Dance v. Dance

552 So. 2d 658, 1989 WL 134349
CourtLouisiana Court of Appeal
DecidedNovember 1, 1989
Docket20,940-CA
StatusPublished
Cited by8 cases

This text of 552 So. 2d 658 (Dance v. Dance) 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
Dance v. Dance, 552 So. 2d 658, 1989 WL 134349 (La. Ct. App. 1989).

Opinion

552 So.2d 658 (1989)

Jane Frances Schroeder DANCE, Appellant,
v.
Claude Allen DANCE, Jr., Appellee.

No. 20,940-CA.

Court of Appeal of Louisiana, Second Circuit.

November 1, 1989.

*659 Donald R. Miller, Shreveport, for plaintiff/appellant.

Egan & Cook by Wm. H. Cook, Jr., Shreveport, for defendant/appellee.

Before MARVIN, FRED W. JONES Jr., and NORRIS, JJ.

NORRIS, Judge.

Incidental to a divorce proceeding, Jane Schroeder Dance filed an amended petition to partition the former community regime that existed between her and Claude Dance, Jr. The sole issue before the trial court was the classification of two tracts of land known as the "Goathill" property and the "Boyce Clinic" property. The trial court held that no community property was used in the acquisition of these properties and that Mr. Dance's parents intended the purchase of a one-third interest of the properties in Mr. Dance's name to be a gift to him. Consequently, the properties belonged to the defendant's separate estate. Mrs. Dance appeals this judgment. The issues presented on appeal are (1) whether the trial court erred in declaring that property acquired only in the husband's name during the existence of the community is his separate property and (2) whether the trial court erred in not holding that it was *660 unconstitutional to apply retroactively the abrogation of the "double declaration" rule to the facts in this case.

Mr. and Mrs. Claude Dance, Jr. were married in 1956. During the marriage, Mr. Dance acquired ownership of the two tracts of land. The parties were divorced pursuant to a petition for divorce filed in 1976.

The Goathill property was sold in equal proportions to Mr. Dance, Sr., Mrs. Dance, Sr. and Mr. Dance, Jr. on May 12, 1960 for $57,478. According to Mr. Dance, Jr., his parents paid a cash downpayment of $4,500, transferred to vendor a tract of land worth $10,500, and paid the balance in five annual installments of $10,595.60 plus interest. Mr. Dance, Jr. testified that he did not contribute any sums of money toward the downpayment or installments and had no interest in the tract of land transferred by his parents. He testified his parents paid all of the property tax on the property until their deaths in 1980 and 1984 respectively. By 1980 the entire purchase price had been paid.

The Boyce Clinic, which had been in the Dance family for many years prior to its sale to Dr. Boyce, was resold by Dr. Boyce to Mr. Dance, Sr. and Mr. Dance, Jr. on October 2, 1961. Mr. and Mrs. Dance, Sr. acquired a two-thirds interest in the property and their son acquired a one-third interest. The consideration for the sale was a cash downpayment of $15,562.55 and ten annual installments of $4000 plus interest. Mr. Dance, Jr. testified that his parents paid the entire downpayment and all of the installments. He stated that he did not contribute to these payments and did not pay any property tax or property insurance while his parents were alive.

Mr. Dance, Jr. testified his parents informed him at the time of each transaction that his one-third interest in the properties was a gift. According to Mr. Dance, Jr., his parents gave him a one-third interest in the tracts because his two sisters were married to wealthy men and did not need the property. He also testified that he accounted to his sisters for the donations in his parents' successions and that they resolved the issue between them.

Mrs. Dance, Jr. testified that she could not recall the specific purchases and that she was not aware that the properties were given as a gift to her husband by his parents. Mrs. Dance stated that her husband never told her the property was his separate property. Mr. Dance, Jr. testified that he could not recall whether he told his wife that the two pieces of property were his separate property but that he always considered them a gift from his parents.

Mrs. Dance presented evidence to suggest the parties considered the land community property. On financial statements used during the marriage, Mr. Dance, Jr. did not designate his interest in the tracts as his separate property. In 1972 and 1973, Mr. Dance deducted the property taxes on joint income tax returns.

Mrs. Dance testified that she occasionally helped do work on the Goathill property. For example, she helped dig a well, clear fence lines, and plow the land. She stated that she once spent two weeks helping to clean the Boyce Clinic property.

The trial court, after hearing the testimony and considering the evidence, concluded that the tracts belonged to defendant's separate estate.

ASSIGNMENT NO. 2

By her second assignment, appellant argues that the trial court erred in concluding that it was not unconstitutional to apply LSA-C.C. art. 2340 retroactively. Appellant contends that retroactive application of article 2340, which abrogates the former "double declaration" rule, deprives her of property rights in violation of LSA-Const. art. 1 §§ 2, 4, and 23.

Prior to the enactment of article 2340, the jurisprudence, interpreting the now repealed LSA-C.C. arts. 2334 and 2402, established that immovable property conveyed to the husband during the marriage was irrebuttably presumed to be community property unless the deed of acquisition contained a double declaration that the property was acquired with funds belonging to the husband's separate estate and that it was being acquired for his separate *661 estate. Wood v. Wood, 424 So.2d 1143 (La.App. 1st Cir.1982).

In 1979, the legislature enacted a new Title VI of Book III of the Revised Civil Code to initiate an Equal Management Law. This included article 2340, effective January 1, 1980, which now provides:

Things in the possession of a spouse during the existence of a regime of community of acquets and gains are presumed to be community, but either spouse may prove that they are separate property.

The Revision Comments state that this article suppresses the requirement of a double declaration established by Louisiana jurisprudence.

Generally, laws in Louisiana can only proscribe for the future. LSA-C.C. art. 8. However, laws which are procedural will be given retroactive effect in the absence of language to the contrary. Ardoin v. Hartford Accident and Indem. Co., 360 So.2d 1331 (La.1978); General Motors Acceptance Corp. v. Anzelmo, 222 La. 1019, 64 So.2d 417 (1953). Article 2340 establishes a presumption in favor of the community that can be rebutted by either spouse. Because the presumption is rebuttable, the article operates as an evidentiary rule and is therefore procedural in nature. Wood v. Wood, supra.; C. Samuel, The Retroactivity Provisions of Louisiana's Equal Management Law: Interpretation and Constitutionality, 39 La.L.Rev. 347 (1979), at 398. Nothing in the new "matrimonial regimes" articles, enacted by Act 709 of 1979, precludes the retroactive application of article 2340.

In Tullier v. Tullier, 464 So.2d 278 (La. 1985), the issue of the retroactivity of art. 2340 was squarely addressed. The Supreme Court acknowledged that a law cannot be applied retroactively to impair obligations of contracts or divest or impair vested rights. See also Long v. Northeast Soil Conservation Dist. of La., 226 La. 824, 77 So.2d 408 (1955); Brown v. Indemnity Ins. Co. of N. Amer., 108 So.2d 812 (La.App. 2d Cir.1959).

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Bluebook (online)
552 So. 2d 658, 1989 WL 134349, Counsel Stack Legal Research, https://law.counselstack.com/opinion/dance-v-dance-lactapp-1989.