DUPREE v. DUPREE (2006)

 Both the ex-husband in his appeal and the ex-wife in her answer to her ex-husband's appeal asserted that the trial court erred in partitioning their former marital community property.   John E. Dupree, Jr., complained that the trial court incorrectly ordered him to reimburse Doris Jean Prisock Dupree for half of her separate funds used for community expenses and in awarding his ex-wife 40 acres and a motorcycle.

According to Doris, the trial court erred in ruling she waived her claims for reimbursement of her separate funds used to extinguish community obligations after the termination of the community.   In addition, Doris objected to the trial court's refusal to include certain of John's checking accounts and certificates of deposit as community property in calculating the partition.   Finally, Doris asserted that the trial court incorrectly omitted the civil fruits of John's separate property as community property in allocating community assets.

In very detailed and carefully-considered reasons for judgment,¹ the trial court gave scholarly explanations for the judgment partitioning the community assets and ordering the equalizing payment from John to Doris.   We amend the judgment of the trial court to increase by $9,145.52 the equalizing payment from John to Doris.   In all other respects, the judgment of the trial court is affirmed.

BACKGROUND

While married to John, Doris received an inheritance from her father and donations from her mother of bank stock and other assets which produced large dividends.   Doris deposited the dividends into a community checking account and spent the monies on the family.   John acknowledged that, from the date that Doris filed the declaration making the dividends her separate property on March 26, 2001, until the termination of the community on May 21, 2003, those deposits totaled $284,008.32.   Although both spouses were signatories on the checking account, it was used almost exclusively by Doris.

During this period, John worked as a registered nurse at LSU Hospital in Monroe at a salary of some $44,000.00 per year and also farmed on the 40-acre tract in dispute.   John also received an inheritance from his parents during the marriage.   According to Doris, John's support of the family consisted of a monthly payment to her of approximately $1,400.00.   By stipulation, the parties agreed to the value and community nature of certain assets and debts.

 DISCUSSION

The property of married persons domiciled in Louisiana is either community or separate.²  La. C.C. art. 2335.  La. C.C. art. 2338 defines community property:

The community property comprises:  property acquired during the existence of the legal regime through the effort, skill, or industry of either spouse;  property acquired with community things or with community and separate things, unless classified as separate property under Article 2341;  property donated to the spouses jointly;  natural and civil fruits of community property;  damages awarded for loss or injury to a thing belonging to the community;  and all other property not classified by law as separate property.

What constitutes separate property is set out in La. C.C. art. 2341:

The separate property of a spouse is his exclusively.   It comprises:  property acquired by a spouse prior to the establishment of a community property regime;  property acquired by a spouse with separate things or with separate and community things when the value of the community things is inconsequential in comparison with the value of the separate things used;  property acquired by a spouse by inheritance or donation to him individually;  damages awarded to a spouse in an action for breach of contract against the other spouse or for the loss sustained as a result of fraud or bad faith in the management of community property by the other spouse;  damages or other indemnity awarded to a spouse in connection with the management of his separate property;  and things acquired by a spouse as a result of a voluntary partition of the community during the existence of a community property regime.

Property possessed by a spouse during the existence of the community property regime is presumed community, although either spouse may prove it to be separate property.  La. C.C. art. 2340.   The natural and  civil fruits of separate property are community property;  however, a spouse may reserve them as separate property by a declaration made in authentic form effective from the date the declaration is filed in the public records.  La. C.C. art. 2339.   An obligation incurred by a spouse for the common interest of the spouses or for the interest of the other spouse is a community obligation.   La. C.C. art. 2360.   Except as provided in La. C.C. art. 2363,³ obligations incurred during the community property regime are presumed to be community obligations.  La. C.C. art. 2366.

Reimbursement from the Community to Doris for Separate Funds Used

In response to Doris's claim for reimbursement from the community for half the amount of her separate funds spent for community obligations and expenses, John argued that the money was spent for exorbitant luxuries which exceeded the ordinary needs and expenses of the family.   As examples, John cited:

• Doris's monthly lease payment of $1,050.00 for a large luxury model Lexus;  and

• more than $10,000.00 per month Doris spent for clothing, gifts, pool expenses, furniture, landscaping, and jewelry.

Conceding the separate nature of the aforementioned dividends, John agreed that the money was Doris's to spend as she chose.   Since the  expenses were well beyond the needs and means of the parties, John argued that the community should not be ordered to reimburse Doris for half of the expenditures which were not ordinary expenses of the marriage.

In Doris's view, the trial court correctly found the funds were spent for community expenses and benefitted the entire family by maintaining their 4,500-square-foot residence, pool, yard, and comfortable lifestyle, along with educating their children in private schools.   John for many years enjoyed the lifestyle which Doris's separate funds provided.   Doris testified that John did not pay for his daughter's education or expenses or for their home and its furnishings.   This permitted John to hoard his assets.   Among the benefits to John were a luxurious home on which he never paid a mortgage note;  interests in two airplanes during the marriage;  sheepskin seats in the airplane;  new, nicely-equipped trucks;  recreation land upon which to hunt;  and recreational vehicles.   Moreover, John obtained a college education and nursing degree without having any financial worries after he and his father sold their family business a number of years earlier.

 The trial court correctly ruled that under La. C.C. art. 2361, Doris was entitled to the benefit of the legal presumption that the $284,008.32 was used to satisfy community obligations.   To defeat Doris's claim for reimbursement, John had to prove under La. C.C. art. 2363 that the expenditures were not for the common interest of the spouses or for John's interest, but were incurred for Doris's separate property for which neither the community nor the family received any benefit.   The trial court stated:

John produced no evidence that any of these expenditures were incurred for Doris' separate property.   His basic argument focuses on  the amount of money Doris spent on clothing, gifts, furnishings, jewelry, transportation and related items which he testified were primarily to satisfy the extravagant lifestyle of his ex-wife and daughters.   However, an obligation which improves the community property assets or fulfills his alimentary obligation to his daughters or was incurred for the common interest of the spouses is a community obligation.  La. C.C. arts. 227, 229, 230, 2349, 2360, 2362, and 2367.

A review of the expenditures in question reveals that most of the expenditures were for clothing, household items and furnishings, transportation expenses, swimming pool necessities, house and yard maintenance, taxes, insurance premiums, medical needs, educational and extracurricular activities for his minor child and other customary expenses of the marriage for which he received a direct benefit.

Noting that the evidence showed the family enjoyed the benefits flowing from Doris's separate property for many years, the trial court correctly concluded that the expenses John characterized as extravagant were not beyond the normal and customary expenses of this marriage.   The testimony and documentation placed into evidence showed that, without Doris's separate funds, the family would not have been able to have enjoyed the lifestyle to which they were accustomed.   John's monthly contributions to the family were insufficient to finance, maintain and pay the monthly expenses for their large home, swimming pool and yard and to provide clothing, food, transportation, medical expenses and related costs for the family.

