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CourtListener opinion 11295349
Citation: domestic relations order · Date unknown · US
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- domestic relations order
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- One: Susana asserts that the trial
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domestic relations order“pon which the property is offered at public sale. In the event of a partition by licitation, the court shall expressly state the reasons why the asset cannot be allocated, assigned by the drawing of lots, or sold at private sale. 8 B. Those provisions of a domestic relations order or other judgment which partitions retirement or other deferred work benefits between former spouses shall be considered interlocutory until the domestic relations order has been granted "qualified" status from the plan administrator and/or until the judgment has been approved by the appropriate federal or state authority as being in compliance with a”
valuation/division“ENDANT/APPELLEE: Ross Moody Susana F. Moody In Proper Person 2922 River Crest Road Corpus Christi, TX 78415 PLAINTIFF/APPELLANT IN PROPER PERSON: Susana F. Moody PERRET, Judge. This appeal is taken following the April 30, 2020 judgment partitioning the community property of Susana Moody ("Susana") and Ross Moody ("Ross"). The judgment also set forth reimbursement claims awarded, and an equalizing payment to be made by Ross to Susana in the amount of $49,829.70. Costs of the proceedings were assessed equally between the parties. Susana filed the appeal, but Ross has also answered the appeal. After review, we affirm in pa”
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Clean opinion text
NOT DESIGNATED FOR PUBLICATION
STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT
23-157
SUSANA F. MOODY
VERSUS
ROSS MOODY
**********
APPEAL FROM THE
FOURTEENTH JUDICIAL DISTRICT COURT
PARISH OF CALCASIEU, NO. 2011-0528
HONORABLE LILYNN CUTRER, DISTRICT JUDGE
**********
CANDYCE G. PERRET
JUDGE
**********
Court composed of Candyce G. Perret, Jonathan W. Perry, and Wilbur L. Stiles,
Judges.
MOTION TO STRIKE GRANTED.
JUDGMENT AFFIRMED IN PART;
REVERSED IN PART; AND RENDERED.
Frank Alton Granger
1135 Lakeshore Drive, 6th Floor
Lake Charles, LA 70601
(337) 439-2732
COUNSEL FOR DEFENDANT/APPELLEE:
Ross Moody
David Hudson
Larry A. Roach, Inc.
2917 Ryan Street
Lake Charles, LA 70601
(337) 433-8504
COUNSEL FOR DEFENDANT/APPELLEE:
Ross Moody
Susana F. Moody
In Proper Person
2922 River Crest Road
Corpus Christi, TX 78415
PLAINTIFF/APPELLANT
IN PROPER PERSON:
Susana F. Moody
PERRET, Judge.
This appeal is taken following the April 30, 2020 judgment partitioning the
community property of Susana Moody ("Susana") and Ross Moody ("Ross"). The
judgment also set forth reimbursement claims awarded, and an equalizing payment
to be made by Ross to Susana in the amount of $49,829.70. Costs of the proceedings
were assessed equally between the parties. Susana filed the appeal, but Ross has
also answered the appeal. After review, we affirm in part, reverse in part, and render
judgment.
MOTION TO STRIKE ATTACHMENTS TO APPELLANT BRIEF AND
REPLY BRIEF:
Appellee, Ross, moves to strike certain pages of exhibits attached to
Appellant's brief and reply brief. Ross notes that Susana has attached several
transcript pages, specifically exhibit pages 184-214, which can be found in the
record, and proceeded to underline and write comments in the margins. In her reply
brief, Susana attaches exhibits which she states were not part of the record. These
pages, Ross argues, should be stricken due to improper alteration and improper
supplement/expansion of the appellate record.
"It is well settled that pursuant to La. C.C.P. art. 2164, an appellate court must
render its judgment upon the record on appeal. . . . The appellate court cannot review
evidence that is not in the record on appeal and cannot receive new evidence."
Titlesite LC v. Webb, 36,437, p. 12 (La.App. 2 Cir. 12/11/02), 833 So.2d 1061, 1068–
69. An exhibit must either be admitted into evidence, or specifically designated as
a proffer to be considered on appeal. See Liles v. Great W. Cas. Ins. Co., 54,565
(La.App. 2 Cir. 7/13/22), 342 So.3d 1160. "Appellate briefs are not part of [the
appellate] record, and facts referenced therein, but not contained in the record,
cannot be considered. Nor does an attachment to a litigant's brief constitute part of
the record on appeal." D'Arbonne Bank & Trust Co. v. James, 597 So.2d 165, 166–
67 (La.App. 2 Cir.) (citations omitted), writ denied, 604 So.2d 1000 (La.1992).
Pages 184 through 214 are transcript excerpts from the August 20, 2019 trial,
which we note is in the record without Susana's notations. As to her exhibits
attached to the reply brief, those include a transcript, typed by an unknown person,
of telephone recordings left by the court-appointed curator1 attempting to contact
Susana at work; Blue Cross Blue Shield Claims summary for 2015 showing Susana's
hospitalizations; and Blue Cross Blue Shield of Texas claims in 2014. Susana admits
that these exhibits are not part of the record, and states this is because she was never
given the opportunity to present them because the requested continuance of the
December 3, 2015 trial was denied.
Based on the above, we grant Appellee's Motion to Strike Improper
Attachments to Appellant Brief and Reply Brief. Those exhibits will not be
considered in our review, although we do note that the August 20, 2019 transcript
found in the record itself, without Appellant's notations, is reviewable.
FACTS AND PROCEDURAL BACKGROUND:
Ross Moody and Susana Moody were married on June 29, 2001, and had four
children of their marriage. Susana filed a Petition for Divorce on February 3, 2011,
alleging physical and emotional abuse, seeking a temporary restraining order, sole
custody of the four children, child support, termination of community property,
interim spousal support, and final spousal support. Ross subsequently filed an
1
A curator was appointed for service of Ross's Rule to Establish Child Support and Related
Financial Obligations and the associated Hearing Officer Conference Order on May 8, 2014, and
was also requested in the community property issue as Susana could not be located.
2
Answer and Reconventional Demand alleging abuse as well as seeking joint custody
of the children and co-domiciliary status.
A judgment of divorce was rendered on March 6, 2012. On May 15, 2012,
Susana filed her detailed descriptive list. On August 3, 2012, Ross filed his detailed
descriptive list.
Following a two-day trial, a judgment regarding custody was rendered on
March 12, 2014, granting Ross sole custody of all four children, and ordering Susana
to leave the marital home. Thereafter, on August 26, 2014, Ross filed a Petition to
Partition Community Property. A motion to have a curator appointed for Susana was
filed on May 8, 2014. Ross filed a second detailed descriptive list on October 10,
2014.
Ross filed a combined amended detailed descriptive list and traversal on
January 8, 2015. On April 21, 2015, a Hearing Officer conference was held wherein
the Hearing Officer set values on certain items to be partitioned along with other
recommendations.2 Susana did not appear at this conference, but the curator for
Susana was present. This Hearing Officer recommendation became a judgment on
May 11, 2015. On August 20, 2015, Susana filed an untimely objection to the
Hearing Officer's recommendations regarding child support only. No objection to
the Hearing Officer's recommendations regarding the community property partition
values was made. Despite being untimely, the objection regarding the child support
was set for a hearing, and ultimately continued twice until December 3, 2015.
Neither party appeared on that date and the matter was dismissed. Susana also filed
2
The trial court specifically noted that the Hearing Officer only set values for certain items
and did not make determinations regarding whether those items were classified as community or
separate.
3
an Exception of Insufficiency of Service of Process regarding the citation for child
support only.
On November 11, 2015, Susana challenged the Hearing Officer's
recommendation regarding community property and the associated judgment for the
first time by filing a Petition to Annul Judgment. Susana asserted that proper service
was not made and that she was not aware of the agreement. A Motion for New Trial
was also filed on both issues, which was denied. A third motion to continue was
filed seeking continuance of the December 3, 2015 hearing date regarding the
objection to child support, but due to the original pleading not being filed and costs
not being paid, an Order was never signed. No parties appeared for the December
3, 2015 hearing and the matter was dismissed.
Although a consolidated trial began on September 11, 2017, for both the child
support and community property partition issues, the trial was bifurcated, and the
child support issue proceeded first. Some partition testimony was heard after the
bifurcation of the trial, interspersed in the hearings on July 5, 2018, February 5, 2019,
and February 6, 2019. The partition trial commenced on August 20 and 21, 2019.
The trial court issued the April 30, 2020 judgment as well as Written Reasons
for Judgment. Ross filed a Motion for New Trial on May 15, 2020, which was
subsequently denied on December 30, 2020. Prior to the motion for new trial
adjudication, Susana filed a Notice of Appeal on June 16, 2020. However, the matter
was not lodged, and Susana filed a Motion for Returnable Date for Appeal Lodging
on February 13, 2023.
On appeal, Susana asserts fourteen "issues" on appeal, which appear to be her
assignments of error. Those issues are summarized as follows:
4
(1) The trial court legally erred in failing to consider evidence of the
community property partition that was presented in hearings held before August
2019.
(2) The trial court legally erred in accepting Ross's testimony regarding
"necessary" repairs he made to the marital home to put it in "marketable condition,"
despite the appraisal value remaining the same before and after the repairs.
(3) The trial court legally erred in dismissing Susana's Updated Detailed
Descriptive List.
