NOT DESIGNATED FOR PUBLICATION
STATE OF LOUISIANA COURT OF APPEAL, THIRD CIRCUIT
06-864
KIM MARIE MIER
VERSUS
RUSTON J. BOURQUE
**********
APPEAL FROM THE FIFTEENTH JUDICIAL DISTRICT COURT PARISH OF VERMILION, NO. 76253 HONORABLE PHYLLIS M. KEATY, DISTRICT JUDGE
ELIZABETH A. PICKETT JUDGE
Court composed of Glenn B. Gremillion, Elizabeth A. Pickett, and J. David Painter, Judges.
REVERSED IN PART, AFFIRMED IN PART, AND RENDERED.
Jack Derrick Miller Attorney at Law P. O. Box 1650 Crowley, LA 70527-1650 (337) 788-0768 Counsel for Plaintiff-Appellee: Kim Marie Mier Jermaine Demetrie Williams Williams & Doran, PLLC 1313 Lafayette Street Lafayette, LA 70501 (337) 235-3989 Counsel for Defendant-Appellant: Ruston J. Bourque PICKETT, Judge.
The defendant, Ruston J. Bourque, appeals a judgment of the trial court
partitioning the property of the community between him and his former wife, the
plaintiff Kim Marie Mier.
STATEMENT OF THE CASE
Ruston J. Bourque and Kim Marie Mier were married on September 25, 1987.
Ms. Mier filed a divorce petition on May 9, 2001. A judgment granting the divorce
was rendered on April 30, 2002. This judgment terminated the community between
the parties retroactive to May 9, 2001, the day the petition was filed. On February 4,
2004, Ms. Mier filed a Petition for Partition of Community Property.
At a hearing on December 7, 2004, the parties began to introduce evidence on
the partition petition. Mr. Bourque’s attorney, Jermaine Williams, objected to the
introduction of certain evidence, and the trial judge, Judge Phyllis Keaty, asked both
attorneys to conference with her in chambers. Apparently, during the course of the
off-the-record in-chambers discussion, Mr. Williams and the trial judge shouted at
one another. Upon returning to the courtroom, the hearing was resumed. Mr.
Williams asked the trial judge to recuse herself. The trial judge denied the motion.
Mr. Williams then requested a hearing on the recusal motion before another judge.
The hearing was continued pending that hearing.
Judge Thomas Duplantier heard the motion to recuse on April 25, 2005. The
motion was denied, and the hearing before Judge Keaty reconvened on April 26,
2005. The parties entered into a stipulation on the record whereby each party would
keep all movable property in his or her possession, and Mr. Bourque would make an
equalizing payment of $2,131.22 for the movable property. The parties also agreed
1 that Ms. Mier owed Mr. Bourque for certain repairs he made to the house they co-
owned and certain funds in her possession. The parties agreed that Mr. Bourque
would keep the family home. The matters contested at the hearing included whether
Mr. Bourque was responsible for one-half of the debt on a Pontiac Firebird in Ms.
Mier’s possession and whether Ms. Mier was responsible for one-half of the note held
by the Bank of Gueydan. The trial judge held the note on the car was a community
obligation and the note due to the Bank of Gueydan was a separate obligation of Mr.
Bourque. The trial judge ordered Mr. Bourque to make an equalizing payment of
$38,494.13. Judgment was signed on June 15, 2005. Mr. Bourque now appeals.
ASSIGNMENTS OF ERROR
The appellant, Mr. Bourque, asserts three assignments of error:
1. The trial court committed manifest error when it allowed clearly hearsay documents to be admitted into evidence.
2. The trial court committed manifest error by failing [to] assess Appellee any of the liability with regard to the loan at the Bank of Gueydan, which was incurred during the marriage between the parties, while granting Appellee one-half the equity in the assets bought with the monies from that loan.
3. The trial judge committed manifest error by failing to voluntarily recuse herself following the December 7, 2004 off the record verbal altercation with undersigned counsel.
DISCUSSION
In his first assignment of error, Mr Bourque claims the court erred in allowing
hearsay evidence into the record, and then relied on that hearsay evidence in reaching
a judgment. “[T]he erroneous admission of inadmissible hearsay is subject to the
harmless error analysis.” State v. Perkins, 97-1119, p. 12 (La.App. 3 Cir. 6/17/98),
716 So.2d 120, 127. “[I]f the inadmissible hearsay evidence is merely cumulative or
corroborative of other testimony adduced at trial, its admission is considered
2 harmless.” State v. Howard, 04-499, p. 7 (La.App. 3 Cir. 11/17/04), 888 So.2d 375,
382, writ denied, 04-3216 (La. 4/8/05), 899 So.2d 13.
