author: WILLIAMS, J.

text:
    STATE of Louisiana, Appellee v. Tyrone Joseph BROWN, Appellant
    No. 51,418-KA
    Court of Appeal of Louisiana, Second Circuit.
    Judgment rendered June 21, 2017
    LOUISIANA APPELLATE PROJECT, By: Paula C. Marx, Counsel for Appellant
    J. SCHUYLER MARVIN, District Attorney, ANDREW C. JACOBS, JOHN M. LAWRENCE, Assistant District Attorneys, Counsel for Appellee
    Before BROWN, WILLIAMS, and GARRETT, JJ.
   WILLIAMS, J.

The defendant, Tyrone Joseph Brown, was charged by bill of indictment with second degree murder, in violation of La. R.S. 14:30.1. Following a jury trial, he was found guilty as charged. He received the mandatory sentence of life imprisonment at hard labor without the benefit of parole, probation or suspension of sentence. This Court affirmed the defendant's conviction and sentence. State v. Brown , 43,775 (La. App. 2 Cir. 12/3/08), 999 So.2d 179, writ denied , 2009-0047 (La. 9/25/09), 18 So.3d 81.

In 2016, the defendant filed a motion to correct an illegal sentence. In accordance with Miller v. Alabama , 567 U.S. 460, 132 S.Ct. 2455, 183 L.Ed.2d 407 (2012), and Montgomery v. Louisiana , 577 U.S. ----, 136 S.Ct. 718, 193 L.Ed. 2d 599 (2016), the trial court amended the defendant's sentence to allow for parole eligibility. The defendant appeals the trial court's ruling. For the following reasons, we affirm.

FACTS

On September 27, 2005, the victim, Michael Hunt, checked into a motel in Bossier City, Louisiana. Thereafter, Hunt, accompanied by Curtis Boykins, walked to a nearby ATM to withdraw money. While Hunt was standing at the ATM, he was approached by the defendant and another juvenile, LaDarrius Johnson. The defendant and Johnson followed Hunt and Boykins after they left the ATM.

During the walk back to the motel, Johnson snatched Hunt's wallet, removed the currency and threw the wallet back to him. The defendant and Johnson proceeded to beat Hunt about his head and body. During the altercation, Hunt fell and struck his head. The assailants fled on bicycles while Hunt and Boykins returned to the motel. Hours later, Hunt was found unconscious in his motel room; he later died as a result of his head injuries.

The defendant was charged by bill of indictment with second degree murder. After his conviction, he was sentenced to the mandatory term of life in prison without the benefit of parole, probation or suspension of sentence. The defendant appealed his conviction and sentence, challenging the sufficiency of the evidence and error in instructions to the jury. As stated above, this court affirmed his conviction and sentence.

Subsequently, the defendant filed a pro se motion to correct an illegal sentence, pursuant to Miller, supra , and Montgomery, supra. The defendant argued that his sentence should be vacated and that he should be resentenced to a "set number of years" and rendered eligible for parole under the manslaughter statute. The defendant made the following assertions:

He was raised in a "dysfunctional family";
He had never had the benefit of proper guidance or stability;
He knew his father's name, but he had never had a relationship with him;
He was "left to run wild" in an environment "saturated with" drugs, prostitution and murder;
He was "pushed through school via social promotion";
Due to Hurricane Katrina, he was forced to walk through "water up to [his] neck in pitch black darkness pushing corpses aside and having nothing to eat"; and
During the Hurricane Katrina ordeal, he became separated from his family and was "bounced from state to state."

A hearing took place on August 2, 2016, during which the defendant was represented by counsel. During the hearing, the state stipulated that the defendant was 16 years old at the time of the offense. The state also stipulated that the defendant was entitled to be resentenced in accordance with Miller, supra , and deemed eligible for parole. Defense counsel requested that the defendant be resentenced to a specified term, rather than life with parole eligibility. Neither the state nor the defendant presented any evidence. At the conclusion of the hearing, the trial court ruled as follows:

Okay. Based on a stipulation, [the defendant] is still sentenced to life in prison. The only part that will be amended is that he will be [eligible] for parole based on the fact of the Miller case out of the United States Supreme Court.

The defendant filed a timely motion to reconsider sentence, arguing that he should have been sentenced to a term of no more than 40 years for the responsive verdict of manslaughter. The trial court denied the motion to reconsider sentence.

The defendant now appeals.

DISCUSSION

The defendant raises three arguments with regard to his sentence. First, he contends he was entitled to a full evidentiary hearing, whereby he could be resentenced to a "constitutional, individualized and proportionate" sentence. He argues a hearing would have allowed the trial court an opportunity to consider diminished capacity, prospect of rehabilitation and other factors unique to juvenile offenders.

The defendant also contends the sentence imposed was excessive for a 16-year-old offender. He asserts that Louisiana has "made the heart" of the Miller decision moot because "regardless of what a trial court hears," a life sentence must be imposed. He also argues that placing a sentencing decision with the parole board is not a substitute for a judicially imposed sentence. According to the defendant, there is no value in meeting Miller's admonition for consideration of multiple factors as mitigation by merely providing parole eligibility. He maintains that he is a "prime example" of a juvenile offender who should have been granted a hearing and a lesser sentence.

Further, the defendant contends he should have been resentenced in accordance with the lesser responsive verdict of manslaughter. He argues that the manslaughter provisions should apply because the statute under which he was originally sentenced was declared unconstitutional when applied to juveniles.

In response to the Miller decision, the Louisiana legislature enacted La. C.Cr. P. art. 878.1 and La. R.S. 15:574.4(E). La. C.Cr. P. art. 878.1 provides:

A. In any case where an offender is to be sentenced to life imprisonment for a conviction of first degree murder ( R.S. 14:30 ) or second degree murder ( R.S. 14:30.1 ) where the offender was under the age of eighteen years at the time of the commission of the offense, a hearing shall be conducted prior to sentencing to determine whether the sentence shall be imposed with or without parole eligibility pursuant to the provisions of R.S. 15:574.4(E).
B. At the hearing, the prosecution and defense shall be allowed to introduce any aggravating and mitigating evidence that is relevant to the charged offense or the character of the offender, including but not limited to the facts and circumstances of the crime, the criminal history of the offender, the offender's level of family support, social history, and such other factors as the court may deem relevant. Sentences imposed without parole eligibility should normally be reserved for the worst offenders and the worst cases.

