Kenneth W. Tanana VS Bettie Ramsey Tanana
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STATE OF LOUISIANA COURT OF APPEAL FIRST CIRCUIT G v 2012 CA 1013 KENNETH W TANANA VERSUS BETTIE RAMSEY TANANA 7udgment Rendered AY 3 1 013 On Appeal from the Twenty Judicial District Court Second In and for the Parish of St Tammany State of Louisiana 14826 2010 No Honorable Reginald T Badeaux Judge Presiding Zeringue Covington Louisiana Counsel for Plaintiff Appellee Clint L Counsel for Defendant Appellant Bettie Ramsey Zara Pierson Jr Candice L Jenkins Kenneth W Tanana Covington Louisiana BEFORE q 1 HIPPLE C McCLENDON AND HIGGINBOTHAM JJ 7 wls t r r c o tc e a 4b a R cc McCLENDON J An ex appeals the judgment of the trial court that ordered the spouse public sale of the parties former matrimonial domicile Because the trial court ed fai to follow the mandatory procedure set forth by law for partitioning community property we vacate the judgment and remand for further proceedings in accordance with law FACTUAL AND PROCEDURAL HISTORY On December 6 2005 Kenneth Tanana filed for divorce from Bettie Ramsey Tanana in the 22nd Judicial District Court in St Tammany Parish A judgment of divorce was granted on September 14 2006 in Docket No 2005 15121 Division A The parties entered into several agreements and consent judgments regarding child support child custody and partition of the community property including a consent judgment signed by the trial court on January 16 2007 the Consent Made part of the Consent Judgment was a Judgment previous agreement dated November 20 2005 the 2005 Agreement and entitled Voluntary Settlement of Community Property Liabilities Stipulation Related Marital and Support Issues with Hold Harmiess Agreement The Consent Judgment provided that the 2005 Agreement was made the judgment of this court and the parties are held by its terms and conditions In the 2005 agreement the parties agreed inter alia to voluntarily partition their community property in accordance with the agreement The parties also agreed to place their former matrimonial domicile located in Bush Louisiana on the open market to be liquidated as soon as possible and listed for a sales price agreeable to both parties The home remained on and off the market for five years The parties only received one offer on the house during that period which was rejected outright by Mr Tanana Also during this time on January 1 2009 a Family Court Division was 1 Although the parties had been separate in property by virtue of a prenuptial agreement they rescinded and cancelled all prenuptial agreements in accordance with the 2005 Agreement z The parties former domicile is a large 5 home situated on ten acres in a rural foot square 964 area 2 established in the 22 Judicial District Court The Tananas divorce proceeding was then assigned to Division L of Family Court In June 2009 Mr Tanana filed a Petition to Partition in the divorce proceeding pursuant to LSA 9 S R 2801 Thereafter on July 28 2010 Mr Tanana filed a second Petition for Partition as a new proceeding in Docket No 2010 allotted to Division I 14826 which is the matter currently before us Mr Tanana asserted in said petition that he and Ms Tanana were unable to agree upon the terms and manner of a non judicial partition of the former family home and that pursuant to the Consent Judgment he and Ms Tanana were co of the property in question owners Subsequent to the filing of the new suit Mr Tanana filed an ex parte motion to dismiss the petition for partition in the family court division which was granted on October 4 2010 In his motion Mr Tanana asserted That the parties had previously entered into a Voluntary Community Settlement of Community Property which Stipulation was made executory by Consent Judgment dated January 16 2007 This Judgment was again recognized as a partition of the assets and debts of the parties in a Hearing Officer Conference s held on June 15 2010 Therefore the R 9 partition filings S 2801 by plaintiff are redundant and unnecessary In response to the new suit Ms Tanana filed several exceptions including the peremptory exceptions raising the objections of res judicata no right of 3 Rule 23A of the Local Rules of Court 22n Judicial District Court provides There shall be a Family Court Docket in the 22nd udicial District and that docket shall be allotted to Divisions K and L Matters heard on the Family Docket shall include 1 Annulment of marriage divorce and separation and related proceedings and incidental matters including those listed in La C Art 105 2 Property partitions and related proceedings and incidental matters that are associated with the dissolution of marriages 3 related Child issues including but not limited to issues related to the paternity of children