author: IWILLIAM H. BYRNES, III, Chief Judge.

text:
    Raymond WASHINGTON v. Jessie Mock WASHINGTON.
    No. 2002-CA-2226.
    Court of Appeal of Louisiana, Fourth Circuit.
    April 23, 2003.

      Ramona D. Washington, New Orleans, LA, for Plaintiff/Appellant.
    Rachel C. Marinovich, New Orleans, LA, for Defendant/Appellant.
    (Court composed of Chief Judge WILLIAM H. BYRNES III, Judge PATRICIA RIVET MURRAY and Judge DAVID S. GORBATY).
   IWILLIAM H. BYRNES, III, Chief Judge.

STATEMENT OF THE CASE

Raymond Washington filed suit on July 31, 1996 against his wife, Jessie Mock Washington, seeking a judgment of divorce dissolving their sixteen year, childless marriage, reserving his right to partition the community of acquets and gains then existing. Mr. Washington based his suit on the fact that he and his wife voluntarily lived separately and apart continuously for a period of more than six months.

Mrs. Washington was served personally on October 10, 1996. The trial court entered a preliminary default on November 8,1996. On March 10,1997, the trial court confirmed the default and entered judgment granting Mr. Washington an absolute divorce from Mrs. Washington.

On October 17, 1996, Mrs. Washington filed a rule to establish permanent alimony, claiming freedom from fault in the divorce and necessitous circumstances. On the same day, she filed a petition for partition of the community, rental and educational reimbursement, and injunctive relief. Mr. ^Washington answered and reconvened, seeking partition of the community and reimbursement of one-half of mortgage payments made during the previous ten years and of funds he allegedly paid for Mrs. Washington’s separate obligations.

In August 2001, Mr. Washington amended his reconventional demand seeking reimbursement of one-half of mortgage payments made from August 1987 to August 2001, reimbursement to his separate estate and to the community of payments of Mrs. Washington’s separate obligations, and reimbursement of repairs and maintenance expenses relating to the matrimonial domicile.

The case was heard on September 14 and 17, 2001 and the trial court entered judgment finding Mrs. Washington was not free from fault in the break-up of the marriage and denying her claim for spousal support. The trial court found that Mr. Washington failed to prove that he was entitled to reimbursement for use of his separate property to satisfy community obligations. Furthermore, he failed to prove that community property was used to satisfy Mrs. Washington’s separate obligations. The trial court denied Mrs. Washington’s claim for rental reimbursement for Mr. Washington’s use and occupancy of the matrimonial domicile and her claim for contributions to his education and training. The trial court recognized the parties’ stipulations concerning use of community funds and partitioning of community assets as the judgment and order of the court. From that judgment both parties appeal.

STATEMENT OF FACTS

laMr. and Mrs. Washington were married on September 27,1980 and lived separate and apart without the benefit of a judgment of separation or divorce from July 18, 1987. On July 31, 1996, Mr. Washington filed a Petition for Divorce, and divorce was granted by judgment dated March 10,1997.

The trial court accepted Mr. Washington’s testimony concerning the break-up of the marriage. According to Mr. Washington, on July 17, 1987 his wife abandoned their home without cause or warning, refusing to return. That day, he left the house early in the day as part of his normal routine and returned after drill with his military unit to find it vacant, stripped bare of furnishings, fixtures, window treatments, bed and bath linens, cookware, flatware, appliances, dinnerware, glassware and other household items. Furthermore, Mrs. Washington had discontinued the electrical and water service. The only furniture remaining in the house was a dining and kitchen set. Mrs. Washington left behind Mr. Washington’s military blanket on which he slept, one spoon, one fork and one plate. She took both their cars, leaving Mr. Washington no means of transportation. He then took a second job with the City of New Orleans in order to pay the mortgage on the former matrimonial domicile.

Mr. Washington testified that he was unaware of Mrs. Washington’s unhappiness and intent to leave. While conceding that the couple occasionally argued, he denied that this bickering would warrant her abandoning the home. |4 According to Mr. Washington, their arguments arose from Mrs. Washington’s use of marijuana and her determination to live beyond their means.

Mrs. Washington testified that she abandoned the matrimonial domicile because her husband was abusing her physically. Mr. Washington admitted one occasion on which he struck his wife, maintaining that he was attempting to defend himself and restrain her after she attacked him in the bathroom while he was shaving. The trial court accepted Mr. Washington’s testimony that Mrs. Washington provoked Mr. Washington’s physical response when she attacked him, and found that any physical attack beyond self-defense was the result of his wife’s provocation.

The trial court found no credible evidence to corroborate Mrs. Washington’s allegation that her husband habitually abused her, physically and emotionally. Furthermore, the court noted that although Mrs. Washington claimed that Mr. Washington kicked her in another incident, Mrs. Washington testified that she did not speak to anyone about the abuse, seek medical or psychological attention or report the alleged abuse to the appropriate authorities. She claimed to have told her and Mr. Washington’s relatives about the alleged incidents, but no one was called to corroborate the claim. The court found that Mrs. Washington’s allegations of physical abuse, other than the altercation initiated by Mrs. Washington in Mr. Washington’s bathroom, were not substantiated. Therefore, the trial court concluded Mrs. Washington was not free from fault.

IsThe trial court found as a matter of law that Mr. Washington would be entitled to reimbursement of one-half of the value of his property used to satisfy his wife’s separate obligations and to satisfy community obligations. However, the court found as a matter of fact that Mr. Washington submitted no documentary evidence to substantiate his claims.

Mr. Washington testified that during the process of obtaining financing for the matrimonial domicile, he discovered that Mrs. Washington had failed to pay income taxes for a period of time before they were married.

The trial court found no evidence of an agreement of the parties or a court order imposing a rental obligation on Mr. Washington arising out of his use and occupancy of the matrimonial domicile.

The trial court found that Mrs. Washington’s claim for reimbursement of contributions made toward her husband’s education was made on October 22, 2001, more than three years after the March 10, 1997 judgment of divorce.

