken from that judgment. In fact the ex-husband did appeal from that judgment, as he establishes by certified copy of a timely order of appeal. We therefore grant rehearing to consider that appeal, without a repetition of the oral argument already had on its subject matter.
The law on the partition of a marital “partnership or community of acquets and gains,”
We pretermit the ex-husband‘s argument about the meaning of
The civil code articles on the partition of a succession are made applicable to
The codal scheme for the partition of an estate does not consider whether each separate asset is divisible in kind, but whether the estate is divisible in kind by the distribution of its assets themselves into shares or lots for the heirs. The code expressly anticipates that the distribution of the assets themselves may produce preliminarily unequal shares among the heirs, and that could not occur if only assets individually divisible in kind were distributed in kind and assets not individually divisible in kind were all sold so as to divide their cash proceeds with mathematical equality.
Under the law prior to
The law‘s plain preference is partition in kind.
The order for partition by licitation is not justified on the record before us, and it is therefore reversed.
We remand for partition in kind. Moreover, because nothing has been done in respect to the partition except an inventory whose values are presumably outdated by the intervening period of almost two years
The 1982 procedure is basically the same as the previous procedure described above. The principal differences are (1) that each spouse must file a sworn list of all assets and their values and of all liabilities, and each must then traverse or concur as to each item of the other‘s list, and (2) that the court may allocate assets and liabilities to a particular spouse (instead of having the spouses draw lots). These differences should accommodate, rather than impede, an equitable partition of this community. For example, it makes more sense to allow the trial judge to allocate the equipment of a medical office used by a spouse who is a doctor to that spouse, rather than to allot it by chance to the spouse who is not a doctor.
In any event, the statute is procedural and we conclude that it now governs save as to partitions already so far under way that it would cause unnecessary expense or delay.
The judgment of June 10 is therefore reversed and the matter remanded for further proceedings consistent with this opinion. In all other respects rehearing is refused.