Kelly Ann Milton VS Ernest Derry Milton
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STATE OF LOUISIANA COURT OF APPEAL FIRST CIRCUIT NUMBER 2010 CA 1589 KELLY ANN MILTON VERSUS ERNEST DERRY MILTON MAY Judgment Rendered 9 2011 Appealed from the TwentyFirst Judicial District Court In and for the Parish of Tangipahoa Louisiana Trial Court Number 2008002082 Honorable Zorraine M Waguespack Judge Lila Tritico Hogan Attorneys for Hammond LA Plaintiff and Appellee Kelly Ann Milton Bree Routman Kennedy Denham Springs LA Marlise O Harrell Hammond LA Attorney for Defendant Appellant Ernest Derry Milton BEFORE CARTER C GAIDRY AND WELCH JJ J WELCH J Ernest a judgment partitioning community Derry Milton appeals He challenges the trial court valuation of a community asset s property community dairy cows and the denial of certain reimbursement claims made We amend the judgment of the trial court with respect to the net by him value of the community and as amended that portion of the judgment including the adjudication of the reimbursement claims of the parties is We vacate that portion of the judgment allocating the community affirmed assets and liabilities and ordering Derry Milton to pay an equalizing sum in the amount of 15 00 000 to Kelly Milton For the reasons set forth in this opinion with regard to value of the community dairy cows we remand for a re allocation of the community assets and liabilities and if necessary for the determination of a new equalizing payment to one of the parties based on the re allocation I FACTUAL AND PROCEDURAL HISTORY Derry Milton and Kelly Milton were married on June 27 1980 During their marriage they lived in Tangipahoa Parish where they owned and operated a dairy farm On July 2 2008 Kelly Milton filed a petition for divorce and a judgment of divorce was ultimately granted by the trial court on August 31 2009 While the divorce was pending the parties entered into a stipulated judgment imposing a mutual reciprocal preliminary injunction prohibiting enjoining and restraining both parties from alienating encumbering disposing of or concealing any asset belonging to the community without written permission of the other The parties also stipulated that Derry party Milton was authorized to operate the dairy farm and incur as his separate obligation various expenses for the dairy farm including but not limited to 2 purchasing feed incurring a feed bill purchasing replacement cows incurring debts repairing and maintaining equipment and incurring fuel expenses However if those expenses inured to the benefit of the community Derry Milton reserved the right to reimbursement seek for such expenses Additionally Derry Milton was authorized to sell the milk to receive the proceeds of the milk checks to pay expenses of the dairy and to sell cows subject to an accounting for any profits when the community property was partitioned With regard to the sale of cows Derry Milton was to provide written notice to Kelly Milton including the number of cows sold the person or entity to whom the cows were sold and the sales price On February 19 2009 Kelly Milton filed a petition to partition community property After both parties filed their sworn detailed descriptive lists of all community assets and liabilities a trial to partition the community was held on January 28 2010 At trial the parties stipulated to the value of the following community assets in of community interest in family home located at 69495 Highway 1054 24 Kentwood Louisiana with 23 land also 00 000 135 equipment located household in barn government on acres Highway goods and of land 1054 furnishings in in 00 333 90 223 26 acres Kentwood Louisiana family home 00 000 5 00 525 9and DFA equities and income for dairy from 00 117 25 The parties also stipulated to the value of the following community liabilities Kentwood Co op feed bill Kentwood Co op 50 16 dairy Bank of America Visa 84 539 79 00 668 5 I The parties stipulated that this property was valued at 335 however the 00 000 community only had a z interest in the property and the remaining 3 interest was Derry s Milton separate property 2 The value of the stipulated community assets was 397 00 975 3 and Mildred Day raising calves 00 500 dairy The parties also stipulated to the value of the following reimbursement claims of Kelly Milton sale of timber from 2 1 of Kelly Milton separate funds received from s 00 00 000 500 3 separate property 2 of 9 42 of 2 of the rental value for Derry Milton use of the family home for 18 months s 00 940 5 2 proceeds from sale of cows including yearlings and heifers 00 701 2 23 1 of payments made on Bank of America Visa debt 00 100 2 2 of Kelly Milton s timber85 used for 82 486 separate funds received from sale of community portion x 2 of 3 of home s 0028 99100 56495 Kelly Milton separate funds from timber85 used for 82 486 s Derry Milton separate portion sale of of home of 85495 2 of Kelly Milton 8228 48600 sseparate funds from sale of separate property used Kelly s Milton dairy farm separate funds from 2 of 32000 1 of 0016 000 00 2 for community succession used a z of 13867 2 of Kelly Milton attorney fees 716 73400 s purposes through on date of divorce z of 9 27 2 of all college grants 504 854 9 00 received for major children that was not used to pay Bank of America card which was used to pay tuition 00 645 and 1 of all