Reeves v. Reeves

607 So. 2d 626, 1992 WL 236286
CourtLouisiana Court of Appeal
DecidedSeptember 23, 1992
Docket23679-CA
StatusPublished
Cited by15 cases

This text of 607 So. 2d 626 (Reeves v. Reeves) 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
Reeves v. Reeves, 607 So. 2d 626, 1992 WL 236286 (La. Ct. App. 1992).

Opinion

607 So.2d 626 (1992)

Dorothy Dale REEVES, Plaintiff-Appellant,
v.
Robert Roger REEVES, Jr., Defendant-Appellee.

No. 23679-CA.

Court of Appeal of Louisiana, Second Circuit.

September 23, 1992.
Writ Denied November 30, 1992.

*627 Love, Rigby, Dehan & McDaniel by Kenneth Rigby, Shreveport, for plaintiff-appellant.

Sandoz, Sandoz & Schiff by Lawrence B. Sandoz, Jr., Opelousas, for defendant-appellee.

Before MARVIN, HIGHTOWER and STEWART, JJ.

STEWART, Judge.

Robert Roger Reeves, Jr. and Dorothy Dale Reeves were married on June 10, 1944 and divorced in November 1980. Their community of acquets and gains was terminated retroactive to December 5, 1979, the date the divorce petition was filed. The parties traversed the respective detailed descriptive lists. The court appointed an appraiser and a certified public accountant to aid in the valuation and accounting of the assets and liabilities of the former community.

After an extensive trial, the trial court issued three written opinions, dated December 23, 1987, July 11, 1988, and December 21, 1990. The June 27, 1991 judgment allocated numerous community movable and immovable properties to each of the parties and ordered that Mr. Reeves pay an equalizing payment to Mrs. Reeves of $131,607.56, payable by a promissory note secured by his mortgage on his separate *628 property. Mrs. Reeves appeals. We affirm.

Vidal Island/Tick Farm

At issue in appellant's first two assignments is property known as the Vidal Island Tract/Tick Farm, two parcels of land, hereinafter referred to as Vidal Island. John Dale, Jr. and Alma R. Dale had four children, one of whom is appellant Dorothy Dale Reeves. On or about December 14, 1973, the Dales transferred Vidal Island to their four children. As a result of this transaction, appellant acquired a one-fourth interest in Vidal Island during her marriage to appellee.

The transaction was accomplished by credit sale deed, a series of $6,000 promissory notes, and assumption of mortgages on the property, all of which were executed by the contracting parties. The Dales subsequently made annual donations via the notes which were eventually cancelled, such that the children did not pay on the series of notes. According to appellant, the transaction was a donation rather than a sale and her one-fourth interest in Vidal Island is therefore separate rather than community.

Article 2340 of the Louisiana Civil Code provides as follows:

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.

The classification of property as separate or community is fixed at the time of its acquisition. Luffey v. Luffey, 572 So.2d 1045 (La.App. 2d Cir.1990); Dance v. Dance, 552 So.2d 658 (La.App. 2d Cir.1989); Terry v. Terry, 565 So.2d 997, 999 (La.App. 1st Cir.1990). As the Louisiana Supreme Court stated in Tullier v. Tullier, 464 So.2d 278, 283 (La.1985),

The party asserting the separate nature of the property acquired during the marriage has the burden of overcoming a strong presumption in favor of the community.

Mrs. Reeves may thus prove that Vidal Island, which was acquired during the parties' marriage, is her separate property but she has the burden of overcoming a strong presumption in favor of community. See Burford v. Burford, 541 So.2d 341, 344 (La.App. 2d Cir.1989). The jurisprudence has described this burden in various ways, but it is probably best described as clear and convincing. Burford, supra; Johnson v. Johnson, 582 So.2d 926 (La. App. 2d Cir.1991); Bernardi v. Chesson, 551 So.2d 678, 680 (La.App. 1st Cir.1989); Succession of Lyons, 452 So.2d 1161, 1165 (La.1984).

The presumption of community may be rebutted by parol evidence. Bridges v. Osborne, 525 So.2d 337 (La.App. 1st Cir.1988), writ denied, 530 So.2d 567 (La.1988); see also, Levraea v. Franchina, 499 So.2d 264 (La.App. 1st Cir.1986). However, the contradicted testimony of a litigant is insufficient to overcome the presumption of community. Abercrombie v. Abercrombie, 434 So.2d 1139, 1143 (La. App. 2d Cir.1983), writ denied, 440 So.2d 760 (La.1983); Cox v. Cox, 398 So.2d 1171 (La.App. 2d Cir.1981); Powers v. Powers, 604 So.2d 210 (La.App. 2d Cir.1992).

The trier of fact is not to be reversed on an evaluation of credibility which furnishes a basis for the trial court's finding of fact unless that finding is manifestly erroneous. Allbritton v. Allbritton, 561 So.2d 125, 129 (La.App. 3d Cir.1990), writ denied 565 So.2d 445 (La.1990); Rosell v. ESCO, 549 So.2d 840 (La.1989); Arceneaux v. Domingue, 365 So.2d 1330 (La.1978).

The Vidal Island transaction was handled as a credit sale in which, as consideration for the transfer, appellant and her siblings assumed mortgages on the property and executed more than thirty promissory notes in the amount of $6,000 each. Appellant contends the transaction was in fact a donation. The trial court found that appellant and her siblings purchased the land, with the executed promissory notes and assumed mortgages as consideration, and that appellant's parents subsequently donated the promissory notes to appellant and her siblings. These factual findings *629 are based upon credibility determinations by the trial court. The trial court concluded that Dorothy Dale Reeves did not carry her burden of proving that the Vidal Island/Tick Farm, acquired during the marriage, was separate rather than community property. We find no manifest error in either the trial court's findings or its conclusion derived therefrom.

Shreveport Townhouse

Appellant asserts that the trial court erred in classifying her Shreveport townhouse as community property because she used $16,000 of her separate funds for part of the down payment. Appellant purchased the townhouse prior to termination of the community. The trial court specifically found that the down payment was made from community funds and not from appellant's separate funds.

The deed states that this property was sold to appellant and appellee for $21,856.56 cash and the assumption of the balance on the property's mortgage. The $16,000 appellant asserts were her separate funds was paid by check written on the joint account of appellant and appellee. Although appellant asserts that she borrowed these funds on her separate property and deposited them in the community account, the record contains no evidence to corroborate this testimony. Appellant's testimony about the separate nature of the townhouse is contradicted by other evidence, and is therefore insufficient to sustain her clear and convincing burden of proof. We find no manifest error in the trial court's determination that the townhouse is community property.

Elmly Plantation Fee Title

For many years, appellee Mr. Reeves' and his mother's family owned immovable property known as the Elmly Plantation. In December 1951, appellee and his mother, Sophie Cotton Reeves, each acquired a one-half interest in the fee title to Elmly Plantation via a partition among members of the Cotton family. Because Elmly's value was more than that of the properties acquired by other members of the appellee's family in exchange for Elmly, appellee and his mother paid a "boot" of $31,667 cash to the other parties to the partition in order to equalize the values of the exchanged properties.

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Bluebook (online)
607 So. 2d 626, 1992 WL 236286, Counsel Stack Legal Research, https://law.counselstack.com/opinion/reeves-v-reeves-lactapp-1992.