On September 14, 2001 the parties filed a joint descriptive list of community assets and liabilities. The parties failed to agree on the following assets:

1. Value of matrimonial domicile: Mr. Washington values at $75,000 and Mrs. Washington values at $88,000;

2. Mr. Washington’s Charity Hospital retirement plan: Mr. Washington values at $24,603.42 and Mrs. Washington states the value as “unknown;”

3. Furniture in matrimonial domicile: Mr. Washington values at $650 and Mrs. Washington values at $6,000;

|r4. Wedding gifts: Mr. Washington values at $1,000 and Mrs. Washington values at $250.

The parties failed to agree on the following claimed reimbursements:

1. By Mr. Washington:
a. Mr. Washington’s separate funds used to make down payment on matrimonial domicile: $500
b. Loan to pay off IRS lien on Mrs. Washington’s separate property: $5,000
c. Payment for fur coat: $200
d. Repairs to Mrs. Washington’s car: $1,823.49
e. Improvements to Mrs. Washington’s Pauger Street property: $120
f. Separate property deferred compensation drawn down during marriage and used as income: $7,752.50
g. Separate property pension drawn down during marriage: $1,731.35
h. Mortgage payments for Pauger Street property: $1,396.95
i. Improvements to matrimonial domicile: $10,471.69
j. Income tax owed by Mrs. Washington: $300
k. Mortgage payments on matrimonial domicile: $69,699
2. By Mrs. Washington:
a. Rental reimbursement from August 1996 through August 2001: $45,000
b. Contribution to Mr. Washington’s education: $45,000
|7c. Mortgage payments on matrimonial domicile: $24,000
At trial, the parties stipulated that:

1.Mr. Washington’s Charity Hospital retirement plan and his military retirement benefits will be divided equally between the parties pursuant to the Simms formula, taking into account the years of Mr. Washington’s participation in the program and the years of the couple’s marriage.

2. The following assets are considered community property, at the values indicated, and are allocated to Mr. Washington:

a. Liberty Bank & Trust account 4356594: $1,031.78
b. Previously liquidated Savings Bonds: $8,500.00
c. Savings Bonds: $3,000.00

3. The following assets are considered community property, at the values indicated, and are allocated to Mrs. Washington:

a. Liberty Bank & Trust account 5101282481: $150.98
b. Fidelity . Homestead account: $567.55

4. The furniture acquired during the marriage by either party shall not be at issue in the community property partition, with each party retaining possession of any furniture and miscellaneous movables in his or her possession or control, with the exception of any wedding gifts, which shall remain an issue until resolved by the trial court.

5. The parties’ only liability is the mortgage on the former matrimonial domicile: $43,847.81.

I «6. Mr. Washington paid $48,000 towards the mortgage from July 31, 1996, the date the marriage was terminated.

7. Mrs. Washington owes Mr. Washington $200 reimbursement for her fur coat and $120 for improvements to her separate property.

Counsel for the parties agreed at trial that the only outstanding issues were:

1. The value of the matrimonial domicile

2. The value of wedding gifts

3. Reimbursement to Mrs. Washington of contributions to Mr. Washington’s education

4. Mrs. Washington’s entitlement to permanent alimony.

The trial court accepted the appraisal of the former matrimonial domicile performed by Jefferson Parish Appraisal Service.

Mrs. Washington testified that there were few if any wedding gifts because the wedding was held while the couple was in the process of buying their home, and had no money for a large wedding. Mr. Washington testified that there were about 150 to 200 guests at the wedding, which was given in a dance hall. According to Mr. Washington, the couple received “all types of gifts,” including toasters, china and stemware, all of which were taken by Mrs. Washington when she abandoned the matrimonial domicile. The trial court granted Mr. Washington $500 reimbursement for his share of the value of the wedding gifts. Mrs. Washington has not assigned error as to this portion of the trial court judgment.

| .STANDARD OF REVIEW

It is well settled that a court of appeal may not set aside a trial court’s or a jury’s finding of fact in the absence of “manifest error” or unless it is “clearly wrong,” and where there is a conflict in the testimony, reasonable evaluations of credibility and reasonable inferences of fact should not be disturbed on review, even though the appellate court may feel that its own evaluations and inferences are as reasonable. Where there are two permissible views of the evidence, the fact finder’s choice between them cannot be manifestly erroneous or clearly wrong. When findings are based on determinations regarding the credibility of witnesses, the manifest error — clearly wrong standard demands great deference to the trier of fact’s findings. Where a fact finder’s finding is based on its decision to credit the testimony of one or more witnesses, that finding can virtually never be manifestly erroneous or clearly wrong. Rosell v. ESCO, 549 So.2d 840, 844-845 (La.1989). See also, Hill v. Morehouse Parish Police Jury, 95-1100 (La.1/16/96), p. 4, 666 So.2d 612, 614. Ferrell v. Fireman’s Fund Ins. Co., 94-1252 (La.2/20/95), 650 So.2d 742, 745; Stobart v. State through Dept. of Transp. and Development, 617 So.2d 880 (La.1993); Arceneaux v. Domingue, 365 So.2d 1330 (La.1978).

We are instructed that before a fact-finder’s verdict may be reversed, we must find from the record that a reasonable factual basis does not exist for the verdict, and that the record establishes the verdict is manifestly wrong. Lewis v. State Through Dept. of Transp. and Development, 94-2370 (La.4/21/95), 654 So.2d 311, 314; Stobart v. State through Dept. of Transp. and Development, 617 So.2d 880 (La.1993). Athough we accord deference to the fact finder, we are Incognizant of our constitutional duty to review facts, not merely to decide if we, as a reviewing court, would have found the facts differently, but to determine whether the trial court’s verdict was manifestly erroneous, clearly wrong based on the evidence, or clearly without evidentiary support. Ambrose v. New Orleans Police Department Ambulance Service, 93-3099 (La.7/5/94), 639 So.2d 216, 221; Ferrell v. Fireman’s Fund Ins. Co., 94-1252 (La.2/20/95), 650 So.2d 742, 745.

Where trial court errors have tainted the fact finding process as to one or more issues and the record is complete, the appellate court may make a de novo review of the record and determine the preponderance of the evidence. See, Gonzales v. Xerox Corp., 320 So.2d 163 (La.1975).