La. R.S. 15:574.4(E) provides that a defendant who is serving a life sentence for a conviction of first or second degree murder, who was under the age of 18 years at the time of the commission of the offense, shall be considered for parole eligibility after he or she has served 35 years of the sentence imposed.

Following Miller , in Montgomery, supra , the Court addressed concerns that the retroactive application of Miller would place an undue hardship on states. The Court stated:

Giving Miller retroactive effect, moreover, does not require States to relitigate sentences, let alone convictions, in every case where a juvenile received life without parole. A State may remedy a Miller violation by permitting juvenile homicide offenders to be considered for parole, rather than by resentencing them. Allowing those offenders to be considered for parole ensures that juveniles whose crimes reflected only transient immaturity-and who have since matured-will not be forced to serve a disproportionate sentence in violation of the Eighth Amendment.

Id ., 136 S.Ct. at 736 (emphasis added). On remand, the Louisiana Supreme Court held that absent new legislation to the contrary, courts should utilize Article 878.1 and R.S. 15:574.4(E) when conducting resentencing hearings for juvenile homicide defendants sentenced prior to the Miller decision. State v. Montgomery , 2013-1163 (La. 6/28/16), 194 So.3d 606. Eligibility for parole is the sole question to be answered in a Miller hearing. Id. at 610, (J. Crichton concurring).

The constitutionality of La. C.Cr. P. art. 878.1 has been upheld. State v. Fletcher , 49,303 (La. App. 2 Cir. 10/1/14), 149 So.3d 934, writ denied , 2014-2205 (La. 6/5/15), 171 So.3d 945, cert. denied , --- U.S. ----, 136 S.Ct. 254, 193 L.Ed.2d 189 (2015). Moreover, courts have rejected arguments that the post- Miller statutory scheme fails to comply with Miller because it merely allows a youthful offender parole eligibility and not the right to parole without a sentencing hearing. State v. Kelly , 51,246 (La. App. 2 Cir. 4/5/17), 217 So.3d 576. See also , State v. Doise , 2015-713 (La. App. 3 Cir. 2/24/16), 185 So.3d 335, writ denied , 2016-0546 (La. 3/13/17), 216 So.3d 808 ; State v. Plater , 51,338 (La. App. 2 Cir. 5/17/17), 222 So.3d 897, 2017 WL 2131499 ; State v. Calhoun , 51,337 (La. App. 2 Cir. 5/17/17), 222 So.3d 903, 2017 WL 2131500.

Further, our circuit courts have repeatedly rejected the claim that, in light of Miller , juvenile homicide defendants should be sentenced under the manslaughter statute. State v. Williams , 50,060 (La. App. 2 Cir. 9/30/15), 178 So.3d 1069, writ denied , 2015-2048 (La. 11/15/16), 209 So.3d 790 ; State v. Calhoun, supra ; State v. Plater, supra ; State v. Graham , 2014-1769 (La.App. 1 Cir. 4/24/15), 171 So.3d 272, writ denied , 2015-1028 (La. 4/8/16), 191 So.3d 583 ; State v. Dupre , 2016-1352 (La.App. 1st Cir. 4/12/17), 2017 WL 1376526 ; State v. Williams , 2015-0866 (La. App. 4 Cir. 1/20/16), 186 So.3d 242, writ denied , 2016-0332 (La. 3/31/17), 217 So.3d 358 ; State v. Jones , 2015-157 (La. App. 5 Cir. 9/23/15), 176 So.3d 713.

After considering this record, the relevant statutory provisions and the jurisprudence, we find that it is procedurally appropriate for this Court to review the defendant's illegal sentence claim under Miller and its progeny. However, the defendant's claim of excessive sentence and his argument that the trial court failed to consider mitigating circumstances are barred and outside the scope of this Court's Miller review. As stated above, eligibility for parole is the sole question to be answered in a Miller hearing. Accordingly, there is no consideration of whether the defendant was entitled to a downward departure from the mandatory sentence of life imprisonment at hard labor. Rather, the trial court was required to consider only whether that mandatory sentence should include parole eligibility. See State v. Montgomery, supra ; State v. Shaw , 51,325 (La. App. 2 Cir. 5/17/17), 223 So.3d 607, 2017 WL 2152520.

Moreover, where parole eligibility is permitted, Miller did not impose a requirement that a defendant be allowed to present mitigating factors. Instead, a sentencing court's obligation to consider youth-related mitigating factors is limited to cases in which the court imposes a life sentence without parole eligibility. Miller , 132 S.Ct. at 2469. Likewise, the defendant's argument that the Parole Board's consideration is insufficient to satisfy Miller has also been rejected. State v. Kelly, supra. See also State ex rel. Morgan v. State , 2015-0100 (La. 10/19/16), 217 So.3d 266. The defendant's claim with regard to excessiveness is also without merit, as he received the mandatory minimum sentence available under Miller . See State v. Graham, supra. Accordingly, we find that the trial court did not err in sentencing the defendant to serve life in prison, with parole eligibility.

CONCLUSION

For the reasons set forth herein, we affirm the defendant's sentence.

AFFIRMED.

      In Miller , the Supreme Court held that a mandatory sentencing scheme that denies parole eligibility for those convicted of a homicide committed while the offender was a juvenile violates the Eighth Amendment's prohibition against cruel and unusual punishment. In Montgomery , the Court held that Miller retroactively applied to defendants whose convictions and sentences became final prior to the Miller decision.

      The murder was committed approximately one month after Hurricane Katrina occurred.

      In support of his argument, the defendant recounts his life before he committed the crime, as noted above. He also asserts that he made a "horrible mistake" by becoming involved in the robbery of the victim.