To John's contention that he did not agree or consent to the family's lifestyle, the trial court noted that Doris was not required to have John's consent to make the expenditures.  La. C.C. art. 2346 provides for equal management of community property and directs that each spouse alone may manage, control and dispose of community property.   The trial court found it would be “inequitable to deny Doris's reimbursement claim because some  of the expenses about which John complains are beyond the reach of most people living in Richland Parish.”   The use of Doris's separate funds inured to the benefit of the community, the family and John who failed to overcome the Article 2361 presumption in Doris's favor.   Therefore, the trial court found Doris entitled to reimbursement from the community assets the sum of $142,004.16, or half the amount of the funds stipulated to be her separate property.

 In Doris's answer to John's appeal, Doris claimed the trial court erred in finding she waived her claims for reimbursement for payment of community debts with her separate funds after the termination of the community.   Doris did not include this issue in post-trial brief, and the trial court assumed in footnote 2 of the unpublished addendum that Doris had abandoned her claims for reimbursement after the termination of the community.   Placed into evidence at trial was an itemized list of those expenses totaling $18,291.05, primarily for insurance premiums on community property, taxes, and car payments.   Doris testified at trial about many of these items and pointed out in her appellate brief that John did not provide evidence disputing that these were community debts.   Doris's weak explanation of this omission from her post-trial brief was that she concentrated on more complex and contested issues.   However, the record supports her contention that she is entitled to reimbursement for half of these expenditures.   Therefore, the amount of equalizing payment ordered by the trial court from John to Doris is amended and increased by $9,145.52.

 Motorcycle and 40-Acre Tract

John objects to the 2001 Harley-Davidson motorcycle having been included in the community property partition and awarded to Doris.   According to John, Doris gave him the motorcycle in full ownership as a Christmas gift, which she judicially admitted in a petition for revocation of a donation filed in the record.   At trial, John stated that Doris paid for the motorcycle and that it was presented as a gift to him.   When asked if the motorcycle was a gift for the couple, John said he could not answer that but his wife probably could.   John acknowledged that Doris rode the motorcycle with him.   Doris stated she wanted the motorcycle.

 John initially testified he was willing for Doris to have the motorcycle and other assets and wanted no compensating payments for community assets.   John explained in later testimony that he was confused by the questioning and wanted all community assets split equally with him receiving a compensating payment if the amount Doris received exceeded his share.   John's complaints about the motorcycle being his separate property by virtue of a gift are belied by the joint stipulation filed by the parties that listed the motorcycle as community property.

 In the stipulation filed into the record, the parties also agreed that the disputed 40-acre tract was community property.   While John contended that the trial court erred in allocating this asset to Doris, John does not state how or why this was erroneous.   John simply states that he wanted the acreage assigned to him.   In Roan v. Roan, 38,383 (La.App.2d Cir.4/14/04), 870 So.2d 626, this court noted that the trial court has much discretion in  valuing and allocating assets and liabilities in community property partitions and must consider the source and nature of each asset or liability, the financial situation of the other spouse, and any other relevant circumstances.  La. R.S. 9:2801, et seq.   An appellate court may not set aside a trial court's factual findings absent manifest error or unless clearly wrong.  Roan, supra.   We can discern no abuse of discretion or clear error in the trial court's allocation of the acreage and the associated debt along with the motorcycle to Doris.

Rulings on John's Bank/Investment Accounts and Certificates of Deposit

Finding that Doris had failed to follow the procedure required by La. R.S. 9:2801, et seq., to place at issue assets alleged to be part of the community, the trial court refused to include those items in the partition of the community.   In response to Doris's interrogatories, John included the following assets which were not on his detailed descriptive list:

Doris's initial sworn detailed descriptive list of community property filed July 26, 2004, did not contain any reference to the foregoing assets.   On October 6, 2004, John filed his sworn detailed descriptive list, which did not include those assets which John considered his separate property.   Doris  did not include any reference to the funds in her December 7, 2004, traversal of John's sworn detailed descriptive list.   John filed his traversal of Doris's sworn detailed descriptive list and his amended detailed descriptive list of community property on April 1, 2005.   The trial court observed that John's response to Doris's interrogatories contained information about the CDs and checking accounts and was mailed to Doris's attorney on May 10, 2005.   Thereafter on July 1, 2005, prior to the trial held July 5 and August 12, 2005, Doris filed an amended sworn detailed descriptive list, which did not raise the ownership of the assets.   Notwithstanding testimony about these assets at both days of the trial, Doris did not place these assets at issue and first raised her claim that they be included in the partition in her post-trial brief to the trial court.

The trial court explained:

This court finds that even though Doris had sufficient notice and opportunity to place these assets at issue during these proceedings, she failed to make this known to John or this court until after the trial had concluded.   John testified about the certificates of deposit and the checking accounts during the trial;  however, he did not have “fair notice” that Doris intended to place them at issue as items to be partitioned in the proceedings.

This court considered John's testimony during cross-examination about these assets in light of Doris' attempts to reveal John's alleged nefarious decision to keep his money to himself.   Since these assets had not been included in the detailed descriptive lists, this court understood that Doris was eliciting this testimony to show why she was required to infuse her separate property funds into the community checking account so that this family could enjoy their high standard of living.   This testimony was not considered by this court as an effort on Doris' part to expand her detailed descriptive list to include these assets as potential community property.

 While John's testimony about these assets being separate property was inconclusive, the record supports the trial court's conclusion that Doris had notice well in advance of trial that he claimed them to be his separate property.   Doris did not contest John's characterization of the assets as separate or make demand that those assets be included in the partition until after the conclusion of the trial.

 La. C.C.P. art. 862 provides that a final judgment shall grant the relief to which the party in whose favor it is rendered is entitled, even if the party has not demanded such relief in his pleadings and the latter contain no prayer for general and equitable relief.   As the trial court properly observed, art. 862 does not permit a trial court to decide issues which litigants have not raised.   See Wilson v. Wilson, 30,445 (La.App.2d Cir.4/9/98), 714 So.2d 35.

 The trial court also recognized that La. C.C.P. art. 1154 permits expansion of pleadings to include issues not raised in pleadings when the issue is tried by the express or implied consent of the parties.   The very specific procedural requirements of La. R.S. 9:2801 govern judicial partitions of community property.   Despite knowing that John considered the CDs and checking accounts his separate property, Doris failed to place them at issue and did not assert she wanted them included in the partition until after the conclusion of the trial.   It is not necessary for this court to examine the legal status of those assets because they were not properly raised at trial.   We find no error in the trial court's rejection of Doris's claims based upon her failure to place them at issue according to the  mandates of La. R.S. 9:2801 when she had notice, time, and opportunity to do so.

