KINNARD v. KINNARD (2022)

In this community property matter, the wife appeals the portion of the trial court's decision that awarded fair market rental value to the husband for the wife's exclusive use of the former family home from the time exclusive use was awarded until the home was sold. For the following reasons, we affirm.

FACTS AND PROCEDURAL HISTORY

Karey Jean Kriedt Kinnard and Mark J. Kinnard were married on November 2, 2002, in Terrebonne Parish, and have four children. On June 3, 2016, Karey filed a Petition for Divorce pursuant to La. Civ. Code art. 102 and for matters incidental to the divorce, including the exclusive use of the former family home located at 238 Hermitage Loop in Houma, Louisiana. Mark answered the petition and filed a reconventional demand also requesting exclusive use of the former family home, or alternatively, that he be awarded fair market rental value if Karey is awarded use of the home.

On August 4, 2016, a hearing was held to address several matters incidental to the divorce. During a discussion about use and occupancy of the home, the trial court had the following conversation with the attorneys for Karey and Mark:

THE COURT: ․She will get exclusive use of the family home and he will reserve his right for claim of reimbursement for fair rental value?

[MARK'S ATTORNEY]: I’ m sorry, Judge, I -

THE COURT: Will she get exclusive use of the home and he will reserve his right to claim fair rental value?

[MARK'S ATTORNEY]: Yes, sir. Yes, sir.

THE COURT: Is that okay, Ms. Malbrough?

[KAREY'S ATTORNEY]: Well, I need to know what fair rental value is. I don't want her owing him a hundred thousand dollars when this is over with.

[MARK'S ATTORNEY]: Judge, nobody at this point in the game knows what fair rental value is, that requires an appraiser.

THE COURT: I don't know what it is either.

[MARK'S ATTORNEY]: It's just a right.

THE COURT: Well, let's do this, how about we preserve his right at this moment to assert his right to fair rental value.

[MARK'S ATTORNEY]: Yes, sir.

THE COURT: He doesn't want to give up the claim, I assume.

[MARK'S ATTORNEY]: Correct.

On October 3, 2016, the trial court signed a judgment that addressed all of the incidental matters and stated the following regarding the hearing and exclusive use of the home and fair market rental value.

The Court, being unable to finish this matter, and after hearing the evidence presented renders the following Interim Judgment:

․

IT IS FURTHER ORDERED, ADJUDGED AND DECREED that KAREY JEAN KRIEDT KINNARD shall have temporary exclusive use of the former family home located at 238 Hermitage Loop, Houma, Louisiana․

IT IS FURTHER ORDERED, ADJUDGED AND DECREED that MARK J. KINNARD's right to litigate the issue of fair market rental value for KAREY JEAN KRIEDT KINNARD's exclusive use of the former family home be and is hereby reserved unto him.

Thereafter, the parties were divorced by a judgment signed on July 7, 2017. On August 18, 2020, Mark filed a motion requesting that a trial be set to partition the community property. The community property trial was heard on December 21, 2020, and March 15, 2021. On March 17, 2021, the trial court signed Reasons for Community Property Judgment and a Community Property Partition Judgment, allocating the community assets and liabilities between Karey and Mark and ordering Karey to pay Mark an equalizing payment of $41,971.52.

In the trial court's reasons for judgment issued with the judgment, the trial court noted that Karey occupied the former family home to the exclusion of Mark from June 3, 2016, when she filed the petition for divorce, until July 2, 2020, approximately one month before the home was sold on August 7, 2020. The trial court found the fair market rental value of the property averaged $2000.00 per month during the 46.93-month period from the August 4, 2016 hearing when Karey was awarded exclusive use of home until July 2, 2020. The trial court determined that Karey owed to Mark $46,930.00, one-half of the fair rental value of $93,860.00 attributable to Karey's exclusive use of the home. Karey appealed the March 17, 2021 judgment contending that the trial court erred in awarding Mark retroactive rental reimbursement for Karey's use of the community home because the parties did not agree to a reservation at the time use and occupancy was awarded to Karey.