income from the dairy 2 or property from July 2008 through trial including milk checks USDA deposits60 00 213 Lastly the parties also stipulated reimbursement claims of inheritance from 00 750 62 2 1 of Derry used Derry for Milton on s Milton attorney fees the value of the Bank of America through of 1 00 500 3 purposes Visa date of divorce debt The value of the stipulated community liabilities was 85 34 724 Kelly Milton stotal stipulated reimbursement claim was 181 00 883 4 00 187 2 z of 7 00 800 3 4 following 2 1 of Derry Milton separate funds s community of payments made to 00 900 2 31 of Max payment of Agri 0000 509 254 6231 0251 683 841 1 2 1 payment cow of 2 of miscellaneous loan since Spring dairy July Creek expenses 2008 2 of of Milling 00 000 2 3 1 of electric bill for dairy barn 1 of 4 23 2 payments ADS 2 002 944 3 00 2 1 of 1 696 1 of 2 payment of home repairs in the amount 00 391 00 2 3 of 994 1 payment to Parish Disposal in the amount of 800 2 of 00 2 00 payment payment to Kentwood Co op to Kentwood feed bill a of 61547 2 of 3330 094 00 Coop miscellaneous bill Zof 18 00 226 11200 95 A trial on the value of the remaining community assets and liabilities and on the reimbursement claims of the parties was then held At the conclusion of trial the trial court made the following findings that the remaining community assets were 163 cows with a value of 177 an 00 575 IRA account with a value of 32 and a John Deere tractor 770 with a 68 903 value of 7 that there were no other community liabilities other 00 300 than those that had already been stipulated to that Kelly Milton failed to prove and was not entitled to reimbursement claims for the proceeds from the sale of hay and rye grass that Derry Milton had a reimbursement claim for the use of his separate funds from timber proceeds in the amount of 5 Derry Milton stotal stipulated reimbursement claim was 92 51 404 G The transcript indicates that the trial court found the tractor had a value of seventy three thousand three hundred dollars However this appears to have been an inadvertent misstatement by the trial court as the value placed on this asset by Kelly Milton was only 00 300 7 and Derry Milton claimed it was his separate property Furthermore in stipulating to the net value of the community following trial the parties had to have utilized the sum of 7 rather than the sum of 73 in order to reach the 00 300 00 300 value that they did See footnote 10 The adjudicated community assets totaled 217 68 778 8 The adjudicated community liabilities totaled 0 00 5 00 000 5 and that Derry Milton was not entitled to reimbursement or credit for the value of his separate cows that he brought into the marriage to the fair market rental value of his separate 84acre dairy land used during the marriage for the benefit of the community or to dairy farm manager or milk hand wages for managing and working on the dairy farm by himself for the benefit of the community for one and a halfyears following the termination of the community Subject to a reservation of the right to appeal the trial court factual s findings detailed above the parties stipulated that the net community total community assets less total community liabilities had a value of 00 029 530 with each party being entitled to 1 of the net community Z estate or 00 015 265 The parties further stipulated that if Kelly Milton assumed the Bank of America Visa liability in the amount of 5 she 00 668 would be entitled to receive a total asset of 00 683 270 Additionally and subject to the right to challenge the trial court findings with regard to s reimbursement claims the parties agreed that Derry Milton owed reimbursement to Kelly Milton in the total amount of 181 that 00 883 Kelly Milton owed reimbursement to Derry Milton in the total amount of 00 405 97 with the net offset being that Derry Milton owes Kelly Milton 9 Derry Milton stotal adjudicated reimbursement claim was 5 00 000 10 The total community assets of 615 stipulated community assets of 68 753 adjudicated community assets of 217 less the total community 68 778 liabilities of 85 stipulated community liabilities of 85 34 724 34 724 adjudicated community liabilities of 0 yields a net community of 530 00 34 029 00 975 397 11 12 total i3 total 2 1 of 530 is 265 00 029 015 00 s 00 883 Kelly Milton total stipulated reimbursement claim of 181 reimbursement claim of 0 00 181 883 00 adjudicated Kelly Milton s s 51 404 Derry Milton total stipulated reimbursement claim of 92 reimbursement claim of 5 97 adjudicated 00 51 000 404 Derry Milton s 6 reimbursement in the Kelly Milton was amount of entitled 00 478 84 to receive Combining the amounts that 00plus her reimbursement 683 270 in the amount of 84 00the parties stipulated that Kelly Milton was 478 entitled to the total amount of 00 161 355 In order to receive this amount the parties stipulated that Kelly Milton would be allocated the family home both the Z community interest and Derry Milton separate 1 interest for a 3 s 3 total value of 335 and the household goods and furnishings with a 00 000 value of 5 and that she would receive an equalizing payment in the 00 000 amount 15 her a total of 355 in assets giving 00 000 00 000 The parties further stipulated that Derry Milton would receive the 26 90 acres of land all assets associated with the dairy farm including cows the tractors DFA