      La. R. S. 15:574.4(E) provides:
      (1) Notwithstanding any provision of law to the contrary, any person serving a sentence of life imprisonment for a conviction of first degree murder (R.S. 14:30 ) or second degree murder (R.S. 14:30.1 ) who was under the age of eighteen years at the time of the commission of the offense shall be eligible for parole consideration pursuant to the provisions of this Subsection if a judicial determination has been made that the person is entitled to parole eligibility pursuant to Code of Criminal Procedure Article 878.1 and all of the following conditions have been met:
      (a) The offender has served thirty-five years of the sentence imposed.
      (b) The offender has not committed any major disciplinary offenses in the twelve consecutive months prior to the parole hearing date. A major disciplinary offense is an offense identified as a Schedule B offense by the Department of Public Safety and Corrections in the Disciplinary Rules and Procedures for Adult Offenders.
      (c) The offender has completed the mandatory minimum of one hundred hours of prerelease programming in accordance with R.S. 15:827.1.
      (d) The offender has completed substance abuse treatment as applicable.
      (e) The offender has obtained a GED certification, unless the offender has previously obtained a high school diploma or is deemed by a certified educator as being incapable of obtaining a GED certification due to a learning disability. If the offender is deemed incapable of obtaining a GED certification, the offender shall complete at least one of the following:
      (i) A literacy program.
      (ii) An adult basic education program.
      (iii) A job skills training program.
      (f) The offender has obtained a low-risk level designation determined by a validated risk assessment instrument approved by the secretary of the Department of Public Safety and Corrections.
      (g) The offender has completed a reentry program to be determined by the Department of Public Safety and Corrections.
      (2) For each offender eligible for parole consideration pursuant to the provisions of this Subsection, the board shall meet in a three-member panel, and each member of the panel shall be provided with and shall consider a written evaluation of the offender by a person who has expertise in adolescent brain development and behavior and any other relevant evidence pertaining to the offender.
      (3) The panel shall render specific findings of fact in support of its decision.

      Recently, in State v. Kelly, supra , this Court stated:
      The defendant's claims that Louisiana's sentencing scheme for juvenile homicide defendants fails to comply with Miller run counter to the plain language of Miller .
      ***
      As for the defendant's argument that the trial court erred by failing to allow him to present mitigating evidence, Miller did not impose such a requirement in cases where parole eligibility was permitted. In Miller , the Supreme Court explained that the Eighth Amendment does not prohibit a court from imposing a sentence of life imprisonment with the opportunity for parole for a juvenile homicide offender, nor does it require the court to consider the mitigating factors of youth before imposing such a sentence. Instead, a sentencing court's obligation to consider youth-related mitigating factors is limited to cases in which the court imposes a sentence of life, or its equivalent, without parole. Notwithstanding this fact, La. C. Cr. P. art. 878.1 provides that "the prosecutors and defense shall be allowed to introduce any aggravating and mitigating evidence that is relevant to the charged offense or the character of the offender." Nonetheless, despite the fact that the defendant was not given the opportunity to present mitigating evidence per La. C. Cr. P. art. 878.1, he received the minimum sentence available. Accordingly, the error is harmless.
      Id . at 584-85.

      We also note that the defendant did not argue mitigating circumstances or attempt to present any mitigating evidence at the resentencing hearing.

      Further, as this Court concluded in State v. Kelly, supra , any error in the defendant's inability to present aggravating and mitigating factors under La. C.Cr. P. art. 878.1 is harmless as he received the minimum sentence available.


source: Caselaw Access Project

author: McCLENDON, J.

license: Public Domain

text:
    Dorothy Matthews HARDY v. Elijah John HARDY
    2018 CA 0487
    Court of Appeal of Louisiana, First Circuit.
    Judgment Rendered: February 28, 2019
    Charles E. Griffin, II, Sydney Picou Walker, Robert O. Butler, Jr., St. Francisville, Louisiana, Counsel for Plaintiff/Appellee, Dorothy Matthews Hardy
    R. Chris Oetjens, Baton Rouge, Louisiana, And, Paul L. Billingsley, Hammond, Louisiana, Counsel for Defendant/Appellant, Elijah John Hardy
    BEFORE: WHIPPLE, C.J., McCLENDON, AND HIGGINBOTHAM, JJ.
   McCLENDON, J.

In this appeal, the appellant challenges a trial court judgment partitioning former community property. The appellee has answered the appeal. For the reasons that follow, we amend the judgment in part and remand for further proceedings consistent with this opinion.

FACTS AND PROCEDURAL HISTORY

Dorothy Matthews Hardy and Elijah John Hardy were married on September 19, 1981. During their marriage they resided in West Feliciana Parish until they separated in August of 2010. On February 8, 2011, Mrs. Hardy filed a Petition for Divorce, and on April 20, 2011, the trial court signed a judgment of divorce. Thereafter, on March 6, 2013, Mr. Hardy filed a Petition for Judicial Partition of Community Property pursuant to LSA-R.S. 9:2801. On December 5, 2013, Mrs. Hardy filed a Motion and Order to Show Cause for Domestic Relations Order, which was set for hearing on January 22, 2014. On January 22, 2014, pursuant to an agreement, the trial court signed a Domestic Relations Order, partitioning the retirement account of Mr. Hardy and awarding fifty percent of his Louisiana State Employees' Retirement System (LASERS) benefits to Mrs. Hardy. Neither Mr. Hardy nor Mrs. Hardy were at the hearing.

On September 23, 2016, a bench trial on the remaining community property issues, regarding certain immovable property, movable property, and reimbursement claims, was held. The trial court took the matter under advisement and, on October 28, 2016, issued Reasons for Judgment partitioning the remaining community assets of the parties. The trial court signed a judgment on February 15, 2017. Thereafter, Mrs. Hardy filed a motion for new trial, asserting that her reimbursement claims were improperly calculated. Following a hearing, the motion for new trial was denied, and on May 10, 2017, the trial court signed a judgment. Mr. Hardy has appealed the February 15, 2017 judgment, and Mrs. Hardy answered the appeal.

