NOT DESIGNATED FOR PUBLICATION STATE OF LOUISIANA
CURT OF APPEAL
FIRST CIRCUIT
2023 CA 1237
VERSUS
i i REBECCA y •, TAYLOR
Judgment Rendered:
On Appeal from the 20th Judicial District Court In and for the Parish of West Feliciana State of Louisiana Trial Court No. 24361
Honorable Kathryn E. Jones, Judge Presiding
J. Andrew Murrell Attorney for Plaintiff/Appellant Baton Rouge, Louisiana Dane Lynn Taylor
G. Bruce Kuehne Attorney for Defendant/Appellee Baton Rouge, Louisiana Rebecca Godfrey Taylor
BEFORE: THERIOT, PENZATO, AND GREENE, JJ. PENZATO, J.
Dane Lynn Taylor appeals the trial court' s August 10, 2023 judgment, which
decreed that the net proceeds of the civil action entitled Rebecca Faith Taylor, et al.
v. Ivan Pozgaj Zagreb, etc., C. A. 18- 674- SDD-RLB, U.S. D.C. M.D.LA. were the
separate property of Rebecca Godfrey Taylor. We affirm. FACTS AND PROCEDURAL HISTORY
Dane and Rebecca Taylor were married in 1988. Prior to their marriage, they
entered into a marriage contract providing for a separate property regime. In 2017,
Rebecca was injured in an automobile accident and filed a civil action entitled
Rebecca Faith Taylor, et al. v. Ivan Pozgaj Zagreb, etc., C. A. 18- 674- SDD-RLB,
U.S. D.C. M.D.LA. The parties negotiated a settlement that resulted in net proceeds
of $403, 000.00. Pursuant to Rebecca' s instructions, on May 6, 2021, her attorney
wrote a check payable to Dane for $380, 000. 00 of that amount.
Dane filed a petition for divorce on June 2, 2022. Rebecca answered the
petition and filed a reconventional demand seeking the return of the proceeds of the
civil action, which she asserted were her separate property. The parties stipulated to
a trial to determine the ownership of the proceeds.
At trial, the parties jointly introduced into evidence the deposition of Michael In his Hesse, the attorney who represented Rebecca and Dane in the civil action.'
deposition, Mr. Hesse testified that the case was mediated, but not resolved in
mediation. Rather, following mediation, the parties were able to negotiate a
settlement in the amount of $625, 000. 00. After paying medical expenses, Mr.
Hesse' s firm received a check in the amount of $534, 483. 24. Legal fees were
deducted, leaving $ 403, 000.00 as the net to the client. Mr. Hesse testified he did not
Mr. Hesse testified that although a consortium claim was asserted on behalf of Dane, no quantum was presented in connection with the claim and less than I% of the effort he put into the case was related to Dane' s claim. Dane was not involved in the automobile accident, and there was no evidence presented at the trial that any portion of the $ 380,000.00 was for a loss of consortium. 2 know what effect the receipt of the settlement funds would have on Rebecca' s status
for social security disability benefits and suggested to Rebecca the possibility of Mr. Hesse further testified Rebecca was not setting up a special needs trust.
accepting of setting up a trust but insisted upon directing a payment of $380,000.00 to Dane. Rebecca wrote and signed instructions directing payment of $380, 000.00 which Mr. to Dane; $ 14, 000. 00 to Michael Godfrey; $4, 000. 00 for "the other thing",
Hesse understood to be the payment of an outstanding judgment against Rebecca;
and " the rest to [ Rebecca]," which was $ 5, 000. 00. Mr. Hesse testified Rebecca
never told him the payment to Dane was a gift and he did not perceive it as such; it
was his understanding Rebecca wanted the money to be in Dane' s name because he was in charge of the money.
Rebecca testified she was injured in an automobile accident in 2017, as a result
of which she underwent seven major surgeries in four and a half years. She applied
for social security disability and began receiving payments in approximately 2019. Rebecca testified she opened an account to deposit the disability payments, and Dane
told her she could not have more than $ 2, 000.00 in the account at a time. According
to Rebecca, when Mr. Hesse received the settlement funds, she instructed him to
make a check payable to Dane in the amount of $380, 000. 00. She testified she
directed the check to Dane because she thought she could not have any more than
2, 000. 00 in her account at any time.