(4) The trial court legally erred in accepting the Hearing Officer's
recommendations on May 11, 2015, when Susana was not properly served and, thus,
did not have the opportunity to traverse or concur in the asset and liability valuation.
(5) The trial court legally erred in failing to use the market value as of the
date of trial in its valuation of the 2008 Honda Odyssey.
(6) The trial court legally erred in finding that the MobilOil Credit Union
Account was the separate property of Ross.
(7) The trial court legally erred in denying Susana rent credit for Ross's use
of the marital home.
(8) The trial court legally erred in assessing Susana 50% of the cost for
Ross's expert accountant witness.
(9) The trial court legally erred in allowing Ross reimbursement for
Susana's removal of $65,000.00 from a community account to pay for living
expenses and expenses for the children.
(10) The trial court erred in classifying assets based on information provided
only by Ross, and without permitting Susana to submit supporting evidence or
participate in traversal.
(11) The trial court erred in awarding Ross reimbursements without
considering whether community property was originally used to pay for those
expenses.
(12) The trial court erred in awarding Ross reimbursement for storage fees
of movables to be returned to Susana.
(13) The trial court erred in failing to award Susana reimbursements for her
payment of community expenses.
(14) The trial court erred in denying Susana a fair and equitable partition by
denying her motions and ignoring her allegations of abuse and financial struggles.
5
Susana also asserts that the trial court erred in taking as fact statements made
only by Ross and information he provided to the accountant, without supporting
documentation, as well as in denying Susana the opportunity to hire her own
accountant.
Additionally, in his Answer to Appeal, Ross sets forth the following
assignments of error:
(1) The trial court erred in determining/allocating the mortgage balance
owed on the marital home as of the date of trial.
(2) The trial court erred in determining/allocating Dr. John Simoneaux's
fees and in failing to credit Ross in the partition by reducing the equalization
payment owed to Susana.
(3) The trial court erred in determining/allocating Dr. Patricia Post's fees
for her testimony at the child support trial in 2017-2018, and in failing to credit Ross
in the partition by reducing the equalization payment owed to Susana.
(4) The trial court erred in denying Ross's claim for rental reimbursement
during Susana's exclusive use of the marital home. Ross's testimony regarding a
fair rental value was uncontroverted and should not have been disallowed.
STANDARD OF REVIEW:
"The trial court is vested with great discretion in effecting a fair partition of
community property." Arterburn v. Arterburn, 15-22, p. 4 (La.App. 3 Cir. 10/7/15),
176 So.3d 1163, 1167. We review the trial court's classification of property as
community or separate using the manifest error standard of review. Thomasee v.
Thomasee, 22-159 (La.App. 3 Cir. 10/12/22), 362 So.3d 797, writ denied, 23-29 (La.
3/7/23), 357 So.3d 351. Additionally, the factual findings and credibility
determinations made by the trial court in valuing and allocating assets and liabilities
are also reviewed for manifest error. See Id.
Under the manifest error standard, the appellate court does not set aside the
trial court's factual findings unless (1) a reasonable factual basis for the finding does
6
not exist in the record, and (2) the record establishes that the finding is clearly wrong.
See Arterburn, 176 So.3d 1163.
DISCUSSION:
Louisiana Revised Statutes 9:2801 regarding the partition of community
property states:
A. When the spouses are unable to agree on a partition of
community property or on the settlement of the claims between the
spouses arising either from the matrimonial regime, or from the co-
ownership of former community property following termination of the
matrimonial regime, either spouse, as an incident of the action that
would result in a termination of the matrimonial regime or upon
termination of the matrimonial regime or thereafter, may institute a
proceeding, which shall be conducted in accordance with the following
rules:
(1)(a) Within forty-five days of service of a motion by either
party, each party shall file a sworn detailed descriptive list of all
community property, the fair market value and location of each asset,
and all community liabilities. For good cause shown, the court may
extend the time period for filing a detailed descriptive list. If a party
fails to file a sworn detailed descriptive list timely, the other party may
file a rule to show cause why its sworn detailed descriptive list should
not be deemed to constitute a judicial determination of the community
assets and liabilities. At the hearing of the rule to show cause, the court
may either grant the request or, for good cause shown, extend the time
period for filing a sworn detailed descriptive list. If the court grants the
request, no traversal shall be allowed.
(b) Each party shall affirm under oath that the detailed
descriptive list filed by that party contains all of the community assets
and liabilities then known to that party. Amendments to the descriptive
lists shall be permitted. No inventory shall be required.
(2) Within sixty days of the date of service of the last filed
detailed descriptive list, each party shall either traverse or concur in the
inclusion or exclusion of each asset and liability and the valuations
contained in the detailed descriptive list of the other party. For good
cause shown, the court may extend the time period for a party to
traverse or concur in the detailed descriptive list of the other party. The
trial of the traverses may be by summary procedure. At the trial of the
traverses, the court shall determine the community assets and liabilities;
the valuation of assets shall be determined at the trial on the merits. The
court, in its discretion, may by ordinary procedure try and determine at
one hearing all issues, including those raised in the traverses.
7
(3) The court may appoint such experts pursuant to Articles 192
and 373 of the Louisiana Code of Civil Procedure as it deems proper to
assist the court in the settlement of the community and partition of
community property, including the classification of assets as
community or separate, the appraisal of community assets, the
settlement of the claims of the parties, and the allocation of assets and
liabilities to the parties.
(4) The court shall then partition the community in accordance
with the following rules:
(a) The court shall value the assets as of the time of trial on the
merits, determine the liabilities, and adjudicate the claims of the parties.
(b) The court shall divide the community assets and liabilities so
that each spouse receives property of an equal net value.
(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. As between the spouses, the allocation of a
liability to a spouse obligates that spouse to extinguish that liability. The
allocation in no way affects the rights of creditors.
(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. The court may
order the execution of notes, mortgages, or other documents as it deems
necessary, or may impose a mortgage or lien on either community or
separate property, movable or immovable, as security.
(e) In the event that the allocation of an asset, in whole or in part,
would be inequitable to a party, the court may order the parties to draw
lots for the asset or may order the private sale of the asset on such terms
and conditions as the court deems proper, including the minimum price,
the terms of sale, the execution of realtor listing agreements, and the
period of time during which the asset shall be offered for private sale.
(f) Only in the event that an asset cannot be allocated to a party,
assigned by the drawing of lots, or sold at private sale, shall the court
order a partition thereof by licitation. The court may fix the minimum
bids and other terms and conditions upon which the property is offered
at public sale. In the event of a partition by licitation, the court shall
expressly state the reasons why the asset cannot be allocated, assigned
by the drawing of lots, or sold at private sale.
8
B. Those provisions of a domestic relations order or other
judgment which partitions retirement or other deferred work benefits
between former spouses shall be considered interlocutory until the
domestic relations order has been granted "qualified" status from the
plan administrator and/or until the judgment has been approved by the
appropriate federal or state authority as being in compliance with
applicable laws. Amendments to this interlocutory judgment to
conform to the provisions of the plan shall be made with the consent of
the parties or following a contradictory hearing by the court which
granted the interlocutory judgment. The court issuing the domestic
relations order or judgment shall maintain continuing jurisdiction over
the subject matter and the parties until final resolution.
C. In the absence of an agreement between the parties for an
extension of time or the granting by the court of an extension for good
cause, if a party fails to comply with any time limit provided in this
Section, upon motion of the other party or upon its own motion, the
court may award reasonable attorney fees and court costs to the other
party for the filing of or the response to the motion. If the court rules,
pursuant to Subparagraph (A)(1)(a) of this Section, that the other party's
sworn detailed descriptive list be deemed to constitute the assets and
liabilities of the community, then the court shall not award attorney fees
and court costs to the other party.
Regarding a spouse's entitlement to reimbursement, "[t]he party seeking
reimbursement has the burden of proving ‘by a preponderance of the evidence the
nature of the indebtedness, whether the community obligation(s) were incurred for
the ordinary and customary expenses of the marriage.'" Harriss v. Harriss, 16-9, p.
5 (La.App. 3 Cir. 10/12/16), 204 So.3d 209, 214 (quoting Krielow v. Krielow, 93-
2539 (La. 4/11/94), 635 So.2d 180, 187). Furthermore, the party seeking
reimbursement of separate funds expended on a community obligation "must prove
‘that separate funds existed and that those funds were used to satisfy [the]
community obligation.'" Id. (quoting Williams v. Williams, 07-541, p. 2 (La.App. 3
Cir. 10/31/07), 968 So.2d 1234, 1236. The trial court's findings on these issues are
reviewed using the manifest error standard of review. Id.
9
SUSANA MOODY'S APPELLATE BRIEF
In her brief, Susana argues issues aside from those specified above,
particularly that the trial court failed to recognize her economic condition, that Ross
would "take" any money received by Susana, as exhibited by the MobilOil Credit
Union transfers. Despite Susana's paychecks being directly deposited into the same
account, that account was determined to be Ross's separate property.
Furthermore, Susana argues that the trial court erred in not assigning the value
of the community property at the time of the trial, and instead used Ross's detailed
descriptive list, which Susana was not permitted to traverse. Susana alleges there is
plenty of evidence to show that Ross provided false information; thus, the entire list
should be revised and reconsidered. Susana also asserts that testimony and evidence
supported a finding that Ross used community property to pay taxes for capital gains
earned from the Ameritrade Investment account; yet, the trial court stated that no
testimony/evidence was presented so the claims were dismissed.