MR. WASHINGTON’S FIRST AND FOURTH ASSIGNMENTS OF ERROR: The trial court erred in denying his claim for reimbursement of his separate property used for necessary improvements to the former matrimonial domicile. The trial court erred in denying his claim to reimbursement of community funds used to satisfy his wife’s separate obligations.

Interspousal obligations for reimbursement are provided for in Title VI of the Louisiana Civil Code, “Matrimonial Regimes.”

If separate property of a spouse has been used for the improvement of community property, that spouse upon termination of the community property is entitled to one-half of the amount or value that the property had at the time it was used. The liability of the spouse who owes reimbursement is limited to the value |nof his share in the community after deduction of all community obligations. La.C.C. art. 2367.

If a spouse’s separate property has been used to satisfy a community obligation, that spouse, upon termination of the community property regime, is entitled to reimbursement for one-half of the amount or value that the property had at the time it was used. The liability of a spouse who owes reimbursement is limited to the value of his share in the community after deduction of all community obligations. La.C.C. art. 2365. However, if the community obligation was incurred for the ordinary and customary expenses of the marriage in keeping with the economic condition of the community, the spouse is entitled to reimbursement from the other spouse regardless of the value of that spouse’s share of the community. Id.

If community property funds have been used to satisfy a spouse’s separate obligation, upon termination of the community property regime, the other spouse is entitled to reimbursement of one-half of the amount or value of the community property at the time it was used. La.C.C. art. 2364. Likewise, if community funds have been used for improvement of a spouse’s separate property, the other spouse is entitled upon termination of the community to one-half of the amount the community property had at the time it was used. La.C.C. art. 2366.

As the trial court noted in its reasons for judgment, Mr. Washington would be entitled as a matter of law to reimbursement, as provided by the Civil Code, of his portion of the repairs to the matrimonial domicile, the loan secured to pay off an IRS lien, mortgage payments on his wife’s separate property, automobile repairs, compensation and pension funds used during the marriage and income 112taxes paid from 1987 to termination of the community. However, the trial court found no evidence of any of these payments.

Mr. Washington submitted the following expenses incurred after the petition for divorce was filed:

$293.66 for repair of swimming pool pump’s compressor and maintenance;

$43.45 to replace kitchen sink’s hose bib;

$121.35 to replace faucet and shower-head and repair toilet;

$50.00 to check air conditioner;

$200 for “pool man”

$100 for “pool man”

$25.00 and $125.00 to Michael Brown for fence repair

Checks drawn to Color Tile for $12.03

Checks drawn in favor of Home Depot bearing no indication of purpose in the amounts of $79.65, $16.18, $8.65, $38.49, $16.01, $11.45, $7.56, $31.27, $27.93, $9.17, $34.50, $53.72, $47.37, $18.32, $28.98, $30.91, $10.75, $48.94, $10.79, $49.55, $10.87, $14.07, $25.45, $100, $100.80, $75, $100, $32.22, $26.37, $75, $75.49, $4.32, $10.86, $15.42, $76.63 and $176.08

$211.00 for repairs to air conditioning system, with paid receipt showing replacement of parts

Checks drawn in favor of Kevin Gray and Gray Pool service for $100, $100, $293.66 (together with invoice for motor, shaft and seal) and $75

Checks drawn to illegible payees in the amounts of $47 and $300

$203.74 for Stanley Steamer

113Unpaid invoices from Kevin Gray for $370.58 for pool repairs and service

Paid invoice from Technical Service for $150 for heater repair

Unpaid invoice for air conditioning service check

Illegible copy of invoice from Rooter Man dated December 22,1997

Paid invoice and check for $125.35 for repair to stopped-up sink.

We note that the trial judge asked that the evidence of Mr. Washington’s claim to reimbursement be submitted in globo, and counsel for Mr. Washington did not object to this method of handling the evidence. Furthermore, Mr. Washington did not provide proof that any of these checks represented the type of repairs for which he could receive reimbursement.

The parties stipulated to Mrs. Washington’s obligation to reimburse Mr. Washington $120 for improvements made to her separate property and $200 for her fur coat. It is impossible to determine from the exhibits in this record whether some or all of the checks represent payments supporting that stipulated obligation.

Our review of the record in its entirety supports the trial court’s determination that Mr. Washington failed to prove entitlement to reimbursements in addition to those stipulated by the parties. Given the trial court’s reasonable credibility choices, and the lack of testimonial or documentary proof that the checks were subject to reimbursement, we find no manifest error in the judgment as it relates to Mr. Washington’s claims for reimbursement

These assignments of error are without merit.

|14MR. WASHINGTON’S SECOND ASSIGNMENT OF ERROR: The trial court erred in denying his claim for reimbursement of separate property used to satisfy community obligations.

Mr. Washington did not brief his second assignment of error. This assignment of error is deemed abandoned. Rule 2-12.4, Uniform Rules — Courts of Appeal.

MR. WASHINGTON’S THIRD ASSIGNMENT OF ERROR: The trial court erred in refusing to admit evidence of his withdrawal of his state pension and deferred compensation to satisfy community obligations.

Mr. Washington produced a letter dated March 21, 1983 from the State of Louisiana Teacher’s Retirement System showing a balance in his account as of June 30,1982 of $3573.44. The letter enclosed at his request Form 7, Application for Return of Accumulated Contributions. A copy of the completed Form 7, signed by Mr. Washington and requesting refund of his contributions on deposit, is also in the record. Mr. Washington submitted a statement showing his accumulated contributions as of June 30, 1981 in the amount of $2,502.38. He submitted two copies of a Form W-2 Wage and Tax Statement from the State of Louisiana Deferred Compensation commission showing wages, tips and other compensation for that year in the amount of $12,837.76. Attached is a notice from the Teacher’s Retirement System of Louisiana addressed to Mr. Washington advising that the System received his request for an invoice to restore previously refunded credit. He also submitted the 1977 report of the LSU Medical School Deferred Compensation Plan showing a deferred income of $248.42. The trial court ruled these documents inadmissible as irrelevant hearsay.