equities and barn equipment Additionally Derry Milton assumed the liabilities associated with the dairy farm including but not limited to the Kentwood Co op and Mildred Day bill s A written judgment reflecting the trial court ruling and the parties s stipulations was signed on March 3 2010 and it is from this judgment that Derry Milton has suspensively appealed On appeal Derry Milton raises nine assignments of error that present five main issues for our review 1 the scope of the examination or cross examination of Kelly Milton allowed by the trial court 2 Derry Milton claim for the value of the separate cows that s he brought into the marriage 3 Derry Milton claim for rental value for the s use of his separate land by the community dairy business 4 Derry Milton s claim for wagesas a dairy farm manager and a milk handfor managing or and working on the community dairy farm by himself for one and a half years following the termination of the community and 5 the number and value placed on the community dairy cows 14 00 00 883 405 181 97 00 478 84 7 II LAW AND DISCUSSION A Crossexamination ofKelly Milton In this assignment of error Derry Milton essentially contends that the trial court legally erred in refusing to allow the cross examination of Kelly Milton on issues other than those brought out in direct examination He contends that although the parties submitted a joint list or exhibit of all stipulated and contested community assets and liabilities and all claims between the parties the trial court precluded him from questioning Kelly Milton cross on contained in the examination regarding many list specifically those of the items or claims pertaining to Derry s Milton reimbursement claimson the basis that those issues were not addressed during her direct examination Derry Milton claims that he should have been allowed to examine or cross examine Kelly Milton as to any item contained on the joint list Louisiana Code of Evidence article 611 provides in pertinent part A Control by court Except as provided by this Article and Code of Criminal Procedure Article 773 the parties to a proceeding have the primary responsibility of presenting the evidence and examining the witnesses The court however shall exercise reasonable control over the mode and order of interrogating witnesses and presenting evidence so as to 1 Make the interrogation and presentation effective for the ascertainment of the truth 2 Avoid needless consumption of time and 3 Protect witnesses from harassment or undue embarrassment B Scope of cross examination A witness may be cross examined on any matter relevant to any issue in the case including credibility However in a civil case when a party or person identified with a party has been called as a witness by an adverse party to testify only as to particular aspects of the case the court shall limit the scope of cross examination to matters testified to on direct examination unless the interests of justice otherwise require 8 Generally leading questions Leading questions should not be used on the direct examination of a witness except C as may be necessary to develop his testimony and in examining an expert witness on his opinions and inferences However when a party calls a hostile witness a witness who is unable or unwilling to respond to proper questioning an adverse party or a witness identified with an adverse party interrogation may be by Generally leading questions should be leading questions permitted on cross examination However the court ordinarily shall prohibit counsel for a party from using leading questions when that party or a person identified with him is examined by his counsel even when the party or a person identified with him has been called as a witness by another party and tendered for cross examination After reviewing the transcript of the trial of this matter we note that Kelly Milton only testified during the presentation of her own case and that the trial court limited Derry Milton cross of Kelly Milton only s examination to issues addressed during her direct examination Louisiana Code of Evidence article 611 B provides that a witness may be cross examined on any matter relevant to any issue in the case In this case the parties submitted a joint exhibit of the stipulated and contested community assets and liabilities and claims between the parties Therefore Derry Milton was entitled to cross examine Kelly Milton regarding any of the items or claims contained in the joint exhibit Accordingly we find that the trial court erred in limiting the scope of the cross examination of Kelly Milton by Derry Milton However following the trial court improper ruling limiting the s scope of the cross examination Derry Milton did not make an offer of proof or a proffer of the evidence See La C art 103 Furthermore we find that E the error was harmless as the record before us does not establish that a substantial right of Derry Milton swas affected See La C art 103 E Accordingly we find that the trial court did not commit a reversible 15 The limited scope of the cross examination referred to in La C art 611 is the E B crossexamination by the testifying party own attorney not the attorney for the adverse s party 9 error in refusing to allow Derry Milton to cross examine Kelly Milton on matters that were not brought out in her direct examination This assignment