In his appeal, Mr. Hardy contends that the trial court erred in failing to amend the domestic relations order that incorrectly apportioned his retirement account. He further asserts that the incorrect distribution resulted in an inequitable division of the remaining community assets. Mr. Hardy also maintains that the trial court erred in failing to address Mrs. Hardy's LASERS retirement account in connection with the partition and in failing to allow testimony regarding Mrs. Hardy's LASERS retirement account.

Mrs. Hardy answered the appeal and alleges that the trial court incorrectly calculated her reimbursement claim for the mortgage payments she made on the community home. Specifically, she contends that the trial court was incorrect in finding the amount of reimbursement due to her to be one half of the principal amount of the payments, rather than one-half of the entire amount of the payments paid from her separate funds for the community debt. Mrs. Hardy also prayed for reasonable attorney fees in answering the appeal. Mrs. Hardy also filed a Motion and Order for Peremptory Exception of Prescription in this court.

DISCUSSION

The provisions of LSA-R.S. 9:2801 set forth the procedure by which community property is to be partitioned when the spouses are unable to agree. Benoit v. Benoit, 11-0376 (La.App. 1 Cir. 3/8/12), 91 So.3d 1015, 1018, writ denied, 12-1265 (La. 9/28/12), 98 So.3d 838. The statute requires that both parties file sworn detailed descriptive lists and that each party either traverse or concur in the inclusion or exclusion of each asset and liability and the valuation contained on the other party's list. LSA-R.S. 9:2801A(1) and (2). The statute further provides that, at the trial of the traverses, the trial court shall determine community assets and liabilities, and states that valuation of assets shall be determined at the trial on the merits. LSA-R.S. 9:2801A(2). Thereafter, the court shall partition the community in accordance with the rules set forth in the statute. LSA-R.S. 9:2801A(4). See Watts v. Watts, 15-1985 (La.App. 1 Cir. 10/31/16), 2016 WL 6426443 (unpublished).

It is well settled that a trial court has broad discretion in adjudicating issues raised by the partition of the community. The trial court is afforded a great deal of latitude in arriving at an equitable distribution of the assets between the spouses. Factual findings and credibility determinations made in the course of valuing and allocating assets and liabilities in the partition of community property may not be set aside absent manifest error. Benoit, 91 So.3d at 1019. However, the allocation or assigning of assets and liabilities in the partition of community property is reviewed under the abuse of discretion standard. Id.

In his first two related assignments of error, Mr. Hardy asserts that the trial court erred in the apportionment of his LASERS retirement account, which resulted in an inequitable distribution of the former community assets. However, we note that the domestic relations order was the result of an agreement presented by counsel and signed in open court.

A consent or a stipulated judgment is a bilateral contract by which the parties adjust their differences by mutual consent, with each party balancing his hope of gain against his fear of loss. M.P.W. v. L.P.W., 13-0366 (La.App. 1 Cir. 11/1/13), 136 So.3d 37, 43 ; see also La. C.C. arts. 3071 and 3072. Its binding force arises from the voluntary acquiescence of the parties rather than the adjudication by the court. M.P.W., 136 So.3d at 44. Generally, there is no right to appeal a stipulated or consent judgment. See Mill Creek Homeowners Ass'n, Inc. v. Manuel, 04-1385 (La.App. 1 Cir. 6/10/05), 916 So.2d 268, 269. That is because "[a]n appeal cannot be taken by a party who confessed judgment in the proceedings in the trial court or who voluntarily and unconditionally acquiesced in a judgment rendered against him." LSA-C.C.P. art. 2085. A consent judgment is a final judgment as between the parties. Mill Creek Homeowners Ass'n, Inc., 916 So.2d at 269.

Nevertheless, Mr. Hardy argues that he did not know about the domestic relations order, was not aware it had been signed, and never consented to the January 22, 2014 judgment. However, the record establishes that when Mrs. Hardy filed her motion and order to show cause why the proposed domestic relations order should not be signed, Mr. Hardy was personally served with the signed order, together with a copy of the proposed domestic relations order. Additionally, after the trial court signed the domestic relations order, Mr. Hardy was personally served with a certified copy of the signed order.

Mr. Hardy also asserts that he never authorized his attorney to consent to the judgment. It is undisputed in this matter that Mr. Hardy did not sign the January 22, 2014 judgment. However, it is also undisputed that Mr. Hardy was represented during these proceedings, including the date the judgment was submitted, by the attorney who signed the judgment on Mr. Hardy's behalf. Accordingly, we find that Mr. Hardy's attorney was clearly acting as his agent and representative in submitting the judgment and that Mr. Hardy fully acquiesced in the domestic relations order such that it constituted a valid compromise. See Sullivan v. Sullivan, 95-2122 (La. 4/8/96), 671 So.2d 315, 317-18 (When an agreement is reduced to writing, it must be signed by the parties or their agents); Dozier v. Rhodus, 08-1813 (La.App. 1 Cir. 5/5/09), 17 So.3d 402, 408, writ denied, 09-1647 (La. 10/30/09), 21 So.3d 294 ("If it were necessary for the party to sign the writing that serves as proof of the agreement, often there would be no basis for enforcement, because generally the attorneys rather than the parties negotiate and contract ... agreements"); Daffin v. McCool, 09-0785 (La.App. 1 Cir. 12/23/09), 30 So.3d 120, 122-23 (Defendant's attorney was acting as the defendant's agent and representative when the attorney entered into a compromise in a community property partition matter). Therefore, we find that Mr. Hardy's first two assignments of error lack merit.

In Mr. Hardy's last two assignments of error, he complains that the trial court erred in failing to consider Mrs. Hardy's LASERS retirement account in the partition of the remaining community assets. The record shows that prior to the trial to partition the community property, each party filed into the record several detailed descriptive lists. The most recent list filed by each party included, as a community asset, Mrs. Hardy's LASERS retirement account.

