MCHUGHES v. Sean Donald McHughes (2026)

This appeal arises from a community property partition judgment between former spouses, Sean Donald McHughes (“Sean”) and Dr. Christine Durr McHughes (“Christine”). The primary dispute concerns the valuation and allocation of Crosspoint Veterinary Hospital, LLC, (“Crosspoint”) a veterinary practice opened by the couple during their marriage. On a joint motion, the matters were consolidated. Christine appeals the trial judge's February 18, 2025 judgment and the June 9, 2025 amended judgment. For the following reasons, we vacate the partition judgments to the extent they ordered a private sale of Crosspoint without first assigning a value, and remand for further proceedings.

FACTS

Sean and Christine were married on August 17, 2002. While married the parties opened Crosspoint, with Christine as the sole veterinarian at the practice. Following a previously granted divorce, the trial judge signed a judgment of partition of community property on February 18, 2025, wherein the community assets were allocated between the parties, with the exception of Crosspoint. The trial judge ordered Crosspoint, together with its immovable property and physical assets, “be listed for sale with a licensed agent to be selected jointly by the parties[’] experts Michelle Avery and Patrick Lacour no later than February 1, 2025. Following the sale of the business, the proceeds shall be divided in accordance with this ruling.” According to the ruling, the proceeds were to be divided equally.

On February 25, 2025, Sean filed a motion for new trial arguing that the trial judge's partition judgment is contrary to the law and evidence. On March 5, 2025, Christine filed a motion to amend the judgment for calculation error, specifically a calculation error in the equalization sum owed to Sean.² On June 9, 2025, the trial judge signed an amended judgment addressing the calculation error and denied Sean's motion for new trial.

Christine now appeals. Christine argues that the trial judge erred: in (1) accepting Sean's witness, Michelle Avery, as an expert; (2) failing to reject Avery's testimony; and (3) not accepting the evaluation and report in its entirety by Christine's expert witness, Patrick Lacour.

Christine also argues, joined by Sean, that the trial judge erred by ordering Crosspoint to be sold rather than placing a value and allocating it for partition.³

STANDARD OF REVIEW

In community property partitions, the trial judge is granted much discretion in valuing and allocating assets and liabilities and is required to consider the source and nature of each asset or liability, the financial situation of the other spouse, and any other relevant circumstances. See La. R.S. 9:2801(A)(4)(c); Cosman v. Cosman, 2022-0694 (La. App. 1 Cir. 01/10/23), 3 60 So. 3d 892, 896, writ denied, 2023-00299 (La. 05/02/23), 359 So. 3d 1272. A trial court's factual findings and credibility determinations made in the course of valuing and allocating assets and liabilities in the partition of community property may not be set aside absent manifest error. Berthelot v. Berthelot, 2017-1055 (La. App. 1 Cir. 07/18/18), 254 So. 3d 800, 806. However, where one or more legal errors by the trial judge interdict the fact-finding process, the manifest error standard of review is no longer applicable. A legal error occurs when a trial judge applies incorrect principles of law and such errors are prejudicial. Legal errors are prejudicial when they materially affect the outcome and deprive a party of substantial rights. Berthelot, 254 So. 3d at 807.

LAW AND DISCUSSION

Louisiana Revised Statutes 9:2801 sets forth the procedure for partitioning community property and settling claims arising from the co-ownership of former community property.

Louisiana Revised Statutes 9:2801(A) states:

When the spouses are unable 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 co-ownership 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 [community property partition].

It is incumbent upon the trial judge to follow the procedure outlined in the statute. Williams v. Williams, 2006-2491 (La. App. 1 Cir. 09/14/07), 970 So. 2d 633, 637.

Expert Witnesses

On appeal, Christine assigns a two-fold error arguing that (1) the trial court accepted the testimony of Michelle Avery as an expert witness and (2) that Patrick Lacour should have been given greater weight since he was offered as an expert. Additionally, Christine objects to Avery's methodology used in valuation.

