Sequeira v. Sequeira - 04-433 ( La. App. 5 Cir 11/30/04), 888 So. 2d 1097

Rule:

Under La. Civ. Code Ann. art. 2360, an obligation incurred by a spouse during the existence of a community property regime for the common interest of the spouses or for the interest of the other spouse is a community obligation. Except as provided in La. Civ. Code Ann. art. 2363, all obligations incurred by a spouse during the existence of a community property regime are presumed to be community obligations. La. Civ. Code Ann. art. 2361. La. Civ. Code Ann. art. 2363 states in pertinent part that a separate obligation of a spouse is 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. The Louisiana Supreme Court has held that the burden of proof is on the party claiming reimbursement in a community property partition to show by a preponderance of the evidence the nature of the indebtedness, whether the community obligations were incurred for the ordinary and customary expenses of the marriage. To determine whether funds benefited the community, or were used for the "common interest of the spouses," it is necessary to examine the uses to which they were put.

Facts:

In August of 2000, Donna filed a Petition for Divorce in St. Charles Parish, which pleading included a request for a partition of community property and for damages for fraud and/or bad faith in the management of the community property. In that pleading, Donna requested, among other things, custody of the three children of the marriage, interim spousal support, child support, use of the family home, and damages for fraud and bad faith. All rights for rent and/or reimbursement in connection with the family home were reserved. On October 12, 2000, the parties reached a Consent Judgment that, in part, awarded joint custody pending a custody evaluation, granted use of the family home to Donna, and interim child support in the amount of $1650.00 per month plus interim spousal support of $450.00 per month, and granted injunctions enjoining the parties from alienating community property and from harassing one another. Ultimately, the parties were divorced and an order of permanent joint custody issued. In that judgment, Louis was ordered to pay $650.00 per month child support and to provide health insurance to the children. He was given the right to claim two of the children as dependents on his federal income tax return, and both parties were ordered to share equally in the extra expenses for the children. In February 2002, child support was assessed at $759.78. Various rules and orders involving injunction violations, visitation, and other matters were heard over the next three years. Various incidental matters regarding the community property were also litigated, and the parties filed sworn detailed descriptive lists. In December 2002, Donna filed a Rule For Contempt and Motion To Set Community Property Issues For Traversals And For Trial. The Motion for Traversal was tried on July 18, 2003, following which the court rendered judgment on the parties' numerous claims. In December, 2003, a final judgment partitioning the community property was rendered. Louis' Motion For New Trial was denied, and he has perfected the present appeal. In the meantime, Louis filed a Motion to Reduce Child Support, which matter was heard by the court in January 2004. The trial court denied the motion, and Louis appeals that judgment as well.

Issue:

Did the trial court err in ruling that the costs for Louis’ LASIK corrective surgery was not part of the community obligations?

Answer:

No.

Conclusion:

At the hearing, Louis testified that he had considered having corrective surgery early in his marriage, but ultimately heard about LASIK about a year before the divorce. He visited the doctor and decided immediately to have the procedure. Louis stated that he wanted the surgery because when playing sports, his contact lenses were sometimes displaced. Questioned about insurance coverage for the matter, he stated that he thought he would try to get the insurance company to pay but "..I was not so concerned." However, Louis testified that his out-of- pocket expenses, $3,600.00 charged to his Discover credit card, would have been the same, with or without insurance. Louis also testified that on July 24th, 2000, he sent flowers to Donna as an "act of compassion", although he knew the marriage was "absolutely not" able to be saved and was over. Also on July 24th, Louis testified that he consulted an attorney with regard to the divorce and paid $3,795.00 in attorney fees at that time. The Discover Card statement admitted into evidence shows that the LASIK surgery was charged on July 25th, 2000, the following day. Under these circumstances, and considering the timing of this procedure, there is no error in the determination by the trial court that Louis failed to prove that the cost of the surgery was incurred for the ordinary and customary expenses of the marriage, or for the common interest of both Sequeiras, so as to constitute a community debt.