Eustis v. Eustis

97 So. 3d 1, 11 La.App. 5 Cir. 800, 2012 La. App. LEXIS 395, 2012 WL 1020779
CourtLouisiana Court of Appeal
DecidedMarch 27, 2012
DocketNo. 11-CA-800
StatusPublished

This text of 97 So. 3d 1 (Eustis v. Eustis) 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
Eustis v. Eustis, 97 So. 3d 1, 11 La.App. 5 Cir. 800, 2012 La. App. LEXIS 395, 2012 WL 1020779 (La. Ct. App. 2012).

Opinion

SUSAN M. CHEHARDY, Judge.

|2This appeal arises in a community property partition proceeding. At issue is whether the plaintiff-husband must continue to hold shares in a closed corporation that were apportioned to him in the partition, or whether he is entitled to have all the shares allocated to the defendant-wife in return for an equalizing payment. Finding no error in the trial court’s determination, we affirm.

.FACTS

The parties, Dr. Horatio Sprague Eustis and Ms. Sheldon Lykes, were married in 1979 and divorced in 2008. The marital community was terminated effective May 8, 2007, the date the petition for divorce was filed. At the time of the partition, the parties had community assets valued at approximately five million dollars, consisting of property, stocks, bonds, pensions, and cash. Ms. Lykes also had a significant sum of money that she sought to have designated as her separate property.

In March 2010 the district court appointed a Special Master to assist the court in determining whether certain accounts were community or separate property, and to help allocate the community portion. Among the assets was a fifty percent interest in L & E Properties, L.L.C. (hereafter “L & E”), a family corporation that owns property in North Carolina.

|3The Special Master issued his report in December 2010. Because the trial judge later adopted the Special Master’s report in full, we quote extensively from it, since the statements therein now constitute the trial court’s findings.

[2]*2With respect to the community asset at issue on this appeal — the parties’ interests in L & E — the Special Master stated as follows, in pertinent part:

14. Community Interest in L & E Properties, L.L.C. (50% Interest)
This item involves a membership interest or interests in a North Carolina limited liability company which was formed during the marriage for the purpose of developing rural real estate located in that state. The Articles of Organization for L & E Properties, L.L.C. ... designated Ms. Lykes’ brother, Thompson Lykes, as the Managing Member and designated the entity as a “Manager-Managed L.L.C.” in which the members are not managers. The Special Master was also provided with an unsigned copy of an Operating Agreement for the L.L.C. which indicated on Schedule I that Ms. Lykes was the record owner of a fifty (50%) percent membership interest. Another single page version of Schedule I was included with the documents provided which indicated that Dr. Eustis and Ms. Lykes each owned a twenty-five (25%) percent membership interest.... The tax returns for the L.L.C. for 2005 and 2006 which were provided to the Special Master reflect a change in the membership interest between the two (2) years whereby Ms. Lykes’ interest decreased to twenty-five (25%) percent and Dr. Eustis acquired a twenty-five (25%) percent membership interest.
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The parties originally both concurred that the total fifty (50%) percent membership interest in L & E Properties, L.L.C. constituted community property and stipulated during the initial meeting with the Special Master that the fifty (50%) percent membership interest should be valued at $1,187,500.00....
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In any event, the Special Master recommends based upon the documentation provided that the full fifty (50%) percent membership interest be treated as community property....
The original issue presented to the Special Master regarding this asset was what to do with it in terms of allocation, sale, etc. Ms. Lykes contends that the |4membership interest(s) should be divided in kind (each retain a 25% membership interest) based upon the fact that Dr. Eustis was the original driving force along with her brother, Thompson Lykes, to form the L.L.C. and purchase the investment real estate. Ms. Lykes also argues that it would be inequitable to saddle her with this entire investment which has apparently significantly dropped in value and which has failed to realize a sale of a single lot in the last six (6) years. Finally, she contends that all the restrictive language of the Articles of Organization and Operating Agreement apply equally to her and could be equally damaging to her. Dr. Eustis acknowledged in his testimony that it was his idea originally for the investment, but that Ms. Lykes quickly jumped on board, which is perhaps reflective of why the original membership was placed in her name only.
Dr. Eustis, for his part, contends that it would be grossly inequitable for him to be forced to remain a minority interest holder in a limited liability company where Ms. Lykes and her brother have a combined majority membership interest and Ms. Lykes’ brother is the “Manager” with authority to unilaterally made [sic] decisions concerning the company operations. He acknowledged, however, in his testimony that to date he had no problems dealing with Ms. Lykes’ brother, or for that matter Ms. [3]*3Lykes, regarding this property. Both parties also acknowledged that it was always intended that Thompson Lykes would be the primary manager of the property which is again reflected in the Operating Agreement where he is designated Manager.
Dr. Eustis likewise also expressed a concern that he might in the future be squeezed out of his interest in the L.L.C. due to the superior financial positions of Ms. Lykes and her brother. Specifically, he testified that if the majority membership interest voted to invest substantial additional funds to further develop property and sought additional capital contributions, he might be unable to contribute his share of the development costs. Nothing in the unsigned Operating Agreement for the L.L.C. provides for any loss of membership interest in that situation. In fact, the Operating Agreement allows the other members to effectively loan Dr. Eustis his portion of the funds at an interest rate of three (3%) percent over the prime rate to be recovered out of future distributions.
Dr. Eustis also correctly points out that Section 9.2 of the Operating Agreement designates the manager as the sole decision maker in deciding whether any cash ^distributions should be made to members. Furthermore, under Section 10.1 of the Operating Agreement, Dr. Eustis could not transfer his membership interest to anyone else without the manager’s approval and Section 11.1 precludes the withdrawal of a member except under limited circumstances.
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Dr. Eustis cites three (8) cases which he contends support allocating all of membership interest in L & E Properties, L.L.C. to Ms. Lykes. The Special Master finds one of the cases applicable under the facts presented here....
This is a difficult issue for the Special Master to decide. First, the asset still has substantial value ($1,187,000.00) such that allocation of the entire membership interest to one party or division of the interest in kind will have a significant effect on the overall partition. Second, by all accounts, the asset has significantly declined in value and the prospects for any near-term revenue generation appear unlikely. Third, while Dr. Eustis has apparently not as yet had any significant disagreements with the management of the business, Ms.

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Bluebook (online)
97 So. 3d 1, 11 La.App. 5 Cir. 800, 2012 La. App. LEXIS 395, 2012 WL 1020779, Counsel Stack Legal Research, https://law.counselstack.com/opinion/eustis-v-eustis-lactapp-2012.