The record on appeal includes only three documents which were introduced by
Ms. Mier in the court below. The first is the note from the Bank of Gueydan which
Ms. Mier used to refinance her vehicle and finance her trailer and land. The trial
court overruled the objection, finding that the note was a business record and thus an
exception to the hearsay rule. Louisiana Code of Evidence Article 803(6) requires
that a custodian or other qualified witness must testify that the business record is
“made and kept in the course of a regularly conducted business activity[.]” At the
hearing on December 7, 2004, when the note was introduced, there was no testimony,
and the note should have been excluded as inadmissible hearsay. At the hearing of
April 26, 2005, however, a representative from the Bank of Gueydan, Steven Richard,
testified about the note issued to Ms. Mier. Mr. Bourque did not object to the
testimony of Mr. Richard. The same evidence was properly admitted at the second
hearing, and Mr. Bourque suffered no prejudice.
The second document offered at the December 7, 2004, hearing about which
Mr. Bourque raised an objection was a GMAC loan statement. Ms. Mier offered the
document to show that the loan to GMAC was paid off using funds from the note
issued by the Bank of Gueydan and that the corresponding percentage of the note
attributable to the car. Again, this is inadmissible hearsay as there was no testimony
from a custodian to indicate the statement was a business record. Mr. Richard did
testify at the second hearing that the Bank of Gueydan issued a check to GMAC to
pay off the car loan using funds from the note issued to Ms. Mier. Thus, the evidence
3 was properly admitted at the April 26, 2005, hearing and Mr. Bourque suffered no
prejudice.
The final document offered was the AT&T Visa statement. Mr. Bourque
objected to the admissibility of this document at the December 7, 2004, hearing. The
trial court overruled the objection. The amount of the debt on this card is not an
issue, as both parties included the $7,225.89 balance on their detailed descriptive
lists. The only issue before the court was whether the debt was a community
obligation or a separate obligation of Ms. Mier. Ms. Mier testified independently of
the introduction of the document that the charges on the card were made before the
termination of the community. Thus, while this evidence was likewise improperly
admitted, it did not prejudice Mr. Bourque.
We find that the introduction of the hearsay evidence in this case is harmless
error. The first assignment of error lacks merit.
In his second assignment of error, Mr. Bourque argues that the trial court erred
in classifying the note issued by the Bank of Gueydan (crawfish loan) to Mr. Bourque
as a separate obligation.
Louisiana Civil Code Article 2360 states:
Free access — add to your briefcase to read the full text and ask questions with AI
NOT DESIGNATED FOR PUBLICATION
STATE OF LOUISIANA COURT OF APPEAL, THIRD CIRCUIT
06-864
KIM MARIE MIER
VERSUS
RUSTON J. BOURQUE
**********
APPEAL FROM THE FIFTEENTH JUDICIAL DISTRICT COURT PARISH OF VERMILION, NO. 76253 HONORABLE PHYLLIS M. KEATY, DISTRICT JUDGE
ELIZABETH A. PICKETT JUDGE
Court composed of Glenn B. Gremillion, Elizabeth A. Pickett, and J. David Painter, Judges.
REVERSED IN PART, AFFIRMED IN PART, AND RENDERED.
Jack Derrick Miller Attorney at Law P. O. Box 1650 Crowley, LA 70527-1650 (337) 788-0768 Counsel for Plaintiff-Appellee: Kim Marie Mier Jermaine Demetrie Williams Williams & Doran, PLLC 1313 Lafayette Street Lafayette, LA 70501 (337) 235-3989 Counsel for Defendant-Appellant: Ruston J. Bourque PICKETT, Judge.
The defendant, Ruston J. Bourque, appeals a judgment of the trial court
partitioning the property of the community between him and his former wife, the
plaintiff Kim Marie Mier.
STATEMENT OF THE CASE
Ruston J. Bourque and Kim Marie Mier were married on September 25, 1987.
Ms. Mier filed a divorce petition on May 9, 2001. A judgment granting the divorce
was rendered on April 30, 2002. This judgment terminated the community between
the parties retroactive to May 9, 2001, the day the petition was filed. On February 4,
2004, Ms. Mier filed a Petition for Partition of Community Property.
