Opinion
NO. 19-CA-84
10-02-2019
LUZHEN ZHENG v. HUI WU LIN
COUNSEL FOR PLAINTIFF/APPELLEE, LUZHEN ZHENG: Christine F. Remy, Gretna COUNSEL FOR DEFENDANT/APPELLANT, HUI WU LIN: Lakeisha N. Jefferson
COUNSEL FOR PLAINTIFF/APPELLEE, LUZHEN ZHENG: Christine F. Remy, Gretna
COUNSEL FOR DEFENDANT/APPELLANT, HUI WU LIN: Lakeisha N. Jefferson
Panel composed of Judges Robert A. Chaisson, Stephen J. Windhorst, and Hans J. Liljeberg
LILJEBERG, J.
Appellant, Hui Wu Lin, seeks review of the trial court's judgment denying his request for rental reimbursement. On appeal, Mr. Lin contends the trial court erred by failing to recognize the parties' stipulation on rental reimbursement and erred by granting the objection filed by appellee, Luzhen Zheng, to the hearing officer's recommendations on rental reimbursement. For the reasons stated more fully below, we find the trial court did not abuse its discretion and affirm the trial court's judgment granting Ms. Zheng's objection and denying Mr. Lin's rental reimbursement claim. We further deny Ms. Zheng's request for attorney's fees and costs in her answer to the appeal.
FACTS AND PROCEDURAL BACKGROUND
The parties married on February 26, 1995, and have two children, one who has now reached the age of majority and the second who is ten years old. These proceedings commenced on September 5, 2013, when Ms. Zheng filed a Petition for Protection from Abuse against Mr. Lin. The next day Ms. Zheng filed a petition for divorce. The domestic commissioner held a hearing on the Petition for Protection of Abuse and on September 26, 2013, the commissioner granted Ms. Zheng an order of protection against Mr. Lin for six months and exclusive use of the family home during that time. Ms. Zheng filed an objection and on November 15, 2013, the trial court extended the order of protection to 18 months. On October 22, 2014, Ms. Zheng was granted sole custody of their minor child, and on November 21, 2014, the trial court granted a judgment of divorce.
On April 8, 2015, Hui Lin filed a petition to partition the community property. The parties filed sworn descriptive lists and Ms. Zheng filed a traversal of Mr. Lin's sworn descriptive list. According to the designated record, no further steps were taken to partition the community property at that time.
On February 24, 2017, Mr. Lin filed a motion to enforce an offer to settle the community property allegedly made by Ms. Zheng and also requested an accounting of the community assets. In response, Ms. Zheng filed numerous exceptions, including an exception of vagueness and ambiguity, exceptions of no right and no cause of action, and an exception of unauthorized use of a summary proceeding. According to the designated record, these matters were all continued without date.
On April 6, 2018, Mr. Lin filed a motion for exclusive use and occupancy of the former matrimonial domicile, motion to appoint an independent appraiser and a motion to set a status conference and trial on the community property partition. In his motion, Mr. Lin requested that the trial court appoint an appraiser to determine the fair market value of the former matrimonial home located at 3712 Chadwood Drive in Harvey, Louisiana, ("Chadwood property") for purposes of community partition. Mr. Lin also indicated in this motion that he wanted exclusive use and occupancy of the Chadwood property to be awarded to Ms. Zheng pending partition, and requested the appointment of an appraiser to also determine the fair market rental value of the property. On May 24, 2018, the hearing officer recommended the appointment of Wayne Sandoz to appraise the Chadwood property and to also determine the fair market rental value. All other issues were pretermitted.
