Opinion
2021 CA 1398
04-28-2022
AMANDA L. LANDRY v. ANTHONY KYLE LANDRY
Charles Eugene Griffin, II St. Francisville, Louisiana, Attorney for Plaintiff/Appellant Anthony Kyle Landry Vincent Anthony Saffiotti, Natalie C. Neale, Baton Rouge, Louisiana Attorneys for Defendant/Appellee Amanda L. Landry
NOT DESIGNATED FOR PUBLICATION
On Appeal from the Twentieth Judicial District Court In and for the Parish of East Feliciana State of Louisiana No. 41390 The Honorable Kathryn E. Jones, Judge Presiding
Charles Eugene Griffin, II St. Francisville, Louisiana, Attorney for Plaintiff/Appellant Anthony Kyle Landry
Vincent Anthony Saffiotti, Natalie C. Neale, Baton Rouge, Louisiana Attorneys for Defendant/Appellee Amanda L. Landry
BEFORE: GUIDRY, HOLDRIDGE, AND CHUTZ, JJ.
HOLDRIDGE, J.
This appeal in a community property partition proceeding concerns the exclusion of evidence at the trial and a claim for reimbursement. For the reasons that follow, we affirm.
FACTS AND PROCEDURAL HISTORY
Amanda L. Landry and Anthony Kyle Landry were married on October 20, 1990. Ms. Landry filed a petition for divorce on September 6, 2011. A judgment of divorce was rendered on June 14, 2013, but it was not signed until May 25, 2018. Thereafter, on April 17, 2019, Ms. Landry filed a petition for partition of the community property with her sworn detailed descriptive list attached pursuant to La. R.S. 9:2801. Mr. Landry filed his sworn detailed descriptive list on July 8, 2019, and Ms. Landry responded with an amended sworn detailed descriptive list on December 20, 2019. On June 22, 2020, the court signed a joint motion and order for the parties to schedule and attend mediation and also setting the community property partition for trial on October 14, 2020.
The record does not contain the petition for divorce or the judgment of divorce; the petition for partition refers to those items in its allegations, and the dates are undisputed.
On October 12, 2020, Mr. Landry filed an ex parte motion for continuance requesting that the trial scheduled for October 14, 2020, be continued. He alleged that when his new counsel enrolled after his previous counsel withdrew, his new counsel had informed the court of a conflict with the scheduled trial date.
The court signed the order permitting the withdrawal of Mr. Landry's previous counsel and the enrollment of new counsel on August 10, 2020. In the motion for continuance, Mr. Landry's counsel stated:
[C]ounsel has a conflict on [October 14, 2020], which he advised the court of when he took over this case, whereas he is scheduled to appear before the 19th Judicial District Court in East Baton Rouge Parish, in those proceedings entitled "Kevin Gaines, Sr. Versus Brenda Gaines, Number 221052, Division D, The Family Court... and requests that this matter be continued until the next available court date....The motion contained a certification that a copy had been mailed to Ms. Landry's counsel on October 8, 2020.
On October 21, 2020, the court signed an order that the community property partition trial previously scheduled for October 14, 2020, was continued without date and was to be rescheduled with the court. The court also ordered "that no further pleadings/amendments shall be allowed to be filed in the community property partition pending the rescheduled trial date." Despite the court's order, Mr. Landry filed a "MOTION FOR TIME TO FILE TRAVERSAL" on October 22, 2020, asking the court to set a time to allow Mr. Landry to provide amended pleadings for his detailed descriptive list. The court denied Mr. Landry's motion on the same date.
The order stated that the matter came up for trial of the community property partition on October 14, 2020, and that Ms. Landry and her counsel were present, but Mr. Landry and his counsel were not. The order noted that the court received a motion for continuance that was filed with the Clerk of Court on October 12, 2020, to which Ms. Landry objected. On October 22, 2020, the court wrote "MOOT" across the order language on Mr. Landry's motion for continuance.