of error has no merit B Reimbursement Claims of Derry Milton 1 Value of Derry Milton Separate Cows s In this assignment of error Derry Milton contends that his undisputed testimony at trial established that at the time of his marriage to Kelly Milton he had been a dairy farmer for four years and brought 60 cattle into the marriage which were worth 1apiece for a total of 90 and 00 500 00 000 that those cattle immediately began producing income for the benefit of the community Based on this evidence and the provisions of La C art 2367 he contends that he was entitled to reimbursement for onehalf the value the cattle had at the time they were used and that the trial court erred in refusing to grant him such reimbursement Louisiana Civil Code article 2367 provides If separate property of a spouse has been used during the existence of the community property regime for the acquisition use improvement or benefit of community property that spouse 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 the spouse who owes reimbursement is limited to the value of his share of all community property after deduction of all community obligations Thus Derry Milton contends that because his separate property the 60 cows was used during the existence of the community property regime for the acquisition use improvement or benefit of the community in the form of income to the community he is entitled to reimbursement for one half the value the cattle had at the time they were used or 45 We disagree 00 000 It was uncontradicted that Derry Milton brought 60 dairy cows into the marriage which were his separate property 10 However those cows produced milka natural fruit of the animaland that milk produced revenuea civil fruit See La C art 551 Thus the milk and the revenue from the milk were natural and civil fruits of the separate property of Derry Milton Louisiana Civil Code article 2339 provides that tnatural and civil fruits he of the separate property of a spouse are community property 16 Thus the 60 cows brought into the marriage by Derry Milton produced natural and civil fruits which were community property The cows were not used during the community for the acquisition use improvement or benefit of community property as contemplated in La C art 2367 rather the cows simply produced community property Accordingly Derry Milton was not entitled to reimbursement under La C art 2367 for onehalf the value of the cows that he brought into the marriage and we find no error in the trial court s decision to reject the request for reimbursement in this regard This assignment of error has no merit 2 Rental Value for the Use of Derry Milton Separate Property s In this assignment of error Derry Milton contends that his testimony at trial established that his separate inherited land including the dairy barn was used during the existence of the community and following the termination of the community for the benefit of the community dairy farm Additionally he contends that the testimony of Joseph Mier an appraiser which was erroneously excluded from evidence by the trial court established the rental value of Derry Milton property at the time it was used was 127 s 00 800 00 900 per month for the thirty six months prior to trial plus approximately 00 300 per month from the date of marriage through January 2007 Based on this evidence and again relying on the provisions of La C art 2367 he 16 We note that pursuant to La C art 2339 a spouse may reserve the natural and civil fruits of his separate property as his separate property by declaration made in an authentic act or act under private signature duly acknowledged There was no evidence offered in this case establishing that Derry Milton had made such a declaration 11 contends that he was entitled to reimbursement for onehalf the value the land had at the time it was used 63 and that the trial court erred in 00 900 refusing to grant him such reimbursement We disagree The provisions of La C art 2367 provide for reimbursement to a spouse when the amount or value of a spouse separate property is used s during the community to acquire improve or benefit community property For example when the separate funds of a spouse are used during the community to acquire a community home then the spouse whose separate funds were used is entitled to reimbursement for onehalf the value of those funds at the time the funds were used In this case although there was no dispute that Derry Milton separate propertyi land itself used s e the was in part during the existence of the community by the community dairy farm there was no evidence establishing that the value of the land was used during the existence of the community to acquire improve or benefit community property as required by La C art 2367 Accordingly Derry Milton was not entitled to reimbursement under La C art 2367 for one half the rental value of his separate land for its use by the community dairy farm and we find no error in the trial s court decision to reject the request for reimbursement in this regard This assignment of error has no merit 3 Derry Milton Claim for Wages s In this assignment of error Derry Milton challenges the trial court s refusal to grant his claim for wages a dairy farm manager andor a milk as handfor managing and working on the community dairy farm by himself for one and a half years following the