Feazel v. Feazel

471 So. 2d 851
CourtLouisiana Court of Appeal
DecidedJune 12, 1985
Docket17005-CA
StatusPublished
Cited by16 cases

This text of 471 So. 2d 851 (Feazel v. Feazel) 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
Feazel v. Feazel, 471 So. 2d 851 (La. Ct. App. 1985).

Opinion

471 So.2d 851 (1985)

Barry Glenn FEAZEL, Plaintiff-Appellee,
v.
Lois Karline Phelps FEAZEL, Defendant-Appellant.

No. 17005-CA.

Court of Appeal of Louisiana, Second Circuit.

June 12, 1985.

*853 Love, Rigby, Dehan, Love & McDaniel by William G. Nader, Shreveport, for defendant-appellant.

Barry G. Feazel, Shreveport, for plaintiff-appellee.

Before HALL, MARVIN and NORRIS, JJ.

MARVIN, Judge.

Mrs. Lois Pinion, formerly Lois Feazel, appeals from a judgment partitioning the former community existing between herself and her ex-husband, Barry Glenn Feazel, under LRS 9:2801.

Mrs. Pinion contends that the trial court misapplied LRS 9:2801 and unequally distributed assets and liabilities of the former community (1) by considering as a community debt funds which were advanced to the couple during the marriage by Mr. Feazel's father, (2) by refusing to consider as a community asset $15,500 which was the recited consideration in a purported cash deed of the home, but which sum Mr. Feazel testified, over Mrs. Pinion's objection, was not paid and was not the true consideration, and (3) by allowing Mr. Feazel's claim for reimbursement for payment of community debts with separate funds where proof of payment consisted of statements of account balances and his testimony that each had been paid in full.

We find that the trial court did not err or abuse its discretion in characterizing and considering the assets and liabilities and that, in light of Mr. Feazel's assumption of all community liabilities, the fact that Mrs. Pinion received a smaller amount of assets does not render the partition inequitable.

FACTS

Mr. Feazel was granted judgment on March 12, 1980, in his action for separation filed December 22, 1979. The parties were divorced on October 15, 1982.

On February 12, 1982, the parties executed, in authentic form, a community property settlement which gave Mr. Feazel full title to the former family home and a 1975 Chevrolet Camaro, both in his possession. The former Mrs. Feazel got all community items in her possession, including a 1977 Chevrolet Caprice and a television set. The settlement recited that Mrs. Feazel acknowledged receipt of $2,500 cash as part of her share of the community assets.

*854 To offset the high proportion of assets he received in the settlement, Mr. Feazel agreed to assume, and to hold his ex-wife harmless from, all community obligations listed in the settlement. These obligations included the house note, various bank loans, credit card accounts, and the "indebtedness to C.B. Feazel in the amount of approximately $17,000." The act finally provided that

Each of the parties hereto does hereby intend to convey all of their right, title and interest in and to all of the above described property to each other as set forth hereinabove, agreeing that same is being done with full and adequate consideration which each recognizes as having been received from the other.
Both parties hereto agree to sign any and all transfer documents, bills of sale or other instruments necessary to carry out the intent and purpose of this agreement as required by them or by any third parties.

In June 1983, the ex-wife, now Mrs. Pinion, brought this action, alleging that she had not been paid the $2,500 recited in the settlement and asking the court to set aside the settlement and to judicially partition the community under LRS 9:2801. She filed a sworn detailed descriptive list of community assets and liabilities.

Mrs. Pinion was allowed to testify, over Mr. Feazel's objection, that the $2,500 payment was not made when the settlement was executed. Mr. Feazel testified that it was intended that Mrs. Pinion be paid $2,500 from proceeds of the sale of the former family home, but that he was unable to sell the home because Mrs. Pinion refused to formally convey her interest as she had agreed in the settlement. Mrs. Pinion testified that Mr. Feazel once tendered her a $4,000 check from the prospective purchaser to complete the settlement, but that, on the advice of her attorney, she refused to accept the check or convey her interest to Mr. Feazel.

The trial judge set aside the settlement because both parties testified that the terms of the agreement were not consummated and the consideration had failed. Mr. Feazel does not appeal this portion of the judgment.

Parol is ordinarily inadmissible to alter the terms of an authentic act. CC Arts. 2236, 2276. Oral proof is allowed, however, in cases of fraud, mutual error, force, or an assumption of facts made by the parties contrary to the act. See Brooking v. Brooking, 407 So.2d 1342 (La.App. 3d Cir.1981), and cases cited therein. Mrs. Pinion's mere allegation that recited consideration was not paid would not be sufficient to allow testimonial proof against the act, but Mr. Feazel's judicial admission or assertion by answer that he tendered payment which was refused and his testimony, provides adequate support for the finding that consideration for the settlement failed and that the settlement should, therefore, be set aside.

The trial court proceeded to judicially partition the community. The judgment allocated community assets and liabilities in the same fashion as the 1982 settlement, and found Mr. Feazel was entitled to reimbursement or credit against the community for his payment of community debts with his separate funds after termination of the community, as he claimed in the sworn detailed descriptive list he filed at trial.

SUMS ADVANCED BY C.B. FEAZEL AS A COMMUNITY LIABILITY

Mrs. Pinion correctly contends that if sums advanced by Mr. Feazel's father, C.B. Feazel, are deleted from the community liabilities list, the net value of assets received by Mr. Feazel would be far greater than those received by her. The record, however, supports the trial court's factual finding that the advances were loans and that the debt was a community obligation.

An oral obligation to pay money above $500 in value may be proved by one credible witness and corroborating circumstances. Former CC Art. 2277, new CC Art. 1846. The "credible witness" may be one seeking to have the debt recognized. The "corroborating circumstances" need *855 not establish every element of the obligation. The trial court's assessment of credibility and corroboration are entitled to great weight. Samuels v. Firestone Tire & Rubber Co., 342 So.2d 661 (La.1977); Floor-N-Wall Distributors, Inc. v. Hirts, 428 So.2d 1103 (La.App. 1st Cir.1983); Strecker v. Credico Financial, Inc., 444 So.2d 783 (La.App. 4th Cir.1984).

C.B. Feazel gave the couple $500 per month while his son was in law school. Barry Feazel testified that Mrs. Pinion suggested to his father that the couple pay back the money after Mr. Feazel's graduation and that both he and Mrs. Pinion later met with his father and confirmed that they considered the advances as a loan. Mr. Feazel testified that the "balance" on the loan when he became employed was "a little over $15,000," that his father then advanced another $3,000 to help the couple purchase their home, and that the balance at that point "was as high as it ever got and that was $18,000." Mr. Feazel also said that, although his father has never demanded repayment in full, payments totaling $1,000 were intermittently made from 1978 to 1979, reducing the balance to $17,000. He also introduced his cancelled check for $750 payable to his father, dated November 8, 1980.

Mrs.

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Bluebook (online)
471 So. 2d 851, Counsel Stack Legal Research, https://law.counselstack.com/opinion/feazel-v-feazel-lactapp-1985.