At the partition trial on August 8, 2024, Sean offered Avery, who testified on the valuation of Crosspoint. Christine offered Lacour as an expert with respect to the valuation. Lacour was accepted as an expert in business valuation by the trial judge without any objection. On appeal, Christine asserts that at no time was Avery offered or accepted as an expert witness. However, the record reflects that there was no challenge pursuant to Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993), nor was there an objection to Avery's testimony. Nonetheless, Avery testified about her valuation report which was introduced into the record.

Avery testified she utilized a combination of the income and market approaches in assessing her valuation of the business in the amount of $3,299,000.00. Avery's report, which incorporated goodwill in the valuation, is dated February 10, 2023, and the valuation is as of October 31, 2022.

Christine called Lacour, accepted as an expert, to testify regarding the asset valuation of the business. Lacour's report dated April 8, 2024, was introduced into evidence, in which he used asset method in valuing the business on December 31, 2023. Lacour's report and testimony indicated no personal goodwill was transferred to the company as the company has no operating agreements, no management agreement, no employee agreements, and no non-compete agreements that would create a contractual right so as to allow for the transfer of goodwill. Lacour valued the business at $322,000.00. Christine asks this Court to reverse the trial judge and value Crosspoint at the amount her expert reported.

We note, however, no objection was made regarding Avery's qualification at trial. The failure to raise an objection to the admissibility and reliability of expert testimony constitutes a waiver of such an objection. A contemporaneous objection to the disputed evidence must be entered on the trial record to preserve the objection for appellate review, and we cannot find such objection. Furthermore, when the objecting party fails to request an evidentiary “gatekeeping” hearing under the rationale of Daubert, any objections to the admissibility of an expert witness's testimony under Daubert are not preserved for appeal. See Harris v. State ex rel. Department of Transportation and Development, 2007-1566 (La. App. 1 Cir. 11/10/08), 997 So. 2d 849, 868, writ denied, 2008-2886 (La. 02/06/09), 999 So. 2d 785.

An expert witness's opinions are to be weighed by the trier of fact the same as any other evidence, and the trial judge is not bound by one expert or another, but may accept one or disregard the expert testimony altogether. See Mullaly v. Baudoin, 2024-1201 (La. App. 1 Cir. 05/23/25), 417 So. 3d 811, 823. We also recognize a trial judge may substitute his/her own common sense and judgment for that of an expert witness when such a substitution appears warranted on the record as a whole. Bents v. Bents, 2015-1305 (La. App. 1 Cir. 09/09/16), 2016 WL 4718136, *7 (unpublished), quoting C.M.J. v. L.M.C., 2014-1119 (La. 10/15/14), 156 So. 3d 16, 31. Further, Christine argues that Sean's witness was not tendered or accepted. See Darbonne v. Wal-Mart Stores, Inc., 2000-551 (La. App. 3 Cir. 11/2/00), 774 So. 2d 1022, 1028-29 (There is no requirement that a party formally tender an expert witness or that a court formally declare that a witness is accepted as an expert. The fact that the trial court accepted the testimony of Mr. Nelson as an expert without expressly so stating did not constitute error.) See also Square Deal Siding Co. v. Thaller, 2008-0757 (La. App. 4 Cir. 12/30/08), 3 So. 3d 71, 78 (“There is no requirement that a party formally tender an expert witness or that a court formally declare that a witness is accepted as an expert.”) In the instant case, both appraisers testified and submitted reports. The record reflects that the trial judge found he was unable to concretely ascertain a value for the veterinarian clinic. We find Christine's argument that the trial judge erred in failing to rely on only her expert's report is without merit.

Moreover, we pretermit any discussion of the correct valuation method as we find the trial judge failed to discharge its duty - to give a value to the business.

Valuation

Herein, Christine, joined by Sean, argues that the trial judge violated La. R.S. 9:2801(A)(4) by ordering a sale rather than valuing Crosspoint at trial. Louisiana Revised Statutes 9:2801 states:

(A)(4) The court shall then partition the community in accordance with the following rules:

(a) The court shall value the assets as of the time of trial on the merits, determine the liabilities, and adjudicate the claims of the parties.