11sWhether admissible or not, these documents do not constitute evidence of record that any specific amount of Mr. Washington’s separate funds were used to pay his wife’s separate debts or obligations of the community. It appeared that during the marriage the spouses’ funds were commingled, there being examples of Mrs. Washington’s having signed checks drawn on Mr. Washington’s account as well as evidence that each spouse contributed to the general expenses incurred prior to and during the marriage.

We are unable to discern from this record the amount, if any, of Mr. Washington’s retirement funds used either to support the community or to pay Mrs. Washington’s separate obligations. Mr. Washington did not produce evidence of the amount of the retirement fund withdrawals or of their use. He produced no evidence of any retirement funds having been deposited in Mrs. Washington’s separate account or in a community account. Simply stated, the documents submitted by Mr. Washington, even had they been admitted by the trial court, failed to prove his entitlement to reimbursement.

This assignment of error is without merit.

MR. WASHINGTON’S FIFTH ASSIGNMENT OF ERROR: The trial court erred in refusing to admit evidence of community funds used to repair his wife’s separate property automobile.

Mr. Washington attempted to introduce a repair estimate to substantiate this reimbursement claim. However, the record contains no evidence that the repairs outlined in the estimate were in fact made, whether they were covered to any extent by insurance, that the car was Mrs. Washington’s separate property or that the community paid for the repairs. Absent such proof, Mr. Washington cannot | -| (¡receive reimbursement of his community interest in the unproved net cost of repairs.

This assignment of error is without merit.

MRS. WASHINGTON’S FIRST ASSIGNMENT OF ERROR: The trial court was manifestly erroneous in finding her to be at fault.

In a proceeding for divorce or thereafter, the court may award final periodic support to a party free from fault prior to the filing of a proceeding to terminate the marriage. La.C.C. art. 111. Revision Comment (c) of 1997 to this code article notes that fault continues to mean misconduct that rises to the level of one of the previously existing.fault grounds for legal separation or divorce; however, the fault that precludes an award of spousal support must have occurred prior to the filing of the institution of the action for divorce^ in this case, July 1996. This legal fault may include, among other actions, habitual intemperance or excesses, cruel treatment or outrages, and abandonment. Mayes v. Mayes, 98-2228 (La.App. 1 Cir. 11/5/99), 743 So.2d 1257, 1259.

The existence vel non of fault is a factual question, and a trial court’s findings of fact on the issue of a spouse’s fault will not be disturbed on appeal unless found to be manifestly erroneous. Pearce v. Pearce, 348 So.2d 75, 77-78 (La.1977). It is our duty on appellate review to determine whether the record provides a reasonable basis for the trial court’s finding that Mrs. Washington was at fault to such a degree that she has lost her right to spousal support.

The record is clear that Mrs. Washington abandoned the matrimonial domicile, stripping it of all furnishings, appliances and accessories with the exception of a dining table, military blanket and one incomplete place setting of |17flatware and china, and terminating utility services. This abandonment alone is sufficient to constitute fault, so long as it was not caused by Mr. Washington’s own actions. Mrs. Washington testified that Mr. Washington’s physical and emotional abuse led to her abandonment of the matrimonial domicile.

Mrs. Washington had the burden of proving by a preponderance of evidence that Mr. Washington was guilty of at least one unprovoked and uncondoned act of abuse. See, Gilberti v. Gilberti, 338 So.2d 971, 974 (La.App. 4 Cir.1976). The trial court found she failed to carry this burden. We note from the record that Mrs. Washington’s testimony was unsupported by any evidence that she called the authorities, sought legal redress, sought the aid of a battered women’s program, or communicated the fact of the alleged assaults to family, friends or her Church. Although Mrs. Washington testified that she discussed her husband’s abusive behavior with her mother and sisters and members of Mr. Washington’s family, she did not offer their testimony to corroborate the allegation. There being no corroborating evidence or documentation of Mrs. Washington’s allegations, we cannot say that the trial court’s decision to reject Mrs. Washington’s unsupported testimony is manifestly erroneous or clearly wrong.

This assignment of error is without merit.

MRS. WASHINGTON’S SECOND ASSIGNMENT OF ERROR: The trial court was manifestly erroneous in denying her claim for contribution to her husband’s education.

1S It is uncontroverted that the trial court rendered the judgment of divorce on March 10, 1997. Seven months later, on October 17, 1997, Mrs. Washington filed a petition seeking, inter alia, reimbursement of direct financial contribution to Mr. Washington’s education and training, including but not limited to tuition, registration fees, living expenses, and related expenditures, citing La.C.C. art. 121. A copy of that petition is in the record.

Although the trial court concluded that Mrs. Washington’s initial claim for contributions to Mr. Washington’s education and training was made on October 22, 2001, we find that the petition filed in October 1997 states a claim for reimbursement pursuant to La.C.C. art. 121. Because as to this issue the record is complete, in the interest of judicial economy, we will review the evidence pertaining to this issue de novo.

In a divorce proceeding or thereafter, the court may order reimbursement to a spouse for his or her financial contribution during the course of the marriage to the education or training of the other spouse where that education or training increased the spouse’s earning power, to the extent that the claimant did not benefit during the marriage from the increased earning power. La.C.C. art. 121. Fault on the part of either spouse that contributed to the breakdown of the marriage is not relevant to a claim under this article. Revision Comment (c), 1990. The redactors make clear that the relevant equitable considerations weigh most heavily in favor of the contributing spouse in cases where the timing of the divorce prevents him or her from realizing benefits from the educational contributions. The usual situation liflthat has prompted the making of awards of this kind in other states has involved a wife who supported her husband through professional school, only to be divorced by him shortly after his graduation. Revision Comment (b), 1990.

Mr. Washington testified that prior to his marriage he earned a Bachelor of Science degree in Biology and Chemistry and attended graduate school at Southern University in Baton Rouge from 1975 to 1977 on a full fellowship. Mr. and Mrs. Washington testified that Mr. Washington pursued a Bachelor of Science, licensed registered nursing degree at Dillard University from 1982 until 1986, during the term of their marriage.