CONCLUSION

The judgment of the trial court, which apportioned the assets and debts of community formerly existing between Doris and John and ordered an equalizing payment from John E. Dupree, Jr., to Doris Jean Prisock Dupree in the amount of $67,565.33, is amended to increase the equalizing payment by $9,145.52 to a total of $76,710.85.   In all other respects, the judgment of the trial court is affirmed.   Costs of the appeal are to be paid equally by the parties.

AMENDED AND, AS AMENDED, AFFIRMED.

UNPUBLISHED ADDENDUM

 STATE OF LOUISIANA, PARISH OF RICHLANDFIFTH JUDICIAL DISTRICT COURTDORIS JEAN PRISOCK DUPREE (COSTELLO)VERSUS NO. 37,313CJOHN E. DUPREE, JR.

Filed: Nov. 29, 2005

BY: /s/ Connie Thomas

Dy. CLERK OF COURT

REASONS FOR JUDGMENT

Edwin Rudolph McIntrye, Jr., District Judge.

FACTS AND PROCEDURAL HISTORY

Doris Jean Prisock Dupree Costello (hereafter “Doris”) and John E. Dupree, Jr. (hereafter “John”) were married on June 2, 1973.   Two daughters were born issue of the marriage, Niki and Holly.   The older daughter, Niki, is above the age of majority and is married.   The younger daughter, Holly, is 17 years of age and resides with Doris.   Doris and John were provided with the benefits of the legal regime of community of acquets and gains during their marriage since they did not contract otherwise.  La. C.C. arts. 2328 and 2334.

The parties separated in March of 2003.   A petition for divorce was filed in these proceedings on May 21, 2003, by Doris.   A final judgment of divorce was rendered on February 17, 2004, effectively terminating the community as of May 21, 2003, the date the divorce petition was filed.

Now, the parties have asked this court to partition their community property regime and to settle their respective claims.   This case was tried on July 5, 2005, and August 12, 2005.   The parties have provided this court with their post-trial briefs and their joint stipulation as to the value of the community property assets  and the matter is now ripe for a decision.

DISCUSSION

 Doris' Reimbursement Claims

One of the major issues this court must decide is whether Doris is entitled to reimbursement for the expenditure of her separate property revenues which were deposited into the community property checking account.

According to the testimony, Doris received bank stock during the marriage which was inherited from her father and donated to her by her mother.   This bank stock generated sizeable dividends for several years during the marriage.   These dividends were community property.  La. C.C. art. 2339.   Doris testified that beginning in 1996 these dividends were generally deposited into the community checking account and spent by her on items for the family.   John countered that the dividends were generally spent on luxury items to support his ex-wife's lavish lifestyle.   In any event, Doris' dividends, deposited into the community checking account, amounted to a very large sum of money.

On December 12, 2000, Doris executed a “Declaration of Separateness of Property” by which she reserved the separate nature of the civil fruits derived from her separate property as authorized by La. C.C. art. 2339.   This document was recorded in the Conveyance Records of Richland Parish on March 26, 2001, which is the date the dividends became Doris' separate property according to Article 2339.

Between March 26, 2001, and May 21, 2003, the date the community regime was terminated, the evidence revealed that Doris deposited $284,008.32 of her separate property revenues into the community checking account.   Doris seeks reimbursement under La. C.C. art. 2365 for one-half of this $284,008.32 infusion  to be recovered from both John's one-half interest in the community property and from his separate property estate.

John has stipulated that the $284,008.32 sum was Doris' separate property.   Therefore, the issue of commingling separate property and community property funds will not be addressed as to these revenues.1  However, according to John, Doris should not receive reimbursement for this separate property infusion into the community checking account because he claims most, if not all, of this money was used to satisfy what he has described as Doris' “extravagant lifestyle.”   John has provided the court with a list of expenses written from this account indicating that significant sums were spent by Doris on a luxury car, expensive clothing, beauty enhancements, lawn care, gifts, swimming pool care, furniture, jewelry and related items.   John contends that these expenditures did not benefit either him or the community.

Therefore, John complains that Doris should not be reimbursed for expenses she incurred above the ordinary and reasonable expenses of a family in their position of life.   He filed into evidence as Exhibits D-13, D-14 and D-15, listings of representative checks issued by Doris between March 26, 2001 and May 21, 2003.   The total of these checks on these defense exhibits is $241,723.89.   Then John produced the following breakdown of the expenses reflected in these checks as follows:

As these checks and Doris' testimony indicate, she was spending more than $4,000.00 per month on clothing and gifts.   Also, the Lexus Financial expense involved payments on a Lexus LS430 which Doris drove during this time period.

During Doris' cross-examination, John's attorney elicited an approximate household budget for her, John and Holly.   Doris described a budget excluding her $1,482.67 car payment, Holly's private school tuition and certain extracurricular activity expenses Holly enjoyed, as well as family vacations and gifts in the total sum of $4,146.67 per month as reflected in Exhibit D-18.

Doris counters that the checks written on the community checking account introduced into evidence were for ordinary and customary expenses of the marriage as well as alimentary obligations that she and John provided for their daughters.   Doris argues that because John chose to limit his financial contribution to the household expenses, she was required to deposit her separate property dividends into the community checking account so that the family, including John, could enjoy, furnish, finance, and maintain their 4,500 square foot home, swimming pool, yard and related home expenses as well as educate their daughter in a private school and maintain their comfortable standard of living.

Doris testified that she purchased quality clothing and jewelry for herself and her family, she drove a quality vehicle, she provided quality education and opportunities for their daughter and she purchased quality furnishings and equipment for their home, yard and swimming pool because this was the lifestyle to which they had become accustomed for the last several years of their marriage.    Exhibit D-11 reveals that these parties' total income in 2001 was $389,022.00 of which sum $61,757.00 is shown as wages and their total income in 2002 was $354,762.00 of which sum $67,378.00 is shown as wages.

The evidence and testimony revealed that John earned about $44,000.00 per year during the time period in question and he deposited between $1,400.00 and $1,500.00 a month or about one-half of his salary into the community checking account for household expenses.   He added that he would make other contributions to the needs of the family occasionally when necessary.   John testified he also paid his truck note, truck insurance and motorcycle insurance from his salary revenues.   In addition, he paid the hospitalization insurance for the family which was deducted from his salary check monthly.   He admitted that he kept the balance of his monthly salary check and the earnings from certificates of deposit he testified he inherited from his parents in a separate bank account.

The bank records reveal that virtually all of the $284,003.32 deposited by Doris into the community checking account was spent during the time period in question on items for the home, payments on notes, clothing, jewelry, education, grooming needs, transportation, gifts, food, medical expenses, insurance and related items.   This court must now decide how much of the $284,008.32, if any, is subject to reimbursement in Doris' favor.   A review of the law and jurisprudence on this subject will be instructive in assisting this court in making this important decision.

