Deklerk v. Deklerk

DYSART, J.,

dissents in part, with reasons.

LI respectfully dissent from the majority opinion as it regards one of the reimbursements awarded to Ms. de Klerk; that being the reimbursement for one-half of the home equity line of credit in the amount of $20,876.94.

As discussed in the majority opinion, when the parties sold the jointly owned home, their home equity line of credit had a balance of $40,753.88. This debt was satisfied at the act of sale, with the credit balance being deducted and the net proceeds of the sale being placed into the registry of the court.

As the parties had executed an ante nuptial agreement providing for separation of property regime, the division of assets and debts in this matter is governed by those civil code articles dealing with ownership in indivisión, La. Civil Code arts. 797-818, as opposed to the civil code articles dealing with community property. Further, an obligation is solidary for the obligors when each obligor is hable for the whole performance. La. Civ.Code art. 1794. Thus, among solidary obligors, each is responsible for his virile share. Hill v. Hill, 08-197, pp. 7-8 (La.App. 5 Cir. 5/27/08), 984 So.2d 229, 284.

Here, the parties jointly executed the documents to obtain the home equity line of credit. As both were liable for the whole of the debt, they were solidary obli-gors, and between them, each owed his virile share, or one-half of the debt. Sampognaro v. Sampognaro, 41,664 (La. pp.2d Cir.2/14/07), 952 So.2d 775, 780; La. Civ.Code art. 1804.

Accordingly, in my opinion, Ms. de Klerk should not be awarded a reimbursement on the basis that the loan was for expenses of the marriage. However, the evidence did indicate that Mr. de Klerk increased the indebtedness on the line of credit by $19,600.00 when he drew down that amount and placed it into his personal checking account after the divorce had been filed. I would therefore find that Ms. de Klerk is entitled to a reimbursement of one-half of that amount, or $9,800.00. In all other respects, I concur in the majority opinion.