Mrs. Washington does not claim to have paid for Mr. Washington’s tuition, books or fees; however, she claims to have paid all of the household expenses during the time Mr. Washington was studying for his nursing degree. It is uncontroverted that during this time Mrs. Washington worked as a hair stylist, although the exact amount of her income is open to question. She admitted that, during the period of Mr. Washington’s attendance at Dillard, she helped pay no more than $200 monthly toward the expenses of her daughter by a previous marriage, who was then attending college.

Mr. Washington testified and provided documentary evidence that during the time he was pursuing his nursing degree, he held several full-time or part-time jobs. He worked a night shift, from about midnight to eight in the morning for LSU security, and also worked as a researcher at LSU, a custodian for Reliable Janitorial Service and throwing newspapers before school for John Chachere, an independent Times-Picayune newspaper dealer. He also worked at River Oaks Psychiatric Hospital, DePaul Hospital and Mercy Hospital as well as for the |MOrleans Parish School Board as a part-time substitute teacher. He earned money as a member of a United States military reserve unit.

He provided a statement from River Oaks Psychiatric Hospital attesting to his employment from December 26, 1988 through July 13, 1986 as a Psychiatric Attendant on the night shift, 11 p.m. to 7 a.m. He provided pay slips showing income in 1984 of $10,360.45; income in 1985 of $11,962.51 and income through mid-July 1986 of $6,627.64. Each year he authorized a $300 deduction for the United Way.

Mr. Washington provided Mr. John Chachere’s affidavit showing income from his newspaper route of $100 per week from 1977 through 1982.

The affidavit of Leroy Taylor, owner of Reliable Janitorial Service, shows Mr. Washington earned $125 every two weeks from September 1981 through December 1982, or a total of $2060 for 1982.

Pay slips from DePaul Hospital show income of $2,284.24 for 1985; income of $8,761.98 for 1986, and income of $69.29 for 1987.

Pay slips from Mercy Hospital show income of $483.95 through June 1984; income of $745.03 through September 1985 and income of $50 in 1986.

■ Orleans Parish School Board records show income of $13,759.84 for 1981; income of $15,298.04 for 1982; income of $245 for 1982 and income of $300.42 for 1985.

A W-2 Wage and Tax Statement from the State of Louisiana, Deferred Compensation, shows 1983 income of $12,837.76.

Department of the Army income statements for various months in 1983 show income of $69.64, $139.28, $139.28, $139.28, $174.10, $139.28, $139.28,J^and $174.10. Similar statements for 1984 show income of $150.16, $150.16, $150.16, $187.70, $150.16, and $150.16.

Mr. Washington provided Charity Hospital payroll records showing that he had income of $10,724.74 for 1986 and income of $32,770.02 for 1987.

Mrs. Washington’s adjusted gross income for 1984 and 1986, as evidenced by her federal income tax return Form 1040, was, respectively, $22,654 and $9,007. She did not submit tax returns for 1982, 1983 or 1985.

Mr. Washington’s Dillard tuition of approximately $1650 per semester was paid through a combination of sources: a loan of $3,700 from Hotel Dieu hospital, which he testified and produced copies of receipts showing that he repaid; the Navy financed the balance of his loan upon his return from having participated in Desert Storm, and he received three semesters’ tuition and a monthly stipend of between $349 and $463.33 from a mental health provider scholarship provided by the State of Louisiana. He also produced evidence that, by consistent payments, he repaid his $7350 (principal) student loan financed through Citibank from 1986 to 1989. Mr. Washington produced a copy of a State of Louisiana form showing payment of $3,996 representing tuition and fees of $1,500, stipend of $2046 and travel of $50 in connection with his appointment to the Mental Health Nursing Project.

Our thorough and complete review of the record in its entirety convinces us that it does not support the contention that Mrs. Washington provided in substantial measure for the expenses of the community during the time Mr. Washington was pursuing his nursing degree. To the contrary, the record shows that Mr. Washington worked consistently to support the family and to finance his own education, working in the military, as a newspaper deliveryman, for four hospitals, |¡>afor a janitorial service, as an LSU security person and researcher and for the Orleans Parish Public Schools as a substitute teacher. His college expenses, moreover, were offset in substantial part by grants and stipends, and his income was clearly adequate to cover his extended payment of his student loan and contribution to the normal expenses of the community. In fact, the bulk of checks showing payment of his student loans bear dates in 1987, 1988 and 1989, well after the parties separated. We find that the record does not support Mrs. Washington’s claim that the expenses of the community fell solely upon her resources and that she is entitled to reimbursement for contribution to educational expenses.

This assignment of error is -without merit.

MRS. WASHINGTON’S THIRD ASSIGNMENT OF ERROR: The trial court was manifestly erroneous in denying her claim for rental reimbursement.

In Louisiana, a spouse who uses and occupies or is awarded by the court the use and occupancy of the family residence pending either the termination of the marriage or the partition of the community is not liable to the other spouse for rental unless otherwise agreed to by the spouses or ordered by the court. La.R.S. 9:374(C).

Mrs. Washington admitted on cross-examination that the parties had no agreement whereby Mr. Washington would pay rent for his use and occupancy of the marital domicile.

Mrs. Washington contends that this statute applies to bar rental reimbursement only where a spouse has been awarded the use and occupancy of the family residence. However, this interpretation is inconsistent with the clear | ^language of the statute, which precludes rental reimbursement both where there has been an award and also where the spouse merely “uses and occupies” the family home absent agreement of the parties that rental reimbursement is owed.

Mrs. Washington also contends that the fact that her petition filed in October 1997 seeks reimbursement of the fair rental value of the family home gives her a right to such reimbursement. The statute provides no such relief. Clearly, the statute allows rental reimbursement only upon the occurrence of one of two conditions: either the parties agreed to reimbursement, which both parties acknowledge was not the case herein, or the court ordered reimbursement, which just as clearly it did not.

Mrs. Washington contends that there is an apparent inequity that results from allowing reimbursement to Mr. Washington for one-half of the mortgage payments on the family residence, yet disallowing her claim for rental reimbursement. The answer to this dispute requires consideration of both the statutory provision regulating use of the co-owned family residence, La. R.S. 9:374(C), and the provision regulating the reimbursement right under La. C.C. art. 2365. Ball v. Ball, 32,851 (La.App. 2 Cir. 3/1/00), 757 So.2d 824.

