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McCullough v. McCullough2/26/2002
AFFIRMED IN PART, AMENDED IN PART AND RENDERED.
Defendant, Steven L. McCullough, appeals from the trial court judgment which partitions the community of acquets and gains formerly existing between him and Plaintiff, Cindy R. McCullough. For the reasons which follow, we affirm in part, amend in part and render judgment.
The parties were married on September 27, 1996 and physically separated on September 20, 1998. Plaintiff filed a Petition for Divorce on September 23, 1998. A final judgment of divorce was rendered on April 28, 1999, effectively terminating the community on the date which the petition was filed, September 23, 1998. On June 26, 2000, Plaintiff filed a Petition for Partition. During the existence of their marriage, the parties acquired various assets and liabilities which comprised their community of acquets and gains and some of the values were in dispute. Additionally, Defendant had been involved in an automobile accident during the marriage wherein he sustained personal injuries. The matter was settled on April 1, 1999 for the lump sum amount of $105,000. How much, if any, of the settlement proceeds comprised part of the community was at issue. Finally, there was a dispute over several claims for reimbursement that Plaintiff had made regarding separate funds she allegedly had used on community obligations. On February 16, 2001, following trial, the trial court resolved the value disputes and reimbursement claims and rendered judgment. It is from this judgment that Defendant appeals and Plaintiff has answered the appeal.
On appeal, Defendant assigned four errors. First, he argues that the trial court erred in partitioning his personal injury settlement proceeds and finding that $37,729.88, the amount of his medical bills claimed in his personal injury suit, comprised a community asset, without taking into consideration which, if any, bills were actually paid by the community.
La C.C. art. 2344 provides:
Damages due to personal injuries sustained during the existence of the community by a spouse are separate property.
Nevertheless, the portion of the damages attributable to expenses incurred by the community as a result of the injury , or in compensation of the loss of community earnings, is community property. If the community regime is terminated otherwise than by the death of the injured spouse, the portion of the damages attributable to the loss of earnings that would have accrued after termination of the community property regime is the separate property of the injured spouse.
Defendant argues that for a portion of his personal injury settlement to be considered community, it must be proven that the community actually incurred the expenses, that is, that the community paid the bills. In other words, if, as he alleges here, his medical bills were paid from his separate estate, by his insurer or advanced by his attorney and deducted from his settlement proceeds, then he does not owe the community for the amount of those bills, because the community incurred no debt as relates to those bills. The article does not dictate that the part of the settlement equal to the amount of the medical bills is considered community property, but rather, it provides that the part of the settlement "attributable to expenses incurred by the community" shall be considered community property. We find merit in Defendant's argument.
As noted in The Louisiana Civil Law Treatise on Matrimonial Regimes, Spaht & Hargrave, Vol 16, ยง 3.21, p. 98, the purpose of the second part of article 2344 is to prevent a spouse from increasing a separate estate at the expense of the community. In other words, if the community pays
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