Without specifics, Susana argues that the court committed multiple errors
because it based its findings "on the testimony or information provided by one
person . . . without any supporting evidence . . . and it was proven . . . that he withheld
information repeatedly and omitted producing documents which would not favor
him."
The above arguments overlap with several of the issues presented by Susana;
thus, we will discuss those issues within the different assignments of error addressed
below. We also note that Susana does re-list her fourteen errors and provides a
sentence or two explaining why the trial court erred in each, insofar as this can be
considered "briefing" the issue under our rules, instead of abandoning it, we will
address those below.
10
Assignment of Error No. One:
Susana asserts that the trial court failed to recognize that the partition trial
began September 2017, before it was decided to bifurcate the trial. She points to no
specific evidence in support, instead merely stating: "There is evidence and
testimony in the record that shows it." She asserts that it is clear the court did not
take any evidence presented prior to August 2019 "into consideration based on the
written reasons for judgment."
A review of the written reasons shows that the trial court was well aware that
the trial on the partition occurred on several days, and in different years: "The trial
on the community property partition began in September 2017, along with the trial
on the setting of child support. . . . Trial on the community property partition
resumed on August 20, 2019, and finished on August 21, 2019." In fact, the trial
court referenced testimony that appeared in the September 2017 hearing, such as
Susana's testimony that she deposited $10,000 into the TD Ameritrade account 5508.
Considering the above, we find no merit in this assignment of error.
Assignment of Error No. Two:
Susana asserts that the trial court erred in using the stipulated appraisal value
of $225,000 for the marital home instead of increasing the value based on the repairs
that Ross made and asserted were necessary to bring the home to market. Susana
argues the appraisal occurred before the repairs, so the value should have increased.
Ross argues that the parties agreed the appraisal value was what the home
would be worth if it was brought into marketable condition and that certain repairs
were required to achieve this.
At trial, Ross agreed that the value of $225,000 "was stipulated with the
understanding that that was if the home was brought into marketable condition," and
11
he noted that he "wouldn't have agreed otherwise." He further stated that, at the
time, he had "in hand, estimates of what it would take to bring the home into
marketable condition." Since that time, Ross has made repairs to the home, some of
which he did himself, and provided receipts for those repairs as evidence. Ross also
clarified that he has made no major repairs beyond what he had estimated as
necessary to bring the home into marketable condition.
Susana did not have any evidence contradicting the repairs Ross alleged he
made, or the receipts, but suggested that repairs were only necessary because Ross
refused to fix the house sooner. When asked if she understood the stipulated home
value took into consideration the necessity of repairs to bring it into marketable
condition, she responded that she "never saw that."
The trial court made a factual finding that the parties stipulated to the value of
the home assuming it would be brought into marketable condition. Based on the
record, we cannot say this finding was manifestly erroneous.
Assignment of Error No. Three:
In her third assignment of error, Susana asserts the trial court erred in
dismissing her updated detailed descriptive list when the trial court requested
updated lists. In fact, the list was admitted into evidence by Ross as Ross #7.
Although Susana cites the August 20, 2019 transcript in support of her claim, there
is no page number listed and this court does not find that the trial court ever
"dismissed" her list. When Susana was questioned by opposing counsel, opposing
counsel used her updated detailed descriptive list to review her claims. Opposing
counsel offered the list into evidence, and the trial court stated, "That's what I went
through." Furthermore, during Ross's testimony, he admitted that his list contains
handwritten corrections made after receiving Susana's updated list with "new
12
numbers on a few items that [he was] willing to accept[.]" Thus, there is simply no
merit to this assignment of error.
Assignment of Error No. Four:
Susana asserts that the trial court erred in accepting the Hearing Officer's
April 2015 recommendations when Susana was not properly served, was unaware
of the hearing, and did not participate in the hearing. Those recommendations were
not timely objected to; thus, the recommendations became a final judgment which
was signed by the trial court on May 11, 2015.3 Furthermore, she asserts that the
trial court erred in denying her motion to continue the hearing set for December 3,
2015, due to her failure to pay costs.
Ross filed his petition to partition the community property on August 26,
2014. Susana's attorney had withdrawn from the suit on April 23, 2014. A curator
had already been appointed for service of Ross's Rule to Establish Child Support
and Related Financial Obligations and the associated Hearing Officer Conference
Order on May 8, 2014. As Susana could not be located, Ross requested the curator
be continued in the community property issue.
A curator may be appointed when:
A. The court shall appoint an attorney at law to represent the
defendant, on the petition or ex parte written motion of the plaintiff,
when:
(1) It has jurisdiction over the person or property of the
defendant, or over the status involved, and the defendant is:
(a) A nonresident or absentee who has not been served with
process, either personally or through an agent for the service of process,
and who has not waived objection to jurisdiction.
3
"If no written objection is filed to the hearing officer's written recommendations or
judgment of the domestic commissioner, the written recommendations shall become a final
judgment of the court and shall be signed by a judge and shall be appealable as a final judgment."
La.Dist.Ct.R. 34.1. See also La.R.S. 46:236.5.
13
(b) An unemancipated minor or mental incompetent who has no
legal representative, and who may be sued through an attorney at law
appointed by the court to represent him.
(c) Deceased and no succession representative has been
appointed.
(2) The action of proceeding is in rem and:
(a) The defendant is dead, no succession representative has been
appointed, and his heirs and legatees have not been sent into possession
judicially.
(b) The defendant is a corporation, a limited liability company,
or partnership on which process cannot be served for any reason.
(c) The defendant's property is under the administration of a legal
representative, but the latter has died, resigned, or been removed from
office and no successor thereof has qualified, or has left the state
permanently without appointing someone to represent him.
B. All proceedings against such a defendant shall be conducted
contradictorily against the attorney at law appointed by the court to
represent him. For the limited purpose of any such action or proceeding,
the appointed attorney at law shall be the proper representative of the
succession of any such decedent to the same extent as if he were the
regularly appointed and duly qualified administrator or executor in such
decedent's succession.
C. The improper designation of the attorney appointed by the
court to represent such a defendant as curator ad hoc, tutor ad hoc,
special tutor, or any other title, does not affect the validity of the
proceeding.
D. The improper designation of a defendant for whom an
attorney has been appointed by the court in an action or proceeding in
rem under Paragraph (A)(2) of this Article shall not affect the validity
of the proceedings and any judgment rendered therein shall be binding
upon the parties and property involved in the action or proceeding in
rem. Therefore, naming an attorney to represent the unopened
succession of the defendant, the succession of the defendant, the estate
of the defendant, the deceased defendant, or any other similar
designation or appellation shall satisfy the requirements of Paragraph
(A)(2)(a). The designation of a corporation or a partnership by a name
sufficient to identify the same to a reasonably prudent man, regardless
of any errors which it might contain, shall satisfy the requirements of
Paragraph (A)(2)(b).
Louisiana Code of Civil Procedure Article 5091.
14
The curator provided two letters to the court detailing his efforts in trying to
locate and contact Susana. One letter was provided regarding the support issues and
one letter was provided regarding the partition issue.4 The letters noted that he was
aware that service via the long arm statute failed, other mail sent to Susana's last
known address had been returned, that he conducted internet searches for her, and
that he left detailed voice messages with the numbers believed to be Susana's parents
as well as her sister, who he did in fact make contact with once. He also filed a
response to Ross's amended detailed descriptive list.
The April 21, 2015 hearing with the Hearing Officer occurred without
participation from Susana, but the curator was present. No timely appeal was taken
regarding the Hearing Officer's recommendations; thus, those recommendations
became a judgment on May 11, 2015. On August 20, 2015, Susana filed an objection
to the Hearing Officer's recommendations regarding child support. No objection to
the Hearing Officer's recommendations regarding the community property partition
values was made until November 11, 2015, when Susana challenged the Hearing
Officer's recommendation regarding community property and the associated
judgment for the first time by filing a Petition to Annul Judgment. The Petition to
Annul Judgment was denied, as was the subsequent Motion for New Trial alleging
failure of service.
At trial, Susana testified that following the award of custody to Ross in March
of 2014, she moved to Texas, changed her phone number, changed her email address,
and changed her mailing address. She further denied being in contact with her sister.
4
The letter regarding the curator's efforts in the partition issue referenced his prior letter
to the court, and including his additional attempts made to locate Susana.
15
Susana asserts the trial court erred in accepting the Hearing Officer's
recommendations as a judgment because she could not be located to participate and
traverse Ross's detailed descriptive list. Multiple attempts were made to locate
Susana to no avail, the curator was present at the hearing on Susana's behalf, and no
timely appeal of the recommendation was made. "If no written objection is filed to
the hearing officer's written recommendations or judgment of the domestic
commissioner, the written recommendations shall become a final judgment of the
court and shall be signed by a judge and shall be appealable as a final judgment."
La.Dist.Ct.R. 34.1. See also La.R.S. 46:236.5. Thus, based on the record we cannot
say the trial court erred in its appointment of the curator or its acceptance of the
Hearing Officer's recommendation as judgment.
As to the denial of her motion to continue the December 3, 2015 hearing,
La.Code Civ.P. arts. 1601 and 1602 provide grounds for a motion to continue.