In Ball, supra, the trial court denied the occupying spouse’s claim for reimbursement of the mortgage payments she made and denied the non-occupying spouse’s claim for retroactive rental assessment. The court of appeal reversed finding that to deny the occupying spouse reimbursement for mortgage payments effectively assessed her for rent to which the non-occupying spouse was not entitled because the occupancy of the community home was not the result of an agreement by the spouses or a court order. That logic applies here and supports the | atrial court’s decision denying Mrs. Washington’s rental reimbursement claim, yet allowing Mr. Washington reimbursement for one-half of the mortgage payments.

This assignment of error is without merit.

MRS. WASHINGTON’S FOURTH ASSIGNMENT OF ERROR: The trial court was manifestly erroneous in failing to order an equalizing cash payment from one party to the other.

Mrs. Washington is correct in pointing out that the judgment of the trial court fails to allocate the community’s major asset, the former matrimonial domicile, and fails to order an equalizing cash payment from whichever party will be shown to have received the larger share of the community property.

The case is remanded to the trial court to resolve the issues of allocation of the former matrimonial domicile and an equalizing cash payment.

AFFIRMED IN PART; REVERSED IN PART AND REMANDED.

      . Although Mr. Washington testified to having served in the United States Naval Reserve, he submitted checks payable to him from the Department of the Army.

      . See, LSA-Const. Art. 5, section 10(B).

      . According to the transcript, these checks and receipts were submitted as "Exhibit No. 5”; however, they appear among the defendants' exhibits as "Exhibit No. 2.”

      . Mr. Washington's counsel submitted duplicate copies of eighteen of these checks.

      . Mr. Washington's counsel submitted duplicate copies of this invoice dated October 15, 1997.

      . During oral argument, counsel for Mrs. Washington admitted that Mr. Washington was free from fault in the dissolution of the marriage, apparently abandoning herB client's claim that she abandoned the marital domicile because of Mr. Washington’s fault.

      . When the entire record is before the appellate court, remand for a new trial produces delay of the final outcome and congestion of crowded dockets while adding little to the judicial determination process. The Louisiana Constitution (Art. 5, § 10) expressly extends the jurisdiction of appellate courts in civil cases to the review of facts as well as law. Gonzales v. Xerox, supra, 320 So.2d at 165


source: Caselaw Access Project

author: JjLEON A. CANNIZZARO, JR., Judge.

license: Public Domain

text:
    STATE of Louisiana v. Shawn Q. JONES.
    No. 2002-KA-2277.
    Court of Appeal of Louisiana, Fourth Circuit.
    April 23, 2003.
    Christopher A. Aberle, Louisiana Appellate Project, Mandeville, LA, for Defendant/Appellant.
    Eddie J. Jordan, Jr., District Attorney, Donna R. Andrieu, Assistant District Attorney, New Orleans, LA, for PlaintiffiAp-pellee.
    Court composed of Judge DENNIS R. BAGNERIS SR., Judge EDWIN A. LOMBARD, Judge LEON A. CANNIZZARO, JR.
   JjLEON A. CANNIZZARO, JR., Judge.

The defendant, Shawn Q. Jones, was convicted of attempted second degree murder in violation of La. R.S. 14:(27)30.1. He is appealing his conviction on the ground that he did not knowingly and voluntarily waive his right to a jury trial. For the reasons set forth below, this Court finds that the defendant did knowingly and voluntarily waive his right to a jury trial, and his conviction is affirmed.

STATEMENT OF FACTS

Shortly before midnight on August 31, 1997, the defendant shot sixteen year old Ennis Allen as Mr. Allen stood in front of his apartment door. When New Orleans Police Department Detective Daniel Wharton arrived at the crime scene, Mr. Allen had already been taken to the hospital by ambulance.

Detective Wharton testified that someone at the scene told him that the person who shot Mr. Allen wanted to talk to him. Detective Wharton testified at trial that he talked to the defendant and that he read the defendant his rights before the defendant made any statements. When Detective Wharton told the defendant that he understood that the defendant wanted to talk to him about something, the defendant said that he did. Detective Wharton then asked the defendant what he wanted to talk about, and the defendant replied that he wanted to talk about the shooting. The defendant explained that he shot Mr. Allen in self-defense. According to the defendant, he encountered Mr. Allen in the hallway of the apartment complex where Mr. Allen lived. The defendant alleged that Mr. Allen 12took out a gun, that the two of them struggled over that gun, and that the gun fired during the struggle.

The defendant also explained that a week before the shooting he and Mr. Allen had argued, because the defendant’s girlfriend drank Mr. Allen’s soda. The defendant further alleged in his conversation with Detective Wharton that sometime after the argument, Mr. Allen and another person, both of whom were allegedly armed with guns at the time, had threatened the defendant. After talking with the defendant, Detective Wharton placed the defendant under arrest.

At trial. Mr. Allen testified that approximately a week before he was shot, he had gotten into a fistfight with the defendant. The fight occurred, because the defendant’s girlfriend drank Mr. Allen’s soda. Mr. Allen stated that after the fight, the defendant had threatened him by saying, “Don’t worry about living no more.”

The night of the shooting Mr. Allen was with a group of girls when he was approached by the defendant. Mr. Allen told the defendant, “Don’t worry about that argument we had.” Shortly thereafter, Mr. Allen returned to his apartment, knocked on the apartment door, and saw someone across the hallway with a gun in his hand. That person came closer and shot Mr. Allen. According to Mr. Allen’s testimony, he continued to knock on his apartment door while trying to fight off his attacker. Mr. Allen testified that when he was shot, he could not see his attacker’s face, which was covered with a mask. After he was shot, however, Mr. Allen pulled up the attacker’s mask and was able to identify the attacker as the defendant. When Mr. Allen pulled up the mask, the defendant shot Mr. Allen again. Mr. Allen testified that he was shot a total of seven times.