termination of the community According to Derry Milton testimony following the termination of the s community he worked on the dairy farm approximately eight hours a day seven days a week His work on the farm included milking the cows twice a 12 day at 3 a and after he got home from his job as a postal worker 00 m caring for the cows performing general repair work on equipment and tractors and working plowing planting and bush hogging the fields Derry Milton contends that this labor on his part following the termination of the community was his separate labor on behalf of a community enterprise for which he was entitled to be reimbursed Specifically Derry Milton claimed that he was entitled to be reimbursed for the wages of a dairy farm manager or a milk hand as provided in U Department of Labor Statistics and that the S trial court erred in refusing compensate him for such wages Louisiana Civil Code article 2369 provides in pertinent part that 1 fter a the termination of the community property regime the provisions governing co ownership apply to former community property unless otherwise provided by law or juridical act A spouse has a duty to preserve and to manage prudently former community property under his control including a former community enterprise in a manner consistent with the mode of use of that property immediately prior to termination of the community regime default or He is answerable for any damage caused by his fault neglect A community enterprise is a business that is not a legal entity La C art 2369 A spouse who incurs expenses in compliance 3 with the obligation imposed by La C reimbursement for onehalf the costs in art 9 2363 accordance is with entitled the to general principles of the law of coownership La C art 2369 comment f 3 A co owner who on account of the thing held in indivision has incurred necessary expenses expenses for ordinary maintenance and repairs or necessary management expenses paid to a third person is entitled to reimbursement from the other C art 806 coowners in proportion to their shares La Under this provision a co owner is responsible to his co 13 owners for his share of necessary management expenses paid to a third A co owner is not allowed to receive anything for his own person management of the thing that is held in indivision unless he is entitled to such a recovery under a management plan adopted by agreement of all the co owners by judgment under the law of or unjust enrichment La C art 806 comment c Louisiana Civil Code article 2369 provides that e spouse owns 2 ach an undivided one half interest in former community property and its fruits and products A spouse right to recover costs of producing fruits and products s is governed by La C art 798 and is assertable in an action of partition under La R 9 S 2801 La C art 2 2369 comment d Louisiana Civil Code article 798 provides that cowners share the fruits and products of o the thing held in indivision in proportion to their ownership When fruits or products are produced by a coowner other coowners are entitled to their shares of the fruits or products alter deduction of the costs of production However a coowner does not have the right to claim compensation for his own labor or services compensation under the he may law of nevertheless be unjust enrichment entitled to such La C art 798 comment c According to the September 24 2008 stipulated judgment Derry Milton was authorized to operate the community dairy farm thus he had a duty to preserve and manage the dairy farm in a manner consistent with they way he had done immediately prior to the termination of the community Additionally Derry Milton was entitled to reimbursement for necessary expenses expenses for ordinary maintenance and repairs management expenses paid to a third person or necessary The stipulations of the parties and the evidence at trial indicated that Derry Milton had fulfilled his duty in 14 this regard and that he was reimbursed for expenses that the law provided he was entitled to be reimbursed for However the applicable provisions of the law do not provide for Derry Milton to be compensated for his own management of the community dairy farm Furthermore community cows the which community generated 17 dairy revenues farm produced for the farm milk from At the time of the termination of the community the cows on the dairy farm were community property Thus Derry Milton and Kelly Milton each owned an undivided one half interest in the cows and in the natural and civil fruits of those e i the milk and the cows revenues derived therefrom Although Kelly Milton was only entitled to her share of the fruits of the community dairy farm after the costs of production the applicable provisions of law do not provide for Derry Milton to be compensated for his own labor or services in the production of coowned fruits i in the production of milk for the dairy e farm g Accordingly Derry Milton was not entitled to reimbursement for wages for managing or working on the community dairy farm by himself for one and a half years following the termination of the community and we find no error in the trial court decision to reject the request for reimbursement in s this regard This assignment of error has no merit C 17 Number and Value Placed on Community Cows Although a coowner may be entitled to compensation for his own management