Article 1601 provides that "[a] continuance may be granted in any case if there is
good ground therefor." Article 1602 provides peremptory grounds for a continuance:
A continuance shall be granted if at the time a case is to be tried,
the party applying for the continuance shows that he has been unable,
with the exercise of due diligence, to obtain evidence material to his
case; or that a material witness has absented himself without the
contrivance of the party applying for the continuance.
Regarding the alleged December 3, 2015 hearing and the denial of the motion
to continue, while the faxed copy of the motion to continue is in the record, it was
never followed by an original copy within five days and it was not filed with the
costs. While there are no minutes associated with the December 3, 2015 hearing in
the record on appeal, the trial court addressed what occurred at trial on July 5, 2018.
Neither party appeared on December 3, 2015, and the matter was dismissed. This
court cannot determine whether any issues pertinent to community property were
16
additionally set for this date. As previously mentioned, it appears what was set for
December 3, 2015, was Susana's objections filed August 20, 2015. Although
untimely, the trial court did set a hearing date for that pleading, which was continued
twice until December 3, 2015. The August 20, 2015 pleading only objected to the
child support recommendation made by the Hearing Officer, not the community
partition. Thus, we cannot say that the trial court erred in denying the motion to
continue, or whether that hearing would have been pertinent to the issues at hand.
Assignment of Error No. Five:
In her fifth assignment of error, Susana asserts the trial court erred in accepting
the Hearing Officer's 2015 recommended value of $15,000 for the 2008 Honda
Odyssey instead of the market value of the vehicle at the time of trial. In her updated
detailed descriptive list dated August 18, 2019, Susana values the Odessey at $2,820.
She cites Darden v. Darden, 48,971 (La.App. 2 Cir. 5/14/14), 139 So.3d 33, and
La.R.S. 9:2801(A)(4)(a) in support of her argument that the parties' assets should be
valued as of the time of trial on the merits.
In this case, several of the parties' assets were valued at the Hearing Officer
Conference on April 21, 2015. Those values were finalized when the
recommendations became a final judgment on May 11, 2015. The 2008 Honda
Odyssey was one of those items. The Hearing Officer considered Susana's 2012
detailed descriptive list as well as Ross's updated detailed descriptive list. Both
parties valued the Odyssey at $15,000. This particular valuation was signed as a
judgment on May 11, 2015, after no timely objection to the hearing officer's
recommendation was made. No appeal was taken from that judgment. Thus, the
trial court did not err in using this value in the final partition.
17
Assignment of Error No. Six:
In her sixth assignment of error, Susana asserts that the trial court erred in
determining that the MobilOil Credit Union Account was Ross's separate property.
Susana asserts that the evidence showed Ross transferred money from Susana's
separate account into his Mobil Oil Credit Union Account. Furthermore, Susana
asserts her paychecks were eventually directly deposited into the MobilOil account
as well.
First, we note that nowhere in the judgment or written reasons is the MobilOil
account, as a whole, determined to be Ross's separate property. In fact, neither party
lists the MobilOil account at all as an asset of either party or of the community. Thus,
we assume that Susana means to argue that the trial court erred in determining
$10,000.00 which was withdrawn from the MobilOil account during the marriage
and transferred to the TD Ameritrade 5508 account was Ross's separate property.
The trial court reviewed the evidence and testimony, which included multiple
days of Susana's testimony. Susana challenged the expert accountant's, Mr. Robert
Ehlers, finding that the $10,000.00 transfer out of the MobilOil account was a
transfer of Ross's separate property because the MobilOil account was a community
account where their funds were comingled. However, it was Mr. Ehlers'
determination that the $10,000.00 was Ross's separate property, already existing in
the MobilOil account, prior to the marriage. He explained that while some of
Susana's funds may have been transferred into Ross's account, the MobilOil account
never got below $10,000.00. Thus, that $10,000.00 remained separate property.
To determine the classification of this $10,000.00 contribution, the parties
submitted the MobilOil statements for the court's review. The statement from June
2001, of Ross's account shows that there are two accounts "Acct 1" and "Acct 10."
18
Mr. Ehlers described the accounts as basically a checking and a savings account.
The June 1, 2001, through June 30, 2001, previous balances were $13,977.26 and
$5,579.19 respectively. On June 30, 2001, the new balances were $9,068.85 and
$12,006.56 respectively. The parties were married on June 29, 2001.
Susana provided her bank account number to show that transfers were made
from her account into that of Ross's MobilOil account. However, even subtracting
those transfers, Ross's accounts, combined, were never less than $10,000.00,
corroborating Mr. Ehlers' testimony. After December 2001, the transfers from
Susana's account stopped, but it appears, as she testified, her payroll was then
directly deposited into Ross's account, as was his own payroll.
In January 2002, a third account, Acct #19 was established. Thereafter, the
three accounts remained significantly above $10,000.00. In September 2002,
approximately $30,000.00 was withdrawn, but the remainder in the accounts still
surpassed $10,000.00.
Therefore, based on the evidence in the record and even acknowledging
Susana's contributions to the MobilOil account, using the last in first out method,
Ross's original and separate money in the account prior to the marriage, was never
spent during the marriage prior to 2003. Susana presented no other evidence or
testimony to contradict Mr. Ehlers' calculations. Accordingly, when Ross
transferred $10,000.00 from the MobilOil account to the Ameritrade 5508 account
in 2003, it is a reasonable conclusion that those were Ross's separate funds. We find
no error in the trial court's finding that the $10,000.00 transfer was Ross's separate
property.
19
Assignment of Error No. Seven:
In her seventh assignment of error Susana asserts that the trial court erred in
denying her claim for rental value of the marital home while Ross had exclusive use
of the home pending the partition trial. Susana suggests that the court erred because
it clearly did not consider her economic situation and favored Ross in permitting him
a mortgage payment reimbursement. Susana made a claim for rental credit for the
first time in her updated detailed descriptive list signed August 18, 2019, and filed
during the partition trial. The trial court denied Susana's claim, finding that she did
not reserve her right to a rental credit.
Louisiana Revised Statutes 9:374(C) (emphasis added), as it was written
during the time of trial and signing of the judgment, provided:5
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.
Ross was awarded exclusive use and occupancy of the home in the March 12,
2014 judgment. At that time, Susana had not made a rental reimbursement claim.
Additionally, no contemporaneous award of rental reimbursement was made by the
trial court nor does there appear to be an agreement between the parties that rent
5
The current version of La.R.S. 9:374 became effective August 1, 2022. The current
statute appears to significantly change the language of the prior version.
20
would be owed, as in Gallaty v. Gallaty, 11-1640 (La.App. 4 Cir. 10/3/12), 101 So.3d
501, or Averill v. Averill, 18-299 (La.App. 1 Cir. 9/21/18) (unpublished
opinion)(wherein the parties consented to deferring the rental reimbursement issue
until the partition proceedings instead of deciding the issue contemporaneously with
the award of the use and occupancy of the home).
Considering the law above and the timing of Susana's claim for rental
reimbursement, we cannot say that the trial court erred in finding that Susana failed
to reserve her claim and in denying her rental reimbursement.
Assignment of Error No. Eight:
Susana asserts that the trial court erred in assessing her fifty percent of the
costs for the accountant expert witness, Robert Ehlers. In support, Susana argues
that the accountant was hired by Ross, only considered documentation and
information provided by Ross, and that the accountant did not request any
information from Susana.
Mr. Ehlers was the expert certified accountant who testified at trial regarding
the parties' TD Ameritrade accounts and one employer-sponsored deferred
compensation account. Mr. Ehlers analyzed the account contributions, classified
them as either community or separate property, then analyzed the dividends and
interest earned on the accounts. His costs totaled $18,562.50. Susana did not present
an expert accountant at trial. The trial court did not assess Mr. Ehlers' costs as court
costs but considered his invoice a community obligation and permitted Ross
reimbursement of one half of the total which he had already paid.
Although Ross provided Mr. Ehlers with all documentation and information,
Mr. Ehlers did testify that he contacted Julie Gray, who he believed to be Susana's
CPA in Houston. Mr. Ehlers testified that he sent her a copy of his spreadsheet as
21
well as all the data, had several communications with her via email and telephone,
but never received any documents from her or Susana or any corrections to his work.
Furthermore, Susana was able to cross-examine Mr. Ehlers, and Mr. Ehlers
even provided a recalculation to the court based on information provided by Susana.
Specifically, after cross-examination by Susana's counsel regarding the origin of
approximately $82,000 alleged to be separate property that rolled over into a
Vanguard account, and upon the suggestion that the sum was not Ross's separate
property, Mr. Ehlers did a recalculation of that account assuming the $82,000 was
community property. This recalculation was introduced as Susana #3, whereas the
original calculation was admitted as Ross #5. In fact, the trial court ultimately used
Susana #3, the recalculation, in its final determination and in finding that the amount
was community.
Considering the necessity of Mr. Ehlers's testimony in classifying and
calculating the values of these accounts, the traversal of Mr. Ehlers and his work
accomplished on cross examination, and the trial court's finding "that [Mr. Ehlers's]
evaluations were beneficial to both parties in that it helped establish the community
values in accounts that benefitted both parties," we cannot say that the trial court
was manifestly erroneous in labeling Mr. Ehlers's costs as a community obligation.