Dane testified that he did not recall any conversations with Rebecca about the
settlement funds prior to receiving them. According to Dane, the day Rebecca
brought the check home, she handed it to him and told him it was to make up for all
that she had put him through over the years. Dane testified he deposited the check
from Mr. Hesse' s law firm made payable to him into a savings account controlled
solely by him. He further testified he transferred a portion of the $ 380, 000. 00 into
an investment account in his name and he was the sole person with access to the
3 investment account. Dane testified it was his impression Rebecca intended to donate
the funds to him for all the things she had done in the past.
April Taylor Magee, the couple' s daughter, testified Rebecca told her she was
giving the settlement proceeds to Dane for everything she had put him through. April further testified she was no longer in contact with Rebecca. Rebecca denied
the conversation with April had taken place.
Following the testimony of the parties, the trial court found Rebecca did not donate the settlement funds to Dane, and Rebecca was therefore the owner of the
funds. The trial court issued written reasons for its ruling on July 12, 2023, stating
as follows:
Rebecca' s testimony established that she receives social security disability payments based on her residual effects from the personal injuries and asserted that she had been repeatedly told by Dane that she could only have $ 2000[. 00] in accounts in her name at any given time to preserve her right to receive the disability payments. This Court is firmly convinced that Rebecca believed that $2000[. 00] limit to be true, regardless of whether it is actually an accurate statement of the correlation between social security disability payments and a related personal injury monetary settlement. Both parties confirmed that they did not seek expert financial advice on the handling of these funds. It is much more reasonable to believe that Rebecca took Dane' s advice that she could not receive a large lump sum of money and still preserve her social security disability payments, than to believe Dane' s self- that Rebecca had truly intended to donate serving testimony 380, 000[. 00] to him due to previous unpleasantries between them, especially when a donation of those funds represented the entirety of the net proceeds of her personal injury case.
This Court finds that there was no donation made by Rebecca. Her intent was not to donate to Dane, but to use him to " hide" the 380, 000[. 00] lump sum personal award in order to preserve her ability to continue to receive social security disability benefits. This action
may have been foolhardy and based on an inaccurate perception by Rebecca of social security disability rules; however, her actual intent and subsequent actions were based upon that belief. The Court also believes that her belief relative to the $ 2000[. 00] limit was encouraged by Dane.
Therefore, because there was no actual donation made, only a transfer for purposes of sequestering the money out of Rebecca' s name, the $ 380,000[. 00] personal injury proceeds were initially, and are still,
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NOT DESIGNATED FOR PUBLICATION STATE OF LOUISIANA
CURT OF APPEAL
FIRST CIRCUIT
2023 CA 1237
VERSUS
i i REBECCA y •, TAYLOR
Judgment Rendered:
On Appeal from the 20th Judicial District Court In and for the Parish of West Feliciana State of Louisiana Trial Court No. 24361
Honorable Kathryn E. Jones, Judge Presiding
J. Andrew Murrell Attorney for Plaintiff/Appellant Baton Rouge, Louisiana Dane Lynn Taylor
G. Bruce Kuehne Attorney for Defendant/Appellee Baton Rouge, Louisiana Rebecca Godfrey Taylor
BEFORE: THERIOT, PENZATO, AND GREENE, JJ. PENZATO, J.
Dane Lynn Taylor appeals the trial court' s August 10, 2023 judgment, which
decreed that the net proceeds of the civil action entitled Rebecca Faith Taylor, et al.
v. Ivan Pozgaj Zagreb, etc., C. A. 18- 674- SDD-RLB, U.S. D.C. M.D.LA. were the
separate property of Rebecca Godfrey Taylor. We affirm. FACTS AND PROCEDURAL HISTORY
Dane and Rebecca Taylor were married in 1988. Prior to their marriage, they
entered into a marriage contract providing for a separate property regime. In 2017,
Rebecca was injured in an automobile accident and filed a civil action entitled
Rebecca Faith Taylor, et al. v. Ivan Pozgaj Zagreb, etc., C. A. 18- 674- SDD-RLB,
U.S. D.C. M.D.LA. The parties negotiated a settlement that resulted in net proceeds
of $403, 000.00. Pursuant to Rebecca' s instructions, on May 6, 2021, her attorney
wrote a check payable to Dane for $380, 000. 00 of that amount.
