Ramsey v. Ramsey

682 So. 2d 797, 1996 WL 577436
CourtLouisiana Court of Appeal
DecidedOctober 9, 1996
Docket96-481
StatusPublished
Cited by3 cases

This text of 682 So. 2d 797 (Ramsey v. Ramsey) 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
Ramsey v. Ramsey, 682 So. 2d 797, 1996 WL 577436 (La. Ct. App. 1996).

Opinion

682 So.2d 797 (1996)

James Michael RAMSEY, Plaintiff-Appellee,
v.
Penny Swims RAMSEY, Defendant-Appellant.

No. 96-481.

Court of Appeal of Louisiana, Third Circuit.

October 9, 1996.
Rehearing Denied November 22, 1996.

*798 Jimmy Roy Faircloth, Jr., Alexandria, for Plaintiff-Appellee.

Christopher Alan Edwards, Lafayette, for Defendant-Appellant.

Before SAUNDERS, SULLIVAN and GREMILLION, JJ.

GREMILLION, Judge.

Defendant, Penny S. Ramsey, appeals the judgment of the trial court finding that the funds held in an investment account were the separate property of James M. Ramsey. For the following reasons, we affirm.

FACTS

James and Penny were married on April 7, 1979, in Alexandria, Louisiana, and maintained a regime of community of acquets and gains until the date of their divorce, October 21, 1994. All issues concerning the community property were resolved by the parties with the exception of the status of a Marquis Investment Account and a check of August 30, 1994, in the amount of $28,309.58, from the sale of stock.

The money in the Marquis Investment Account was from the settlement of a lawsuit involving James. He was injured in an offshore accident which resulted in the amputation of a portion of his left foot. At the time of the accident, he was earning $29,500.00 per year. James filed suit, in his name only, for the damages he sustained in this accident on March 28, 1995. On August 31, 1987, some three years after the accident, Penny filed an intervention seeking the loss of consortium prompting the defendant in the original suit to file an exception of prescription to the intervention. Without resolving the prescription question, the case was settled in 1988 for the lump sum of $750,000.00. From this settlement, $250,000.00 was retained by James' attorney as fees, costs, and other expenses with the remainder paid to both James and Penny in a single check.

The $500,000 was deposited into a new investment account. The settlement funds were thereafter maintained separately from James' and Penny's other assets even though the funds were deposited and redeposited into different certificate of deposits, commercial investment accounts, and other investment vehicles. The funds were always maintained in both James' and Penny's names. Over the course of time, certain funds were withdrawn for the benefit of the community estate and all interest was paid to and enjoyed by the community. No interest was reinvested in the investment account.

At the time of this trial there was approximately $243,000.00 left in the Marquis Investment Account. Penny contended that these funds were community funds because the settlement was in a lump sum thereby causing the funds to be commingled beyond the point of determination. The trial court, however, found that the funds did not become community funds due to a transfer or co-mingling; that because the loss of consortium claim had prescribed, none of the funds represented such damages; and that the funds did contain loss of earnings which are community funds from the date of the accident to the date of the termination of the community of acquets and gains. The court then determined that of the $750,000.00, $450,000.00 represented lost wages. The court subtracted a proportionate amount of attorney fees, $150,000.00, and the remainder, $300,000.00, was divided by James' expected work life at the date of the accident, 38 years. The result was a loss of earnings of $7,894.73 per year. Since 10 years elapsed from the date of the accident to the date of the divorce, the court multiplied the annual lost earnings by 10 years resulting in $78,947.30 lost earnings which accrued during the existence of the marriage. The trial court found that amount to be a community asset. The court also found that the following community property was purchased with James' separate funds from the investment account:

Home:                              $ 91,894.00
GMC Truck:                         $ 18,000.00
Ford Explorer:                     $ 14,313.00
Investment in Bordelon/Ramsey:     $ 37,000.00
                                   ___________
TOTAL                              $161,207.00
                                   ___________

*799 The trial court then subtracted the loss of earnings attributed to community funds from the settlement, $78,947.30, from the amount of settlement funds attributed to separate property used for community purposes, $161,207.00, to arrive at a figure of $82,259.70 which represented the amount of separate funds used for the benefit of the community. The trial court divided this amount in half, determined that Penny was indebted to James in the amount of $41,129.85, and ordered that reimbursement be taken from Penny's portion of the community property as partitioned by the court.

SPECIFICATIONS OF ERROR

Penny alleges the trial court committed the following errors:

1. Finding that all of the funds held in Marquis Investment Account in the names of James M. Ramsey and Penny S. Ramsey were the separate property of James M. Ramsey.
2. Finding that James M. Ramsey was entitled to reimbursement from Penny S. Ramsey in the amount of $41,129.85 from her portion of the community property.
3. Refusing to follow the jurisprudence on co-mingling separate and community funds to the facts in this case in the formulation of his opinion.

STANDARD OF REVIEW

A court of appeal may not set aside a trial court's or a jury's finding of fact in absence of "manifest error" or unless it is "clearly wrong." Rosell v. ESCO, 549 So.2d 840 (La. 1989); Stobart v. State, Through DOTD, 617 So.2d 880 (La.1993). The appellate court must determine not whether the trier of fact was right or wrong, but whether the factfinder's conclusion was a reasonable one, after reviewing the record in its entirety. Mart v. Hill, 505 So.2d 1120 (La.1987). "The reviewing court must give great weight to factual conclusions of the trier of fact; where there is a conflict in the testimony, reasonable evaluations of credibility and reasonable inferences of fact should not be disturbed upon review, even though the appellate court may feel that its own evaluations and inferences are as reasonable." Canter v. Koehring Co., 283 So.2d 716, 724 (La.1973).

LAW

Things in the possession of a spouse during the existence of a regime of community of acquets and gains are presumed to be community but either spouse may prove that they are separate property. La. Civ.Code art. 2340. A party asserting the separate nature of property acquired during the marriage has the burden of overcoming the strong presumption in favor of community; to meet the burden, proof must be clear, positive, and of a legally certain nature that property was separate instead of community. Hinckley v. Hinckley, 583 So.2d 125 (La.App. 4 Cir.1991), writ denied, 590 So.2d 64. The burden of overcoming the presumption that things in possession of a spouse during the existence of a community regime are community property rests on the party who asserts that property is separate; and to meet this burden, proof must be clear, positive, and of a legally certain nature. Salley v. Salley, 94-418 (La.App. 3 Cir. 11/23/94), 647 So.2d 1164, writ granted, 95-0387 (La.4/7/95), 652 So.2d 1339, affirmed, 95-0387 (La.10/16/95), 661 So.2d 437.

La. Civ.Code art.

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Cite This Page — Counsel Stack

Bluebook (online)
682 So. 2d 797, 1996 WL 577436, Counsel Stack Legal Research, https://law.counselstack.com/opinion/ramsey-v-ramsey-lactapp-1996.