Assignment of Error No. Nine:
Susana alleges that the trial court erred in granting Ross reimbursement for
Susana's removal of $65,000.00 from a community account to pay for living
expenses and expenses for the children. The value was established in the May 11,
2015 judgment. It seems that Susana argues that she should not owe Ross
reimbursement because she took the money to pay for the house, the children,
22
medical expenses, utilities, and her general costs of living because she was
unemployed.
At trial, Susana testified that, prior to filing for divorce, she was advised by
an attorney to remove the funds to pay for her expenses since she was not employed.
Susana removed the funds from a community account. She further testified that as
of the day of trial, she did not have any of these funds remaining in her possession.
Susana acknowledged that, during the time she was in possession of these funds,
Ross was paying her an approximate total of $2,500.00 per month for child support
and spousal support. Eventually, the Hearing Officer recommended that Ross pay
the mortgage note in lieu of spousal support. Additionally, the trial court granted
Susana a reimbursement claim for half of the mortgage notes that she paid on the
home, despite Susana failing to introduce evidence of said payments. Instead, Ross
acknowledged that Susana made at least $12,878.45 in payments between March 1,
2011, and April 2, 2012.
There is simply no evidence submitted to show how Susana spent the
$65,000.00, or that it was spent on community debts. If community funds are used
to pay for separate obligations, the other spouse is entitled to a reimbursement of one
half the value of the property. La.Civ.Code art. 2364. Even her own testimony is
just general categories of items, with no specific amounts or bills. Without more,
we cannot say that the trial court erred in finding that Susana owed half of the
$65,000.00 as reimbursement to Ross.
Assignment of Error No. Ten:
Susana asserts that the trial court erred in classifying assets as community or
separate based only on information provided by Ross, without supporting evidence
and without providing Susana an opportunity to respond or to participate in traversal.
23
She does not specifically state which assets she believes were improperly
categorized, but merely references her Exhibit W, pages 184 through 217. We
previously struck pages 184 through 214 from her brief for the reasons provided
above. We reiterate that those pages are transcript pages from the August hearing,
and are found in the record, but they were struck from Susana's brief due to
alterations she made on the exhibit.
The only indication of which assets she may be referring to can be found under
"Assignments of Errors" in her brief, wherein she asserts that "the Trial Court
committed multiple legal errors by taking as facts statements made only by appellee
and verbal information provided by appellee to the accountant he hired without
entering supporting account statements or documentation into the record that proved
the information given by appellee was authentic or real." As previously discussed,
Susana's counsel cross-examined Mr. Ehlers, the expert accountant, at trial and
provided additional information for his consideration.
Mr. Ehlers examined three accounts, two TD Ameritrade accounts and the
Vanguard account. After examining one of the TD Ameritrade accounts, Mr. Ehlers
opined that it was all community property. Furthermore, regarding the Vanguard
account, the trial court clearly accepted Susana's testimony regarding the initial
funds to begin that account, as it determined that the initial $82,441.02 was
community, disregarding Ross's claim that those funds were separate. Thus, the trial
court did not rely solely on information provided by Ross in determining whether
this asset was community or separate and Susana was clearly permitted to provide
evidence during trial and did, in fact, participate in the cross-examination of this
witness. Therefore, the only account Susana would likely have a complaint about
24
would be the TD Ameritrade ending in 5508, which the court classified as the
separate property of Ross.
Regarding the Ameritrade 5508 account, Mr. Ehlers testified that this account
is basically a savings account, not a deferred compensation plan like the Vanguard
account. Mr. Ehlers classified the contributions to the account as well as the interest
and dividends earned on the account. As summarized by the trial court, Mr. Ehlers
explained:
[A]ll of the contributions were pre-community by Ross. Since there
were distributions from this account using LIFO, last in first out, he
determined that all of the community portion of the account was
distributed. So, as of the date of trial, the remainder in the account,
$131,391.69, is Ross's separate property.
The trial court reviewed the evidence and testimony, which included multiple
days of Susana's testimony. Susana challenged Mr. Ehlers's finding that all
contributions to the Ameritrade 5508 account were pre-community by Ross. Susana
specifically points out that $10,000.00 was transferred from a MobilOil Credit Union
account into the Ameritrade 5508 account on June 12, 2003, during the marriage.
She asserts that the MobilOil account was community. However, it was Mr. Ehlers's
determination that the $10,000.00 was Ross's separate property, already existing in
the MobilOil account, prior to the marriage. He explained that while some of
Susana's funds may have been transferred into Ross's account, Ross's MobilOil
account never got below $10,000.00. Thus, that $10,000.00 remained separate
property. Aside from the $10,000, no other contributions were made to the
Ameritrade 5508 account during the marriage.
As previously explained in Assignment of Error No. Six, we find no error in
the trial court's finding that the $10,000.00 transferred from the MobilOil account to
the Ameritrade 5508 account was Ross's separate property. Thus, regarding the
25
Ameritrade 5508 account, as Mr. Ehlers concluded, all contributions to that account
were from Ross's separate property. According to Mr. Ehlers, the community
portion of the 5508 account was distributed during the marriage, leaving only Ross's
separate property in the account. Therefore, when the 5508 account was being used
after the termination of the community regime to pay for court-ordered items such
as the $20,000 to Susana to assist her in finding housing, that money was Ross's
separate property.
After a review of the record, we cannot say that the trial court erred in
classifying the Ameritrade 5508 account as Ross's separate property after it clearly
considered information provided by both parties.
Assignment of Error No. 11:
In her eleventh assignment of error, Susana alleges that the trial court awarded
Ross reimbursements without considering whether community property was used to
pay for those expenses. Specifically, Susana alleges that Ross used funds out of the
TD Ameritrade 5508 account to pay for community expenses and that, based on Mr.
Ehlers's testimony, that account had community funds in it. She then asserts that
Mr. Ehlers determined the Ameritrade 5508 account exhausted all community funds
during the marriage without any supporting evidence being presented.
The issue of the TD Ameritrade 5508 account was discussed at length in both
Assignments of Error Numbers Six and Ten. Mr. Ehlers testified that all
contributions to the 5508 account were made with Ross's separate property, and any
distributions from this account classified as community property were distributed
during the community property regime using the last in first out method. Thus, any
funds remaining in this account after the termination of the community property
regime were Ross's separate property. Therefore, Ross may assert a reimbursement
26
claim for any community obligations paid with money from the TD Ameritrade 5508
account after the termination of the community property regime. We find no error
in the trial court's award of reimbursements to Ross based on the use of these funds
for community obligations or Susana's separate obligations.6
Susana also argues within her brief that the trial court erred in dismissing her
allegation that Ross used community property to pay the taxes on capital gains
earned from the Ameritrade Investment account. Susana alleges that the trial court
stated no testimony or evidence was presented so the claims were dismissed.
Susana does specifically argue that "Ameritrade documents and tax returns
during the years of marriage showing tax payments with community funds for capital
gains earned from the Ameritrade account were included." First, we note that there
is more than one TD Ameritrade account involved in this litigation and Susana does
not identify the accounts by number. One, account 5508, was determined to be
Ross's separate property as previously discussed at length, and another, a Roth IRA,
was determined to be community and awarded to Susana.
There was testimony regarding the sale of Sirius XM stock within the TD
Ameritrade 5508 account, and whether community property was used to pay for the
capital gains. Susana relied on a Schedule D in her testimony. Mr. Ehlers testified
that Schedule D simply reports trades, sales of capital assets (a stock, bond). Mr.
Ehlers further testified that, looking only at the Schedule D worksheet, there is not
per se a way to actually determine how much money was in the account or how much
6
The Written Reasons note several times where Ross used TD Ameritrade 5508 account
funds to pay for community obligations or Susana's separate obligations: a portion of the down
payment for the marital home, a $20,000.00 advance to Susana ordered by the March 12, 2014
custody judgment so she could obtain housing and for her support, and the children's daycare and
counseling/therapy with Dr. Simoneaux.
27
value was in the account. Mr. Ehlers explains that "there is a tax paid on the
difference between what you bought it for and what you sold it for. . . . And it's
reflected on that Schedule D." He further testified that "the taxpayer who is making
the trades, they're paying the tax on the – on the gains."
Mr. Ehlers was shown a tax return from 2012 reflecting shares sold of
Ameritrade at a cost of $358.91. However, Mr. Ehlers testified that he cannot
determine which of the two Ameritrade accounts that came from. Furthermore, Mr.
Ehlers was asked a series of hypotheticals, without being provided a specific
document, regarding if the community pays a debt declared a separate debt, would
it complicate the classification of the account or the reimbursement issue. Mr. Ehlers
explained as best he could based on the hypotheticals he was presented and after
specifying that he was "not 100 percent sure that's what you're asking":
[I]t could be a combination of community and separate. It could be a
ratio, much like the Sims calculation that we're doing. And it could be
- - if - - if 10 percent of it was determined to come from separate and
90 percent from community, I support we'd have to look again to the
flow of funds, what - - what flow methodology, last in, first out . . .
On redirect, the previous question was clarified as being a "possible scenario
of the community paying a tax burden during the marriage in connection with trading
of separate assets[.]" He was then posited another hypothetical:
Q. . . . If he has filed taxes since the separation that have included
these capital gains and losses on not only his separate accounts but also
the community portions of the accounts under his control, then is it
reasonable to assume that he has also paid taxes out of his separate
income for the past few years on the community capital gains?