Admittedly, the trial court made no mention of any benefits paid to Mrs. Hardy in its February 15, 2017 judgment. Generally, silence in a judgment of the trial court as to any issue, claim, or demand placed before the court is deemed a rejection of the claim and the relief sought is presumed to be denied. Schoolhouse, Inc. v. Fanguy, 10-2238 (La.App. 1 Cir. 6/10/11), 69 So.3d 658, 664. Because Mr. Hardy argues that Mrs. Hardy's retirement benefits should have been included in the community as a community asset, we will consider the trial court's silence as to Mr. Hardy's argument as a rejection of that claim. Accordingly, we must decide whether the trial court was correct in finding that the benefits Mrs. Hardy receives from LASERS are her separate property, such that they were not subject to partition.

In Louisiana, a former spouse is entitled to a share of retirement benefits attributable to the former community to the extent the retirement benefits were attributable to the former community. Bordes v. Bordes, 98-1004 (La. 4/13/99), 730 So.2d 443, 445. However, the purpose of paying benefits under a retirement plan is different when the benefits are payable because the employee spouse becomes disabled rather than when the benefits are payable because the employee spouse reaches normal retirement age.

Bordes, 730 So.2d at 447. In Bordes, the Louisiana Supreme Court noted that when the divorced employee spouse receives benefits because of disability, the benefits are paid in lieu of income that would otherwise be the employee spouse's separate property. Therefore, basing the classification of benefits upon the purpose of the payment of benefits was fair and equitable, and provides ease of administration. Upon the employee spouse becoming disabled, the disability benefits replace the working wages he or she can no longer earn. Bordes, 730 So.2d at 447-48. The supreme court recognized that in contrast to the employee spouse, the non-employee spouse can continue to earn (and keep) one hundred percent of the wages he or she was earning when the employee spouse became disabled. Thus, awarding a share of disability retirement benefits to the non-employee spouse who does not need to replace wages lost because of inability to work, while reducing the amount of benefits payable to the disabled spouse who has such a need, is contrary to the purpose of a disability feature in a retirement plan. Bordes, 730 So.2d at 448.

While the supreme court also recognized that the source of Mr. Bordes' disability retirement benefits was the same as his normal retirement benefits, that alone did not make the payments more representative of retirement income. Other factors that supported classifying the benefits as compensation for lost earnings included the fact that the payments were conditioned on Mr. Bordes' continuing disability, that he was required to undergo periodic medical examinations and submit annual income statements while receiving the benefits, and that the benefits automatically converted to a normal retirement benefit upon his reaching retirement age. The supreme court concluded that Mr. Bordes' disability retirement benefits were more akin to compensation for lost earnings due to serious injury or illness and were his separate property. Bordes, 730 So.2d at 448.

The supreme court then addressed the normal retirement benefits Mr. Bordes would receive when he turned sixty, confirming that a spouse's right to receive benefits payable by a retirement plan is an asset of the community. The supreme court stated that, at the time of partition, a non-employee spouse is entitled to a declaration of the interest attributable to the community in retirement benefits, if and when they become due and that when they do become due, the non-employee spouse is entitled to receive the proportion of them recognized as attributable to the other spouse's employment during the existence of the community. Bordes, 730 So.2d at 448 ; Sims v. Sims, 358 So.2d 919, 923-24 (1978). See also Morgan v. Morgan, 16-0964 (La.App. 1 Cir. 2/17/17), 212 So.3d 1235, 1241-42, writ denied, 17-0454 (La. 5/1/17), 219 So.3d 331 ; Anzalone v. Anzalone, 07-1905 (La.App. 1 Cir. 11/18/08), 25 So.3d 836, 838-41, writ granted and judgment reversed in part on other grounds, 08-2988 (La. 4/13/09), 6 So.3d 755. In Sims, the Louisiana Supreme Court set forth the formula to determine a non-employee spouse's interest in the employee spouse's retirement benefit plan at the time the community property regime is terminated. Sims, 358 So.2d at 924. Because Mr. Bordes' disability retirement benefit would automatically convert to a normal retirement benefit upon reaching the retirement age of sixty, Mrs. Bordes was entitled to receive a proportion of Mr. Bordes' retirement benefits attributable to his employment during the community. Bordes, 730 So.2d at 448.

At the trial in this matter, Mrs. Hardy testified that she receives from LASERS disability retirement benefits and that she reports annually to the retirement board.

Mr. Hardy acknowledged in his testimony that the benefits were for Mrs. Hardy's disability. Considering that the only evidence presented was that Mrs. Hardy's benefits were for her disability and to the extent the trial court treated Mrs. Hardy's benefits as a separate asset not subject to partition, we find no error.

However, our inquiry does not end there. It must be determined whether at any point Mrs. Hardy's disability retirement benefits will convert or have converted to a regular retirement benefit. As in Bordes , Mr. Hardy may also be entitled to receive a proportion of Mrs. Hardy's retirement benefits attributable to her employment during the community if at any point her disability payment converts to a retirement benefit. We find that the trial court erred in failing to address this issue. As an appellate court, we are empowered to render judgment if there is a sufficient record upon which to do so. See Pierce v. McCoy, 16-0243 (La.App. 1 Cir. 10/31/16), 207 So.3d 1069, 1077. However, the record before us is incomplete to render a just decision. Therefore, given the inadequacy of the record, we remand the matter to the trial court for the sole purpose of determining whether Mrs. Hardy's LASERS disability retirement benefits convert to normal retirement benefits after certain age or service requirements are met, and, if so, for a calculation of Mr. Hardy's proportionate share according to Sims consistent with this opinion.

In her answer to the appeal, Mrs. Hardy contends that the trial court committed error in failing to properly calculate her reimbursement claim in accordance with LSA-C.C. art. 2365. She maintains that the trial court erred in calculating the reimbursement owed to her for the mortgage payments she made from her separate property on three community property obligations. Particularly, Mrs. Hardy contends that the trial court only reimbursed her one-half of the amount of the payments she made for the principal of the loan rather than one-half of the entire amount of the payments made, including interest. We find that Mrs. Hardy's answer to the appeal has merit.

Article 2365 provides, in pertinent part:

If separate property of a spouse has been used either during the existence of the community property regime or thereafter to satisfy a community obligation, that spouse is entitled to reimbursement for one-half of the amount or value that the property had at the time it was used.