Thereafter, on October 30, 2020, Ms. Landry filed a rule for sanctions against Mr. Landry and his counsel based on the motion for continuance. On December 11, 2020, the court signed a judgment sanctioning Mr. Landry's counsel in accordance with La. C.C.P. art. 863 as a result of his filing of the motion for continuance and his failure to appear on the date of trial. The court ordered Mr. Landry's counsel to pay attorney's fees and court costs in the amount of $2, 575.00 incurred by Ms. Landry. Mr. Landry's counsel appealed from the judgment and this court affirmed the sanctions judgment. Landry v. Landry, 2021-0337 (La.App. 1 Cir. 10/8/21), 331 So.3d 351, 353, writ denied, 2022-00044 (La. 3/2/22), ___So.3d___.
On November 2, 2020, Mr. Landry filed an "AMENDED SWORN DETAILED DESCRIPTIVE LIST OF ANTHONY KYLE LANDRY AND TRAVERSAL" At trial on June 10, 2021, over Mr. Landry's counsel's objection, the court prohibited Mr. Landry from testifying about the amended detailed descriptive list or his claims for reimbursement for payment of community debts and Ms. Landry's separate debts as an offset against the claims Ms. Landry made for her portion of the funds in community bank accounts at the time of the termination of the community. The court relied on its October 21, 2020 order to prohibit testimony about the amended detailed descriptive list.
On June 25, 2021, the court issued written reasons for judgment and on July 19, 2021, the court signed a judgment in this matter. In the judgment, the court recognized the parties' stipulations regarding the allocation of community corporeal movables, allocated specific assets to the parties, and awarded Ms. Landry an equalizing payment of $43, 928.97.
Ms. Landry was awarded certain accounts and insurance policies, one-half of Mr. Landry's 401(k) profit-sharing plan, all of the movables in the home except for a few items, and a one-half interest in a Baton Rouge condominium. Mr. Landry was granted several movables in the home and on the property, specific bank accounts, the other half of the 401(k) plan, his supplemental retirement plan benefits, and the other half interest in the condominium.
Mr. Landry appeals from the judgment raising three assignments of error. He contends in his first assignment of error that the court erred in failing to consider and allow Mr. Landry to testify as to his amended detailed descriptive list based on its order not to allow additional pleadings to be filed by Mr. Landry. In his second assignment of error, Mr. Landry contends that the court erred in refusing to allow him to introduce into evidence bank statements and credit card statements to prove he paid community debts with his separate funds because the statements were not provided to Ms. Landry in discovery. In his third assignment of error, Mr. Landry contends that the court erred in ruling that Ms. Landry was entitled to reimbursement from him based on the amounts in the community accounts at the time of the divorce.
DISCUSSION
STANDARD OF REVIEW
The trial court's allocation or assigning of assets and liabilities in the partition of community property is reviewed under the abuse of discretion standard. Abreo v. Abreo, 2021-0528 (La.App. 1 Cir. 12/22/21), 2021 WL 6069448 at *3; Berthelot v. Berthelot, 2017-1055 (La.App. 1 Cir. 7/18/18), 254 So.3d 800, 808. In community property partitions, the trial court is granted much discretion in valuing and allocating assets and liabilities and is required to consider the source and nature of each asset or liability, the financial situation of the other spouse, and any other relevant circumstances. See La. R.S. 9:2801 et seq.; Berthelot, 254 So.3d at 808. Given this great discretion, the trial court is not required to accept at face value a spouse's valuation of assets or debts, or claims against the community. Berthelot, 254 So.3d at 816.
A trial court's factual findings and credibility determinations made in the course of valuing and allocating assets and liabilities in the partition of community property may not be set aside absent manifest error. Berthelot, 254 So.3d at 806. A trial court's finding regarding the nature of property as being either community or separate is a factual determination subject to the manifest error/clearly wrong standard of review. Benoit v. Benoit, 2011-0376 (La.App. 1 Cir. 3/8/12), 91 So.3d 1015, 1021, writ denied, 2012-1265 (La. 9/28/12), 98 So.3d 838. Where one or more legal errors by the trial court interdict the fact-finding process, the manifest error standard is no longer applicable. The standard of review for mistakes of law by the trial court requires the appellate court to engage in a de novo review of the entire record and render a judgment on the merits. See Rosell v. ESCO, 549 So.2d 840, 844 n.2 (La. 1985); Berthelot, 254 So.3d at 807. The trial court is granted broad discretion in its evidentiary rulings, which will not be disturbed absent a clear abuse of that discretion. Politz v. Politz, 49, 242 (La.App. 2 Cir. 9/10/14), 149 So.3d 805, 818.