Community property

Community property comprises, in pertinent part, property acquired during the existence of the legal regime through the effort, skill or industry of either spouse, and the natural and civil fruits of both community property and the  separate property of a spouse.  La. C.C. arts. 2338, 2339.   There is a presumption that things in possession of a spouse during the existence of the legal regime are community property, but either spouse may prove that they are separate property.  La. C.C. art. 2340.

A legal presumption is “an inference created by the legislature that the trier of fact must draw if it finds the existence of the predicate fact unless the trier of fact is persuaded by evidence of the nonexistence of the fact to be inferred.”  La.Code Evid. art. 302(3) (2005).   The presumption of Article 2340 that things in possession of a spouse are community property is rebuttable upon a showing by a preponderance of the evidence that the property in question is separate.  Talbot v. Talbot, 2003-0814 (La.12/12/03), 864 So.2d 590.

Separate property

Separate property comprises, in pertinent part, property acquired by a spouse with separate things or by inheritance or donation to him or her individually.  La. C.C. art. 2341.   As stated above, the natural and civil fruits of the separate property of a spouse are community property.   Nevertheless, a spouse may reserve them as his or her separate property by a declaration made in an authentic act or in an act under private signature duly acknowledged.   As to fruits of movable property, the declaration is effective when filed in the conveyance records of the parish in which the declarant is domiciled. La. C.C. art. 2339.

Community and separate obligations

An obligation incurred by a spouse for the common interest of the spouses or for the interest of the other spouse is a community obligation.  La. C.C. art. 2360.   A separate obligation, in pertinent part, is one incurred by a spouse not for the common interest of the spouses or for the interest of the other spouse.  La. C.C.  art. 2363.

Each spouse acting alone and without the consent of the other may manage, control or dispose of community property.  La. C.C. art. 2346. This codal authority would necessarily include withdrawal of funds in a community checking account.

According to La. C.C. art. 2361, obligations incurred by a spouse during the existence of a community property regime are presumed to be community liabilities with a few exceptions found in La. C.C. art. 2363.   The only two exceptions contained in Article 2363 which apply to this case are:  (1) an obligation which is incurred not for the common interest of the spouses or for the interest of the other spouse and (2) an obligation which is incurred for the separate property of a spouse to the extent that it does not benefit the community, the family, or the other spouse.   The word “family” in Article 2363 means “father, mother and children.”   See La. C.C. art. 3506(12).   Therefore, an obligation incurred for the separate property of a spouse, which also provides some benefit to the community, the father, mother or children or the other spouse may be considered to be either fully or partially a community obligation.  La. C.C. art. 2363, Comment (c).

The legal presumption in Article 2361, that an obligation incurred during the community property regime is a community liability, is rebuttable upon proof by a preponderance of the evidence that the liability in question was not incurred for the common interest of the spouses or for the interest of the other spouse or was a separate obligation not incurred for the benefit of the community, the family or the other spouse.  La. C.C. art. 2363;  Manno v. Manno 2001-2138 (La.App. 1 Cir. 10/2/02), 835 So.2d 649, 651;  Anding v. Anding, 32,084 (La.App.2d Cir.8/18/99), 740 So.2d 253, 260;  Sims v. Sims, 28,470 (La.App.2d Cir.6/26/96),  677 So.2d 663, 665.

Thus, once a spouse establishes that a debt was incurred during the community regime, he or she benefits from the Article 2361 presumption without any necessity to present further evidence.  Sims v. Sims, 677 So.2d at 665.   However, our courts have held that the spouse requesting reimbursement under La. C.C. art. 2365 must also prove that his or her separate funds were used to satisfy a community obligation.  Sims v. Sims, 677 So.2d at 665, 666;  Salsbury v. Salsbury, 27,062 (La.App.2d Cir.6/21/95), 658 So.2d 734;  Maginnis v. Maginnis, 580 So.2d 709 (La.App. 1 Cir.1991), writ denied, 588 So.2d 111 (La.1991);  Kaplan v. Kaplan, 522 So.2d 1344 (La.App. 2d Cir.1988).   It then becomes incumbent upon the other spouse to rebut the Article 2361 presumption by a preponderance of the evidence.  Manno v. Manno, 835 So.2d at 651;  Anding v. Anding, 740 So.2d at 260;  Sims v. Sims, 677 So.2d at 665.

It is, consequently, necessary to examine the debt to determine if it provided a benefit to the community or to the other spouse or if it was incurred for the separate property of one spouse which did not also benefit the community, the family or the other spouse.  La. C.C. art. 2363;  Keene v. Reggie, 701 So.2d 720 (La.App. 3nd Cir.1997);  McConathy v. McConathy, 632 So.2d 1200 (La.App. 2 Cir.1994);  Ledet v. Ledet, 496 So.2d 381 (La.App. 4 Cir.1986).

Proof of benefit to the community is not required to be made with absolute exactness and can be based upon circumstantial evidence.  Jensen v. Jensen, 93-455 (La.App. 3 Cir. 1/5/94), 630 So.2d 959;  Ziegler v. Ziegler, 537 So.2d 1207 (La.App. 4 Cir.1989);  Succession of Videau, 197 So.2d 655 (La.App. 4 Cir.1967), writ denied, 250 La. 920, 199 So.2d 922 (1967).   However, claims for reimbursement will be denied without compelling proof of a strong and substantial  economic advantage inuring to the community.   Jensen v. Jensen, 630 So.2d at 960;  Jones v. Jones, 605 So.2d 689 (La.App. 2 Cir.1992), writ denied, 607 So.2d 571 (La.1992);  Succession of Vice, 385 So.2d 554 (La.App. 3 Cir.1980), writ refused, 392 So.2d 1066 (La.1980).

Monetary expenditures are generally capable of being proven by documentary evidence such as canceled checks and receipts as well as by testimony of the offering party.  McElwee v. McElwee, 93-1010 (La.App. 1 Cir. 8/17/94), 649 So.2d 975, 978;  Cenac v. Cenac, 492 So.2d 39,43 (La.App. 1 Cir.1986).

Parents have an alimentary obligation imposed by law to provide their children with support, maintenance, lodging, nourishment and education.  La. C.C. arts. 227 and 230.   This parental obligation continues past the minority of the child, as long as the child is in need.  La. C.C. art. 229;  Gill v. Gill, 39,406 (La.App. 2 Cir. 3/9/05), 895 So.2d 807, 819;  Ramos v. Ramos, 425 So.2d 989, 992 (La.App. 5th Cir.1983).   The parents' alimentary obligation to their children is a community obligation.  La. C.C. art. 2362.