A. I think that's reasonable. . . .
Q. And you don't have the ability, as you sit here today with the
information you have, to say if a strict calculation were done on, not
only his accounts, but her's as well, where we would land on those
reimbursement claims, correct?
28
A. I can't answer that. . . . I don't have enough information to
compute that.
We reiterate that Susana's brief is unclear regarding which reimbursements,
specifically, she is challenging. Regarding the alleged payment of taxes on TD
Ameritrade 5508 capital gains with community funds, considering the evidence and
testimony provided, specifically Mr. Ehlers's testimony that he cannot determine,
based on the tax return shown to him, which of the two Ameritrade accounts costs
came from, we cannot say that community funds were used to pay a separate
obligation of Ross. Furthermore, as to any other reimbursements awarded to Ross,
for the foregoing reasons, we continue to find no error in the trial court's award of
reimbursement claims to Ross.
Furthermore, we note that the trial court also found no evidence regarding
several accounts and stocks. We agree that there was simply no clear evidence
regarding these assets and find no error in the trial court's judgment.
Assignment of Error No. 12:
In her twelfth assignment of error, Susana argues the court erred in granting
Ross reimbursement for storage fees. Susana asserts this finding was in error
because Ross never informed Susana that he had a storage unit with her belongings
and asserts he should not receive this credit when he admitted to disposing of
Susana's belongings and receiving a charitable credit for them.
The Hearing Officer's recommendation regarding Susana's belongings
became a judgment on May 11, 2015. That recommendation stated the following
regarding movable property:
IT IS FURTHER ORDERED ADJUDGED AND DECREED
that SUSANA is to contact ROSS to make arrangements to take
possession of any of her personal/movable property that is left in the
29
home. If she fails to do so by July 1, 2015, the[n] ROSS may dispose
of said items as he sees fit.
At trial, Susana admitted that she did not make any attempt to contact Ross
regarding her belongings. Ross also testified regarding the storage unit. He testified
that a storage unit was necessary because when he "moved back into the former
family home there were boxes stacked to the ceiling in the girls' room. . . . So, for
their safety I removed all those boxes from the home and put them in storage[.]" He
explained that there was not room to keep the boxes in the garage, and he felt that
an air-conditioned storage unit was better to preserve the value of the items. He
further testified that after the custody hearing, he did not have a current email
address, current phone number, or current address for Susana, and that the curator
failed in his attempts to contact her. Ross introduced the storage statement to
corroborate his testimony that he began renting the storage unit on March 15, 2014,
until August 2015, approximately one- and one-half months after he was required to
keep Susana's possessions.
Under the May 11, 2015 judgment, it was Susana's obligation to arrange the
pick-up of her movable possessions from Ross, which she failed to do. Under that
same judgment, Ross was obligated to keep Susana's possessions until July 1, 2015,
when he could dispose of them. Ross also provided reasonable reasons why a
storage unit was necessary and provided the statement of expenses paid. Based on
the foregoing, we find no error in the trial court's determination that Ross proved he
is owed a reimbursement claim for these storage fees.
Assignment of Error No. 13:
Susana asserts that the trial court erred in denying her reimbursement requests
during the trial in 2018, when she did not have access to the community funds or
30
assets. Specifically, she seeks reimbursement for "legal fees in connection with
attorney fees for divorce" and payments she made for "other community
expenses[.]" She supports her claim by citing to her father's testimony that he loaned
her money to "pay community expenses" and references the list of loans in the
record.
Louisiana Civil Code Article 2365 provides that a spouse is entitled to
reimbursement for one-half of the amount when his or her separate property is used
to satisfy a community obligation. It was Susana's burden to prove that she
expended separate funds on community obligations to entitle her to reimbursement.
Harriss, 204 So.3d 209. However, we also recognize that La.Civ.Code art.
2362.1(A) provides: "An obligation incurred before the date of a judgment of
divorce for attorney fees and costs in an action for divorce and in incidental actions
is deemed to be a community obligation."
Susana's father, Jesus Fernandez, testified at the child support trial regarding
loans he made to Susana. He testified that he prepared a document with dates and
amounts that he transferred to Susana in the years 2015 through 2018, totaling
$28,886.54. He also reviewed his bank statements while testifying, to explain some
of the transfers, some of which were in Spanish. He testified that, while some of the
amounts were transferred to Susana's account, some were paid directly to her
apartment complex. Specifically, he paid the apartment complex directly while
Susana was in the hospital for mental issues in 2017 to ensure she would have a
place to go when she was discharged. He further explained that he loans Susana
money because she does not have sufficient funds to pay her bills and expenses. He
has also loaned her money for hotels when she needs to travel to see her attorney or
appear for court as well as the money to hire an attorney in 2011.
31
Specifically, Mr. Fernandez reviewed his bank statement and testified that a
transfer on December 20, 2011, for $5,000.00 was for Susana to retain an attorney.
While Ross's counsel objected to the testimony as it did not relate to child support,
we find it corroborates Susana's testimony that she hired an attorney in 2011 prior
to any judgment of divorce. Thus, we find that the $5,000.00 for attorney fees in
2011 was a community obligation pursuant to La.Civ.Code art. 2362.1 for which
Susana is entitled to reimbursement for one-half, or $2,500.00.
The spreadsheet entered into the record evidencing these loans show loans
from 2015 through 2018. Some are labeled as loans for hotels, others are simply
transfers. On October 4, 2015, there is a loan labeled "to pay for attorney retainer
fees[,]" but it does not indicate which attorney or which part of this case the attorney
was hired for: child support, child custody, or community partition.
Regarding the other assertions by Susana, Susana has not carried her burden
in proving that she expended separate money, particularly the remainder of the
money loaned to her by her father, on community expenses. Instead, the testimony
was that the money loaned to her by her father, aside from the attorney fee in 2011,
was for Susana's separate living expenses post-divorce and post-custody judgment.
Thus, we find no error in the trial court's denial of these reimbursement claims,
except for one-half of the $5,000.00 for 2011 attorney expenses.
Assignment of Error No. 14:
In her final assignment of error, Susana asserts that the trial court erred in
denying her a "fair and equitable partition by denying her motions and ignoring her
allegations of abuse and financial struggles." She further asserts that many of her
motions denied by the trial court would have assisted the court in an equitable
partition but were denied due to her failure to pay costs. Susana also references the
32
child support arrears she continues to pay and continues to suggest that the trial court
erred in that ruling and failed to consider her financial and mental situation.
In its written reasons, the trial court acknowledged the numerous "courtesies"
and continuances extended to Susana throughout these proceedings. The trial court
stated:
Mrs. Moody blames someone, other than herself, for whatever situation
she finds herself in. This time, when questioned why she does not have
documents in support of some of her claims or why she has not filed
motions to compel or subpoenas to get documents, it is her attorney's
fault, Mr. Moody's fault or Mr. Moody's attorney's fault because she
does not have money or the documents. This Court has extended many
courtesies to Mrs. Moody that it would not otherwise do in order to try
and accommodate her mental health conditions. The court has given
her numerous continuances and every opportunity possible for a fair
and equitable trial . . . . However, the Court must apply the law based
on the proof and evidence submitted at trial. If that evidence is not
provided to the Court, the Court has to decide accordingly.
We also recognize that many of the continuances were requested by Susana
herself. Furthermore, a review of the record does not indicate that "all motions . . .
that would have assisted the court in determining a fair and equitable partition were
ignored" due to her failure to pay costs. In fact, this court notes the following
pleadings as indicating costs were not paid: a motion to continue the December 3,
2015 hearing, which may not have been related to the community partition at all as
previously discussed; an April 6, 2016 objection to hearing officer's
recommendations regarding child support, income tax deductions, and medical
expense reimbursements; and a September 6, 2017 witness and exhibit list, pretrial
memorandum.
As previously discussed, the record supports the conclusion that the trial court
considered testimony and evidence presented by Susana, which challenged many of
33
the claims made by Ross. Susana was also permitted to file an updated detailed
descriptive list, which is in evidence.
Considering the entirety of the record, we find no merit to this assignment of
error.
ROSS MOODY'S ANSWER TO APPEAL
Ross filed an Answer to Appeal to assert four of his own assignments of error
as discussed below.
Assignment of Error No. One:
First, Ross asserts that the trial court erred in determining and allocating the
mortgage balance owed on the marital home as of the date of the partition trial.
Specifically, Ross argues that the court erroneously used its own estimation rather
than the mortgage statement in evidence to determine the mortgage balance, which
would then require adjusting/reducing the equalization payment using the correct
mortgage balance which is in evidence.
After concluding that the most recent mortgage statement in the record was
April 21, 2015, the trial court estimated that the mortgage balance as of the date of
the partition trial, August 21, 2019, was $79,000.00. The court explained its
reasoning in the estimation:
The obligation as of April 14, 2015, is $115,737.00. However, that is
four years ago and there is no doubt that the mortgage has decreased as
Ross testified that he has being making the mortgage payments and
never missed a payment. From his statements of his mortgage
payments, he has paid $52,887.32 in mortgage payments between the
date of the Hearing Officer conference [April 21, 2015] and date of trial.
. . . Recognizing it is not a dollar for dollar credit as not all of the
payment is going towards the principal estimating an interest rate of
around 3.5%, the difference between the total payments and the debt
reduction in interest would be about $15,000 to $16,000 between 2015
and 2019, so the debt balance would be around $78,000 to $79,000.