EXCLUSION OF AMENDED DETAILED DESCRIPTIVE LIST
In his first assignment of error, Mr. Landry contends that the court erred in failing to consider and allow him to testify as to his amended detailed descriptive list based on its October 21, 2020 order prohibiting further pleadings from being filed after the originally scheduled trial date and before the rescheduled trial date. He contends he had no notice or opportunity to be heard to contest the order.
On October 14, 2020, the originally scheduled trial date, the court initially stated that it had received a copy of the motion for continuance that morning. Ms. Landry and her counsel were present in court and did not know that the continuance motion had been filed. Mr. Landry and his counsel did not appear. The court learned that Mr. Landry's counsel also did not appear at the matter which conflicted with the partition trial and which prompted the continuance motion.
From discussions among the court, Ms. Landry's counsel, and personnel in Family Court in the Nineteenth Judicial District Court in Baton Rouge, it was determined that a status conference in the suit Mr. Landry's counsel referred to in the continuance motion was scheduled for that morning in Baton Rouge. However, according to Family Court personnel, Mr. Landry's counsel did not appear at the scheduled conference. Family Court personnel also informed the court that they had advised Mr. Landry's counsel that, due to COVID, the status conference was not going to be in person but by telephone.
Ms. Landry requested that the court deny the motion for continuance and proceed with the trial The court noted that proceeding with the trial would punish Mr. Landry for the apparent misrepresentations of his counsel. Ms. Landry's counsel asked, "[M]ay I request that [any continuance] not be used as an excuse [by Mr. Landry's counsel] to allow the filing of additional pleadings in this matter...," to which the court responded, "You may. There - no, there will be no more pleadings filed." Ms. Landry's counsel then asked the court if he could submit an order granting or denying the continuance and stating that "there shall be no more orders[, ]" to which the court responded, "So ordered. And I will wait until I receive your order to sign the motion to continue and reassign it."
The Honorable William G. Carmichael was the presiding judge in this matter prior to and at the time of the scheduled community property partition trial. He commented, "I'm very sorry to be faced with the proposition of having to continue this case because I simply don't have enough days to do it this year, and I retire at the end of the year." The Honorable Kathryn E. Jones handled the matter after Judge Carmichael's retirement.
At the trial, when Ms. Landry's counsel began to question Mr. Landry about his original detailed descriptive list, Mr. Landry's counsel informed the court that he had filed an amended detailed descriptive list. The court noted the October 21, 2020 order prohibiting further filings, which precluded consideration of the amended detailed descriptive list that was filed after October 21, 2020. The court also noted its denial of Mr. Landry's motion to file the amended detailed descriptive list. Mr. Landry did not seek writs from the court's denial. When the court stated at the trial that it would not consider the amended detailed descriptive list, Mr. Landry's counsel objected.
Although Mr. Landry alleged he did not have notice of the October 21, 2020 order, the court considered his filing of a motion to file an amended detailed descriptive list indicated that he was aware there was a cut-off date for any pleadings being filed.
