
    Lisa Decoux MYERS, Plaintiff-Appellant, v. Warren MYERS, Jr., Defendant-Appellee.
    No. 92-860.
    Court of Appeal of Louisiana, Third Circuit.
    July 21, 1993.
    Henry Adolph Bernard Jr., New Iberia, for Lisa Decoux Myers.
    Glenda Huddleston, New Iberia, for Warren Myers Jr.
    Before DOUCET, YELVERTON and COOKS, JJ.
   DOUCET, Judge.

This is an appeal from a judgment rescinding an agreement to partition community property for lesion beyond one-fourth.

On May 21, 1991, Lisa Decoux Myers filed a petition for divorce from her husband, Warren Myers, Jr. On May 24, 1991, Mr. and Mrs. Myers executed a document enti-tied “Community Property Settlement between Lisa Deeoux Myers and Warren J. Myers, Jr.” (Settlement). In September 1991, Warren Myers filed an answer and reconventional demand. He also filed a “Petition to Rescind Settlement of Community Property Agreement” alleging that. Mrs. Myers fraudulently undervalued property and that he received less than three-eighths of the value of the community property (or less than three-quarters of the value of his one-half share).

A judgment of divorce was rendered on January 3, 1992. On February 2, 1992, a hearing was held in connection with the petition to rescind the settlement. On March 12, 1992, judgment was rendered declaring the settlement to be null and void. Mrs. Deeoux appeals.

La.C.C. art. 814 provides with regard to recission of a partition for lesion that:

An extrajudicial partition may be rescinded on account of lesion if the value of the part received by a co-owner is less by more than one-fourth of the fair market value of the portion he should have received.

The plaintiff has the burden of proving lesion beyond one-fourth by clear and convincing evidence. Ozane v. Ozane, 392 So.2d 774 (La.App. 3 Cir.1980). Mrs. Myers argues that Mr. Myers did not carry this burden.

The total value of the property partitioned was $87,120.00. Apportioned to Mrs. Myers under the settlement were the family home and property, the furniture and appliances, and a 1985 Nissan Pulsar. At trial, this property was valued at $81,420.00. Apportioned to Mr. Myers were a 1990 aluminum boat, motor and trailer valued at $3,200.00, and $2,500.00 in cash, for a total of $5,700.00. To prove lesion, Mr. Myers had only to show that he received less than three-eighths of the property partitioned, or less than $32,-670.00.

Mrs. Myers first argues that the evidence as to the values of the items was not clear and convincing. We disagree.

Dan Allain, an expert in the field of real estate appraisal, testified that the house and property were worth $68,900.00. No evidence was introduced to controvert this valuation. Mr. Myers testified that the boat, motor and trailer were valued at $3,200.00. His father-in-law’s testimony supported this valuation. The other values were established by the testimony of Mrs. Myers. This evidence meets the clear and convincing standard set out in Ozane, supra.

Mrs; Myers next argues that the settlement was not lesionary because Mr. Myers kept his pension and because she took on the $40,000.00 debt owed on the house. However, neither the pension nor the home mortgage are mentioned in the partition. There is no legal authority prohibiting spouses from voluntarily partitioning the community property in a piecemeal fashion. 16 Louisiana Law Treatise § 7:20, Spaght and Hargrave (1989). The spouses were free to partition part of the community in one partition and to leave other items to be partitioned at a later date. We cannot count items left out of the settlement in determining whether it was lesionary. To avoid lesion, the parties to the settlement each had to receive, at a minimum, property valued at three-eighths of the total market value of the property partitioned. In this case, Mr. Myers received a share worth far less than three-eighths of the market value of the property partitioned. Nothing in the settlement or the testimony indicated an intent to equalize this through partition of the remaining property. In fact, Mrs. Myers’ testimony clearly indicated that she believed that Mr. Myers was still liable for the home mortgage debt.

Therefore, the trial court correctly rescinded the settlement. We affirm the judgment of the trial court. Costs of this appeal are assessed against Mrs. Myers.

AFFIRMED.

COOKS, J., dissents and assigns written reasons.

COOKS, Judge,

dissenting.

I respectfully disagree with the majority’s decision to affirm the judgment rescinding a community property partition agreement. The opinion recites “we cannot count items left out of the settlement in determining whether it was lesionary.” Apparently, the majority’s affirmance rests on the mistaken premise that an appellate court’s community “value review” is limited to the four corners of the “actual” partition document. My appreciation of the jurisprudence and applicable codal provisions would not place such restriction on our authority to determine the validity of a community partition attacked for lesion beyond moiety. In my view, the community estate must be considered as a whole unit. Accepting the majority’s position, conceivably .the parties could execute separate instruments purporting to divide in each only certain community items, the divisional values of which on equation may be lesionary in one instrument but non-lesionary in the other. On final review, when all the respective “shares” separately partitioned are aggregated, the complaining party’s lesion claim may not be firmly grounded. The suggested “piece meal” approach to appellate review which results from the majority’s “four corners” rule is not legally required or supported by good reasoning.

Granted, in this case, the community property agreements was simplistic and inartisti-eally drafted. Still, a party seeking to rescind a community partition for lesion must prove “by strong and convincing evidence” the value of the community estate at the time of the settlement; and the value actually received from any conversion or transfer of community assets. Ozane v. Ozone, 392 So.2d 774 (La.App. 3rd Cir.1980); Blount v. Blount, 385 So.2d 476 (La.App. 1st Cir.1980), writ denied, 386 So.2d 358 (La.1980); Beatty v. Vining, 147 So.2d 37 (La.App. 2nd Cir. 1962); Whittington v. Whittington, 229 So.2d 193 (La.App. 2nd Cir.1969), writ ref'd, 255 La. 477, 231 So.2d 394 (La.1970).

Although the community agreement is silent on the division or assignment of Mr. Myers’ retirement plan, he acknowledges acquiring full ownership of the plan as a consideration for perfecting the community partition. In brief, Mrs. Myers expressed the same understanding of the parties’ original intent regarding the retirement plan. Certainly, Mr. Myers’ full retention of his retirement plan, spanning 13 years-plus employment, may materially affect the bottom line value actually received by him from the community estate.

Considering the absence of any evidence establishing the value of Mr. Myers’ retirement plan during the existence of the marriage, I am unable to adequately review the lesion issue presented. Appellate courts are given the power to remand an action for proper consideration when the record is so incomplete that the court is unable to pronounce definitely on the issues presented or where the parties have failed, for whatever reason, to produce available evidence material to a proper decision. Bodin v. Bodin, 392 So.2d 759 (La.App. 3rd Cir.1980). It is fair and logically consistent with existing jurisprudence to remand the case to allow the parties to submit additional competent evidence showing the value of Mr. Myers’ retirement plan at the time of the partition; his entitlement to full ownership of the retirement benefits in consideration of the partition agreement; and for other legal evidence supporting the value figures assigned to the movable community assets by the court. I do not share the majority factual summation of Mrs. Myers’ testimony regarding the parties’ respective liability for the home mortgage. Mrs. Myers’ clearly accepted full responsibility for payment of the mortgage in consideration for acquiring full ownership of the home. Also, I note serious reservation in accepting, as legally sound, several “ball park value estimations” made by the trial judge in assessing the net worth of the movable community property.

For the foregoing reasons, I would reverse and remand the case.  