Cenac v. Cenac

492 So. 2d 39
CourtLouisiana Court of Appeal
DecidedMay 28, 1986
Docket85 CA 0312
StatusPublished
Cited by4 cases

This text of 492 So. 2d 39 (Cenac v. Cenac) 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
Cenac v. Cenac, 492 So. 2d 39 (La. Ct. App. 1986).

Opinion

492 So.2d 39 (1986)

Frances LeBlanc CENAC
v.
Richard Joseph CENAC.

No. 85 CA 0312.

Court of Appeal of Louisiana, First Circuit.

May 28, 1986.
Rehearing Denied July 15, 1986.

*41 Cameron C. Gamble, New Orleans, for plaintiff and appellant—Francis LeBlanc Cenac.

Paul M. Hebert, Jr., Baton Rouge, for defendant and appellee—Richard Joseph Cenac.

Before CARTER, SAVOIE and ALFORD, JJ.

CARTER, Judge.

This appeal arises from the trial court judgment dismissing plaintiff's action for rescission of the community property settlement agreement between plaintiff and her former spouse.

FACTS

Plaintiff, Frances LeBlanc Cenac, and defendant, Richard Joseph Cenac, were married on August 16, 1963, and separated on or about May 28, 1981. Defendant filed a suit for legal separation and obtained a judgment of separation on June 17, 1981, in the proceedings entitled "Richard Joseph Cenac vs. Frances Elizabeth LeBlanc Cenac," Number 64,987 on the civil docket of the Thirty-Second Judicial District Court, Parish of Terrebonne. In that suit, plaintiff, who was not represented by independent counsel, admitted to fault (abandonment) and waived service and delays. On July 7, 1981, plaintiff, again not represented by counsel, entered into a community property settlement prepared by an attorney for defendant. The settlement comprised the movable and immovable property belonging to the community.

In the community property settlement, plaintiff conveyed to defendant all of her undivided one-half interest in various properties. The consideration received by plaintiff was a 1981 Lincoln Town car, a diamond cross pendant, her wedding and engagement rings, a gold chain, a diamond cocktail ring, a stainless Rolex watch, a rabbit coat and $5,000.00.

On June 7, 1982, plaintiff filed this suit for rescission of the community property settlement on various grounds including lesion beyond moiety, for an accounting, and for a partition of the community property. The trial of this matter was limited to the issue of rescission of the community property settlement. After trial, the trial court determined that the community property settlement was valid and not lesionary, dismissing plaintiff's claim for rescission of the community property settlement.

From this judgment, plaintiff appeals, alleging error on the part of the trial court in failing to annul and set aside the community property settlement on the following grounds: (1) that it is lesionary; (2) that plaintiff executed the settlement under error of law and fact; and, (3) that defendant breached his fiduciary duty to plaintiff by not giving her a full and detailed accounting of the community at the time of settlement.

Lesion

Plaintiff's first contention is that the community property settlement should be annulled on the basis of lesion beyond moiety. Plaintiff bases her claim on LSA-C.C. art. 1861[1] as it existed at the time the parties separated. LSA-C.C. art. 1861 provided, as follows:

The law, however, will not release a person of full age, and who is under no incapacity, against the effect of his voluntary contracts, on account of such implied *42 error or imposition, except in the two following cases:
1. In partition where there is a difference in the value of the portions to more than the amount of one-fourth to the prejudice of one or [of] the parties;
2. In sales of immovable property, the vendor may be relieved, if the price given is less than one-half of the value of the thing sold; but the sale can not be invalidated for lesion to the injury of the purchaser.

The proper way to determine lesion beyond one-fourth is first to determine the property's true value and then to calculate whether a party has received three-fourths of his share. LSA-C.C. art. 1398; Bedwell v. Bedwell, 399 So.2d 685 (La.App. 1st Cir. 1981); Watkins v. Watkins, 376 So.2d 1316 (La.App. 1st Cir.1979). Plaintiff bears the burden of establishing lesion by strong and convincing evidence. Armwood v. Kennedy, 231 La. 102, 90 So.2d 793 (1956); Blount v. Blount, 385 So.2d 476 (La.App. 1st Cir.1980), writ denied, 386 So.2d 358 (La.1980). The trial court's determination of community assets and liabilities is a factual one. Factual findings of the trial court will not be disturbed absent a finding of manifest error. Arceneaux v. Domingue, 365 So.2d 1330 (La.1978); Canter v. Koehring Company, 283 So.2d 716 (La. 1973).

In the case sub judice, the trial judge made the following factual findings:

              ASSETS
Lincoln                                     $ 15,394.00
Cross Pendant                                  2,500.00
Gold Chain                                       300.00
Diamond Cocktail Ring                          2,000.00
Watch                                          1,775.00
Sheared Rabbit with Guanco Collar              1,100.00
$5,000.00                                      5,000.00
                                            ___________
Total value of Assets received by
  Mrs. Cenac                                $ 28,069.00
Family Home (Reimbursement)                 $ 70,000.00
Movables located on family home
  property                                        -0-
1/8 Interest in Lot 3 of Bayou
  Barataria Section                            7,500.00
25 shares of National Shipbuilding
  Stock                                       15,000.00
80 shares of American Liberty Financial
  Corp.                                          280.00
160 shares American Liberty Financial
  Corp.                                          560.00
Louisiana Motel stock                          6,044.00
First National Bank of Houma
  stock                                          495.00
200 shares Investment Research
  & Development Sun Energy
  Corporation                                  2,000.00
La. Land Exploration surface
  lease                                         -0-
Oldsmobile                                       400.00
Savings Account #XX-XXXX-X
  1st National Bank                            2,318.54
Checking Account #XXX-XXX-X
  1st National Bank                              728.59
New England Mutual Life
  Policy #628900                               2,710.00
Money Market Certificate
  Terrebonne Savings & Loan                   16,231.24
Promissory note—Lynn Lirette              -0-
                                              __________
Total value of assets received by
  Mr. Cenac                                 $124,267.37
Total value of Community Assets             $152,336.37
                  * * *
            COMMUNITY DEBTS
Demand note date 5/1/80 in the
  amount of $15,000                         $ 15,000.00
Open account to E.A. Cenac
  Towing by Richard Cenac
  d/b/a Tarpon Towing                         13,444.19
Open account dated 8/1/78 to
  E.A. Cenac Towing                           51,000.00
Community accounts                             1,450.00
Loan to Cecile Guidry                          8,000.00
  ¼ Interest in note dated 10/4/79
  secured by mortgage on Lot 3,
  Bayou Barataia (sic) Section                 6,000.00
Note dated 4/26/74 to Guy Guidry
  secured by mortgage on
  Lots 3 and 4 Van Boudreaux
  S/D                                         30,000.00
                                            ___________
Total Community debts                       $124,894.19

After making these findings of assets and liabilities, the trial judge, in written reasons, concluded as follows:

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492 So. 2d 39, Counsel Stack Legal Research, https://law.counselstack.com/opinion/cenac-v-cenac-lactapp-1986.