On June 27, 2018, Mr. Lin filed a second motion and order for exclusive use and occupancy of the former matrimonial domicile. In this motion, Mr. Lin requested that the trial court award him exclusive use of the Chadwood property. He alternatively requested rental reimbursement based on the fair market rental value of the home in the event the trial court awarded Ms. Zheng exclusive use and occupancy. The matter was set before the hearing officer on October 18, 2018. The stipulations and recommendations report prepared by the hearing officer on that date indicated that the parties stipulated to granting Ms. Zheng exclusive use and occupancy of the Chadwood property. The report further indicated the parties did not stipulate to the amount of rental reimbursement and the hearing officer recommended rent in the amount of $1,350.00 per month based on Wayne Sandoz's report. However, the section where the hearing officer indicated the stipulations or recommendations as to whether rental reimbursement "should be granted/deferred/waived" is unclear. The hearing officer indicated both a recommendation and stipulation and circled both "granted" and "deferred" on this issue as follows:
According to the key on the form, "R=Recommendation" and "S=Stipulation."
Ms. Zheng filed an objection to the hearing officer's recommendations on October 23, 2018, specifying that she objected to the hearing officer's recommendation "that rental reimbursement should be granted/deferred" and "that the value of $1,350.00 per month is fair market value per Wayne Sandoz's report."
The parties appeared before the trial court for a hearing on the objection on December 5, 2018. Ms. Zheng entered into evidence a judgment indicating Mr. Lin was $20,366.44 in arrears on child support, as well as Mr. Lin's prior conviction in 2014 for domestic abuse battery against her and the protective order granted by the trial court in 2013. Ms. Zheng set forth several different grounds as to why the trial court should grant her objection to the hearing officer recommendations on rental reimbursement. Ms. Zheng argued that she had sole custody of their minor child, no support or visitation from Mr. Lin, and that awarding rent to Mr. Lin would subject Ms. Zheng to further abuse. She further claimed that Mr. Lin caused significant damage to the Chadwood property before he left, some of which she paid to repair and some damage still requiring repair. Ms. Zheng further argued that the purpose for awarding rental reimbursement was to offset reimbursements the occupying spouse would receive for paying the monthly mortgage on the former matrimonial home. She represented to the trial court that the Chadwood property was not subject to a mortgage and further argued that pursuant to La. R.S. 9:374(C), the trial court enjoyed broad discretion in determining whether to award rental reimbursement.
In response, Mr. Lin did not deny Ms. Zheng's factual allegations, but argued that evidence relating to past domestic abuse is irrelevant to the issue of rental reimbursement, and further argued that rental reimbursement is not discretionary, but "mandatory" under La. R.S. 9:374(C).
La. R.S. 9:374(C) provides in pertinent part: "If the court awards use and occupancy to a spouse, it shall at that time determine whether to award rental for the use and occupancy and, if so, the amount of the rent. The parties may agree to defer the rental issue for decision in the partition proceedings." [Emphasis added.]
Following the hearing, the trial court determined that pursuant to La. R.S. 9:374(C), its decision on whether to award rental reimbursement is discretionary. The trial court further determined that "given the circumstances," it granted Ms. Zheng's objection and denied Mr. Lin's rental reimbursement claim. Mr. Lin filed a timely appeal on December 6, 2018. On March 15, 2019, this Court issued an order requesting that the trial court enter a written judgment with respect to its December 5, 2019 rulings, as the designated record only contained a minute entry outlining the trial court's decisions. On March 19, 2019, the trial court supplemented the record with a written judgment granting Ms. Zheng's objection and denying Mr. Lin's rental reimbursement claim.
Mr. Lin does not contest the trial court's legal conclusion regarding its discretion on appeal.