(b) The court shall divide the community assets and liabilities so that each spouse receives property of an equal net value.

(c) The court shall allocate or assign to the respective spouses all of the community assets and liabilities. In allocating assets and liabilities, the court may divide a particular asset or liability equally or unequally or may allocate it in its entirety to one of the spouses. The court shall consider the nature and source of the asset or liability, the economic condition of each spouse, and any other circumstances that the court deems relevant. As between the spouses, the allocation of a liability to a spouse obligates that spouse to extinguish that liability. The allocation in no way affects the rights of creditors.

(d) In the event that the allocation of assets and liabilities results in an unequal net distribution, the court shall order the payment of an equalizing sum of money, either cash or deferred, secured or unsecured, upon such terms and conditions as the court shall direct. The court may order the execution of notes, mortgages, or other documents as it deems necessary, or may impose a mortgage or lien on either community or separate property, movable or immovable, as security.

(e) In the event that the allocation of an asset, in whole or in part, would be inequitable to a party, the court may order the parties to draw lots for the asset or may order the private sale of the asset on such terms and conditions as the court deems proper, including the minimum price, the terms of sale, the execution of realtor listing agreements, and the period of time during which the asset shall be offered for private sale.

(f) Only in the event that an asset cannot be allocated to a party, assigned by the drawing of lots, or sold at private sale, shall the court order a partition thereof by licitation. The court may fix the minimum bids and other terms and conditions upon which the property is offered at public sale. In the event of a partition by licitation, the court shall expressly state the reasons why the asset cannot be allocated, assigned by the drawing of lots, or sold at private sale.

In its reasons for judgment, the trial judge explained that “[i]n the instant case, the court was presented with two well thought out and credible expert opinions, which unfortunately, came to vastly different conclusions. In choosing to accept the expert opinion of one qualified expert over the other, the court would be forced to allocate the community asset in a way which would be inequitable to the other party.” Although the statute gives the trial judge latitude to achieve an equitable distribution of assets and liabilities between spouses in judicial partitions of community property, we believe the plain language of La. R.S. 9:2801 requires the trial judge to make a final apportionment of the assets and liabilities. In the case sub judice, this did not occur. As an indication of intent, La. R.S. 9:2801(A)(4)(a), (b), and (c) states “The court shall ․”. In other words, the whole of La. R.S. 9:2801 requires an immediate division of the community.

The trial judge further opined:

When questioned, both experts indicated that the free market sale of the business would be the most accurate way to divide the community business. Ms. Avery testified that there was a robust market of corporations looking to purchase these types of smaller veterinary businesses. Likewise, Mr. Lacour testified that based upon the large discrepancy in the expert's valuation[s], perhaps the sale of the business would provide the most accurate measure of dividing the asset. This is further highlighted by the testimony of Dr. McHughes when questioned if she would be willing to sell the business to Sean McHughes based upon her [expert's] valuation, she indicated that they would have to negotiate this hypothetical sale. This is an indication to the court that she has some reservations about the valuation placed on the veterinary business by Patrick Lacour.

As stated, after the trial judge ordered a private sale of Crosspoint, Sean submitted a motion for new trial. On June 3, 2025, the trial judge denied the motion and explained:

Counsel for Sean McHughes has argued that by failing to value the community business at the time of trial, the court has failed to follow R.S. 9:2801(A)(4)(a). However, the court would direct the parties to R.S. 9:2801(A)(4)(e) that provides that the court may order the private sale of the asset on the terms and conditions the court deems proper.