Therefore, a paying party is entitled to reimbursement for post-termination, pre-partition use of separate funds for the payment of a community debt. See LSA-C.C. art. 2365, Revision Comments (2009).

However, the burden of proof is on the party claiming reimbursement. McElwee v. McElwee, 93-1010 (La.App. 1 Cir. 8/17/94), 649 So.2d 975, 978.

In this case, it is undisputed that, after the termination of the community, Mrs. Hardy paid off the remaining balances on the three loans at issue at the Bank of St. Francisville and Feliciana Bank. We will address each loan separately.

The Wakefield Property Loan

Mrs. Hardy resides in the former community home, known as the Wakefield property. On February 8, 2011, the date of the termination of the community, the mortgage balance on the home was $ 75,536.86. Mrs. Hardy asserts that she paid a total of $ 87,986.97 to the Bank of St. Francisville with her separate funds after February 8, 2011. This amount was to pay off the mortgage on the former community home. Our review of the record shows that Mrs. Hardy presented evidence that she paid $ 82,989.61 on the loan balance. The mortgage payments on the former community home were clearly a community debt, and Mrs. Hardy is entitled to reimbursement for one-half, or $ 41,494.81, of the separate property that was used to satisfy this community obligation. See LSA-C.C. art. 2365.

Mrs. Hardy also asked to be reimbursed for the property taxes and insurance payments she made on the Wakefield property after the termination of the community. We find that Mrs. Hardy has sufficiently shown that she paid $ 3,829.38 in taxes and insurance from her separate property for the former community home after the community terminated and should be reimbursed for one-half of that amount, or $ 1,914.69.

The Clinton Property Loan

Mrs. Hardy also asserts that she used her separate funds after the termination of the community to pay Feliciana Bank the indebtedness on the immovable property located in Clinton, Louisiana. The property was the former home of Mrs. Hardy's mother. However, it was purchased by the parties in 2006.

At the termination of the community, the loan balance on the Clinton property was $ 31,107.76. Mrs. Hardy asserts that she is entitled to reimbursement for payments totaling $ 43,028.15 that she made to pay off the balance, including interest, owed to Feliciana Bank. We find that Mrs. Hardy sufficiently established that she paid said $ 43,028.15 with her separate funds, and, therefore, she is entitled to reimbursement of one-half of that amount, or $ 21,514.08.

The Automobile Loan

Mrs. Hardy also claims reimbursement for the payments she made to the Bank of St. Francisville on the Honda CRV purchased in 2007. The automobile was originally purchased for use by Mrs. Hardy, but sometime thereafter was given to the Hardy's daughter for her use. Mrs. Hardy testified that in 2008 she and Mr. Hardy gave their daughter the use of the car and that they agreed to continue to make the car payments. Although Mr. Hardy testified that his daughter began using the vehicle only after the termination of the community, the trial court clearly found Mrs. Hardy's testimony that the daughter took over the use of the car in 2008 more credible. We can find no manifest error in this determination.

At the termination of the community, the loan balance on the vehicle was $ 9,498.70. Mrs. Hardy presented evidence that she paid $ 9,860.58 from her separate funds to pay off the loan. Therefore, she is entitled to reimbursement for one-half of that amount, or $ 4,930.29.

In summary, Mrs. Hardy provided sufficient evidence to show that she paid a total of $ 139,707.72 from her separate funds to pay community obligations. Therefore, Mrs. Hardy is entitled to reimbursement in the amount of $ 69,853.86 from Mr. Hardy. The value of the community assets total $ 183,101.00, and each party is entitled to a value of $ 91,550.50. Therefore, Mrs. Hardy is entitled to a net value of $ 161,404.36 after reimbursement, i.e., $ 69,853.86 + $ 91,550.50. Mr. Hardy is entitled to a net value of $ 21,696.64 after reimbursement, i.e., $ 91,550.50 - $ 69,853.86. Mrs. Hardy received property valued at $ 153,251.00, which is $ 8,153.36 less than her entitlement. Mr. Hardy received property valued at $ 29,850.00, which is $ 8,153.36 more than his entitlement. Accordingly, we amend the judgment to order Mr. Hardy to pay an equalizing reimbursement claim in the amount of $ 8,153.36.

Next, considering our previous discussion regarding Mr. Hardy's assignments of error, we also dismiss as moot Mrs. Hardy's Motion and Order for Peremptory Exception of Prescription. After this appeal was filed, Mrs. Hardy filed a Motion and Order for Peremptory Exception of Prescription in which she asserted that, rather than appealing the February 15, 2017 judgment in this matter, Mr. Hardy was actually seeking to overturn the January 22, 2014 judgment partitioning Mr. Hardy's retirement. We have already concluded that Mr. Hardy cannot appeal the January 22, 2014 judgment.

Finally, although Mrs. Hardy's answer to the appeal requested attorney fees for work performed in handling the appeal based on a frivolous appeal, she did not brief this issue, either in her answer to the appeal or in her appellate brief. Mrs. Hardy's answer to the appeal asks for "all reasonable attorney's fees incurred by the appellee in answering this appeal." Likewise, her appellate brief does not address the request, but in the conclusion merely requests that she "be granted all reasonable attorney's fees and court costs incurred as a result of this frivolous appeal filed on behalf of [Mr.] Hardy in this matter." This issue is considered abandoned because Mrs. Hardy did not brief her contention with argument or citation of authority to support her assertion of a frivolous appeal. See Uniform Rules of Louisiana Courts of Appeal, Rule 2-12.4B(4); Deubler v. Bogalusa City Schools, 18-0312 (La.App. 1 Cir. 9/21/18), 262 So.3d 393.

