McDONALD, J.
Virginia Butler Barker Rangeley (Ms. Rangeley) joined the City Parish Employee Retirement System (CPERS) when she started working at the Baton Rouge City Police Department (the Department) on September 1, 1978. Ms. Rangeley married Tony Barker on January 20, 1979. She continued to work for the Department until she resigned on March 11, 1985, and on April 15, 1985, CPERS refunded all the contributions made into her account.
Ms. Rangeley went back to work for the Department on October 14, 1986. She decided to buy back her prior service time, and on January 15, 1987, she signed an authorization for deductions from her paycheck for this purpose to be set aside, at the rate of $250.00 per month. The actual repurchase transaction would take place after the last payment was made.
Ms. Rangeley filed a petition for divorce on June 16, 1988, at which time she had repaid $3,750.00 of the repurchase amount. Ms. Rangeley continued to make the payments after the petition for divorce was filed, using $5,668.97 of her separate funds. Ms. Rangeley and Mr. Barker were divorced on April 2, 1990. Ms. Rangeley completed the last repurchase payment on May 15, 1990, at which time the repurchase transaction occurred.
Ms. Rangeley and Mr. Barker entered into a stipulated judgment, which was signed by the trial court on November 4, 1998. The judgment stated among other things that Mr. Barker "shall be awarded his interest in the pension of [Ms. Rangeley] from East Baton Rouge City Parish employees retirement system."
On December 9, 2011, Mr. Barker filed a petition for injunctive relief. He alleged that Ms. Rangeley intended to retire in January 2012, and he sought an injunction to freeze his portion of her retirement benefits pending further orders of the court. On January 30, 2012, the trial court signed a stipulated judgment in which the parties agreed to a temporary benefit distribution to Mr. Barker, pending further orders of the court.
After a trial, in a September 18, 2012 judgment, the trial court found that all of the service time earned during the community, as well as all of the repurchased service time that had been earned during the community, was a community asset.
Ms. Rangeley filed a suspensive appeal from that judgment. This court issued a rule to show cause on April 1, 2013, noting that the judgment at issue appeared to be a non-appealable ruling. The parties were ordered to show cause by briefs whether the appeal "should or should not be dismissed." The parties responded by joint memorandum, which urged that the ruling was appealable.
Thereafter, the rule to show cause was referred to the merits panel to which the appeal was assigned. Barker v. Barker, 2013 CA 0116 (La.App. 1 Cir. 6/20/13). We note that the rule to show cause was issued based upon lack of specificity; the judgment declares that the repurchased service time earned during the community shall be divided according to the Sims
In her appeal, Ms. Rangeley makes the following assignments of error:
Mr. Barker answered the appeal asking that, pursuant to La. C.C.P. art. 2133, the judgment be modified to provide for an amount of damages as a result of his loss of interest accrued on any portion of the retirement benefit awarded to him by the trial court, including both the DROP as well as the monthly service retirement allowance awarded in the trial court judgment, retroactive to the date of distribution of the retirement benefits accumulated in Ms. Rangeley's DROP account and the monthly service retirement allowance by CPERS. He asked that the judgment be affirmed in all other respects and that Ms. Rangeley be assessed with costs.
The facts of this case are not in dispute. Therefore, the issue is whether the district court correctly interpreted and applied the law. Appellate review of questions of law is simply review of whether the trial court was legally correct or legally incorrect. City of Baker School Bd. v. East Baton Rouge Parish School Bd., 99-2505 (La.App. 1 Cir. 2/18/00), 754 So.2d 291, 292. On legal issues, the appellate court gives no special weight to the findings of the trial court, but exercises its constitutional duty to review questions of law and renders judgment on the record. Northwest Louisiana Production Credit Ass'n v. State, Dept. of Revenue and Taxation, 98-1995 (La.App. 1 Cir. 11/5/99), 746 So.2d 280, 282; Bridges v. Smith, 01-2166 (La.App. 1 Cir. 9/27/02), 832 So.2d 307,
Louisiana Civil Code article 2338 provides:
Louisiana Civil Code article 2341 provides:
In its reasons for judgment, the trial court found:
In support of her position that the service credits she purchased were separate property, Ms. Rangeley cites Lodrigue v. Lodrigue, 01-1630 (La.App. 3 Cir. 5/8/02), 817 So.2d 466, writ denied, 02-1604 (La.10/4/02), 826 So.2d 1124. In that case, Mr. Lodrigue served in the military prior to his marriage. After he married, Mr. Lodrigue purchased service credit in his public pension program for his two years of military time. The trial court found that the two years of military service credit were not part of the community property. On appeal, the third circuit found that the two years of military service credit were community property because they were acquired during the community and were purchased with community funds. Thus, Ms. Rangeley maintains, the classification of the service credits purchased is determined by both the source of the funds and the timing of the purchase.