DISCUSSION
Mr. Lin raises two issues on appeal. He contends the trial court committed legal error when it denied his rental reimbursement claim because his history of domestic abuse should have no bearing on whether to award him rent to offset other reimbursements he anticipates Ms. Zheng will seek with respect to the Chadwood property. He also argues that the trial court committed legal error because the hearing officer's recommendations indicate that the parties stipulated to granting Mr. Lin rental reimbursement and deferring the issue to the community partition. La. R.S. 9:374 governs issues relating to use of a family residence following the filing of a petition of divorce, as well as rental reimbursement. This statute provides in pertinent part:
B. When the family residence is community property or is owned by the spouses in indivision, or the spouses own community movables or immovables, after or in conjunction with the filing of a petition for divorce or for separation of property in accordance with Civil Code Article 2374, either spouse may petition for, and a court may award to one of the spouses, after a contradictory hearing, the use and occupancy of the family residence and use of community movables or immovables pending partition of the property or further order of the court, whichever occurs first. In these cases, the court shall inquire into the relative economic status of the spouses, including both community and separate property, and the needs of the children, if any, and shall award the use and occupancy of the family residence and the use of any community movables or immovables to the spouse in accordance with the best interest of the family. If applicable, the court shall consider the granting of the occupancy of the family residence and the use of community movables or immovables in awarding spousal support.
C. A spouse who, in accordance with the provisions of Subsection A or B of this Section, uses and occupies or is awarded by the court the use and occupancy of the family residence, a community immovable occupied as a residence, or a community manufactured home as defined in R.S. 9:1149.2 and occupied as a residence, regardless of whether it has been immobilized, shall not be liable to the other spouse for rental for the use and occupancy, except as hereafter provided. If the court awards use and occupancy to a spouse, it shall at that time determine whether to award rental for the use and occupancy and, if so, the amount of the rent. The parties may agree to defer the rental issue for decision in the partition proceedings. If the parties agreed at the time of the award of use and occupancy to defer the rental issue, the court may make an award of rental retroactive to the date of the award of use and occupancy.
Stipulation
We first address Mr. Lin's argument that Ms. Zheng stipulated to awarding him rental reimbursement and deferring the matter to the partition proceedings. After reviewing the designated record, we note that Mr. Lin did not raise this argument with the trial court at the hearing on Ms. Zheng's objection. Uniform Rules – Courts of Appeal 1-3 provides that courts of appeal will only review issues submitted to the trial court.
However, even if Mr. Lin properly raised this issue with the trial court, we do not find sufficient evidence of a stipulation between the parties on the issue of rental reimbursement. A stipulation has the effect of a judicial admission or confession, which binds all parties and the court. Ponson v. Ponson, 17-469 (La. App. 5 Cir. 3/14/18), 241 So.3d 1213, 1221. An admission must be explicit and unequivocal. La Louisiane Bakery Co. v. Lafayette Ins. Co., 09-825 (La. App. 5 Cir. 2/8/11), 61 So.3d 17, 26-27, writ denied , 11-493 (La. 4/25/11), 62 So.3d 95.
As explained above, Mr. Lin claims the parties stipulated both to granting him rental reimbursement and deferring the issue to the community partition. Ms. Zheng denies any stipulation with respect to rental reimbursement and contends that the parties only agreed that she would have exclusive use and occupancy of the Chadwood property. The excerpt from the hearing officer's report reproduced above indicates that rental reimbursement was both granted and deferred and further indicates both a hearing officer recommendation and a stipulation on these issues. Therefore, the hearing officer's report does not provide explicit and unequivocal evidence of a stipulation between the parties on the issue of whether Mr. Lin should be awarded rental reimbursement.
We also note that La. R.S. 9:374(C) provides that if a court awards one spouse use and occupancy of the house, it shall at that time determine whether to award the other spouse rent and if so, the amount of the rent. La. R.S. 9:374(C) alternatively provides that parties can agree to defer the rent issue to the partition proceedings. Pursuant to the language of this provision, it does not follow that the parties would stipulate to both an award of rent and at the same time, stipulate to deferring the issue to the community partition. Furthermore, the report indicates Ms. Zheng did not stipulate to the amount of rental reimbursement.
Accordingly, considering the contradictory information provided in the hearing officer's report, Mr. Lin's assignment of error regarding the alleged stipulation on rental reimbursement is without merit.
Denial of Rental Reimbursement
Mr. Lin next argues that the trial court erred by denying his request for rental reimbursement based on his past history of domestic abuse against Ms. Zheng.