expenses under a management plan adopted by agreement of all the coowners by judgment or under the law of unjust enrichment we do not find based on the record before us that any of these exceptions are applicable 18 Again we note that a co owner may be entitled to compensation for his own labor or services in the production of co awned fruits based on the law of unjust enrichment we do not find based on the record before us that application of the principles of unjust enrichment is warranted herein See La C art 2298 See generally Webb v Webb 1577 2001 La App 0 Cir 11 8 835 So 71 writ denied 20023001 La 02 2d 3 03 14 3839 So 37 2d 15 In this assignment of error Derry Milton contends that the trial court s factual finding that the community owned 163 cows which were valued at 00 089 575 177 or 1 each was manifestly erroneous We agree 41 The provisions of La R 9 set forth the procedure by which S 2801 community property is to be partitioned when the spouses are unable to agree on a partition of community property La R 9Bible v Bible S 2081 A 2003 2793 p 4 La App I Cir 9 895 So 547 549550 writ 04 17 2d denied 2005 1081 La 05 17 6 904 2d So 700 Under La S R a 4 A 2801 he 9 t court shall value the assets as of the time of trial on the merits The provisions of La R 9 are mandatory Bible 2003 S 2801 2793 at p 4 895 So at 550 2d In this case the trial court factual finding that the community owned s 163 cows was based on the testimony of Kelly Milton and a January 2008 financial statement to Agri Max Financial Services P L AgriMax Kelly Milton testified that during the existence of the community she and Derry Milton generally owned approximately 163 cows at a time and believed that they owned 1 cows when she filed her petition for divorce on July 2 63 2008 However her testimony in this regard was based on the January 2008 financial statement to AgriMax Kelly Milton further testified that although 19 A trial court factual findings and credibility determinations made in the course of s valuing and allocating assets and liabilities in the partition of community property ma not be set aside absent manifest error McDaniel v McDaniel 35 p 6 La App 2 Cir 833 02 3 4 813 So 1232 1235 The twopart test for the appellate review of facts in order 2d to affirm the factual findings of the trier of fact is 1 the appellate court must find from the record that there is a reasonable factual basis for the finding of the trier of fact and 2 the appellate court must further determine that the record establishes that the finding is not clearly wrong manifestly erroneous See Mart v Hill 505 So 1120 1127 La 1987 2d Thus if there is no reasonable factual basis in the record for the trier of fact finding no s additional inquiry is necessary to conclude there was manifest error However if a reasonable factual basis exists an appellate court may set aside a factual finding only if after reviewing the record in its entirety it determines the factual finding was clearly wrong See Stobart v State DOTD 617 So 880 882 La 1993 Moss v State 2d 20071686 p 3 La App 1st Cir 8 993 So 687 693 writ denied 20082166 08 2d La 11 996 So 1092 08 14 2d 16 they sold cows each year the herd should have remained the same because the cows were reproducing calves and the calves generally replaced what was sold Kelly Milton testified as of the time of trial Derry Milton had sold approximately 90 95 cows since July 2 2008 the date the community terminated and that he had accounted to her for all cows sold Kelly Milton had no knowledge as to the number of cows owned on the date of trial other than her belief that there were 163 because that was the number that they generally had Derry Milton testified that as ofthe date of trial the community had 43 cows He testified from the time of the January 2008 financial statement to Agri Max through July 2 2008 the date the community terminated he sold 22 cows and approximately 6 or 7 cows died He stated that none of the cows that he sold had calves before he sold them as the calves were generally born in the fall Thus Derry Milton testified that as of the date the community terminated the community only owned 141 dairy cows Derry Milton further testified that following the termination of the community in the summer and fall of 2008 he was having fertility problems with the cows in that they had contracted Lepto and Vibrio He stated that although the cows would get pregnant they would eventually miscarry the calves or have a stillbirth He stated that approximately 60 of his remaining herd had miscarried As a result they were not having the number of calves that they should have had the cows were milking longer and getting less production In an attempt to rectify this problem Derry Milton testified that he changed vaccines upon the recommendation of his veterinarian and he sold his bull because Vibrio could be spread by a bull Derry Milton testified that because of the miscarriages and stillbirths experienced in the summer and fall of 2008 he did not have a doubling of the 17 herd Additionally due to problems in the dairy industry and the falling prices of milk which necessitated government subsidies he decided that he would start selling the cows and pay off the community debts of the farm Derry Milton testified that he accounted to Kelly Milton for all of the cows that were sold and that as of