Furthermore, even were we to address Mrs. Hardy's answer to the appeal, we find that damages for a frivolous appeal are not warranted. Damages for a frivolous appeal are awarded pursuant to LSA-C.C.P. art. 2164, which provides that an appellate court may award damages for frivolous appeal when there is no serious legal question, when the appeal is taken solely for the purpose of delay, or when it is evident that the appellant's counsel does not seriously believe in the position he advocates. Courts have been very reluctant to grant damages under this article, as it is penal in nature and must be strictly construed. Lane Memorial Hosp. v. Gay, 03-0701 (La.App. 1 Cir. 2/23/04), 873 So.2d 682, 687. Moreover, appeals are favored and penalties for frivolous appeal will not be imposed unless they are clearly due. Even when an appeal lacks serious legal merit, damages for a frivolous appeal will not be awarded unless it is clear that the appeal was taken solely for the purpose of delay or that appellant is not serious in the position he advocates. The slightest justification for an appeal precludes damages for frivolous appeal. Dukes v. Sherwood Acres Apartments, 04-0405 (La.App. 1 Cir. 12/30/04), 898 So.2d 416, 418. Although we have determined that his appeal lacks merit, after reviewing the record, including the trial transcript, we cannot say that Mr. Hardy did not seriously believe the position he advocated.

CONCLUSION

For the foregoing reasons, we dismiss Mrs. Hardy's peremptory exception raising the exception of prescription as moot. We also amend the February 15, 2017 judgment to order Mr. Hardy to pay an equalizing reimbursement claim in the amount of $ 8,153.36. Additionally, we remand the matter to the trial court to determine whether Mrs. Hardy's LASERS disability retirement benefits will convert to normal retirement benefits and, if so, for a calculation of Mr. Hardy's proportionate share, consistent with the views expressed in this opinion. Costs of this appeal are assessed to Elijah John Hardy.

EXCEPTION OF PRESCRIPTION DISMISSED AS MOOT; JUDGMENT AMENDED, IN PART, AND REMANDED.

Whipple, C.J. concurs in the result.

Higginbotham, J. concurs in the result.

      A January 22, 2014 minute entry shows the following:
      Counsel for the parties informed the court that an agreement had been reached and presented the court with a domestic relations order, which was signed in open court.
      Mr. Hardy never attempted to appeal the domestic relations order.

      Louisiana Revised Statutes 9:2801A(4) provides, in pertinent part:
      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:
      * * *
      (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.

      The order contains the signature of Mr. Hardy's counsel with the notation, "Stipulated as to form and approved 1-22-14."

      The record is unclear as to the nature of Mrs. Hardy's disability. While Mr. Hardy asserts that the trial court erred in not allowing him to question Mrs. Hardy at trial regarding her disability retirement benefits, on our review, we find that Mr. Hardy was trying to establish that Mrs. Hardy was not actually disabled. During the cross-examination of Mrs. Hardy, counsel for Mr. Hardy tried to question Mrs. Hardy on the nature of her disability. When counsel for Mr. Hardy questioned whether Mrs. Hardy was receiving the disability benefits lawfully, the trial court stated that that argument would have to be the subject of a separate claim and not part of an action to partition community property. Also, when asked by counsel for Mr. Hardy whether she had any proof that she notified LASERS that she was receiving disability retirement benefits while working full-time, Mrs. Hardy's attorney objected as to relevance, and the objection was sustained. Regardless, any argument that Mrs. Hardy was not disabled would not and does not change the character of the payments made to Mrs. Hardy.

      We note that Mr. Hardy did not timely seek rental reimbursement from Mrs. Hardy for the use of the former community home.

      The record indicates that two payments that Mrs. Hardy claimed were part of the payments to the Bank of St. Francisville on the mortgage for the former community home were actually payments to the Bank of St. Francisville on the mortgage for the Honda CRV. Also, two payments referenced a different loan and another payment was shown twice.

      Mrs. Hardy's mother continued to reside in the Clinton property without paying rent until 2016.

      Two payments were made by Mrs. Hardy to East Feliciana Bank with a different loan number. Mrs. Hardy failed to sufficiently prove that this loan number was associated with a mortgage on the Clinton property.

      We note the second paragraph of LSA-C.C. art. 2365, which reduces the reimbursement claim of the spouse with the enjoyment of certain corporeal movables and provides:
      If the community obligation was incurred to acquire ownership or use of a community corporeal movable required by law to be registered, and separate property of a spouse has been used after termination to satisfy that obligation, the reimbursement claim shall be reduced in proportion to the value of the claimant's use after termination of the community property regime. The value of that use and the amount of the claim for reimbursement accrued during the use are presumed to be equal.


author: WICKER, J.

text:
    Laverne R. JOSEPH v. EGAN HEALTH CARE CORPORATION d/b/a Egan Home Health & Hospice Services
    NO. 19-CA-10
    Court of Appeal of Louisiana, Fifth Circuit.
    May 06, 2019
    COUNSEL FOR PLAINTIFF/APPELLANT, LAVERNE R. JOSEPH, G. Karl Bernard, New Orleans
    COUNSEL FOR DEFENDANT/APPELLEE, EGAN HEALTH CARE CORPORATION D/B/A EGAN HOME HEALTH & HOSPICE SERVICES, Bruce A. Miller, Metairie, Mauricio Sierra, Gretna
    Panel composed of Judges Fredericka Homberg Wicker, Jude G. Gravois, and Hans J. Liljeberg
   WICKER, J.

Appellant, Laverne Joseph, filed a motion to appeal a summary judgment rendered in favor of Defendant-Appellee, Egan Health Care Corporation. Appellee filed a motion to dismiss, asserting that Plaintiff's appeal is untimely. For the following reasons, we find Plaintiff's appeal is untimely and that this Court lacks jurisdiction to consider the appeal. Accordingly, we grant Appellee's motion to dismiss, and dismiss the appeal.

On December 13, 2016, Plaintiff filed an employment discrimination suit against Appellee, Egan Health Care Corporation, in the Twenty-Fourth Judicial District Court for the Parish of Jefferson. In its Answer to the suit and in subsequent pleadings, Appellee denied Plaintiff's allegations and contended that it never employed plaintiff. On August 9, 2017, Plaintiff filed a First Amended Petition, naming Egan Health Care of Plaquemines, Inc. as an additional defendant-employer.