While Mr. Landry did not proffer the amended detailed descriptive list at trial, he filed it in the record on November 2, 2020. Typically, without a proffer of evidence, appellate courts have no way of ascertaining the nature of the excluded evidence. Reyer v. Milton Homes, LLC, 2018-0580 (La.App. 1 Cir. 2/25/19), 272 So.3d 604, 610. Because the amended detailed descriptive list is part of the record, we are able to ascertain its nature for the purpose of reviewing the trial court's ruling excluding it from evidence. See Reyer, 272 So.3d at 610 (Even though a proffer was not made, the nature of a memorandum could be ascertained so that the ruling excluding it from evidence could be reviewed on appeal where the memorandum was in the record attached to the opposition to a "peremptory exception of improper party."). We note that Mr. Landry's original detailed descriptive list set forth "Payment of community credit card debt" under his reimbursement claims, but for the value he put "Unknown at this time." In the amended detailed descriptive list, Mr. Landry listed under his reimbursement claims, "Payment of [Ms. Landry's] Credit Card Debt, Utilities, House Rental, Insurance, V2 of Education Expenses for Children Over & Above Support Amount Ordered," totaling $209, 085.71 along with interest on the separate funds used to pay Ms. Landry's community and separate debts totaling $70, 727.75. Because no evidence or proffer was made as to these claims, this court will not consider these items.
The court overruled Mr. Landry's counsel's objection based in part on its October 21, 2020 order, which was made to prevent Mr. Landry from benefitting from his failure to appear at a scheduled trial by submitting additional claims that would not have been timely or properly made before the court at the time of the scheduled trial. Mr. Landry contends that the order was improper pursuant to La. C.C.P. art. 961 because it was not in writing. However, La. C.C.P. art. 961 states, "An application to the court for an order, if not presented in some other pleading, shall be by motion which, unless made during trial or hearing or in open court, shall be in writing." Ms. Landry's counsel's request that Mr. Landry should be prohibited from filing additional pleadings after the originally scheduled trial date was not required to be in writing because it was made at a hearing in open court at the time the originally scheduled trial was to be held. Because Ms. Landry's counsel's request was not required to be in writing, it was also not required to be served on Mr. Landry. Louisiana Code of Civil Procedure article 1312 states in pertinent part, "No service on the adverse party need be made ... of any pleading not required by law to be in writing." Moreover, the order was permissibly granted by the court ex parte because Ms. Landry was entitled to it without supporting proof since Mr. Landry was voluntarily absent from the partition trial after being given proper formal notice. Additionally, when Mr. Landry attempted to file his amended detailed descriptive list, the court denied his request to do so on October 22, 2020. ''
While the October 21, 2020 order contains service information for Mr. Landry's counsel, the court determined at the hearing that service was not made upon Mr. Landry's counsel. The court learned that service of the order on Mr. Landry was attempted five times without success.
Mr. Landry's contention that the order was required to be heard contradictorily has no merit. As to whether a contradictory hearing is required, La. C.C.P. art. 963 states, in pertinent part:
If the order applied for by written motion is one to which mover is clearly entitled without supporting proof, the court may grant the order ex parte and without hearing the adverse party.
If the order applied for by written motion is one to which the mover is not clearly entitled, or which requires supporting proof, the motion shall be served on and tried contradictorily with the adverse party.Mr. Landry also inaccurately contends that La. R.S. 9:2801(A) does not contain provisions cutting off his time to respond but those provisions do not apply to the circumstances of this case where the court did issue an order prohibiting additional filings because the partition trial had already been scheduled.
Mr. Landry failed to seek supervisory writs from the denial of his request to file an amended detailed descriptive list.
The court did not abuse its discretion in excluding the amended detailed descriptive list from evidence and properly sustained Ms. Landry's objection. Mr. Landry's first assignment of error has no merit.
EXCLUSION OF FINANCIAL STATEMENTS EVIDENCE
In Mr. Landry's second assignment of error, he contends that the court erred in refusing to allow him to introduce bank and credit card statements to prove his reimbursement claim because the statements had not been provided to Ms. Landry in discovery. Mr. Landry argues that Ms. Landry was not prejudiced by the failure to provide the statements in discovery because she had obtained copies of the statements through subpoena requests and never filed a motion to compel. He also asserts that Ms. Landry was on notice that the information would be used at trial.
