Mertens v. Mertens

688 So. 2d 1148, 1996 WL 577446
Louisiana Court of Appeal·Decided October 9, 1996·No. 96-391·Published·Cited by 7 cases

Opinion

688 So.2d 1148 (1996)

Lettie Doris MERTENS, Plaintiff-Appellant/Appellee,
v.
Daniel F. MERTENS, Defendant-Appellant/Appellee.

No. 96-391.

Court of Appeal of Louisiana, Third Circuit.

October 9, 1996.
Writ Denied January 6, 1997.

*1149 Charles Gregory Gravel, Alexandria, for Lettie Doris Mertens.

Chris J. Roy, Jr., W. Jay Luneau, Alexandria, for Daniel F. Mertens.

Before THIBODEAUX, COOKS and AMY, JJ.

AMY, Judge.

This appeal arises from a community partition suit between Doris Mertens and Daniel Mertens. Both parties appeal from the trial court's judgment. For the reasons which follow, we affirm in part, reverse in part, and render.

DISCUSSION OF THE RECORD

Lettie Doris Mertens [Doris] and Daniel F. Mertens [Daniel] were married on January 1, 1985 in Rapides Parish, Louisiana. At the time of their marriage, Doris and Daniel entered into a community of acquets and gains. However, on December 17, 1992, Doris filed a petition for divorce pursuant to La.Civ.Code art. 102. Also, on that same day, Daniel filed a petition for divorce. On January 27, 1993, the trial court consolidated these two cases. The trial court subsequently signed a judgment of divorce.

However, Doris and Daniel were unable to agree upon a specific partition of the community property. Therefore, on May 28, 1993, Daniel filed a petition for partition of the community property. A trial on the merits of the partition was held on September 15, 1995. Doris and Daniel stipulated that there were four issues regarding the community partition suit: (1) whether Daniel had made an inter vivos donation of certain separate property, which consisted of $85,000.00 that he received as a settlement of a personal injury suit during their marriage, of approximately $50,000.00 to Doris; (2) whether Daniel was entitled to reimbursement under La. Civ.Code art. 2367 for separate property, a 1978 motor home, that he traded in to purchase community property, a 1975 motor home; (3) whether Daniel was entitled to reimbursement pursuant to La.Civ.Code art. 2367 for separate property, his money, used to purchase community immovable property; and (4) whether Doris was entitled to reimbursement under Article 2367 for paying a community obligation, a 1987 United States tax debt, with her alleged separate property.

The trial court rendered judgment on December 20, 1995. In its reasons for judgment, the trial court stated in part:

(1) All of the proceeds from the settlement of a lawsuit in which Mr. Mertens was injured are his separate property. There was insufficient proof to hold that Mr. Mertens intended to make a manual gift of any funds to his wife.
(2) The funds used in the purchase of the Bethel Street Property [community property] were in part from separate funds of Mrs. Mertens and other commingled funds. Mr. Mertens is not entitled to any reimbursement. He did not show that any of his separate funds were used to purchase this property.
(3) Mr. Mertens is not entitled to a claim for the value of his motor home. Compton v. Compton, 377 [371] So.2d 313 (La.App. 2nd Cir.) [sic] There was no evidence of the market value of the motor home.
*1150 (4) Mrs. Mertens is entitled to reimbursement of one-half of the funds used by her for a payment made to the Internal Revenue Service.

Each of the parties are cast for one-half of the court costs.

Doris appeals from that judgment and asserts that the trial court erred in finding that there was insufficient proof to hold that Daniel intended to make a manual gift of certain funds from his settlement of his personal injury case. Daniel also appeals from that judgment and asserts that the trial court erred in finding that (1) he was not entitled to reimbursement for his separate property used to purchase a community motor home; and (2) Doris was entitled to reimbursement for the payment of a community tax obligation. We will first discuss Doris' assignment of error.

LAW

MANUAL GIFT

"The manual gift, that is, the giving of corporeal movable effects, accompanied by a real delivery, is not subject to any formality." La.Civ.Code art. 1539. Money is a corporeal movable that may be donated by manual gift. Terrell v. Terrell, 26, 863 (La. App. 2 Cir. 5/10/95), 655 So.2d 600; Succession of Walker, 533 So.2d 70 (La.App. 3 Cir.1988), writ denied, 536 So.2d 1254 (La. 1989). "A donation inter vivos (between living persons) is an act by which the donor divests himself, at present and irrevocably, of the thing given, in favor of the donee who accepts it." La.Civ.Code art. 1468 [asterisk omitted]. "For purposes of donations inter vivos, delivery is defined as relinquishing control or dominion over property and placing it within the dominion of the donee, irrevocably." Dastugue v. Fernan, 95-394 (La.App. 5 Cir. 10/18/95), 662 So.2d 538, 541, citing Brown v. Brown, 93-1105 (La.App. 3 Cir. 3/6/94), 635 So.2d 255, writ denied, 94-1667 (La.10/28/94), 644 So.2d 649; Succession of Serio, 597 So.2d 91 (La.App. 4 Cir.1992), writ denied, 600 So.2d 677 (La.1992). To establish a donation inter vivos of a manual gift, the donee has the burden of proving by strong and convincing evidence donative intent of the donor. Montet v. Lyles, 93-1724 (La.App. 1 Cir. 6/24/94), 638 So.2d 727, writ denied, 94-1985 (La.11/18/94), 646 So.2d 377; Brown, 635 So.2d 255; Fogg v. Fogg, 571 So.2d 838 (La.App. 3 Cir.1990), writ denied, 575 So.2d 372 (La.1991). In order to have a valid inter vivos donation, "[i]t is sufficient `that the will of the donor to give and the actual possession of the movable property by the donee operate simultaneously'." Succession of Miller, 405 So.2d 812, 819 (La.1981). Donative intent is a factual issue and is subject to the manifest error/clearly wrong standard of appellate review. Dastugue, 662 So.2d 538; Terrell, 655 So.2d 600.

The following evidence was presented at trial on this issue.

Doris testified that Daniel received an $85,000.00 settlement from a personal injury case during their marriage.[1] Doris stated that she had a loss of consortium claim in that particular suit, however, she noted that she dismissed her claim prior to the settlement. Doris testified that Daniel informed his attorney to make the settlement check out to both him and Doris. Doris further testified that, on November 19, 1992, they both went to Alexandria Telephone Credit Union [Credit Union] to deposit Daniel's settlement proceeds. She stated that they opened three checking accounts on that day, one in Doris' name, one in Daniel's name, and a joint account. The record reveals that $21,350.00 was deposited into Doris' account on that day. Doris acknowledged that the reason they opened three accounts was because the Credit Union did not allow more than $25,000.00 to be placed into one account per year.

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Mertens v. Mertens, 688 So. 2d 1148, 1996 WL 577446 (La. Ct. App. 1996).

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