Charlotte Woods Norton VS Brian Keith Norton
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NOT DESIGNATED FOR PUBLICATION STATE OF LOUISIANA COURT OF APPEAL FIRST CIRCUIT 2010 CA 0174 CHARLOTTE WOODS NORTON VERSUS BRIAN KEITH NORTON 4 Judgment Rendered June 11 2010 APPEALED FROM THE FAMILY COURT IN AND FOR THE PARISH OF EAST BATON ROUGE STATE OF LOUISIANA DOCKET NUMBER 090 DIVISION D 954 THE HONORABLE ANNETTE LASSALLE JUDGE Kenneth R Williams Attorney for PlaintiffAppellant Baton Rouge Louisiana Charlotte Woods Norton Ambrose Charles L Dirks III Baton Rouge Louisiana Attorney for Defendant Appellee Brian Keith Norton BEFORE PARRO KUHN AND McDONALD JJ McDONALD J This is an appeal of a judgment partitioning a retirement benefit in a community property regime rendered in the Family Court of East Baton Rouge Parish The issue is whether the trial court correctly reduced the former spouse s interest because of a post community promotion that the family court ascribed to his separate estate For the following reasons the judgment is affirmed Brian Keith Norton appellee was employed as a firefighter with the Baton Rouge Fire Department in April 1979 In May 1981 he and Charlotte Woods married and in March 1990 Charlotte filed a petition for separation Judgment of separation between the parties based upon mutual fault was rendered on October 15 1990 Judgment of divorce was rendered October 2 1991 Pursuant to the law in effect at that time the community was dissolved effective March 7 1990 Mr Norton continued to serve as a firefighter through December 1990 In January 1991 he was probationally promoted to fire equipment operator After serving a probationary period he was permanently classified as a fire equipment operator effective July 1 1991 In October 1995 he took the test to qualify as a fire captain He passed the test and was placed on the employment promotion list until February 15 1997 when he was made a captain on a probationary basis On August 15 1997 he was given permanent status as a captain From June 15 2002 through June 15 2007 he was in the Deferred Retirement Option Program DROP and terminated his employment effective June 15 2007 In August 2006 Mrs Ambrose filed a petition to partition community property with a sworn detailed descriptive list showing Mr Norton interest in s the CityParish Employee sRetirement System as the only asset A hearing on this matter was held on March 11 2009 at the conclusion of which the record was kept Charlotte subsequently remarried and is now Mrs Ambrose and will hereinafter be referred to as Mrs Ambrose 2 open for additional evidence Judgment on partition of the community property was signed June 29 2009 The judgment apportioned the retirement benefit in accordance with the formula set forth in Sims and modified by Hare such that Mrs Ambrose received 17 per cent of the total monthly benefit and DROP 403 account proceeds that Mr Norton would have been entitled to had he retired as a fire equipment operator rather than as a captain Mrs Ambrose appeals this portion of the judgment Four assignments of error are asserted in the appeal however each is premised upon error in utilizing the Hare exception in apportioning Mrs s Ambrose share of the retirement benefit In order to reverse a factual determination by the trier of fact the appellate court must apply a twopart test 1 the appellate court must find that a reasonable factual basis does not exist in the record for the finding and 2 the appellate court must further determine that the record establishes that the finding is clearly wrong manifestly erroneous Barnett v Saizon 08 0336 p 5 La App 1 Cir 9 08 23 994 So 668 672 The manifest error standard of review applies to all factual 2d findings including a finding relating to the factual as opposed to legal sufficiency of evidence to warrant application of a legal theory or doctrine Id Hall v Folger Coffee Co 03 1734 La 4 874 So 90 04 14 2d This standard of review also applies to mixed questions of law and fact such as the issue of whether the facts found by the trier of fact trigger application of a particular legal standard Id Reed v WalMart Stores Inc 97 1174 La 3708 So 362 98 4 2d We have carefully examined the record in this matter and conclude that the family court findings were not manifestly erroneous Specifically with regard to s the burden of proof and resolving any doubts in favor of the non employee spouse 2 Sims v Sims 358 So 919 La 1978 2d 3 Hare v Hodgins 586 So 118 La 1991 2d 3 we note that the family court clearly found that Mr Norton had met the burden of proof Also when there was a doubt as to whether the fire equipment operator test was passed during the community or post community the court resolved the issue in favor of Mrs Ambrose We also note as did the family court that the testimony of the fire chief established that the promotion to captain was the result of personal effort on the part of Mr Norton rather than non personal factors Undeniably seniority was a factor However the chief made clear that passage of the test and satisfactorily completing the probationary period required significant personal effort Further he established that in some cases persons were able to pass the test and achieve the rank of captain many years before those with more seniority We are mindful of the supreme court rationale in establishing the Hare exception and that a brick s at the bottom of a wall may be more important to its stability than quite a few near the top Nevertheless we are not called upon to decide this matter but to review the family court decision s After review of the record and law relevant to this matter we affirm the judgment of the family court and issue this opinion in compliance with Uniform Rules of Louisiana Courts of Appeal Rule 216 B 1 Charlotte Woods Norton Ambrose AFFIRMED 4 Costs are assessed to
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