Dane filed a petition for divorce on June 2, 2022. Rebecca answered the
petition and filed a reconventional demand seeking the return of the proceeds of the
civil action, which she asserted were her separate property. The parties stipulated to
a trial to determine the ownership of the proceeds.
At trial, the parties jointly introduced into evidence the deposition of Michael In his Hesse, the attorney who represented Rebecca and Dane in the civil action.'
deposition, Mr. Hesse testified that the case was mediated, but not resolved in
mediation. Rather, following mediation, the parties were able to negotiate a
settlement in the amount of $625, 000. 00. After paying medical expenses, Mr.
Hesse' s firm received a check in the amount of $534, 483. 24. Legal fees were
deducted, leaving $ 403, 000.00 as the net to the client. Mr. Hesse testified he did not
Mr. Hesse testified that although a consortium claim was asserted on behalf of Dane, no quantum was presented in connection with the claim and less than I% of the effort he put into the case was related to Dane' s claim. Dane was not involved in the automobile accident, and there was no evidence presented at the trial that any portion of the $ 380,000.00 was for a loss of consortium. 2 know what effect the receipt of the settlement funds would have on Rebecca' s status
for social security disability benefits and suggested to Rebecca the possibility of Mr. Hesse further testified Rebecca was not setting up a special needs trust.
accepting of setting up a trust but insisted upon directing a payment of $380,000.00 to Dane. Rebecca wrote and signed instructions directing payment of $380, 000.00 which Mr. to Dane; $ 14, 000. 00 to Michael Godfrey; $4, 000. 00 for "the other thing",
Hesse understood to be the payment of an outstanding judgment against Rebecca;
and " the rest to [ Rebecca]," which was $ 5, 000. 00. Mr. Hesse testified Rebecca
never told him the payment to Dane was a gift and he did not perceive it as such; it
was his understanding Rebecca wanted the money to be in Dane' s name because he was in charge of the money.
Rebecca testified she was injured in an automobile accident in 2017, as a result
of which she underwent seven major surgeries in four and a half years. She applied
for social security disability and began receiving payments in approximately 2019. Rebecca testified she opened an account to deposit the disability payments, and Dane
told her she could not have more than $ 2, 000.00 in the account at a time. According
to Rebecca, when Mr. Hesse received the settlement funds, she instructed him to
make a check payable to Dane in the amount of $380, 000. 00. She testified she
directed the check to Dane because she thought she could not have any more than
2, 000. 00 in her account at any time.
Dane testified that he did not recall any conversations with Rebecca about the
settlement funds prior to receiving them. According to Dane, the day Rebecca
brought the check home, she handed it to him and told him it was to make up for all
that she had put him through over the years. Dane testified he deposited the check
from Mr. Hesse' s law firm made payable to him into a savings account controlled
solely by him. He further testified he transferred a portion of the $ 380, 000. 00 into
an investment account in his name and he was the sole person with access to the
3 investment account. Dane testified it was his impression Rebecca intended to donate
the funds to him for all the things she had done in the past.
April Taylor Magee, the couple' s daughter, testified Rebecca told her she was
giving the settlement proceeds to Dane for everything she had put him through. April further testified she was no longer in contact with Rebecca. Rebecca denied
the conversation with April had taken place.
Following the testimony of the parties, the trial court found Rebecca did not donate the settlement funds to Dane, and Rebecca was therefore the owner of the
funds. The trial court issued written reasons for its ruling on July 12, 2023, stating
as follows:
Rebecca' s testimony established that she receives social security disability payments based on her residual effects from the personal injuries and asserted that she had been repeatedly told by Dane that she could only have $ 2000[. 00] in accounts in her name at any given time to preserve her right to receive the disability payments. This Court is firmly convinced that Rebecca believed that $2000[. 00] limit to be true, regardless of whether it is actually an accurate statement of the correlation between social security disability payments and a related personal injury monetary settlement. Both parties confirmed that they did not seek expert financial advice on the handling of these funds. It is much more reasonable to believe that Rebecca took Dane' s advice that she could not receive a large lump sum of money and still preserve her social security disability payments, than to believe Dane' s self- that Rebecca had truly intended to donate serving testimony 380, 000[. 00] to him due to previous unpleasantries between them, especially when a donation of those funds represented the entirety of the net proceeds of her personal injury case.