Monique Allen, Mr. Allen’s older sister, testified at trial that on the night of the shooting she heard three knocks at their apartment door followed by the sound |3of gunshots, and then by much louder knocks. Her brother then screamed, “Mama, mama, open this door, please.” Ms. Aden testified that she called the police and an ambulance. She further testified that while she was making the telephone calls, her mother went out the apartment door and “stretched him [Mr. Alen] out”. Ater she had completed her telephone calls, Ms. Alen went to help her mother. Ms. Alen also stated that she asked her brother who had shot him, and he said that “Shawn shot me.”

On October 10, 1997, the defendant was charged by a bill of information with attempted second degree murder. At his arraignment on December 18, 1997, the defendant pled not guilty. He was tried before a judge on July 8, 1998, and he was found guilty as charged. On July 14, 1998, Mr. Jones was sentenced to thirteen years in the Louisiana Department of Correction. On July 21,1998, the defendant filed a motion for a new trial, which was denied on September 15, 1998. On October 15, 1998, the defendant filed a motion for appeal, which was granted. Mr. Jones is appealing his conviction on the grounds that the trial court did not elicit a knowing and voluntary waiver of his right to a trial by jury.

ERRORS PATENT

The sentence for attempted second degree murder was not ordered served without benefit of parole, probation, or suspension of sentence as required by La. R.S. 14:27(D)(1) and La. R.S. 14:30.1(B). La. R.S. 30.1(B) provides that “[wjhoever commits the crime of second degree murder shall be punished by life imprisonment at hard labor without benefit of parole, probation, or suspension of sentence.” (Emphasis added.) La. R.S. 14:27(D)(1) provides that “[i]f the offense so attempted is punishable by ... life imprisonment, he shall be imprisoned at hard 14labor for not less than ten nor more than fifty years without benefit of parole, probation, or suspension of sentence.”

La. R.S. 15:301.1(A) further provides as follows:

When a criminal statute requires that all or a portion of a sentence imposed for a violation of that statute be served without benefit of probation, parole, or suspension of sentence, each sentence which is imposed under the provisions of that statute shall be deemed to contain the provisions relating to the service of that sentence without benefit of probation, parole, or suspension of sentence. The failure of a sentencing court to specifically state that all or a portion of the sentence is to be served without benefit of probation, parole, or suspension of sentence shall not in any way affect the statutory requirement that all or a portion of the sentence be served without benefit of probation, parole, or suspension of sentence.

Although La. R.S. 15:301.1(A) was enacted after the defendant’s crime was committed, that statute has retroactive application under State v. Williams, 2000-1725 (La.11/28/01), 800 So.2d 790. In Williams the Louisiana Supreme Court stated:

In instances where the restrictions are not recited at sentencing, La.Rev.Stat. Ann. § 15:301.1 (A) deems that those required statutory restrictions are contained in the sentence, whether or not imposed by the sentencing court. Additionally, this paragraph self-activates the correction and eliminates the need to remand for a ministerial correction of an illegally lenient sentence which may result from the failure of the sentencing court to impose punishment in conformity with that provided in the statute. Id. at p. 10; 800 So.2d at 799.

This Court notes that no objection to the defendant’s sentence was made by the state, although the sentence was more lenient than it should have been under La. R.S. 14:27(D)(1). Normally, when the state does not raise a sentencing error on appeal, this Court is inclined to let the defendant’s sentence remain as it was imposed by the trial court. The Louisiana Supreme Court, however, held in Williams that the correction of a sentence as mandated by La. R.S. § 15:301.1(A) “self-activates” and eliminates the need for the case to be remanded for correction Lof the sentence. Therefore, this Court recognizes that under the holding of the Williams case, the defendant’s sentence is at hard labor without benefit of probation, parole, or suspension of sentence.

ASSIGNMENT OF ERROR

The trial court did not elicit a knowing and voluntary waiver of the defendant’s right to a jury trial.

Both the United States Constitution and the Louisiana Constitution guarantee an accused the right to a jury trial. U.S. Const, amend. VI; La. Const, art. I § 17. If the punishment that may be imposed on a defendant exceeds six months confinement, the Louisiana Constitution provides that the defendant shall be tried by a jury. However, “[ejxcept in capital cases, a defendant may knowingly and intelligently waive his right to a trial by jury.” La. Const. art.I § 17.

La.C.Cr.P. art. 780 provides in relevant part as follows:

A. A defendant charged with an offense other than one punishable by death may knowingly and intelligently waive a trial by jury and elect to be tried by the judge. At the time of arraignment, the defendant in such cases shall be informed by the court of his right to waive trial by jury.
B. The defendant shall exercise his right to waive trial by jury in accordance with the time limits set forth in Article 521. However, with permission of the court, he may exercise his right to waive trial by jury at any time prior to commencement of trial.

In State v. Phillips, 365 So.2d 1304 (La.1978), the Louisiana Supreme Court considered whether the defendant in that case was denied his constitutional right to a trial by jury. When the trial judge asked the defendant in Phillips to choose between a judge trial or a jury trial, the defendant’s attorney, rather than the defendant, responded that the defendant would waive his right to a jury trial. The defendant in that case argued that his right to a trial by jury could only be waived Rby him personally. In the Phillips case, the defendant was sitting beside his attorney when the trial judge asked the defendant whether he waived his right to a jury trial.

In Phillips the Court found that the defendant had not been denied his constitutional right to a jury trial. The Court found no error in the trial judge’s determination that the defendant had waived his right to trial by jury, “especially in light of the fact that the judge had informed defendant not once, but twice, of his right to choose between a judge trial and a jury trial, and that the defendant was shown to have had prior experience as an accused in the trial of a criminal prosecution.” Id. at 1309.

In State v. Wilson, 437 So.2d 272 (La.1983), the Louisiana Supreme Court again considered whether a defendant voluntarily and knowingly waived his right to a trial by jury. In Wilson, before the trial began, the defendant’s attorney advised the court that, contrary to the advice of counsel, the defendant wanted to waive his right to a jury trial. The attorney then questioned the defendant concerning his understanding of the waiver, and the trial judge accepted the waiver.