Ms. Rangeley also relies upon Tarver v. Tarver, 05-367 (La.App. 3 Cir. 11/2/05), 916 So.2d 1222. In that case, Mr. Tarver began working for the Concordia Parish Police Jury in 1973. He began contributing to the Parochial Employees Retirement System in April 1977, and got married three years and five months later. Three years after the marriage, in September 1983, he began working for the Department of Wildlife and Fisheries, withdrew his accrued contributions from the Parochial Employees Retirement System, and spent the refunded money on community purchases. Thereafter in 1991, he repurchased the time in the Parochial Employees Retirement System, and also purchased additional time for the three years and seven months that he worked with the Concordia Parish Police Jury before he joined the Parochial Employees Retirement System, for a total of 10.11 years, using community funds. The trial court concluded that the repurchased time was not community property. On appeal, following its ruling in Lodrigue, the third circuit reversed the trial court, noting that all of Mr. Tarver's retirement credits were either earned or repurchased during the community with community funds, and finding that the repurchased time was all community property. Ms. Rangeley maintains that the Tarver court found that the source of the funds dictated the classification of the service credits.
Ms. Rangeley states that the language of Sims requires the trial court to credit the community only with the years of service credit that were in existence during the community, and that she did not have a property interest in the years of service credits being repurchased prior to the community termination date, June 16, 1988, as no service credits were put back into the system until the last payment was made. Thus, she maintains that her property interest in the service credits was attained on May 15, 1990, when she made the last payment.
Mr. Barker maintains that the trial court correctly determined that he had a property interest right in that portion of Ms. Rangeley's retirement benefit account earned and accrued during the existence of the matrimonial regime, irrespective of the
Mr. Barker relies in part upon La. State Employees' Retirement System (LASERS) v. McWilliams, 06-2191 (La. 12/2/2008), 996 So.2d 1036, 1043, for the holding that "pursuant to La. C.C. art. 2338, the right to share in a retirement plan is a community asset, co-owned by the spouses, and subject to division upon dissolution of the marriage." In that case, Joel and Dianne McWilliams were married in 1969, and in 1972 Mr. McWilliams began working for the state of Louisiana. The couple had two children, Jodee and Joelle. The couple divorced in 1987, and a 1989 judgment recognized Dianne's interest in Joel's state retirement plan, providing that she was entitled to her portion, when and if he retired, terminated employment, or died. The judgment also recognized her interest in his military retirement plan and his interest in her Diocese of Baton Rouge retirement plan and ordered Dianne to make an equalizing payment to Joel. In 1993, Joel married Jane McMahon, and around 10 years later Joel died while still employed by the state.
Thereafter Jane, Joelle (then a college student), and Dianne all filed claims with LASERS for survivor benefits. LASERS invoked a concursus pursuant to La. C.C.P. art. 4651 to determine who was entitled to the survivor benefits. The Louisiana Supreme Court determined that, although Dianne was not the surviving spouse or child of Joel under the LASERS plan, her interest in the community portion of Joel's retirement plan from their marriage remained intact. While these facts are very different from those in the case before us now, they show the extent to which the law protects the interest of the non-worker spouse in the worker spouse's retirement service credits accrued during the marriage.
We find that under the jurisprudence, and the facts of this case, the service credits retained their character as a community asset. The service credits were earned during the marriage, they were cashed in and the refunded money went to the community. Thereafter, money was set aside by paycheck deductions beginning during the marriage from community funds to repurchase the service credits. The purchase was made after the divorce with both community and separate funds.
Thus, we find no legal error in the trial court judgment. All of the service time earned during the community, as well as all of the repurchased service time which had been earned during the community, is a community asset. Ms. Rangeley, however, is entitled to reimbursement from Mr. Barker for one-half of her separate funds used to repurchase the prior service time in the amount of $2,834.50.
In his answer to the appeal, Mr. Barker asks that the judgment be modified to provide for damages for his loss of interest accrued on any portion of the retirement benefit awarded to him by the trial court, including both the DROP account as well as the monthly service retirement allowance, retroactive to the date of distribution of the benefits. Mr. Barker did not make this request to the trial court; therefore the trial court did not rule on this issue, and his request is denied.