This Court finds that there was no donation made by Rebecca. Her intent was not to donate to Dane, but to use him to " hide" the 380, 000[. 00] lump sum personal award in order to preserve her ability to continue to receive social security disability benefits. This action
may have been foolhardy and based on an inaccurate perception by Rebecca of social security disability rules; however, her actual intent and subsequent actions were based upon that belief. The Court also believes that her belief relative to the $ 2000[. 00] limit was encouraged by Dane.
Therefore, because there was no actual donation made, only a transfer for purposes of sequestering the money out of Rebecca' s name, the $ 380,000[. 00] personal injury proceeds were initially, and are still,
owned by Rebecca, even though the proceeds check was made payable to Dane.
S On August 10, 2023, the trial court signed a judgment in accordance with its
written reasons. Dane appeals, essentially contending the trial court erred by failing
to find a valid donation inter vivos occurred and that the $ 380, 000.00 is his separate
property.
LAW AND DISCUSSION
A donation inter vivos is a contract by which a person, called the donor,
gratuitously divests himself, at present and irrevocably, of the thing given in favor of another, called the donee, who accepts it. La. C. C. art. 1468. Unless otherwise
provided by law, a donation inter vivos shall be made by authentic act. La. C. C. art. 1541.
One exception to the requirement of an authentic act is the donation of an
incorporeal movable, which may be made by authentic act or by compliance with
the requirements otherwise applicable to the transfer of that particular kind of
incorporeal movable. La. C. C. art. 1550. Under Louisiana property law, a check is
classified as an incorporeal movable. See La. C. C. art. 473. Ballex v. Ballex, 2019-
1271 ( La. App. 1 Cir. 7/ 6/ 20), 308 So. 3d 332, 336. The donation inter vivos of a
check is effective without any formality beyond the negotiation of same. Id. at 337.
The donee has the burden of proving the donation and the proof must be strong
and convincing. Matherne v. Polite, 2022- 0194 ( La. App. 1 Cir. 11/ 4/ 22), 355 So.
3d 664, 668. In order for a donation to be valid, there must be a divestment,
accompanied by donative intent. Schindler v. Biggs, 2006- 0649 ( La. App. 1 Cir.
6/ 8/ 07), 964 So. 2d 1049, 1053. Donative intent is a question of fact that is subject
to the manifest error standard of review. Matherne, 355 So. 3d at 668. Thus, a court
of appeal may not set aside a trial court' s factual finding unless it is manifestly
erroneous or clearly wrong. A trial court' s factual finding is manifestly
erroneous/ clearly wrong when, after review of the entire record, the appellate court
finds that no reasonable factual basis exists for the finding and that it is manifestly
E erroneous or clearly wrong. See Stobart v. State through Dept. of Transp. and
Development, 617 So. 2d 880, 882 ( La. 1993). If, in light of the record in its entirety,
the trial court' s findings are reasonable, then the appellate court may not reverse,
even if convinced it would have weighed the evidence differently sitting as the trier
of fact. Matherne, 355 So. 3d at 668. Where the factfinder' s determination is based
on its decision to credit the testimony of one of two or more witnesses, its finding
can virtually never be manifestly erroneous. Id.
Upon review of the record in this case, we cannot say the trial court was
manifestly erroneous in its factual finding that Rebecca lacked the donative intent to donate the settlement proceeds to Dane. The trial court, after hearing the testimony
and considering the evidence introduced at trial, made the factual determination that Rebecca never intended to irrevocably give the settlement proceeds to Dane. Dane
had the burden of proving the donative intent by strong and convincing evidence.
He offered what the trial court concluded was his " self-serving testimony" that it
was his impression Rebecca intended to donate the funds to him due to previous
unpleasantries between them. There was conflicting testimony as to whether
Rebecca and April ever discussed the decision to place the settlement funds in
Dane' s name. Based upon the record and Rebecca' s testimony that she directed the
check be made payable to Dane because he told her she could not have more than
2,000. 00 in her account or she would risk losing her disability payments, we find
there is a reasonable factual basis to support the trial court' s finding.
CONCLUSION
For the above reasons, the trial court' s August 10, 2023 judgment is affirmed.
Appeal costs are assessed to Dane Lynn Taylor.
AFFIRMED.