The Court stated as follows in Wilson regarding the better method for evidencing that the waiver of a jury trial was knowingly and intelligently made:

In order to protect this valuable right, as well as to prevent postconviction attacks on the waiver, the better practice is for the trial judge to advise the defendant personally on the record of his right to trial by jury and require the defendant to waive the right personally either in writing or by oral statement in open court on the record. Id. at 275.

In Wilson the defendant personally waived trial by jury by a statement in open court on the record. The Court then held that “[o]n the basis of the overall record, we conclude that defendant voluntarily and knowingly waived his right to trial by |7jury.” Id. at 276 (emphasis added). Although the Louisiana Supreme Court gives guidance on how best to evidence a defendant’s knowing and intelligent waiver of a jury trial, there is nothing in Wilson indicating that the method described is the exclusive method. The Court in that case looked to the “overall record” to determine that the waiver was made knowingly and voluntarily.

Another case in which the Louisiana Supreme Court determined that the defendant had made a knowing and intelligent waiver of the right to a jury trial was State v. Kahey, 436 So.2d 475 (1983). In that case, the Court stated as follows:

Additionally, the record contains no objection of the defendants during the defense attorney’s explanation of the waiver. Perhaps the better practice, as presented in the American Bar Association Standards, would have been for the trial court to have obtained a personal waiver by the defendants either in writing or in open court for the record. See A.B.A. Standards, Trial By Jury 1.2(b) (1968). However, we cannot say that the procedure followed in the instant case is constitutionally defective or violative of the statutory rights of the defendant, given the fact that the record clearly indicates that the option of a judge trial was a trial strategy in which the defendants acquiesced. Id. at 487 (emphasis added).

This Court has considered what constitutes a knowing and intelligent waiver of the right to trial by jury in several cases. This Court has made it clear that the preferred practice for obtaining a valid waiver of a defendant’s right to trial by jury is “for the trial judge to advise the defendant personally on the record of his right to trial by jury and require the defendant to waive the right personally either in writing or by oral statement in open court on the record.” State v. Richardson, 575 So.2d 421, 424 (La.App. 4 Cir. 1991). See also State v. Wolfe, 98-0345 (La.App. 4 Cir. 4/21/99), 738 So.2d 1093 State v. Abbott, 92-2731 (La.App. 4 Cir. 2/25/94), 634 So.2d 911.

This Court has also found that a knowing and intelligent waiver of a defendant’s right to a jury trial can be made even if the preferred practice of | ¡¡obtaining such a waiver is not followed. In State v. Page, 541 So.2d 409 (La.App. 4 Cir.1989), this Court recognized that “[t]he Supreme Court has refused to adopt an absolute rule that no jury waiver can be effective unless the record reflects that the accused was personally informed by the judge of his right to a jury trial.” Id. at 410. In State v. Santee, 2002-0693 (La.App. 4 Cir. 12/04/02), 834 So.2d 533, this Court reiterated that “the Louisiana Supreme Court has refused to mandate this method as an absolute rule.” Id. at p. 3, 834 So.2d at 535.

This Court has also determined that the waiver of the right to trial by jury “must be established by a contemporaneous record setting forth the articulated appraisal of that right followed by a knowing and intelligent waiver by the accused.” State v. Wolfe, 98-0345, p. 6 (La.App. 4 Cir. 4/21/99), 738 So.2d 1093, 1097. In State v. Lee, 2001-2082 (La.App. 4 Cir. 8/21/02), 826 So.2d 616, this Court, citing the Wolfe case, again found that a waiver must be established by a contemporaneous record. In Lee this Court also reiterated this Court’s long standing position that the waiver of the right to a jury trial can never be presumed.

In the instant case, the defendant asserts that the trial court did not elicit a knowing and voluntary waiver of his right to a jury trial. In the trial court’s minute entry dated July 8, 1998, however, the following item appears:

At 10:30 the jurors were escorted into the courtroom. Shortly thereafter, the defendant exercised his rights after be ing informed by the eourt and consulting with his attorney and elected to 'proceed to trial by judge. The jurors were dismissed and instructed to report back to the jury room for further instructions. (Emphasis added.)

Additionally, the defendant admitted that he waived his right to a jury trial in his Motion for New Trial dated September 15, 1998. In the Motion for New Trial, the defendant stated as follows: “[Djefendant admits that he had a conversation in 19Judges chambers concerning his right to a trial by judge or jury. Defendant at that time with the advice of counsel ... selected a judge trial.” (Emphasis added).

Further, the minute entry quoted above reflects that when the defendant waived his right to a jury trial, the jurors were in the courtroom. The minute entry states that the court informed the defendant of his rights and that he waived his right to a jury trial after consulting with his attorney. After the defendant waived his right to a jury trial, the jurors were dismissed and instructed to return to the jury room. These facts certainly should have made the defendant aware that he was entitled to a jury trial.

It is clear from the overall record in this case that the defendant knowingly and intelligently waived his right to a jury trial. The defendant’s admission that he waived his right to a jury trial after a discussion of the matter with his attorney in the trial court judge’s chambers, the evidence in a minute entry in the record that the defendant was apprised of his right to a jury trial and waived it in open court, and the lack of any evidence or allegation that the defendant is not sufficiently intelligent enough to waive this right lead this Court to conclude that the defendant knowingly and intelligently waived his right to a jury trial. Because of the unique facts of the instant case, where there is an admission by the defendant that he waived his right to a jury trial, this case presents an exception to the rule set forth in the Wolfe case discussed above. Therefore, in the instant case the waiver of the defendant’s right to a jury trial is established by other contemporaneous evidence setting forth the articulated appraisal of that right followed by a knowing and intelligent waiver by the defendant. It is clear from the record that the defendant did, in fact, validly waive his right to a jury trial.

I inIn the defendant’s brief he complains that his trial attorney did not provide him with effective assistance of counsel and did not properly advise him with respect to the waiver of the defendant’s right to a jury trial. The issue of the effectiveness of the defendant’s counsel is not before this court, however. If the defendant thinks he did not have effective assistance of counsel at trial, the defendant has the right to raise this issue in an application for postconviction relief.

CONCLUSION

The defendant’s waiver of his right to a jury trial was knowing and intelligent. The judgment of the trial court is affirmed.

AFFIRMED.