At trial, Mr. Landry's counsel attempted to show Ms. Landry "all of these credit card statements, and all of these bank statements with Feliciana Bank," to which Ms. Landry's counsel objected on the basis that those documents had not been provided in response to discovery. Mr. Landry's counsel acknowledged he had received discovery requests from Ms. Landry asking him to produce "any documentation you intend to introduce [at trial]." When the court asked if he intended to introduce the documents being objected to, Mr. Landry's counsel answered affirmatively. The court then stated, "Then by your own statement just now, you or prior counsel for Mr. Landry, were and are obligated to have provided those to opposing counsel." Mr. Landry's counsel contended that Ms. Landry had the documents and that she never filed a motion to compel. The court sustained the objection, stating that Mr. Landry had not satisfied his obligation to properly respond to discovery. Mr. Landry's counsel never attempted to introduce the bank and credit card statements at issue into evidence, nor did he proffer the evidence.
If a party attempts to introduce evidence at trial, but the court excludes the evidence, that party must make a proffer of the evidence in the court; otherwise, appellate courts have no way of ascertaining the nature of the excluded testimony. In the absence of a proffer, whatever right the party had to introduce that evidence is waived and cannot be raised on appeal. See La. C.E. art. 103; La. C.C.P. Art. 1636; Lavespere v. Lavespere, 2007-2171 (La.App. 1 Cir. 5/2/08), 991 So.2d 81, 86. Therefore, Mr. Landry's second assignment of error has no merit.
Unlike the amended detailed descriptive list as discussed in footnote 8, the record does not contain the bank and credit card statements.
DENIAL OF REIMBURSEMENT CLAIM
Mr. Landry contends in his third assignment of error that the court erred in ruling that Ms. Landry was entitled to reimbursement from him based on the amounts in the community bank accounts at the time of the divorce. He contends that Ms. Landry had the burden of proving that those funds were not used for the payment of community debts and that he was not entitled to reimbursement for his separate funds used to pay for the community and separate debts of Ms. Landry.
At trial, the parties testified that they had several bank accounts with Feliciana Bank & Trust Company, where Mr. Landry had worked during the marriage. Mr. Landry "put a hold" on all of the accounts and Ms. Landry was not allowed access to them after the community terminated. Mr. Landry testified that he used all of the funds in his possession to pay community debts or the separate debts of Ms. Landry. He was aware of the injunction that was issued in 2012 which prohibited him or Ms. Landry from "alienating or encumbering any and all property owned by the community." When asked by the court if Mr. Landry paid the recurring monthly expenses on the former matrimonial domicile after September 2011, Ms. Landry answered that Mr. Landry did. However, she also testified that Mr. Landry lived in her "household" while she paid the bills for four years.
Mr. Landry claimed he spent $126, 335.59 in separate funds to pay community debts and other debts, but he did not support his testimony with any documentation. Mr. Landry's counsel offered into evidence a spreadsheet created by Mr. Landry that was allegedly based on the credit card and bank statements that the court had ruled were inadmissible. Ms. Landry's counsel objected because the spreadsheet also had been requested but not produced in discovery and it was based on the bank and credit card statements that also had not been produced in discovery. The court initially sustained the objection, stating that Ms. Landry's alleged knowledge of the documents did not alleviate Mr. Landry's obligation to comply with the discovery articles in the Louisiana Code of Civil Procedure. The court then allowed Mr. Landry to introduce the spreadsheet into evidence over objection "for whatever evidentiary use it may or may not have." The most recent bank statements introduced into evidence at trial established the value of the bank accounts in 2011.
In its written reasons for judgment, the court stated that it did not consider that the funds from community accounts solely under Mr. Landry's control were expended only for the payment of community debts and recurring bills for the maintenance of community assets and/or family expenses since Mr. Landry only made "general assertions] in his testimony" and presented "no evidence ... other than the generalized testimony that he used the monies for those purposes." Therefore, the court allocated the value for the bank accounts near the date of the termination of the community to Mr. Landry as the accounts were totally within his control. The court noted:
Significantly, on some accounts at Feliciana Bank and Trust Company ... where [Mr. Landry] was employed, when the parties separated, [Mr. Landry] had a hold placed on the accounts so that it would have been impossible for [Ms. Landry] to expend funds from those accounts leaving no other reasonable conclusion other than that [Mr. Landry] expended those funds.
