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Lowe v. Lowe
Citation: 463 So. 2d 755Docket: 84-CA-240
Court: Louisiana Court of Appeal; January 13, 1985; Louisiana; State Appellate Court
In the case of Patricia Crocker Lowe v. Claude W. Lowe, the Louisiana Court of Appeal addressed an appeal regarding the partition of community assets following the couple's divorce. Patricia and Claude Lowe were married in 1960, separated in 1978, and divorced in 1979, with custody of their four children granted to Patricia and Claude ordered to pay child support and mortgage payments. Claude Lowe initiated the partition process shortly after the divorce, leading to a series of legal motions and a consent judgment adjusting certain asset valuations. A trial held on April 8, 1983, focused on key issues including Patricia's interest in Claude's retirement fund and his claims for reimbursement of mortgage payments. The court's judgment, issued on June 6, 1983, denied Claude's mortgage reimbursement claims, assigned Patricia a portion of Claude's retirement benefits, and approved certain claims against her. The judgment also established notarial and appraiser fees related to the partition process. Both parties appealed specific aspects of the ruling, with Claude challenging the valuation of assets, credits applied to him, and the court's failure to recognize his mortgage payment claims. Patricia Lowe appeals against a provision allowing Mr. Lowe to claim $1,897.79 from her, asserting she is entitled to this amount as a credit, along with an additional $364.01 for half of an escrow payment, totaling $2,261.80. Both parties challenge the reasonableness of notary and appraisers' fees, with Mr. Lowe noting that the $7,500 awarded to the notary is 4.6% of the inventory's gross value of $162,061.61. They cite the case Tutorship of Vinall, which involved minimal work for the notary, arguing for lower fees. However, the current case required significantly more effort. While no evidentiary hearing was held, the judge had extensive involvement in the case over three years and had access to records supporting the work performed. Mrs. Lowe's argument that the notary duplicated her counsel's actions is dismissed, as the disputes necessitated the involvement of a notary. Citing Hill v. Hill, the court affirms that the trial judge appropriately determined fees based on criteria including time, labor, inventory value, local fee customs, and the professionals' qualifications. Both parties also contest the judgment regarding Mrs. Lowe’s interest in Mr. Lowe's retirement plan, which assigns a dollar value to her interest based on the formula from Sims v. Sims. This formula states that retirement benefits accrue based on service during the community's existence, and the actual amount cannot be determined until Mr. Lowe retires. The judgment requires amendment to acknowledge Mrs. Lowe's entitlement to her community share of benefits from 17.2 years in the plan when the funds are payable to Mr. Lowe. Mr. Lowe seeks reimbursement of $29,694.84 for mortgage payments made from the separation petition filing until the partition sale, plus $728.01 paid into escrow. Mrs. Lowe disputes Mr. Lowe's reimbursement claim, asserting she is entitled to half of the escrow amount due to it being a deficiency in mortgage payments, and argues that mortgage payments were included as part of child support in prior judgments that were not modified before the partition trial. The trial judge denied Mr. Lowe's reimbursement request, despite acknowledging that Mrs. Lowe had remarried and lived in the property with her new family until June 1982. The judge indicated an intention to credit Mr. Lowe for rent instead of mortgage payments but did not include this in the partition judgment. Mr. Lowe's counsel references case law supporting a spouse's right to recover mortgage payments made on the community home after separation. Notably, the court in Lentz v. Lentz established that post-community termination, co-owners are entitled to possess the property without rent unless one excludes the other, and both are obligated to maintain the property. The judgment affirms Mr. Lowe's right to reimbursement from Mrs. Lowe's share for one-half of all mortgage payments made, including principal, interest, taxes, and insurance. However, Mrs. Lowe contends that co-owners are not required to pay rent if they reside in the common property and argues that Mr. Lowe's payments were mandated as part of support, thereby negating his claim for reimbursement. Counsel for the wife did not provide case law with similar facts; however, the case Cookmeyer v. Cookmeyer outlines relevant principles. In that case, a separation judgment allowed the wife and children to reside in one half of a double house while the husband was responsible for the mortgage payments, which were deemed to include interest, taxes, and insurance but not principal payments. The court ruled that alimony should not serve as investment capital for the spouse in need. Therefore, Mr. Lowe is entitled to reimbursement from the community only for the principal portion of mortgage payments he made, not for insurance or tax escrow payments, which were denied reimbursement despite his claims. Regarding community movables, Mr. Lowe's appeal for a $500 adjustment for community property was affirmed as correct. For the Bell System Savings Plan, Mr. Lowe contested the calculation of Mrs. Lowe's share but was found to have no basis for claiming credit for accrued interest due to community debts, as the notary confirmed the parties had agreed on the higher figure. In terms of a loan from Mr. Lowe's mother, he claimed to have paid $1,800 after separation but lacked documentation, while Mrs. Lowe provided a receipt for a $700 payment. The court favored her testimony, reducing Mr. Lowe's credit accordingly, which was upheld as a matter of credibility. Lastly, a claim of $1,897.79 from Mr. Lowe to Mrs. Lowe was approved, but the specific nature of this claim was not clarified in the record. Mrs. Lowe appeals a financial award, claiming entitlement to funds instead of Mr. Lowe. Her counsel references credits noted in the Notary's "Findings of Facts," but these do not match the contested amount of $1,897.79. The award to Mr. Lowe may relate to his claim against Mrs. Lowe's separate estate concerning a federal tax lien of $1,852.80, including interest, necessitating clarification of this judgment aspect. The court orders the following: 1. Affirmation of the notary's fee of $7,500 and appraisers' fees at 1% of the gross community inventory valued at $162,060.61. 2. Affirmation of the accounting of disputed partition items, including a $500 credit to Claude Lowe for community movables, the valuation of the Bell System Savings Plan, and a $700 credit to Patricia Crocker Lowe for a loan repayment to Grace Lowe. 3. Amendment of the judgment regarding the valuation of Mrs. Lowe's interest in Mr. Lowe's retirement plan, aligning with Sims v. Sims, stating her pension interest will be calculated based on the formula for creditable service during the community's existence. 4. Reversal of the denial of Mr. Lowe's claim for reimbursement of mortgage payments made between August 29, 1977, and September 16, 1982, with a mandate for reimbursement from community assets, to be calculated based on the reduction of principal debt due to those payments. 5. Remand for clarification on Mr. Lowe's claim against Mrs. Lowe for $1,897.79. The overall decision is affirmed in part, amended in part, reversed in part, and remanded.