the time of trial there were 43 cows remaining In this case the only evidence as to the number of cows on the date of the community property partition trial was the testimony of Derry Milton that there were 43 cows The trial court determination that there were 163 cows s was based on Kelly Milton testimony and the January 2008 financial s statement to Agri Max which was approximately six months prior to the termination of the 2801 community Louisiana Revised Statutes 9 mandates that assets are valued as of the time of the partition trialnot at the time the community is terminated or some time prior to its termination The only testimony as to the number of cows owned by the community on the date of trial was the testimony of Derry Miltoni e that there were 43 cows that the other cows had been sold and that Kelly Milton was entitled to onehalf the proceeds of all cows sold Thus there was no reasonable basis for the trial courts determination that as of the date of trial the community had 163 dairy cows worth 177 and its finding in this regard was manifestly 00 575 erroneous To the extent Kelly Milton claimed that the number of cows owned by the community should have remained the same or that the decrease in the herd was attributable in some way to Derry Milton such allegations would pertain to a claim under the provisions of La C 20 art 3 2369 However Kelly Louisiana Civil Code article 2369 provides that a spouse has a duty to preserve 3 and to manage prudently former community property under his control including a former community enterprise in a manner consistent with the mode of use of that property immediately prior to termination of the community regime He is answerable for any 18 Milton did not make a claim under La C art 2369 In fact Kelly Milton 3 specifically admitted that the dairy industry had been suffering and that the prudent thing a manager of a dairy would do would be to get out of the business before getting into debt As we have concluded that the trial court factual finding as to the s number and value of community cows was manifestly erroneous we find that the community had 43 cows on the date of the partition trial and using the value placed on each cow by the trial court which was not 41 089 1 challenged on appeal the value of those cows as of the date of trial was 63 844 46 Accordingly the net community estate of the parties is valued at 399 and the judgment of the trial court is amended as follows 97 298 The first paragraph of Part I is amended to reflect that each party is entitled to 48 649 199 in net assets 23 the third paragraph of Part I is amended to provide that Derry Milton owes Kelly Milton 284 48 127 However with regard to Part II of the judgment we find that the trial s court erroneous factual finding as to the number and value of community cows affected the parties stipulation as to a proper and equitable allocation of assets and liabilities and that the financial circumstances of the parties may no longer warrant such allocation For instance based on the values as amended and the allocation of assets set forth in the judgment it appears that Kelly Milton would owe a significant equalizing payment to Derry Milton when perhaps the parties would rather agree to a different allocation of assets damage caused by his fault default or neglect A community enterprise is a business that is not a legal entity 21 22 Thus the adjudicated community assets now total 31 048 87 31 023 485 stipulated community assets of the adjudicated assets changing the value of the cows as determined herein of 87 less the total community liabilities of 85 yields a net community of 31 048 34 724 The total community assets of 00 975 397 97 298 399 See footnote 10 23 48 649 199 is h of 399 97 298 9 1 Therefore we vacate Part II of the judgment which allocates the community assets and liabilities and renders judgment for an equalizing sum in favor of Kelly Milton and we remand for a reallocation of assets and liabilities and if necessary an equalizing payment in accordance with La S R c 4 A 2801 9 III CONCLUSION In sum we find no error in the trial court refusal to grant Derry s s Milton reimbursement claims for the value of his separate cows brought into the marriage rental value for the community dairy farm use of his separate s property during the marriage and for wages for managing and working on the community dairy farm following the termination of the community However we find that the trial court manifestly erred in concluding on the date of the 00 575 177 partition trial that the community owned 163 cows worth Instead we conclude that the community owned 43 cows worth 46 Accordingly we amend Part I ofthe trial court judgment 63 844 s with respect to the net value of the community and the amount that each party is entitled to receive As amended that portion of the judgment Part I of the judgment ofthe trial court is affirmed We vacate Part II of the judgment which allocates the community assets and liabilities and remand for a re allocation of assets and liabilities in accordance with the views expressed in this opinion All costs of this appeal are assessed equally between the parties Kelly Ann Milton and Ernest Derry Milton JUDGMENT AMENDED AND AS AMENDED AFFIRMED IN PART VACATED IN PART REMANDED WITH INSTRUCTIONS 20
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