34
However, Ross argues in brief that he introduced a mortgage statement dated
July 2018, which indicated that the principal mortgage balance was $105,511.46
after his payment on July 1, 2018, a difference of $26,511.46 with the court's
estimation. Thus, he argues, he "is entitled to a credit of ½ of that amount, or
$13,255.73 toward (reduction of) the equalization payment."
Ross also acknowledges that payments were made between his July 1, 2018
payment and the date of trial, and that it would be reasonable to account for those
payments as follows:
A fair method would be to subtract the average mortgage principal
payments Ross made between April 11, 2015 and August 1, 2018
($115,737.00 less $105,511.46 - $10,225.54 / 39 [the number of
mortgage payments between May 1, 2015 and August 1, 2018] =
$262.19 x number of months between August 1, 2018 and August 20,
2019 [12] - $3,146.28) from the mortgage balance on August 1, 2019 .
. . effectively making the mortgage balance as of August 20, 2019
$102,365.18 . . . In other words, Ross's equalization payment should
be reduced by one half of this amount $11,682.59[.]
The statement referred to by Ross is found as Ross Moody 8, admitted at the
trial on July 5, 2018. The statement shows Ross's principal balance after July 1,
2018, as $105,511.46, and that the interest rate was 5.75 percent, significantly higher
than the trial court's estimate of 3.5 percent.
Although a trial court's factual determinations in valuing and allocating assets
and liabilities are reviewed under the manifest error standard of review, when the
record establishes that a reasonable factual basis does not exist for the finding, and
the finding is clearly wrong based on the record, the appellate court may set aside
those factual findings. See Thomasee, 362 So.3d 797 and Arterburn, 176 So.3d
1163. Thus, because we find the trial court committed manifest error in its
calculation and failing to use the more recent mortgage statement showing an
updated principal balance owed, we will conduct a de novo review and render a
35
judgment based on the merits. Siverd v. Permanent Gen. Ins. Co., 05-973 (La.
2/22/06), 922 So.2d 497.
The record does not contain all mortgage payments made on the marital home.
The trial court noted a balance as of April 14, 2015, but there was also a more recent
balance as of August 1, 2018, in the record. The 2018 statement also shows the
principal balance history dating back until July 5, 2017, at which time the principal
balance was $108.863.16. Ross testified that the mortgage amount goes up or down,
every May, depending on escrow.
Considering the lack of evidence regarding the principal mortgage balance
between April 14, 2015, and August 1, 2018, we find the calculation presented by
Ross, by averaging mortgage principal payments between those dates and dividing
them by the number of months, thirty-nine, to be a fair way to estimate the principal
balance as of the date of trial. In doing so, we reach a balance paid towards the
principal of $3,146.28.
After subtracting $3,146.28 from the last known principal balance of
$105,511.46, we conclude that a fair estimation of the principal balance on the date
of trial, August 20, 2019, is $102,365.18. Thus, the community obligation on the
home is $102,365.18. This alteration increases Ross's total liabilities from
$79,000.00 to $102,365.18.
Assignment of Error No. Two:
In his second assignment of error, Ross asserts that the trial court erred in
determining and allocating the fees of Dr. John Simoneaux. Due to this alleged
erroneous allocation, Ross argues that his equalization payment should be reduced
accordingly.
36
Ross asserts the trial court only taxed Susana with the payment of the initial
visit to Dr. Simoneaux, $3,500.00, and failed to recognize two additional fees for the
second custody evaluation and Dr. Simoneaux's testimony. Ross asserts that Susana
lists these costs in her detailed descriptive list and only challenges her liability for
the charges.
Regarding Dr. Simoneaux's fees, the trial court stated in its written reasons:
Ross seeks reimbursement for fees paid to Dr. Simoneaux for the
parties' first and second custody evaluations totaling $8,500.00, and
$3,000.00 for Dr. Simoneaux's testimony at trial. Per the Mental Health
Order issued on April 26, 2011, Ross was ordered to pay the costs in
advance and the Court was to reassess at trial. In the Court's judgment
of March 12, 2014, the Court assessed all costs of the custody trial
against Susana. The judgment of May 11, 2015, did establish the value
of $3,500.00 for the first custody evaluation. However, no other values
were established and no evidence introduced that any other fees were
paid to Dr. Simoneaux by Ross such as cancelled checks, receipts or
paid invoices. Accordingly, the Court will grant Ross reimbursement of
$3,500.00 paid to Dr. Simoneaux.
The trial transcript of the discussion between the court and the parties
indicates Ross asserted three charges for Dr. Simoneaux related to the child custody
trial: $3,500.00, $5,000.00, and $3,000.00, which were the costs for two evaluations
and fees for testimony.
After reviewing the voluminous record on appeal, this court cannot find any
evidence of expenses for Dr. Simoneaux in the amounts of $5,000.00 and $3,000.00.
While his two reports appear in our records, any associated invoices do not. The
only mention of these numbers is the discussion between the court and parties at the
August 21, 2019 trial. Furthermore, Ross does not provide any record citations for
where those invoices or checks may be located. While Susana does list those values
in her detailed descriptive list as "Ross' value," Susana does not give any value to
these items. Furthermore, Susana testified generally that she included items on her
37
list because Ross had listed them on his, and she did so to challenge her potential
liability for those claims.
Considering the lack of evidence regarding Dr. Simoneaux's charges, aside
from the value set in the May 11, 2015 judgment, we find no error in the trial court's
finding.
Assignment of Error No. Three:
Similarly, in his third assignment of error, Ross asserts the trial court erred in
its determination and allocation of Dr. Patricia Post's fees for her testimony at the
child support trial in September 2017. He further asserts that this amount should
have been credited to him in the partition proceeding and that he is entitled to a
reduction in the equalization payment.
More specifically, Ross explains that Dr. Post's testimony and report fees
totaled $6,391.85, but the trial court only awarded a reimbursement of $2,000.00
finding that Dr. Post did not testify at any trials in 2017 or 2018. However, a review
of the written reasons shows that the $6,391.85 was dealt with under the section of
"Dr. Post Expenses," which had to do with Dr. Post's counseling of the children. The
trial court indicates that Ross, in part, sought reimbursement of $6,391.85 for
services between 2013 and March 14, 2014. The trial court did not grant
reimbursement of this amount but did grant reimbursement based on the parties'
percentages for uncovered medical expenses for all services from the custody trial
date, March 14, 2014, through 2018.
Under the heading "Dr. Pat Post—Trial Testimony & Report," which is what
Ross complains of in his brief, the trial court notes the following values that Ross
seeks reimbursement for: $2,000.00 for testimony at child custody trial, $2,000.00
for child support trial, and $862.50 for Dr. Post's report for the court. The trial court
38
also references the receipts Ross introduced in support at trial. Specifically, the court
explains:
The receipts he introduced at trial in support of his claim were a receipt
for $2,000 dated March 5, 2014, a receipt for $2,000 dated June 8, 2017,
a receipt for $600 dated June 29, 2018, and an invoice date indicating a
charge dated February 17, 2019, for legal work that he paid totaling
$262.50.
There is no doubt in the Court's mind that the payment of $2,000
on March 5, 2014, was for Dr. Post's testimony at the custody trial on
March 12, 2014. Costs were assessed against Susana in the child
custody trial (judgment of March 12, 2014). Accordingly, the Court
will grant Ross reimbursement of this amount. The Court is not aware
of any trials in 2017 or 2018 at which Dr. Post would be testifying. The
child support trial did not occur until 2019.
The Court is not aware of any letter requested by the Court in
anticipation of a trial. Accordingly, without any invoices or other
evidence that these receipts relate to any litigation in which the Court
assessed costs to Susana, the Court denies Ross' request for
reimbursement.
Ross's testimony and receipts in the record support the trial court's assessment
that Ross sought litigation fees totaling $4,862.50, not $$6,391.85 as alleged in his
brief. Of that $4,862.50, $2,000.00 was granted as reimbursement. Thus, we will
review Ross's claims for the remaining $2,862.50, which pertains to testimony in
2017 and a report for the court.
Susana's counsel objected to the introduction of the receipts at trial, arguing
that there is no corresponding invoice or indication what the receipts are for:
MS. GARRETT [Susana's counsel]:
They don't have the medicals attached to them. They're receipts,
but it doesn't say what they're for. It's just receipts.
THE COURT:
Oh, well, then how would he know that they're related - -
MR. HUDSON [Ross's counsel]:
Well, he would know that's what he paid for them, for instance,
a $2,000 fee for a court appearance.
39
THE COURT:
Oh, it says court appearance?
MR. HUDSON:
No, but I'm saying he can testify that's what it was for. It's
directly before the court, and the amount is a flat fee of $2,000 which
is her court appearance fee.
MS. GARRETT:
They were paid by charge account receipts that he could easily
have obtained.
THE COURT:
Yeah, you probably should have gotten a list from her. All right.
MR. HUDSON:
If not, Your Honor, at the least they would be cast as medicals
which would then at least be subject to - -
MS. GARRETT:
Again, you have to have the documentation to support it.
THE COURT:
Well, I know they're medical. I mean, she doesn't do anything
else.
MS. GARRETT:
But the EOBs, there's no EOBs attached to it to see what
percentage the insurance paid, if any, and that's what the problem is
with the other documents. They're incomplete.