adoption filiation custody visitation and support in non cases marital name changes for minor children and emancipations 4 Domestic violence protective orders 5 Separation of community property regimes 6 Enforcement of any orders issued in connection with the matters listed in sections 1 a6ove including proceedings for contempt of court 5 7 Such other matters as may be designated by en banc order of the 22n Judicial Distrid Court udges 3 action and no cause of action 4 Ms Tanana argued that because the house was former community property the sole remedy for partition was pursuant to LSA S 2801 R 9 and Mr Tanana was not entitled to a partition by licitation Following a hearing on January 18 2011 the trial court concluded that LSA S R 2801 9 did not apply because the parties by their consent judgment exempted themselves from that statute A judgment overruling the exceptions was signed by the trial court on February 7 2011 A trial on the merits was held on June 22 2011 and the matter was held open for thirty days for post memoranda and to allow Ms Tanana to submit trial a market analysis of the property On October 28 2011 the trial court issued its judgment and written reasons for judgment In its written reasons the court again stated that the parties were co in indivision of the property in owners question and as such the court could not use LSA 9 order a S4 R 2801A to e private sale The trial court further held because the Consent Judgment provided for no time by which the property must be sold it was unenforceable as to the family home Therefore because there was no valid agreement to sell the property the trial court found that the only course available to it was to order a sheriff sale The triaf court determined that the fair market value for s the home was 750 In order to protect the interest of both parties as 00 000 much as possible the trial court ordered that the property be listed for public 4 Ms Tanana had also filed exceptions raising the objedions of lis pendens and lack of subject matter jurisdiction on September 16 2010 However she voluntarily dismissed these declinatory exceptions in November 2010 after Mr Tanana original petition to partition pending in family s court was dismissed 5 Louisiana Revised Statutes 9 provides in pertinent part 2801A A When the spouses are unable to agree on a partition of community properry or on the settlement of the claims between the spouses arising either from the matrimonial regime or from the m of former community ownership 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 6 The parties also stipulated at trial that they were co in indivision owners undisputed that the home was former community property 4 Further it is sale at the ne sheriff auction with a minimum bid of 600 which ct s 00 000 reflected a 20 reduction in the market value of the home Ms Tanana appealed the judgment initially as a suspensive appeal However Ms Tanana failed to timely post bond and the appeal was converted to a devolutive appeal On February 1 2012 the property was sold at the s sheriff sale at which time Mr Tanana bought the property for 611 00 000 In this appeal Ms Tanana raises three assignments of error 1 The trial court erred in denying Ms Tanana various exceptions s to these instant proceedings as this case should have proceeded under its previous docket number in accordance with the local court rules for the 22n Judicial District Court where a Consent Judgment had already been entered partitioning the property 2 The trial court erred in proceeding without properly partitioning the property at issue and failing to proceed under LSA S R 2801 9 3 The trial court erred in ordering partition by licitation forcing the family home to be sold at sheriff sale below market value s prejudicing Ms Tanana as Mr Tanana bought the home at ssale sheriff LAW AND DISCUSSION It is well that a court of appeal may not set aside a trial court or settled s a jury finding of fact in the absence of manifest error or unless it is clearly s wrong Evans v Lungrin 97 La 2 708 So 731 735 0541 98 6 2d However if a legal error interdicts the fact process the manifest error finding standard is no longer applicable Ferrell v Fireman Fund Ins Co 94 s 1252 La 2 650 So 742 747 95 20 2d A legal error occurs when a trial court applies incorrect principles of law and such errors are prejudicial Chambers v Village of Moreauville 11 La 1 85 So 593 597 Legal errors 898 12 24 3d are prejudicial when they materially affect the outcome and deprive a party of 5 substantial rights When such a prejudicial error of law skews the trial court s finding of a material issue of fact and causes it to pretermit other issues the appellate court is required if it can to render judgrnent on the record by applying the correct law