Also, aid extended by a parent to a child which falls outside the scope of an alimentary obligation may be considered a gratuity made during the marriage.   Thus, a spouse acting alone may make a usual or customary gift to a child of a value commensurate with the economic position of the spouses at the time of the donation.  La. C.C. art. 2349;  Gill v. Gill, 895 So.2d at 820.   This gift to the child may also be considered as a community obligation.  Gill v. Gill, 895 So.2d at 820;  Cutting v. Cutting, 625 So.2d 1112 (La.App. 3d Cir.1993), writ denied, 93-2770 (La.1/7/94) 631 So.2d 453.

 The right of reimbursement

The right of reimbursement is a claim by one spouse against the other which may be satisfied during the judicial partition from the obligor's net share of the community property and, in certain instances, from his or her separate property.  La. C.C. arts. 2358.1 and 2365.   As a personal right, the claim for reimbursement is asserted by the claimant spouse against the obligor spouse instead of against the community of acquets and gains.   See La. C.C. art. 2336, Comment (c) and La. C.C. art. 2358.1, Comment (b).

Reimbursement is determined by the amount of property used or its value.  La. C.C. art. 2364.   Therefore, a spouse has a right to reimbursement when his or her separate property is used to satisfy a community obligation or to improve community property.  La. C.C. art. 2365 and 2367.

Recovery of one-half of the amount or value of the separate property used to satisfy a community obligation is available to the requesting spouse only where there are community assets from which reimbursement may be made after deduction of all community obligations.  La. C.C. art. 2365.  Gill v. Gill, 895 So.2d at 818(FN4(FN4).

If separate property has been used for the acquisition, use, improvement or  benefit of community property, the claimant spouse is entitled to one-half of the amount or value that the separate property had at the time it was used.  Article 2367.   Recovery is dependent upon whether community assets exist from which reimbursement can be made because separate assets of the other spouse are not available for this purpose.  Article 2367.

In the case sub judice, Doris produced the community checking account deposit records and canceled checks indicating that her $284,008.32 separate property revenues were spent between March 26, 2001, and May 21, 2003.   She confirmed that these expenditures were for the benefit of her family and to improve the community home, swimming pool and yard.   John has admitted that the $284,008.32 deposits were her separate property.   Therefore, since it has been shown that Doris' $284,008.32 separate assets have been spent during the existence of the community of acquets and gains, she is entitled to the benefit of the legal presumption that this money was used to satisfy community obligations under Article 2361 without any necessity to present further evidence.   To defeat Doris' reimbursement claim, John must prove under Article 2363 that these expenditures were not made for the common interest of the spouses or for his interest or that they were incurred for Doris' separate property for which neither the community, the family nor he received any benefit.

John produced no evidence that any of these expenditures were incurred for Doris' separate property.   His basic argument focuses on the amount of money Doris spent on clothing, gifts, furnishings, jewelry, transportation and related items which he testified were primarily to satisfy the extravagant lifestyle of his ex-wife and daughters.   However, an obligation which improves the community property assets or fulfills his alimentary obligation to his daughters or was  incurred for the common interest of the spouses is a community obligation.  La. C.C. arts. 227, 229, 230, 2349, 2360, 2362, and 2367.

A review of the expenditures in question reveals that most of the expenditures were for clothing, household items and furnishings, transportation expenses, swimming pool necessities, house and yard maintenance, taxes, insurance premiums, medical needs, educational and extracurricular activities for his minor child and other customary expenses of the marriage for which he received a direct benefit.

Finally, as the evidence and testimony reveal, the obligations for the luxury items complained of by John were not beyond the normal and customary expenses of the marriage prior to the date Doris filed the “Declaration of Separateness of Property” on March 26, 2001.   This family enjoyed the benefits of Doris' separate property dividends for several years.   The evidence shows that it would have been virtually impossible for this family to have enjoyed the lifestyle to which they had become accustomed without Doris' separate funds.   John's monthly contributions were far from sufficient to finance, maintain and pay the monthly expenses for their 4,500 square foot home, swimming pool and yard and to provide clothing, food, transportation, medical expenses and related costs for his family.

John complains that he did not agree with or consent to the extravagant lifestyle enjoyed by his wife and daughters.   Therefore, he contends that he should not be required to reimburse Doris for expenses beyond the normal and customary expenses of the marriage.   He contends that he attempted to live frugally and he should not now suffer a reimbursement claim for expenses of extravagance.   Doris counters that she was required to supplement their checking account because John's contributions were insufficient to cover the expenditures in question which  were and had been the normal and customary expenses of this marriage.

Doris was not required to obtain John's consent to these expenditures.  La. C.C. art. 2346;  Gill v. Gill, 895 So.2d at 820;  Cutting v. Cutting, 625 So.2d at 1117;  Ledet v. Ledet, 496 So.2d 381 (La.App. 4 Cir.1986).   Doris had the managerial authority under Article 2346 to incur these community obligations without John's consent or concurrence.   To pay the expenses of this family, Doris confirmed she was required to significantly deplete her separate funds while John hoarded his in separate accounts.

This court has been unable to find a community property partition case where a spouse has been denied reimbursement because his or her separate assets were used to create obligations considered to be extravagant by the complaining spouse whose family also benefitted from the expenditures in question.   In Succession of Videau, supra, the evidence revealed that the community of acquets and gains existing between Mr. and Mrs. Videau started with nothing.   When dissolved by the death of Mrs. Videau, it was worth approximately $250,000.00.   The evidence also revealed that Mr. Videau's separate assets were commingled with community funds to pay expenses and increase investment holdings during the marriage.

During Mr. Videau's 18 years of employment, his annual income was not more than $12,000.00.   The Fourth Circuit Court of Appeal held that because of the high standard of living which the family enjoyed and the couples' modest annual income, it would be incredible to assume that the community did not benefit from the use of Mr. Videau's separate funds.   Consequently, the Fourth Circuit awarded the surviving spouse $51,938.28 for reimbursement of his separate funds used by the community.   See also Succession of Kidd, 51 La. Ann.  1157, 26 So. 74 (1899) for a similar result.

This court finds that it would be inequitable to deny Doris' reimbursement claim because some of the expenses about which John complains are beyond the reach of most people living in Richland Parish.   John and his then family were the ones enjoying the benefits of these revenues which inured to the benefit of the community, the family and John. John has failed to overcome the Article 2361 presumption in Doris' favor.   The testimony and the documentation reveal that these expenditures benefitted the community, the family and John. Therefore, Doris' reimbursement claim regarding her infusion of separate funds into the community checking account has been adequately established.   She will therefore, be awarded the sum of $142,004.16.

