Opinion
2011 CA 2360
10-01-2012
LINDA ATKINS GRAY v. JAMES GRAY
Robert J. Carter Greensburg, Louisiana Counsel for Plaintiff-Appellee Linda Atkins Gray Otha Curtis Nelson, Sr. Baton Rouge, Louisiana Counsel for Defendant-Appellant James Gray
NOT DESIGNATED FOR PUBLICATION
ON APPEAL FROM THE TWENTY-FIRST JUDICIAL DISTRICT COURT
NUMBER 19121, DIVISION "B", PARISH OF ST. HELENA
STATE OF LOUISIANA
HONORABLE BRUCE BENNETT, JUDGE
Robert J. Carter
Greensburg, Louisiana
Counsel for Plaintiff-Appellee
Linda Atkins Gray
Otha Curtis Nelson, Sr.
Baton Rouge, Louisiana
Counsel for Defendant-Appellant
James Gray
BEFORE: KUHN, PETTI GREW, MCDONALD, JJ.
Disposition: AFFIRMED, AS AMENDED, AND RENDERED.
KUHN, J.,
This appeal is taken from a trial court judgment partitioning community property. For the following reasons, we affirm, as amended.
Appellant, James Gray, and appellee, Linda Atkins Gray, were married on December 24, 1987, and divorced on March 17, 2006. On May 11, 2006, Mr. Gray filed a petition for judicial partition of community property. Following trial on January 14, 2011, the trial court rendered a written judgment partitioning the community property of the parties, together with a qualified domestic relations judgment setting forth Ms. Gray's entitlement to 34.765% of Mr. Gray's retirement benefits and Louisiana State Employees' DROP account.
Mr. Gray has now appealed, complaining that the trial court erred in allocating to him the former family home, where Mr. Gray has continued to live since the parties separated in 2005, rather than ordering that the house be sold at public auction. Although not clearly articulated, it appears that Mr. Gray is also complaining that the trial court failed to allow him reimbursement for various community debts and obligations he paid. In an answer to the appeal, Ms. Gray requested that the judgment for the equalizing payment be made personal against Mr. Gray and that he be ordered to pay attorney fees for frivolous appeal.
It is well settled that a trial court has broad discretion in adjudicating issues raised in a judicial partition proceeding. See La. R.S. 9:2801; Rao v. Rao, 05-0059 (La. App. 1st Cir. 11/4/05), 927 So.2d 356, 360-61, writ denied, 05-2453 (La. 3/24/06), 925 So.2d 1232. Based on our thorough review of the record, we find no abuse of the trial court's broad discretion in the allocation of assets and determination of the equalizing payment owed to Ms. Gray.
However, although the trial court judgment ordered that Ms. Gray be paid an equalizing sum of $40,143.26, plus 6% interest, to be paid in sixty equal monthly payments and imposed a judicial mortgage against the former family home as security, the trial court did not specifically state that judgment was rendered against Mr. Gray in that amount. In her answer to this appeal, Ms. Gray requested that the trial court judgment be made personal against Mr. Gray. Since we believe Ms. Gray is entitled to such relief, the judgment of the trial court will be amended to clarify Mr. Gray's personal liability for the amount awarded to Ms. Gray.
Additionally, we further conclude that Ms. Gray's request for an award of attorney fees as damages for frivolous appeal is well-founded. The only issues raised by Mr. Gray in this appeal pertain to the exercise of the trial court's broad discretion and the credibility determinations the court made. The appeal presented no substantial legal issue or serious ground upon which reversal of the trial court judgment could be based. Thus, damages for frivolous appeal are warranted pursuant to La. C.C.P. art. 2164.
CONCLUSION
Accordingly, the judgment of the trial court is amended to provide that there be judgment in favor of Linda Atkins Gray and against James Gray in the amount of $40,143.26, to be paid as provided in the trial court's judgment. The judgment of the trial court is affirmed in all other respects. Further, judgment is hereby rendered in favor of Linda Atkins Gray and against James Gray awarding attorney fees in the amount of $750.00 as damages for frivolous appeal. All costs of this appeal are to be paid by appellant, James Gray.
AFFIRMED, AS AMENDED, AND RENDERED.