At a hearing on December 7, 2004, the parties began to introduce evidence on
the partition petition. Mr. Bourque’s attorney, Jermaine Williams, objected to the
introduction of certain evidence, and the trial judge, Judge Phyllis Keaty, asked both
attorneys to conference with her in chambers. Apparently, during the course of the
off-the-record in-chambers discussion, Mr. Williams and the trial judge shouted at
one another. Upon returning to the courtroom, the hearing was resumed. Mr.
Williams asked the trial judge to recuse herself. The trial judge denied the motion.
Mr. Williams then requested a hearing on the recusal motion before another judge.
The hearing was continued pending that hearing.
Judge Thomas Duplantier heard the motion to recuse on April 25, 2005. The
motion was denied, and the hearing before Judge Keaty reconvened on April 26,
2005. The parties entered into a stipulation on the record whereby each party would
keep all movable property in his or her possession, and Mr. Bourque would make an
equalizing payment of $2,131.22 for the movable property. The parties also agreed
1 that Ms. Mier owed Mr. Bourque for certain repairs he made to the house they co-
owned and certain funds in her possession. The parties agreed that Mr. Bourque
would keep the family home. The matters contested at the hearing included whether
Mr. Bourque was responsible for one-half of the debt on a Pontiac Firebird in Ms.
Mier’s possession and whether Ms. Mier was responsible for one-half of the note held
by the Bank of Gueydan. The trial judge held the note on the car was a community
obligation and the note due to the Bank of Gueydan was a separate obligation of Mr.
Bourque. The trial judge ordered Mr. Bourque to make an equalizing payment of
$38,494.13. Judgment was signed on June 15, 2005. Mr. Bourque now appeals.
ASSIGNMENTS OF ERROR
The appellant, Mr. Bourque, asserts three assignments of error:
1. The trial court committed manifest error when it allowed clearly hearsay documents to be admitted into evidence.
2. The trial court committed manifest error by failing [to] assess Appellee any of the liability with regard to the loan at the Bank of Gueydan, which was incurred during the marriage between the parties, while granting Appellee one-half the equity in the assets bought with the monies from that loan.
3. The trial judge committed manifest error by failing to voluntarily recuse herself following the December 7, 2004 off the record verbal altercation with undersigned counsel.
DISCUSSION
In his first assignment of error, Mr Bourque claims the court erred in allowing
hearsay evidence into the record, and then relied on that hearsay evidence in reaching
a judgment. “[T]he erroneous admission of inadmissible hearsay is subject to the
harmless error analysis.” State v. Perkins, 97-1119, p. 12 (La.App. 3 Cir. 6/17/98),
716 So.2d 120, 127. “[I]f the inadmissible hearsay evidence is merely cumulative or
corroborative of other testimony adduced at trial, its admission is considered
2 harmless.” State v. Howard, 04-499, p. 7 (La.App. 3 Cir. 11/17/04), 888 So.2d 375,
382, writ denied, 04-3216 (La. 4/8/05), 899 So.2d 13.
The record on appeal includes only three documents which were introduced by
Ms. Mier in the court below. The first is the note from the Bank of Gueydan which
Ms. Mier used to refinance her vehicle and finance her trailer and land. The trial
court overruled the objection, finding that the note was a business record and thus an
exception to the hearsay rule. Louisiana Code of Evidence Article 803(6) requires
that a custodian or other qualified witness must testify that the business record is
“made and kept in the course of a regularly conducted business activity[.]” At the
hearing on December 7, 2004, when the note was introduced, there was no testimony,
and the note should have been excluded as inadmissible hearsay. At the hearing of
April 26, 2005, however, a representative from the Bank of Gueydan, Steven Richard,
testified about the note issued to Ms. Mier. Mr. Bourque did not object to the
testimony of Mr. Richard. The same evidence was properly admitted at the second
hearing, and Mr. Bourque suffered no prejudice.
The second document offered at the December 7, 2004, hearing about which
Mr. Bourque raised an objection was a GMAC loan statement. Ms. Mier offered the
document to show that the loan to GMAC was paid off using funds from the note
issued by the Bank of Gueydan and that the corresponding percentage of the note
attributable to the car. Again, this is inadmissible hearsay as there was no testimony
from a custodian to indicate the statement was a business record. Mr. Richard did
testify at the second hearing that the Bank of Gueydan issued a check to GMAC to
pay off the car loan using funds from the note issued to Ms. Mier. Thus, the evidence
3 was properly admitted at the April 26, 2005, hearing and Mr. Bourque suffered no
prejudice.