Doris also seeks a reimbursement claim for $69,000.00 used to pay for the income tax liability incurred by the parties before March 26, 2001.   The testimony confirmed that the $69,000.00 used to pay this tax liability originated as Doris' earnings from her ownership interest in various corporations and which said funds were held in the Ruth Prisock Insurance and Tax Account managed by her mother.   John has stipulated that Doris' interest in these corporations were her separate property and that the dividends she received from these corporations were deposited into this account.   The payment of yearly income taxes is a community obligation as well as an ordinary and customary expense of the marriage.  Maginnis v. Maginnis, 580 So.2d at 711.   Since Doris' separate property was used to satisfy an ordinary and customary community obligation and expense of the marriage, Doris' reimbursement claim for $34,500.00 will be allowed.2

 Classification of Certain Assets

Checking Accounts and Certificates of Deposit

At issue in these proceedings is the classification of several assets.   In his response to Interrogatory No. 5 found in Exhibit P-I, John listed the following checking account and certificates of deposit which he held at Commercial Capital Bank as his separate property inherited from his parents in his “Response to Plaintiff's First Set of Interrogatories”:

In this response John indicated that the $40,000.00 certificate of deposit had been inherited from his parents.

Neither Doris nor John included any of these accounts or certificates of deposit as items of community property in any sworn detailed descriptive list or any traversal of sworn detailed descriptive list which they filed into the record of these proceedings.

Unlike Doris, John did not file a declaration of separateness of property under La. C.C. art. 2339.   Therefore, the natural and civil fruits of John's separate property must be considered community property.  La. C.C. arts. 2338, 2339.

John testified that he had inherited these certificates of deposit from his parents;  however, he offered no other testimonial or evidentiary proof of this  claim.   On cross-examination John admitted that the $89,493.03 checking account at Commercial Capital Bank was originally opened with a certificate of deposit inherited from his parents in the sum of $25,000.00.   He stated that the certificate of deposit was cashed in and that $5,000.00 of this amount was used for remodeling expenses.   John confirmed that the balance of $20,000.00 was then deposited into the checking account.   He also testified that he had deposited $7,500.00 into this account from proceeds he received from the sale of a Cessna 182 airplane and that he had used funds from this account to purchase a four-wheeler and a boat.   The airplane, four-wheeler and the boat appear as community property assets on the sworn detailed descriptive lists offered by both parties as well as the “Joint Stipulation” filed into these proceedings.

John also testified that the $13,402.17 certificate of deposit shown above and held at Guaranty Bank & Trust Company was closed out approximately one year ago and moved to an investment account at A.G. Edwards.   He also confirmed that some of the money in the other certificates of deposit had been used to remodel the home in which he presently resides.

Doris contends that these certificates of deposit and these checking accounts should be considered community property assets subject to partition in this proceeding.   John counters that he is entitled to rely upon the assets of community claimed by Doris in her sworn detailed descriptive list.   Since her list was silent as to these contested assets, John argues that he was under no obligation to establish the separate character of his inherited property.   Consequently, John asserts that the checking accounts and certificates of deposit in question are not subject to consideration by this court in this proceeding.

As stated above, there is a heavy presumption that things in possession of a  spouse during the marriage are community property.   Nevertheless, either spouse can rebut this presumption and prove by a preponderance of the evidence that contested assets are separate property.  La. C.C. art. 2340;  Talbot v. Talbot, supra.   Parole evidence is admissible to rebut this legal presumption;  however, the contradicted testimony of a litigant is insufficient to overcome the presumption of community.  Reinhardt v. Reinhardt, 31,174 (La.App. 2 Cir. 1/20/99), 728 So.2d 503, rehearing denied, writ denied, 1999-0883 (La.6/18/99), 745 So.2d 22, writ granted, 1999-0723 (La.6/18/99), 745 So.2d 609, affirmed in part, reversed in part, 1999-0723 (La.10/19/99), 748 So.2d 423, Reeves v. Reeves, 607 So.2d 626 (La.App. 2 Cir.1992), writ denied, 608 So.2d 1010 (La.1992);  Bridges v. Osborne, 525 So.2d 337 (La.App. 1 Cir.1988), writ denied, 530 So.2d 567 (La.1988);  Abercrombie v. Abercrombie, 434 So.2d 1139, 1143 (La.App. 2 Cir.1983), writ denied, 440 So.2d 760 (La.1983).

In this case John's testimony and his responses to Doris' interrogatories are offered as proof that the certificates of deposit in question were inherited from his parents.   Nevertheless, Doris did not contradict this testimony either during the trial or in her sworn detailed descriptive lists or her traversals even though she had access to his contentions about these assets in John's responses to her interrogatories well in advance of the conclusion of this trial.   This court finds that John's parole evidence of the separateness of these assets which was uncontradicted during the trial was sufficient to overcome the presumption of community as to the certificates of deposit.

The two checking accounts in question, however, are a different matter.   John's testimony was not sufficient, in the mind of this court, to overcome the heavy presumption that these accounts are community property.   While some of  the funds deposited into one or both of these checking accounts may have been John's separate property, he did not prove through documentary evidence or otherwise that these accounts were totally separate.   John testified that his earnings and interest from some of his certificates of deposit, which are community property, were deposited into his checking account.   John's testimony was also unclear as to how the checking account at Commercial Capital Bank reached the value of $89,493.03.

The law is clear that where separate and community funds are commingled indiscriminately, so that separate funds cannot be identified or differentiated from the community funds, all funds are characterized as community funds.   Talbot v. Talbot, 864 So.2d at 602, 603;  McCullough v. McCullough, 01-1087 (La.App. 5 Cir. 2/26/02), 811 So.2d 124, 128.   In this case John did not establish by a preponderance of the evidence the separate nature of these checking accounts by tracing his separate property deposits into these accounts.   Also, there was no showing that his separate funds can be identified or differentiated from community funds.

Nevertheless, Doris also did not show these checking accounts on her sworn detailed descriptive lists or traversals filed in these proceedings.   Did her failure to include these certificates of deposit and these checking accounts as community property assets in her pleadings now prevent her from seeking a partition of these accounts?

LSA-R.S. 9:2801 provides the procedure for judicial partitions of community property and settlement of claims after dissolution of the marriage.   Time periods for filing detailed description lists and traversals are set forth in this statute.   The descriptive lists must be filed within forty-five days of service of the  motion requesting the filing of the lists.   For good cause shown, the court may extend this time period.  LSA-R.S. 9:2801 A. (1)(a).   Within sixty days of the date of service of the last filed descriptive list, each party must either traverse or concur in the inclusion or exclusion of each asset and liability and the valuations contained in the other party's descriptive list.   The court may also extend this time period for good cause shown.  LSA-R.S. 9:2801 A(2).   None of the detailed descriptive lists or traversals filed by these parties mentions these assets.

However, courts have allowed amendment of these pleadings at various stages and even on appeal.   In Washington v. Washington, 493 So.2d 1227 (La.App. 2 Cir.1986),the Second Circuit Court of Appeal amended the trial court's judgment of partition to include certain community debts which were proven at trial, even though they had not been listed in the plaintiff's detailed list.   In Washington v. Washington, supra, only the ex-wife had filed a detailed descriptive list which failed to include three community debts described in the trial testimony.   The ex-husband did not file a detailed descriptive list or traverse plaintiff's list even though ordered to do so by the court.