The procedure for community property partitions is set forth in La. R.S. 9:2801(4), which states, in pertinent part:
(c) The court shall allocate or assign to the respective spouses all of the community assets and liabilities. In allocating assets and liabilities, the court may divide a particular asset or liability equally or unequally or may allocate it in its entirety to one of the spouses. The court shall consider the nature and source of the asset or liability, the economic condition of each spouse, and any other circumstances that the court deems relevant. ...
(d) In the event that the allocation of assets and liabilities results in an unequal net distribution, the court shall order the payment of an equalizing sum of money, either cash or deferred, secured or unsecured, upon such terms and conditions as the court shall direct.
Property in the possession of a spouse during the existence of the community property regime is presumed to be community, but either spouse may rebut the presumption. La. C.C. art. 2340. The spouse seeking to rebut the presumption bears the burden of proving by a preponderance of the evidence that the property is separate in nature. Benoit, 91 So.3d at 1021.
Property of married persons is generally characterized as either separate or community. La. C.C. art. 2335. Louisiana Civil Code article 2338 provides:
The community property comprises: property acquired during the existence of the legal regime through the effort, skill, or industry of either spouse; property acquired with community things or with community and separate things, unless classified as separate property under Article 2341; property donated to the spouses jointly; natural and civil fruits of community property; damages awarded for loss or injury to a thing belonging to the community; and all other property not classified by law as separate property.Regarding the classification of property as separate, La. C.C. art. 2341 provides, in part, that a spouse's separate estate "comprises ... property acquired by a spouse prior to the establishment of a community property regime [and] property acquired by a spouse with separate things or with separate and community things when the value of the community thing is inconsequential in comparison with the value of the separate things used."
Louisiana Civil Code article 2364 provides:
If community property has been used during the existence of the community property regime or former community property has been used thereafter to satisfy a separate obligation of a spouse, the other spouse is entitled to reimbursement for one-half of the amount or value that the property had at the time is was used.
Louisiana Civil Code article 2365 provides, in part: "If separate property of a spouse has been used either during the existence of the community property regime or thereafter to satisfy a community obligation, that spouse is entitled to reimbursement for one-half of the amount or value that the property had at the time is was used." However, the burden of proof is on the party claiming reimbursement. Hardy v. Hardy, 2018-0487 (La.App. 1 Cir. 2/28/19), 273 So.3d 448, 456-57. A spouse claiming reimbursement must conclusively prove that separate funds existed and that the separate funds were used for the benefit of the community. Webb v. Webb, 16-567 (La.App. 5 Cir. 1/24/18), 238 So.3d 566, 583, rev'd in part on other grounds. 2018-0320 (La. 12/5/18), 263 So.3d 321.
Louisiana Civil Code article 2360 states, "An obligation incurred by a spouse during the existence of a community property regime for the common interest of the spouses or for the interest of the other spouse is a community obligation." Louisiana Civil Code article 2363 states in pertinent part, "A separate obligation of a spouse is one incurred by that spouse prior to the establishment of a community property regime, or one incurred during the existence of a community property regime though not for the common interest of the spouses or for the interest of the other spouse."
We find that the court did not abuse its discretion in its valuation and allocation of the community assets. Louisiana Civil Code article 159 provides that a judgment of divorce terminates a community property regime retroactively to the date of the filing of the petition in the action in which the judgment of divorce is rendered, which would be September 6, 2011, in this case. The court reasonably found the community accounts solely under Mr. Landry's control should have been allocated to him and that there was no specific evidence showing that the amounts in the accounts were solely expended on community debts. Since Mr. Landry did not meet his burden of proving that the funds in the accounts allocated to him were solely used to pay the debts of the community, his third assignment of error has no merit.
CONCLUSION
For the foregoing reasons, the July 19, 2021 judgment of the court partitioning the community property of Amanda L. Landry and Anthony Kyle Landry is affirmed. Costs of this appeal are to be paid by Anthony Kyle Landry.
AFFIRMED.