and determining the essential material facts de novo Chambers 85 So at 597 3d In her appeal Ms Tanana maintains that LSA 9 is the sole S R 2801 provision to govern a partition of community property when the spouses cannot agree on a partition of all or part of their assets However Mr Tanana contends that the Consent Judgment represented a judicial partition of all community property between the parties including the subject property and therefore the provisions of LSA 9 are inapplicable in this matter Thus we must first S R 2801 determine whether LSA 9 is applicable to the facts before us S R2801 The starting point for the interpretation of any statute is the language of the statute itself SWAT 24 Shreveport Bossier Inc v Bond 2000 1695 La 6808 So 294 302 Cat Meow Inc v City of New Orleans O1 29 2d s Through Dept of Finance 98 La 10 720 So 1186 1198 0601 98 20 2d When a statute is clear and unambiguous and its application does not lead to absurd consequences the statute is applied as written and no further interpretation may be made in search of legislative intent See LSA art 9 C S R4 LSA 1 Further because this issue involves statutory interpretation which is a question of law our review is de novo See Holly Smith Architects Inc v St Helena Congregate Facility Inc 06 La 11 943 0582 06 29 2d So 1037 1045 Louisiana Revised Statutes 9 provides in pertinent part 2801A A When the spouses are unabie 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 ownership co 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 Emphasis added 6 Thus the provisions of LSA 9 set forth the procedure by which S R 2801 community property is partitionad when the spouses are unable to agree on a partition of community property or on the settlement of the ciaims between them S R 2801 LSA 9 see also Bible v Bible 03 La 1 Cir 2793 App 04 17 9 895 So 547 550 writ denied 05 La 6 904 So 2d 1081 05 17 2d 700 The provisions of LSA 9 are mandatory Bible 895 So at S R 2801 2d 550 It is undisputed that the parties have been unable to agree on a settlement of the claims arising from the co of the family home More ownership specifically the parties cannot agree on how to proceed following the home s failure to sell after being on and off the market for five years In this regard Ms Tanana wanted to continue to try to sell the home by private sale whereas Mr Tanana sought a partition by licitation Also Mr Tanana admitted in his petition herein that he and Ms Tanana were unable to agree upon the terms and manner of a non partition of the family home judicial Clearly this dispute involves a disagreement between the spouses arising from the co of ownership former community property following the termination of their matrimonial regime Therefore in accordance with the clear wording of the statute we conclude that the trial court legally erred in failing to apply the provisions of LSA S 2801 R 9 regarding the disposition of the former home Because the trial court did not apply LSA 9 we find it necessary S R 2801 to vacate the judgment of the trial court and to remand the matter for completion of the partition proceedings in accordance with LSA 9 and S R 2801 Additionally LSA art 2369 provides that if spouses are unable to agree on the partition C 8 of former community property either spouse may demand judicial partition which shall be conducted in accordance with R 9 Empfiasis added S 2801 8 The evidence presented at trial indicated that there was a downward trend of the real estate market at the time and the house was listed at a high price was in a rural area and was unfinished 7 for transfer to the appropriate Family Court division of the 22nd Judicial District Court in accordance with Rule 23A of the local rules CONCLUSION For the above and foregoing reasons the October 28 2011 judgment of the trial court is hereby vacated and we remand this matter for further proceedings consistent with the views expressed herein All costs of this appeal are assessed against Mr Tanana REVERSED AND REMANDED 9 We also note that on September 11 2012 after this matter was appealed Rule 27 of the 2 Local Rules of Court 22 Judicial District was adopted effective October 1 2012 Said rule provides in pertinent part A Community Property Cases 1 Commencement of Proceedings All partition actions shall be commenced by petition supplemental petition or reconventional demand and shall include a dexription of the claims the party seeks to have decided by the court and shall comply in all other respects with La R 9 All partitions shall be filed in the same suit number of the divorce S 2801 or and separation of property action behveen the same parties This does not preclude a motion to homologate an e partition judicial xtra 8
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