LAW AND ANALYSIS

In Karey's sole assignment of error, she contends that the trial court erred in awarding Mark rental reimbursement in the community property partition because the parties did not agree to a reservation at the time use and occupancy was awarded as required La. R.S. 9:374(C). Karey argues that the October 3, 2016 judgment was not a consent judgment, that the trial court ordered that Mark's right to rental reimbursement be reserved, and that there was not an agreement of the parties. Louisiana Revised Statutes 9:374(C) provides in pertinent part:

A spouse who․ is awarded by the court the use and occupancy of the family residence․ shall not be liable to the other spouse for rental for the use and occupancy, except as hereafter provided. If the court awards use and occupancy to a spouse, it shall at that time determine whether to award rental for the use and occupancy and, if so, the amount of the rent. The parties may agree to defer the rental issue for decision in the partition proceedings. If the parties agreed at the time of the award of use and occupancy to defer the rental issue, the court may make an award of rental retroactive to the date of the award of use and occupancy. (Emphasis added.)

Louisiana Revised Statutes 9:374(C) expressly allows for retroactive rent to be assessed at the partition hearing provided there is an agreement by the parties to defer the issue. Averill v. Averill, 2018-0299 (La. App. 1st Cir. 9/21/18), ––– So.3d ––––, ––––, 2018 WL 4520246, *4. A trial court has broad discretion in adjudicating issues raised by divorce and partition of the community proceedings. Reimbursements are factual determinations and absent an abuse of discretion, the trial court's decision should not be disturbed on appeal. Pierce v. Pierce, 2019-0689 (La. App. 1st Cir. 2/21/2020), 298 So.3d 902, 911.

Herein, the trial court pointed out in its reasons for judgment that in the August 4, 2016 discussion with the attorneys when he suggested that they preserve Mark's right to fair market rental value, it believed that to be the agreement of the parties. The trial court noted that Karey's attorney prepared the judgment; both parties’ attorneys signed the judgment; and the attorneys declared that the judgment was “APPROVED AS TO FORM AND CONTENT.” Further, the trial court stated, “It would be fundamentally unfair to deny [Mark] the right he thought he had based on the judgment, after [Karey] enjoyed the exclusive use of the jointly owned property for almost four years.”

In the August 4, 2016 discussion when the trial court mentioned reservation of rental value, Karey's attorney initially expressed concern with the amount of the rental value; however, when the trial court said “how about we preserve his right at this moment to assert his right to fair rental value,” Mark's attorney agreed on the record, and Karey's attorney said nothing further, and did not object. This statement by the trial court made during an open discussion with the attorneys was not an order of the court, but rather a suggestion on how to handle the fair market rental issue. Karey's attorney made no indication on the record that she was not in agreement with the trial court's suggestion that they reserve Mark's right to fair market rental value. The trial court judge, who had the opportunity to observe the parties that day, determined that the parties agreed to defer the rental issue. Considering the record before us, we find no abuse of discretion by trial court in finding that the parties had an agreement under La. R.S. 9:374(C) to defer the rental issue. Furthermore, Karey did not request any review with this court of the October 3, 2016 judgment stating that Mark's right to litigate the issue of fair market rental value for Karey's exclusive use of the former family home be reserved.

In view of the August 4, 2016 discussion with the trial court, as well as the October 3, 2016 judgment signed by both attorneys with no request for review was filed with this court, we find no error in the trial court's ruling that Karey owed to Mark $46,930.00 for one-half of the fair rental value attributable to Karey's exclusive use of the home.

CONCLUSION

For the foregoing reasons we affirm the March 17, 2021 judgment of the trial court. All costs of this proceeding are assessed to appellant, Karey Jean Kriedt Kinnard.

AFFIRMED.

HESTER, J.