The final document offered was the AT&T Visa statement. Mr. Bourque
objected to the admissibility of this document at the December 7, 2004, hearing. The
trial court overruled the objection. The amount of the debt on this card is not an
issue, as both parties included the $7,225.89 balance on their detailed descriptive
lists. The only issue before the court was whether the debt was a community
obligation or a separate obligation of Ms. Mier. Ms. Mier testified independently of
the introduction of the document that the charges on the card were made before the
termination of the community. Thus, while this evidence was likewise improperly
admitted, it did not prejudice Mr. Bourque.
We find that the introduction of the hearsay evidence in this case is harmless
error. The first assignment of error lacks merit.
In his second assignment of error, Mr. Bourque argues that the trial court erred
in classifying the note issued by the Bank of Gueydan (crawfish loan) to Mr. Bourque
as a separate obligation.
Louisiana Civil Code Article 2360 states:
An obligation incurred by a spouse during the existence of a community property regime for the common interest of the spouses or for the interest of the other spouse is a community obligation.
A trial court’s classification of property as community or separate is a factual
determination subject to the manifest error standard of review. Ross v. Ross, 02-2984
(La. 10/21/03), 857 So.2d 384.
During the marriage, Mr. Bourque secured a line of credit from the Bank of
Gueydan to operate a crawfish business. He used the proceeds from this loan to
4 purchase certain equipment included in the detailed descriptive lists and which the
parties agreed were community property. The trial court found that the crawfish loan
was a separate obligation because Mr. Bourque failed to account for the operation of
the business for the four years following the termination of the community.
Louisiana Civil Code Article 2361 states:
Except as provided in Article 2363, all obligations incurred by a spouse during the existence of a community property regime are presumed to be community obligations.
Mr. Bourque continued to pay interest on the crawfish loan after the termination of
the community but did not pay any of the principal. Ms. Mier bore the burden of
rebutting the presumption of community. We find Ms. Mier failed to rebut the
presumption that the obligation was a community obligation. The outstanding
balance at the time of trial was $20,248.34. We find that Ms. Mier is responsible for
$10,124.17 of this obligation, and Mr. Bourque’s equalizing payment will be reduced
by that amount.
In the third assignment of error, Mr. Bourque asserts the trial judge erred by not
recusing herself following an argument she had with his attorney at the December 7,
2004, hearing. When Mr. Bourque’s attorney, Mr. Williams, continued to raise
hearsay objections that are the subject of his first assignment of error, Judge Keaty
asked to see counsel in chambers and off the record. When the trial resumed, Mr.
Williams asked Judge Keaty to recuse herself because of an argument between them
in chambers. Judge Keaty refused to recuse herself, and the argument continued on
the record. Mr. Williams moved to appeal the denial of his recusal motion, and Judge
Keaty explained that the correct procedure was to file a written motion to be heard
before another judge. The trial was continued pending resolution of the recusal
5 motion. Judge Duplantier denied the motion to recuse Judge Keaty on April 25,
2005.
Mr. Bourque contends Judge Keaty should have recused herself pursuant to
La.Code Civ.P. art. 151(B)(5), which states:
B. A judge of any court, trial or appellate, may be recused when he:
(5) Is biased, prejudiced, or interested in the cause or its outcome or biased or prejudiced toward or against the parties or the parties’ attorneys to such an extent that he would be unable to conduct fair and impartial proceedings.
In this case, Judge Keaty referred the motion to another judge pursuant to the
procedure set forth in La.Code Civ.P. art. 155. The hearing before Judge Duplantier
is not in the record on appeal. Mr.Bourque does not argue that the ruling of Judge
Duplantier is in error. Thus, his assignment of error lacks merit.
CONCLUSION
The judgment of the trial court classifying the crawfish loan as a separate debt
of Mr. Bourque is reversed. Mr. Bourque’s equalizing payment is reduced by
$10,124.17. In all other respects the judgment of the trial court is affirmed. Costs of
this appeal are assessed equally between the parties.
This opinion is NOT DESIGNATED FOR PUBLICATION. Rule 2-16.3, Uniform Rules, Courts of Appeal.