On October 5, 2017, Appellee, Egan Health Care Corporation, filed a motion for summary judgment, contending that it never employed Plaintiff and therefore is improperly named as a defendant in Plaintiff's suit. In support of its motion for summary judgment, Egan Health Care Corporation attached a copy of responses to Request for Admissions propounded upon Plaintiff, in which she admitted that her paycheck stubs reflect she was compensated by Egan Health Care of Plaquemines, Inc. Appellee also attached pay check stubs listing Plaintiff's employer as Egan Health Care of Plaquemines, Inc., eight years of W-2 forms reflecting Egan Health Care of Plaquemines, Inc. as Plaintiff's employer, a judgment of garnishment issued by Second Parish Court for the Parish of Jefferson wherein Egan Health Care of Plaquemines, Inc., as garnishee, was ordered to garnish a portion of Plaintiff's wages to satisfy student loan debt, and multiple affidavits attesting that Appellee, Egan Health Care Corporation, did not employ Plaintiff. Appellee's motion for summary judgment was heard on May 8, 2018, and the arguments presented concerned whether Appellee was in fact Plaintiff's employer and whether additional discovery should have been conducted. On May 10, 2018, the trial court granted summary judgment in favor of Appellee, Egan Health Care Corporation.

The record reflects that defendant, Egan Health Care of Plaquemines, Inc., also filed a separate motion for summary judgment on the merits of Plaintiff's discrimination claims. Egan Health Care of Plaquemines' motion for summary judgment was set for hearing on June 19, 2018-after Appellee had been dismissed as a defendant in the litigation. On June 26, 2018, the trial court signed a separate judgment granting Egan Health Care of Plaquemines' motion for summary judgment.

On August 23, 2018, more than 60 days from the date of the judgment rendered in favor of Appellee Egan Health Care Corporation, Plaintiff filed a motion for appeal seeking review of the "Final Judgment as to Defendant's Motion for Summary Judgement [sic] entered by this Court on April 9, 2018 in favor of Defendants, Egan Health Care Corporation d/b/a Egan Home Health & Hospice Services[.]" Although no judgment was rendered on April 9, 2018, only one judgment was rendered against Egan Health Care Corporation.

La. C.C.P. art. 2087 provides that a devolutive appeal may only be taken within 60 days of either: 1) the expiration of the delay for applying for a new trial, if no application has been timely filed; or 2) the date of the mailing of the notice of the court's refusal to grant a timely filed application for a new trial. Davis v. Caraway , 13-619 (La. App. 5 Cir. 2/12/14), 136 So.3d 81, 82 ; Falkins v. Jefferson Parish School Board , 97-26 (La. App. 5 Cir. 5/9/97), 695 So.2d 1005, 1006. The appeal delays set forth in Article 2087 are not prescriptive periods that are subject to interruption;

rather, these time limits are jurisdictional. Id. ; Martin v. Freiberger , 02-188 (La. App. 5 Cir. 6/26/02), 822 So.2d 810, 811. The failure to file a devolutive appeal timely is a jurisdictional defect in that neither this Court nor any other court of review has the jurisdictional power or authority to reverse, revise, or modify a final judgment after the time for filing a devolutive appeal has elapsed. Id. ; Parish of Jefferson v. McGee , 11-76 (La. App. 5 Cir. 5/24/11), 67 So.3d 640, 642 ; Baton Rouge Bank & Trust Co. v. Coleman , 582 So.2d 191, 192 (La. 1991).

Absent a timely filed motion for appeal, the appellate court lacks jurisdiction over the appeal. Davis v. Caraway , supra . An appellate court may, on its own motion, recognize its lack of authority to consider an untimely appeal and dismiss it. Id. ; Martin , 02-188, 822 So.2d at 811 ; State Farm Mut. Auto. Ins. Co. ex rel. Robinson v. Jimenez , 98-1057 (La. App. 5 Cir. 1/26/99), 726 So.2d 465, 466.

In her motion for appeal, Plaintiff provided an incorrect judgment date but clearly sought review of the summary judgment in favor of "Egan Health Care Corporation." Although Plaintiff, on occasion, refers in the trial court record to "Egan" as if the defendants are the same entity, the record is abundantly clear that Appellee, Egan Health Care Corporation, and a separately named defendant, Egan Health Care of Plaquemines, Inc. are two separate entities: Plaintiff filed two separate petitions naming each entity as a defendant; each entity filed separate motions for summary judgment; the trial court conducted two separate hearings on two separate dates on each defendant's motion for summary judgment; and the trial court issued two separate, written judgments on each defendant's separately filed motion for summary judgment.

Further, in reviewing Plaintiff's appellant brief, it is clear that Plaintiff challenges the May 10, 2018 judgment rendered in favor of Egan Health Care Corporation, because the issues raised concern the trial court's finding that Egan Health Care Corporation was not her employer and, the trial court's alleged error in making such a determination without "adequate discovery" conducted.

On appeal Appellee, Egan Health Care Corporation, has filed a motion to dismiss, contending that Plaintiff's appeal of the May 10, 2018 judgment in its favor is untimely. Plaintiff has not responded to or opposed Appellee's motion to dismiss on jurisdictional grounds. Upon thorough review of the record in this matter, we find that Plaintiff failed to timely appeal the May 10, 2018 judgment in favor of Appellee and, thus, this Court lacks jurisdiction to consider the merits of Plaintiff's assignments of error on appeal. Accordingly, we grant Appellee's motion to dismiss and dismiss the appeal.

APPEAL DISMISSED

      The hearing on Appellee's motion for summary judgment was previously continued after Plaintiff requested additional time to complete discovery. At the May 8, 2018 hearing, Plaintiff's counsel stated that, "no discovery has taken place [since the last hearing], but there were no deposition[s] because, again, I represent a plaintiff that even to - to pay for the deposition that we took with Peter Egan took about four months for her to gather the funds to do so."

      Plaintiff filed a motion for new trial from the June 26, 2018 judgment, which the trial court denied for failure to comply with La. C.C.P. art. 1975.

      Egan Healthcare of Plaquemines, Inc. was not named in the motion for appeal and has not filed any pleadings or made any appearance in this Court.