Breaux v. Breaux

555 So. 2d 1001, 1990 WL 3527
CourtLouisiana Court of Appeal
DecidedJanuary 17, 1990
Docket88-913
StatusPublished
Cited by11 cases

This text of 555 So. 2d 1001 (Breaux v. Breaux) is published on Counsel Stack Legal Research, covering Louisiana Court of Appeal primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Breaux v. Breaux, 555 So. 2d 1001, 1990 WL 3527 (La. Ct. App. 1990).

Opinion

555 So.2d 1001 (1990)

Barry Joseph BREAUX Plaintiff-Appellee,
v.
Elizabeth Menard BREAUX Defendant-Appellant.

No. 88-913.

Court of Appeal of Louisiana, Third Circuit.

January 17, 1990.
Rehearing Denied February 15, 1990.

*1003 Diane Sorola, Lafayette, for plaintiff/appellee.

Poteet & Landry, John G. Poteet, Jr., Lafayette, for defendant/appellant.

Before GUIDRY, KNOLL, JJ., and ROBERTS[*], J. Pro Tem.

CHARLES WM. ROBERTS, Judge Pro Tem.

This is an appeal from a community property partition judgment. The parties were married on September 14, 1979. A petition for separation was filed in July 1984 but a judgment of separation was never rendered. A petition for divorce was filed on September 6, 1985 and a judgment thereon was subsequently rendered. The judgment of partition at issue herein was rendered on March 28, 1988. Defendant has appealed and plaintiff has answered the appeal.

Defendant-appellant Elizabeth Breaux (hereinafter Elizabeth) has placed at issue the classification of certain properties, their value and obligations owed by the parties to one another. These include a 1981 Plymouth Voyager van, the separate or community nature of a Troy & Nichols mortgage, ownership of various shares of stock, the valuation of several community movables and reimbursement for community assets. Plaintiff-appellee, Barry Joseph Breaux (hereinafter Barry) answered the appeal raising issues as to the trial court's failure to award him damages for conversion, an adverse ruling concerning his pension, reimbursement for community funds spent on defendant's separate property, valuation of a dining room table and the distribution of assets and liabilities.

We affirm the judgment in part, reverse in part and remand with instructions.

OPINION

The 1981 Van

Elizabeth contends the trial court erred in finding that the 1981 Plymouth van (incorrectly listed in the judgment as an Aerostar van) is her separate property and that she owes reimbursement to the community for community funds used to purchase the van. The parties concurred in their sworn descriptive lists that the van is community property (Rec. 5-8, 73-76, 61-63 and 99-101). The testimony is also clear that this vehicle was acquired during the existence of the community (Barry, Rec. 297, Elizabeth, Rec. 326-327), although there is some disagreement as to the sales price of the old van, the source and amount of some of the purchase price, present value, etc. In view of the foregoing, the trial court was clearly wrong in not holding the van to be community property. Since we hold the 1981 Plymouth van to be community property, remand to the trial court is necessary to determine the value of the van, payments made and reimbursements or credits due. Because of the foregoing ruling, that portion of the trial court's judgment awarding Barry reimbursement for the monthly note paid with community funds is vacated.

Troy & Nichols Mortgage

In this assignment, Elizabeth contends the trial court erred in holding the Troy & Nichols mortgage to be her separate obligation, thereby relieving Barry of liability for one-half the mortgage, and in ordering Elizabeth to reimburse Barry for one-half *1004 of the principal paid on the mortgage with community funds.

The parties agreed that the house in which they resided during their marriage is Elizabeth's separate property, owned by her prior to their marriage. On December 10, 1979, after their marriage, the parties jointly borrowed $31,500 from First Federal Mortgage Corporation (which later became Troy & Nichols) and secured the loan with a mortgage on Elizabeth's house. The trial court correctly held that the loan is a community obligation since it was entered into during the existence of the community by both parties. See LSA-C.C. art. 2360 and LSA-C.C. art. 2361; Guillory v. Desormeaux, 179 So.2d 456 (La.App. 3d Cir.1965). The trial court erred in further holding that the loan was Elizabeth's separate obligation because the funds were spent on improvements to her house. The obligation is community and is subject to partition.[1]

However, Barry is entitled to reimbursement for his share of the community funds spent to improve Elizabeth's property. See LSA-C.C. art. 2366. Barry has alleged, but adduced no evidence to prove, that all of the funds were spent on improvements to Elizabeth's house. Elizabeth admits that $22,772.88 was spent on her house and has introduced a detailed account of how that amount was spent. Elizabeth testified that she does not know what happened to the rest of the money. We find that Barry has not carried his burden of proving that $31,500 was spent to improve Elizabeth's property. Therefore, we hold that Barry is entitled to reimbursement for one-half of $22,772.88, or $11,386.44.

We further find it necessary to remand the case to the trial court to determine the balance due on the loan on September 6, 1985 in order that the obligation may be partitioned equitably. Also, since Elizabeth has paid the notes on the loan since September 6, 1985, she is entitled to reimbursement from Barry for one-half the amount she has paid.

The Stock

Elizabeth contends the trial court erred in finding that 100 shares of Sara Lee stock are Barry's separate property and only 86 shares are community property. Both parties admit that Barry owned some Sara Lee stock prior to their marriage. The issue is how many shares.

After their marriage, Barry had the stock which he had acquired prior to the marriage reissued in both his and Elizabeth's names. These certificates bear only the date of the reissuance as the purchase date and are impossible to distinguish from the shares purchased during the marriage. There are 186 shares in all.

Barry testified that he owned 100 shares of Sara Lee stock prior to the marriage. Elizabeth testified that Barry owned some stock prior to their marriage, but definitely not 100 shares, and she indicates that it was some amount substantially less than 100 shares.

Things in the possession of a spouse during the existence of the community are presumed to be community, but either spouse may prove that they are separate property. LSA-C.C. 2340. The presumption of communty is rebutted as to property acquired prior to marriage by evidence establishing the date of acquisition. LSA-C.C. art. 2340, Official Comment (c). To overcome this heavy burden, the proof must be clear, positive and of a legally certain nature. Allen v. Allen, 539 So.2d 820 (La.App. 3d Cir.), writ denied, 541 So.2d 840 (La.1989); Succession of McVay v. McVay, 476 So.2d 1070 (La.App. 3d Cir. 1985).

We hold that Barry has failed to prove by clear and positive evidence the number of shares he owned prior to the existence of the community. The trial court clearly erred in accepting Barry's testimony that 100 shares were his separate *1005 property on the basis of Barry's credibility. Self-serving testimony does not, by itself, constitute clear, positive and legally certain evidence. Barry's separate shares of stock, in whatever amount, have become so inextricably commingled with the community shares that it is no longer ascertainable which shares are Barry's and which belong to the community. Barry failed to carry his burden of proof; and we must hold, therefore, that all of the Consolidated Foods/Sara Lee stock is community property.

Elizabeth further contends that the 17 shares of Sara Lee stock purchased by Barry in his name alone prior to the termination of the community are also community property.

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Cite This Page — Counsel Stack

Bluebook (online)
555 So. 2d 1001, 1990 WL 3527, Counsel Stack Legal Research, https://law.counselstack.com/opinion/breaux-v-breaux-lactapp-1990.