In Re Succession of Caraway

639 So. 2d 415, 1994 La. App. LEXIS 1864, 1994 WL 285486
CourtLouisiana Court of Appeal
DecidedJune 22, 1994
Docket25,879-CA
StatusPublished
Cited by4 cases

This text of 639 So. 2d 415 (In Re Succession of Caraway) 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
In Re Succession of Caraway, 639 So. 2d 415, 1994 La. App. LEXIS 1864, 1994 WL 285486 (La. Ct. App. 1994).

Opinion

639 So.2d 415 (1994)

In re SUCCESSION OF Harvey W. CARAWAY.

No. 25,879-CA.

Court of Appeal of Louisiana, Second Circuit.

June 22, 1994.

*417 Lloyd Hennigan, Jena, for appellant.

Minard & Evans, by Iley H. Evans, Columbia, for appellee.

Before SEXTON and HIGHTOWER, JJ., and LOWE, J. Pro Tem.

HIGHTOWER, Judge.

Seeking a marital portion and asserting that interest income derived from her late husband's separate property constituted an asset of the community, a widow instituted suit against the decedent's three children, his intestate heirs. From an adverse judgment, she appeals. We amend and affirm.

BACKGROUND

In May 1980, Linda Exline and her three minor children moved into the home of Harvey W. Caraway. After he partially recovered from serious injuries sustained in a January 1982 automobile accident, Harvey, then age sixty-four, married his thirty-five-year-old companion in August of that year.

In October 1982, Harvey received approximately $270,000 in settlement of his claims arising from the accident. From these proceeds, he purchased a $42,000 home and approximately $15,000 in furnishings. His attorney, in turn, placed the remaining $212,180 in a certificate of deposit at a local bank and, at that same time, established a separate checking account into which the interest income would automatically accrue each month. No commingling of funds transpired. Recognizing that his injuries prevented him from properly managing his finances, Harvey granted his daughter, Carolyn Caraway May, a power of attorney. Under this general mandate, she administered her father's business affairs until he died intestate on April 1, 1990.

In a succession judgment, Harvey's three major children of a prior marriage, Carolyn, Vivian Caraway Hutto, and Danny Caraway, obtained possession of his assets, all recognized as separate property. Soon thereafter, in an action against the heirs, the widow sought a marital portion and asserted a community property claim in reference to the sum of $118,956.61 generated in interest by the CD during the marriage. She further averred that Carolyn owed her an accounting for all monies under the daughter's control through the power of attorney.

In written reasons after trial, the district judge declared the interest income to be separate property. He concluded that Harvey, as well as Carolyn, through the power of attorney, had the right to manage, control, and dispose of these proceeds without the concurrence of plaintiff, who could thus demand no accounting. Even so, the court found credible Carolyn's explanation that she used the money according to her father's instructions, primarily for the support and living expenses of him and his immediate family, including plaintiff and her three children.

Anent the marital portion, the trial judge determined that Harvey died rich in comparison *418 to plaintiff, customarily entitling her to one-fourth ($47,910.41)[1] of the estate in usufruct. However, upon deducting for past and future social security payments due the widow as a result of Harvey's death, and subtracting the value of using the former matrimonial residence, the trial court concluded such offsets greatly exceeded the marital portion and that the heirs owed nothing further. Plaintiff now appeals asserting several assignments of error.

DISCUSSION

INTEREST INCOME

In her first two assignments, plaintiff asserts that the trial judge erred in declaring interest derived from the CD to be her late husband's separate property. We agree with her position.

All of the parties correctly concur that the sum Harvey received in settlement of his premarriage personal injury claim, and the CD acquired with these funds, constituted the deceased's separate property. See LSA-C.C. Art. 2341; Young v. Young, 549 So.2d 437 (La.App. 3d Cir.1989). However, interest accruing from separate property during the community regime is community property, unless the owner-spouse has filed a contrary declaration. LSA-C.C. Art. 2339; Roge v. Roge, 604 So.2d 721 (La.App.2d Cir. 1992); Young, supra. See also Broussard v. Broussard, 340 So.2d 1309 (La. 1977).

Notwithstanding defendants' contentions, neither the power of attorney nor the deed, both executed in December 1982, reserved the CD interest as separate property. Although embodying authentic acts as required by LSA-C.C. Art. 2339, these instruments are not the type envisioned by that statute. Neither document mentions any reservation of fruits from Harvey's property, cf. Slater v. Culpepper, 233 La. 1071, 99 So.2d 348 (1957), and the deed simply indicates that the funds used for the acquisition are separate. To reserve the separateness of fruits effectively, that objective must be expressly stated in unambiguous terms.

Nor, without the statutorily mandated declaration, does the mere placing of interest into an account labeled "separate" change the true nature of the funds. Succ. of Norwood v. Norwood, 519 So.2d 338 (La.App.2d Cir.1988), writ denied. Hence, finding the interest income derived from the CD to be community property, we appropriately modify the trial court judgment.

ACCOUNTING

In three other assignments of error, plaintiff contends that the power of attorney did not authorize Carolyn to dispose of community property, and that the decedent's daughter failed to account for those sums of principal and interest involved. These propositions lack merit.

Harvey, through the power of attorney, authorized his mandatary to "conduct, manage, and transact" all affairs for him and to "sell, transfer, and convey" his property. Thus, his daughter could deal with his assets, community or separate, and engage in other financial activities, to the same extent as her father. See LSA-C.C. Arts. 2985, 2987, 3002. Cf. Haynes v. Haynes, 545 So.2d 1245 (La.App.2d Cir.1989) (approving a curator's execution of even a declaration of paraphernality on behalf of the interdict). We can discern no reason to impose a greater burden upon this gratuitous mandatary, when dealing with community property, than would be thrust upon the husband himself in similar situations. See LSA-C.C. Art. 3003; cf. Haynes, supra. The primary responsibility of the attorney-in-fact is to conduct affairs in conformity with his principal's best interest and wishes. See LSA-C.C. Art. 3002.

Nor do we agree with the contention that Carolyn failed to explain her actions adequately. Although, at the termination of the community, a spouse owes an accounting to the other spouse for community property under his control, he stands liable only for loss or damage caused by fraudulent or bad faith management. LSA-C.C. Arts. 2354, 2369; Roberts v. Roberts, 542 So.2d 517 (La. *419 App. 5th Cir.1989), writ denied. Furthermore, prior to that dissolution, either spouse alone may dispose of community assets unless otherwise provided by law, and may likewise so satisfy community obligations. LSA-C.C. Arts. 2345, 2346; Keller v. Schilling, 593 So.2d 926 (La.App. 4th Cir.1992); Patin v. Patin, 462 So.2d 1356 (La.App. 3d Cir.1985), writ denied. Logically then, these same principles apply to Carolyn, who by means of the mandate exercised her father's right to manage the interest income and the CD account.

Under LSA-C.C. Art. 2369, the duty to account simply requires an explanation of what happened to the property. Kyson v. Kyson, 596 So.2d 1308 (La.App.2d Cir.1991), writ denied. See also LSA-C.C. Art. 3004; K.S. Spaht,

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Bluebook (online)
639 So. 2d 415, 1994 La. App. LEXIS 1864, 1994 WL 285486, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-succession-of-caraway-lactapp-1994.