THE COURT:
Okay. Well, they'll be received, and I'll just have to give them
the weight that they get.
The receipts themselves are customer copies of paper receipts from The
Psychology Clinic, with no information other than the date paid, the amount, and the
credit card used to pay them. There are three: March 5, 2014, in the amount of
$2,000.00; June 8, 2017, in the amount of $2,000.00; and June 29, 2018, in the
amount of $600.00. Additionally, there is a Statement from The Psychology Clinic
with several transactions, one being for legal work on February 17, 2019, in the
amount of $262.50. This is the only receipt that provides a description of the charge.
40
We will first address the $600.00 and the $262.50. One trial date was held in
2018, that was on July 5, 2018, at which Dr. Post did not testify. There is no
indication that a report or any work of Dr. Post was introduced at this date. Based
on the receipt in evidence, there is no description of services for what the $600.00
paid. Thus, we find no error in the trial court's denial of this reimbursement claim.
As for the $262.50 for February 17, 2019 legal fees, after reviewing the record this
court finds no additional work provided by Dr. Post in 2019 or thereafter. Ross also
does not provide any record citation to explain what this work was regarding.
Regarding the second trial testimony fee of $2,000.00, we find that the trial
court did err in concluding that Dr. Post did not testify again in 2017. The record
reflects that Dr. Post did testify on September 11, 2017, and two reports that she had
previously prepared on February 18, 2016, and June 11, 2017, were admitted into
evidence at that time. Dr. Post's testimony explains that those reports were
summaries of treatment and were issued in preparation for court appearances.
In Hodnett v. Hodnett, 36,532, pp. 8-9 (La.App. 2 Cir. 9/18/02), 827 So.2d
1205, 1210, the second circuit stated the following pertaining to casting a party with
costs:
The party cast in judgment is generally taxed with costs, but the
court may assess costs of a suit in any equitable manner. La. C.C.P.
art.1920. Upon review, a trial court's assessment of costs can be
reversed only upon a showing of an abuse of discretion. Grocery
Supply Company v. Winterton Food Stores, 31,114 (La.App.2d
Cir.12/9/98), 722 So.2d 94; Rauch v. Rauch, 98–730 (La.App. 5th
Cir.12/16/98), 725 So.2d 558; Mills v. Wilkerson, 34,694 (La.App.2d
Cir.3/26/01), 785 So.2d 69. The prevailing party is not taxed with costs
unless in some way he incurred additional costs pointlessly or engaged
in other conduct which justified an assessment of costs against that
litigant. Brown v. General Motors Corporation, 95–245 (La.App. 5th
Cir.10/18/95), 662 So.2d 531, writ denied, 95–3034 (La.2/16/96), 667
So.2d 1055; Rauch v. Rauch, supra.
41
In reviewing the prior judgments, we note, as did the trial court, that Susana
was assessed with costs in the 2014 custody judgment. The child support judgment
dated April 11, 2019, and the supplemental judgment dated April 30, 2019, did not
assign a party with court costs. The September 11, 2017 trial date was part of child
support hearings leading towards those 2019 judgments. While a portion of that
September 11, 2017 hearing involved testimony on the partition issue prior to
bifurcation, there is no question that Dr. Post's testimony was related to, and
necessary, in calculating child support, as she testified to the children's need for a
special caregiver.
Thus, considering the above, we do find it was error for the trial court to deny
Dr. Post's fees of $2,000.00 for testifying in 2017. Additionally, after review we find
that those fees should have been assessed against Susana, who was ultimately
ordered to pay child support. Thus, the reimbursements owed by Susana to Ross
should be increased by $2,000.00, awarding Ross $4,000.00 for reimbursement of
"Dr. Post's Testimony" rather than the original $2,000.00.
Assignment of Error No. Four:
In his last assignment of error, Ross asserts the trial court erred in denying his
claim for rental reimbursement during Susana's exclusive use and occupancy of the
marital home. Ross argues that he reserved his right to a rental credit and his
testimony that a fair rental value of the home was $2,000.00 per month was
uncontroverted and should have been allowed.
On April 21, 2015, the Hearing Officer ordered an appraisal of the marital
home to determine its value and fair rental value, however no testimony regarding
the fair rental value from an appraiser was presented.
42
The mortgage statements show that Ross pays roughly $1,000.00 per month
for the marital home. To determine a fair rental value, Ross went online to sites such
as Zillow and Ingle Safari for comparable homes and considered their rental value.
He testified that it was his "understanding . . . that about a dollar per square foot is
the - - is a reasonable amount" and that the marital home is approximately 2,000 or
2,050 square feet. When his counsel offered documents to assist in Ross's memory,
Susana's counsel objected to relevancy and validity, suggesting that Ross should
have asked the appraiser who assessed the home's market value. The trial court
agreed and sustained the objection.
Ross also argues that Susana listed the fair rental value of the home as
$2,000.00 in her detailed descriptive list as well, and this should be considered a
binding judicial confession. As Susana has before, we note that she testified she
would agree to this number if it also applied to her reimbursement for the time Ross
had exclusive use and occupancy of the home. In fact, she testified that, considering
the mortgage payments, "a rental value of $2,000 seems excessive[.]"
The trial court determined that Ross only provided his own self-serving
testimony regarding the rental value of the home. The court further noted that
despite the Hearing Officer's order for an appraisal of the home to include a fair
rental value, this was not done. Thus, the trial court held that "[w]ithout any
evidence on which to determine a fair market rental value other than Ross's
testimony, the Court will not grant this reimbursement request."
The factual findings and credibility determinations made by the trial court in
valuing and allocating assets and liabilities are also reviewed for manifest error.
Thomasee, 362 So.3d 797. We cannot say the trial court was manifestly erroneous
43
in not accepting Ross's self-serving testimony regarding the rental value of the home
when no supporting evidence was submitted at trial.
Furthermore, we also find that Ross's rental reimbursement claim falls subject
to the same error as Susana's claim. While Ross did make a claim for one-half of
the reasonable rental value of the home in his March 2, 2011 Answer and
Reconventional Demand, unlike Susana, the version of La.R.S. 9:374 (emphasis
added) in effect at the time of trial required the trial court to determine at the time it
awards the use and occupancy to a spouse, to also "at that time determine whether
to award rental for the use and occupancy and, if so, the amount of the rent." The
statute does provide that "[t]he 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." La.R.S. 9:374 (emphasis
added).
A Stipulated Judgment was signed on March 1, 2011, which stated that the
children would continue to reside in the marital home and be in the primary physical
custody of Susana. Nothing in the Joint Stipulations was mentioned about a fair
rental value of the home. Furthermore, the Stipulated Judgment signed May 17,
2011, also only states that Susana "shall have exclusive use and possession of the
former marital home" without any discussion of a rental value or evidence that the
parties agreed at this time to defer the issue. The next judgment or Hearing Officer
Recommendation in which use and occupancy of the home is awarded is the March
12, 2014 judgment, wherein Ross was awarded use and occupancy of the home.
44
Considering the above, and particularly the discretion given to trial court's in
making credibility determinations and factual findings, we find no merit to this
assignment of error.
CALCULATION OF EQUALIZATION PAYMENT:
Based on the foregoing, three areas in the trial court's calculations of the
parties' assets, liabilities, and reimbursements need to be amended. Thus, the final
equalization payment requires recalculation.
In recalculating the payment, it came to this court's attention that the trial
court's calculations of reimbursements owed by Susana and the "difference in
reimbursements" were incorrect. However, these numbers will be amended and
recalculated to reflect our changes to reimbursements for "Dr. Post's Testimony."
The alteration to the home mortgage increases Ross's total liabilities from
$79,000.00 to $102,365.18. After subtracting Ross's liabilities from his total assets,
the difference is now reduced to $582,365.30, and the difference in the parties' assets
is $496,732.27. Therefore, the equalization payment owed by Ross prior to the
consideration of any reimbursements is $248,366.14.
The alteration to the reimbursement owed by Susana to Ross for Dr. Post's
Testimony (an increase from $2,000.00 to $4,000.00) results in total reimbursement
owed by Susana to Ross of $218,658.26.
Additionally, Susana is entitled to a reimbursement of $2,500.00 from Ross
for one-half of the payment of attorney fees in 2011, which were a community
obligation. Ross owed Susana reimbursement in the amount of $6,439.23.
Therefore, the new reimbursement owed to Susana is $8,939.23 ($6,439.23 +
$2,500.00). The difference in reimbursements is now $209,719.03 ($218,658.26 -
$8,939.23).
45
Considering these new totals, the final equalizing payment owed by Ross to
Susana is $38,647.11 ($248,366.14 - $209,719.03).
DECREE:
Accordingly, the trial court's April 30, 2020 judgment partitioning the
community property of Susana Moody and Ross Moody is affirmed in part and
reversed in part. The final equalizing payment owed by Ross to Susana has been
recalculated to reflect the decisions of this court. Ross Moody is ordered to pay
Susana Moody an equalizing payment in the amount of $38,647.11. All costs of this
appeal shall be assessed equally between Ross Moody and Susana Moody.
MOTION TO STRIKE GRANTED. JUDGMENT AFFIRMED IN
PART; REVERSED IN PART; AND RENDERED.
This opinion is NOT DESIGNATED FOR PUBLICATION.
Uniform Rules—Courts of Appeal, Rule 2-16.3.
46