In Smith v. Smith, 95-0913 (La.App. 1 Cir. 12/20/96), 685 So.2d 649, the ex-wife was allowed to amend her descriptive list at trial to include her pre-divorce attorney's fees because her ex-husband knew about the claim and because refusal to amend would not have affected the former community's obligation to pay the debt.   However, in McCullough v. McCullough, supra, the Fifth Circuit Court of Appeal disallowed a non-itemized claim on the ex-wife's detailed descriptive list stating that the record did not support the claim.

La. C.C.P. art. 862 states, in pertinent part, that “a final judgment shall grant the relief to which the party in whose favor it is rendered is entitled, even if the  party has not demanded such relief in his pleadings and the latter contain no prayer for general and equitable relief.”   Also, La. C.C.P. art. 1154 states, in pertinent part, “[w]hen issues not raised by the pleadings are tried by the express or implied consent of the parties, they shall be treated in all respects as if they had been raised by the pleading.”

Our courts have held that despite the broad language in Article 862, a trial court cannot decide issues which the litigants have not raised.   Wilson v. Wilson, 30,445 (La.App. 2 Cir. 4/9/98), 714 So.2d 35;  Danforth v. Claiborne Parish Police Jury, 571 So.2d 707 (La.App. 2 Cir.1990).   This court may only grant relief warranted by the arguments contained in the pleadings and the evidence.  Wilson v. Wilson, supra;  Marino v. Marino, 576 So.2d 1196 (La.App. 5 Cir.1991).   A judgment rendered beyond the pleadings is a nullity;  however, a trial court has the discretion to allow enlargement of the pleadings to conform to the evidence.  La. C.C.P. art. 1154;  Gulfstream Services, Inc. v. Hot Energy Services, Inc., 2004-1223 (La.App. 1 Cir. 3/24/05), 907 So.2d 96, writ denied, 2005-1064 (La.6/17/05), 904 So.2d 706;  Curtis v. Curtis, 34,317 (La.App. 2 Cir. 11/1/00), 773 So.2d 185.   The opposing party must have “fair notice” that the controversy included the particular relief at issue in order for the enlargement of pleadings doctrine to come into play.  Southern States Equipment Co., Inc. v. Unique Services, Inc., 525 So.2d 1198 (La.App. 5 Cir.1988);  Latiolais v. Jernigan Bros., 520 So.2d 1126 (La.App. 3 Cir.1987);  Succession of Skye, 417 So.2d 1221 (La.App. 3 Cir.1982), cert. not considered, 422 So.2d 161 (La.1982), cert. denied, 422 So.2d 161 (La.1982);  Greer v. Continental Casualty Co., 347 So.2d 70 (La.App. 2 Cir.1977).

In Gauthier v. Gauthier, 2004-198 (La.App. 3 Cir. 11/10/04), 886 So.2d  681, writ not considered, 2004-3019 (La.2/18/05), 896 So.2d 15, the ex-husband appealed the decision of the trial court which refused to grant him an extension to file his descriptive list of assets and liabilities.   The Third Circuit Court of Appeal held that the trial court did not find good cause to grant an extension and, therefore, did not abuse its discretion in partitioning the community property according to the detailed descriptive list provided by the ex-wife.   As a result, the ex-husband was denied certain reimbursement claims against the ex-wife.   See also Brimer v. Brimer, 95-592 (La.App. 3 Cir. 11/2/95), 664 So.2d 622, and Mathews v. Mathews, 457 So.2d 746 (La.App. 2 Cir.1984), for similar results.

In this case Doris filed her first sworn detailed descriptive list on July 26, 2004.   John filed his first sworn detailed descriptive list on October 6, 2004.   Doris then filed her traversal of John's list of assets and liabilities on December 7, 2004.   John then filed his traversal of Doris' list of assets and liabilities and amended his detailed list of community property on April 1, 2005. John's responses to Doris' interrogatories were never filed into these proceedings;  however, P-I reveals that they were mailed by John's attorney to Doris' attorney on May 10, 2005, according to the attorney certificate contained within this pleading.   John's responses provided the descriptions of the certificates of deposit and the checking accounts in question.   Doris then filed her amended detailed list of community property on July 1, 2005, which did not contain the contested checking accounts or certificates of deposit.

The trial of this matter began on July 5, 2005.   On that date John testified concerning the certificates of deposit and checking accounts in question.   This matter was concluded by a second day of trial on August 12, 2005.   Doris never filed any pleading between July 5, 2005, and August 12, 2005, seeking to include  the checking accounts or the certificates of deposit as community property assets. Also, this court does not recall a request by Doris during the trial to include these assets as property to be partitioned between these parties.   However, in her post-trial brief, Doris sought to have the certificates of deposit and the checking accounts included in the community partition proceeding.

This court finds that even though Doris had sufficient notice and opportunity to place these assets at issue during these proceedings, she failed to make this known to John or this court until after the trial had concluded.   John testified about the certificates of deposit and the checking accounts during the trial;  however, he did not have “fair notice” that Doris intended to place them at issue as items to be partitioned in these proceedings.

This court considered John's testimony during cross-examination about these assets in light of Doris' attempts to reveal John's alleged nefarious decision to keep his money to himself.   Since these assets had not been included in the detailed descriptive lists, this court understood that Doris was eliciting this testimony to show why she was required to infuse her separate property funds into the community checking account so that this family could enjoy their high standard of living.   This testimony was not considered by this court as an effort on Doris' part to expand her detailed descriptive list to include these assets as potential community property.   For this reason, the facts of this case are in opposition to those found in Washington v. Washington, supra, and Smith vs.  Smith, supra, and in keeping with the McCullough v. McCullough, supra, decision.

Therefore, this court finds that the certificates of deposit and the checking accounts in question are John's separate assets which will not be partitioned or  considered by this court.

JET SKI

This court finds from the testimony that the jet ski was donated to the children of this marriage.   Therefore, the jet ski will not be considered in this community property partition proceeding.

Apportionment of Assets and Liabilities

Community assets 3

Community Liabilities

Recapitulation

PARTITION OF COMMUNITY ASSETS AND LIABILITIES

TO DORIS

TO JOHN

Doris is entitled to receive a value equal to one-half the net value of the community ($176,138.82) plus her reimbursement claim ($176,504.16) for a total entitlement of $352,642.98.   John is entitled to receive a value equal to one-half of the net value of the community ($176,138.82) less Doris' reimbursement claim ($176,504.16) for a total of -$365.34.