Under La. R.S. 9:374(C), the decision to award rent to the non-occupant spouse rests within the discretion of the trial court. Richard v. Richard , 95-1536 (La. App. 4 Cir. 2/15/96), 669 So.2d 1267, 1269-70. Little guidance exists in the law and jurisprudence regarding the factors trial courts consider when deciding whether to grant rental reimbursement. Id. In McCarroll v. McCarroll , 96-2700 (La. 10/21/97), 701 So.2d 1280, 1290, the Louisiana Supreme Court suggested that in determining whether to award rent to a non-occupying spouse, courts should look to the factors set forth in La. R.S. 9:374(B) :
La. R.S. 9:374(B) provides that the trial court shall consider the relative economic status of the parties, the needs of the children, and the effect of the award of the occupancy on alimony and child support. La. R.S. 9:374, when read as a whole, contemplates that any award of rent shall be made in conjunction with the determination of occupancy and in light of the factors in La. R.S. 9:374(B).
Our review of the record indicates the trial court did not rely solely on Mr. Lin's past domestic abuse in deciding to deny his rental claim. We recognize that at the hearing, Ms. Zheng offered evidence regarding the domestic abuse and argued such evidence was relevant pursuant to this Court's decision in Lepine v. Lepine , 17-45 (La. App. 5 Cir. 6/15/17), 223 So.3d 666. However, the prior domestic abuse was not the only evidence presented to the trial court during the hearing on Ms. Zheng's objection. Ms. Zheng noted that she was awarded sole custody of their minor child and argued Mr. Lin was not exercising visitation. She also argued that she was supporting their child without assistance from Mr. Lin and introduced evidence indicating Mr. Lin was in arrears on his child support in the amount of $20,366.44. Ms. Zheng further noted that because no mortgage existed on the property, she would not be seeking reimbursement for the mortgage payment and therefore, Mr. Lin did not need an offsetting rental reimbursement claim. Mr. Lin did not contest any of these facts during the hearing.
In Lepine , supra , the appellate court affirmed the trial court's decision to grant a protective order to the wife after finding the husband committed domestic abuse by stalking. Id. at 675-76. During the hearing on the wife's petition for a protective order, the husband asked the trial court for permission to list the family home for sale. This Court determined that under certain provisions of the Louisiana Domestic Abuse Assistance Law, La. R.S. 46:2135(A)(3) and 46:2136(A)(1), the trial court had authority to deny the husband's request to sell the home in order to protect the wife from further abuse by granting her exclusive possession of the family residence. Id. at 677. The instant case is distinguishable from Lepine because the protective order granted in favor of Ms. Zheng is expired and there are no pending domestic abuse issues between the parties.
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Furthermore, the trial court did not point to any specific factor in deciding to grant Ms. Zheng's objection and deny the rental reimbursement claim. Rather, the trial court simply stated that after considering all of the circumstances of the case, it granted the objection and denied the claim for rental reimbursement. Based on the forgoing, we cannot find the trial court abused its discretion in denying Mr. Lin's rental reimbursement claim.
Ms. Zheng's Request for Attorney's Fees and Costs
Ms. Zheng filed an answer to Mr. Lin's appeal requesting that this Court award her attorney's fees and costs incurred to defend this appeal. Ms. Zheng contends that Mr. Lin acted in bad faith by filing this appeal and by excluding the portions of the lower court record regarding domestic abuse from the record he designated for appeal. Ms. Lin contends that she incurred additional attorney's fees and costs to supplement the appellate record with these materials. We decline to grant Ms. Zheng's request for attorney's fees as we do not find that Mr. Lin acted in bad faith in appealing the trial court's rulings. In addition, we do not find that Ms. Zheng's decision to designate additional portions of the record for appeal warrants an award of attorney's fees and costs in this matter.
DECREE
Accordingly, we affirm the trial court's judgment granting Ms. Zheng's objection and denying Mr. Lin's rental reimbursement claim. We further deny Ms. Zheng's request for attorney's fees and costs in her answer to the appeal.