Trial judges are required to “divide the community assets and liabilities so that each spouse receives property of an equal net value.” La. R.S. 9:2801 A(4)(b); Robinson v. Robinson, 99-3097 (La. 01/17/01), 778 So. 2d 1105, 1118. Due to the vastly different reports offered by the parties’ experts regarding the methodology used and the ultimate valuation of Crosspoint, the trial judge believed it could not value the property in favor of one party or the other as it would be inequitable, and instead ordered the property sold. However, this result ignores the specific mandates contained in La. R.S 9:2801 (A)(4)(a). The trial judge erred in its failure to assign a value to the veterinary practice.

In Stewart v. Stewart, 585 So. 2d 1250, 1253-1254 (La. App. 4 Cir. 1991), writ denied, 590 So. 2d 594 (La. 1992), and writ denied, 590 So. 2d 597 (La. 1992), the parties disputed allocation of 200 pieces of art by Mrs. Stewart, who was a well-known artist. Specifically, the parties disagreed on how they should be valued and to whom they should be allocated. The trial judge in Stewart ordered that the pieces should remain listed for sale pursuant to the existing contract at their respective galleries, with the net proceeds of sale to be divided equally between the parties. The fourth circuit found that the trial judge had erred, however, because the court's ruling required the parties to remain undivided co-owners of the artworks until all the pieces were sold.⁴ The fourth circuit concluded that, although the statute gives the trial court latitude to achieve an equitable distribution of assets and liabilities between spouses in judicial partitions of community property, the intent of La. R.S. 9:2801 is to require the trial court to make a final apportionment of the assets and liabilities. Stewart v. Stewart, 585 So.2d 1250, 1253. We find this analysis instructive.

As stated above, the trial judge “shall value the assets as of the time of trial on the merits, determine the liabilities, and adjudicate the claims of the parties.” La. R.S. 9:2801(A)(4)(a). The trial judge is required to assess and weigh the testimony of the expert witnesses. See Gaines v. Lemoine, 2019-0551 (La. App. 1 Cir. 02/21/20), 297 So. 3d 775, 781. Given the dynamics of businesses and business practices, and factoring in circumstances that may be unique to the parties, an inflexible formula for determining value would be impractical. Achee v. National Tea Company, 95-2556 (La. App. 1 Cir. 12/20/96), 686 So. 2d 121, 125.

This Court remands this matter for proper completion of this partition proceeding in accordance with the applicable law. Once Crosspoint is assigned a value, the trial judge may re-allocate the community in accordance with La. R.S. 9:2801(A)(4), including the option of a private sale of Crosspoint Veterinary Hospital, LLC, if necessary.

CONCLUSION

For the foregoing reasons, we find the trial judge erred in its February 18, 2025 judgment and the June 9, 2025 amended judgment when it ordered the private sale of Crosspoint Veterinary Hospital, LLC without first assigning a value as required by La. R.S. 9:2801(A)(4)(a). We vacate, in part, and remand for further proceedings consistent with this opinion. Costs are assessed to Sean Donald McHughes and Dr. Christine Durr McHughes, equally.

VACATED, IN PART, AND REMANDED FOR FURTHER PROCEEDINGS.

FOOTNOTES

2.   Both parties stipulated to the error in calculation. The calculation error did not affect the substance of the February 18, 2025 judgment. See Terry v. Terry, 612 So. 2d 808, 809 (La. App. 1 Cir. 1992).

3.   Sean did not appeal the trial judge's May 29, 2025 judgment nor did he file an answer to Christine's appeal; however, he agreed, in his brief and at oral arguments, with Christine's assignment of error regarding the trial judge's failure to value Crosspoint and instead ordering a private sale.

4.   The court of appeal cited La. C.C. art. 807, which states, “No one may be compelled to hold a thing in indivision with another unless the contrary has been provided by law or judicial act. Any co-owner has the right to demand partition of a thing held in indivision․”. The Stewart court went on to explain: “We do not believe R.S. 9:2801, by providing for allocation of community property, is meant to be one of the exceptions to Art. 807 ․ therefore problems of partition bring us full circle to the issue of dissolution of the community.” Stewart, 585 So. 2d at 1254.

BALFOUR, J.