The net value of the actual distribution in kind to Doris is $285,077.65.   If we subtract $285,077.65 from her entitlement of $352,642.98, we find that she obtained $67,565.33 less than her entitlement.   The net value of the actual distribution to John is $67,200.00, $67,565.33 more than his entitlement [$176,138.82 minus $176,504.16 minus $67,200.00 = ($67,565.33) ]. Therefore, Doris is awarded a judgment against John in the sum of $67,565.33 as an equalizing cash payment and John is ordered to pay Doris the sum of $67,565.33 immediately on the date this judgment becomes a final judgment which said sum is to bear legal interest thereon from the date of the partition judgment according to LSA-R.S. 9:2801(4)(c).  This cash amount is to be unsecured.   However, should John fail to pay this cash amount on the date this judgment becomes final, then, and in that event, there is further reserved unto Doris the right to then apply to this court for further relief in the form of an amendment to the allocation of the properties as set forth above or for the execution of mortgages, notes or other documents as this court may deem necessary in order to secure payment of such amount, in whole or in part.

This court finds that Doris' recovery from John for her reimbursement amount is not limited to his one-half interest in the net community, but may also  come from his separate property as authorized by Article 2365 since the money in question was used to pay community obligations incurred for the ordinary and customary expenses of the marriage and for the support, maintenance and education of the children in keeping with the economic condition of the community.   See Cutting v. Cutting, supra;  Maginnis v. Maginnis, supra;  Schiavi v. Schiavi, 597 So.2d 144 (La.App. 5th Cir.1992);  Oliver v. Oliver, 561 So.2d 908 (La.App. 2 Cir.1990);  K. Spaht and W. Hargrave, 16 Louisiana Civil Law Treatise, Matrimonial Regimes, Section 7.14, p. 385-392 (1997).   Also, the difference between John's one-half interest in the net value of the community and Doris' reimbursement claim is only $365.34.

CONCLUSION

Doris is entitled to a reimbursement claim against John in the sum of $142,004.16 for one-half of her separate funds which were used to benefit John, Doris, their children and the community and for $34,500.00 which represents one-half of her separate funds used to pay income taxes owed by the parties.   John's certificates of deposit and checking accounts not described on any detailed descriptive list or traversal filed in these proceedings will be classified as John's separate property.   The community property assets and debts will be distributed as shown above.   John owes Doris an equalizing cash payment in the sum of $67,565.33, which can be satisfied from his net community share as well as his separate assets.   This sum will bear legal interest from the date of the partition judgment and will be due immediately on the date this judgment becomes a final judgment.   All rights are reserved to Doris if John fails to pay her the cash  equalizing payment as shown above.   The parties will share all court costs in these proceedings.

FOOTNOTES

1.   The trial court's extensive Reasons for Judgment are attached as an unpublished addendum.

2.   See discussion entitled “Classification of Assets” in Katherine S. Spaht and W. Lee Hargrave, Matrimonial Regimes, § 3.1, 16 Louisiana Civil Law Treatise (2d ed.1997).

3.   A separate obligation of a spouse is one incurred by that spouse prior to the establishment of a community property regime, or one incurred during the existence of a community property regime though not for the common interest of the spouses or for the interest of the other spouse.   An obligation incurred after termination of a community property regime, except an obligation incurred for attorney's fees and costs under Article 2362.1, is a separate obligation.An obligation resulting from an intentional wrong not perpetrated for the benefit of the community, or an obligation incurred for the separate property of a spouse to the extent that it does not benefit the community, the family, or the other spouse, is likewise a separate obligation.

FN1.  John had filed a pleading in these proceedings on April 1, 2005, which indicated that he was contesting the separate nature of income received by Doris from her separate assets.   However, during the trial and in later pleadings, John confirmed that he agreed that the income from Doris' separate assets would be considered her separate property even though it had been commingled with community funds..  FN1.  John had filed a pleading in these proceedings on April 1, 2005, which indicated that he was contesting the separate nature of income received by Doris from her separate assets.   However, during the trial and in later pleadings, John confirmed that he agreed that the income from Doris' separate assets would be considered her separate property even though it had been commingled with community funds.

FN2.  Doris had also testified that she was seeking additional sums for reimbursement of certain expenses incurred by her after the community was terminated.   However, these additional claims were not addressed in the post-trial briefs filed in these proceedings.   Therefore, this court assumes that these claims by Doris for reimbursement have now been abandoned..  FN2.  Doris had also testified that she was seeking additional sums for reimbursement of certain expenses incurred by her after the community was terminated.   However, these additional claims were not addressed in the post-trial briefs filed in these proceedings.   Therefore, this court assumes that these claims by Doris for reimbursement have now been abandoned.

FN3.  The community property nature and the valuation of these community property assets and liabilities have been provided to this court in the “Joint Stipulation” filed in these proceedings.A.Immovable propertyValue Residence and lot located at162 Shady Lane, Delhi, LA$258,000.00 SW 1/4 of SW 1/4, Section 3, Township16 North, Range 10 East, containing40 acres of land, more or less, inMadison Parish, Louisiana. 15,000.00 B.Movable property 1.Household furnishings$ 10,255.002.Cessna 182 Airplane 7,500.003.2003 F-150 Lariat truck 17,200.004.Boat 1,500.005.Four-Wheeler 3,000.006.2001 Harley-Davidson Heritage Classic 17,565.007.AmSouth Bank Account No. 6000446491in the names of John Dupree, Jr. and DorisJean Dupree (balance as of 5/13/03) 8,257.658.Louisiana State Employees Retirement Plan 17,000.009.VALIC Annuity 18,500.0010.Ownership Interest in Nohol Enterprises, LLC 0.0011.2002 Ford Mustang 12,000.0012.Guns and Safe 2,500.00 Total Assets:$388,277.65.  FN3.  The community property nature and the valuation of these community property assets and liabilities have been provided to this court in the “Joint Stipulation” filed in these proceedings.A.Immovable propertyValue Residence and lot located at162 Shady Lane, Delhi, LA$258,000.00 SW 1/4 of SW 1/4, Section 3, Township16 North, Range 10 East, containing40 acres of land, more or less, inMadison Parish, Louisiana. 15,000.00 B.Movable property 1.Household furnishings$ 10,255.002.Cessna 182 Airplane 7,500.003.2003 F-150 Lariat truck 17,200.004.Boat 1,500.005.Four-Wheeler 3,000.006.2001 Harley-Davidson Heritage Classic 17,565.007.AmSouth Bank Account No. 6000446491in the names of John Dupree, Jr. and DorisJean Dupree (balance as of 5/13/03) 8,257.658.Louisiana State Employees Retirement Plan 17,000.009.VALIC Annuity 18,500.0010.Ownership Interest in Nohol Enterprises, LLC 0.0011.2002 Ford Mustang 12,000.0012.Guns and Safe 2,500.00 Total Assets:$388,277.65

DREW, J.