Statham v. Statham

986 So. 2d 894, 2008 WL 2357353
CourtLouisiana Court of Appeal
DecidedJune 11, 2008
Docket43,324-CA
StatusPublished
Cited by5 cases

This text of 986 So. 2d 894 (Statham v. Statham) 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
Statham v. Statham, 986 So. 2d 894, 2008 WL 2357353 (La. Ct. App. 2008).

Opinion

986 So.2d 894 (2008)

Marsha Jo STATHAM, Plaintiff-Appellant
v.
Harry Rufus STATHAM, Defendant-Appellee.

No. 43,324-CA.

Court of Appeal of Louisiana, Second Circuit.

June 11, 2008.

*896 Richard L. Fewell, Jr., for Plaintiff-Appellant.

Robert S. Tew, Monroe, for Defendant-Appellee.

Before BROWN, WILLIAMS and GASKINS, JJ.

GASKINS, J.

In this community property partition, the wife appeals from a judgment classifying property and assessing value. In particular, she objects to the trial court's classification of a diamond ring she received as community property. Additionally, she complains of the trial court's classification of post-termination distributions to the husband from the community business as his separate property, and the court's assessment of a value of $34,000 to the community business. We affirm the trial court judgment.

FACTS

The parties, Marsha Jo "Jody" Statham and Harry Rufus "Butch" Statham were married in 1970. They divorced in 2005. The community terminated on February 16, 2005, the date of the filing of the divorce petition.

A June 2007 hearing officer conference report made findings and recommendations *897 as to the partition of the community property. Butch filed an objection to the hearing officer's conclusion that a ring valued at about $17,000 and acquired during the marriage was very probably a birthday present to Jody and thus her separate property. Jody objected to several findings, including the hearing officer's acceptance of Butch's evidence that the community business was valued at $33,000 and his denial of Jody's assertion that part of Butch's post-termination income should be classified as community property.

A bench trial on the community property partition was held on July 27, 2007. Six witnesses testified. In addition to the parties, Jody presented the testimony of Richard W. Guillot, a business valuation expert, and Gary L. Booth, a certified public accountant (CPA) who performed work for Butch's insurance brokerage company, P & S Benefits Consultants, Inc. (P & S). Butch presented the testimony of Albert Carlton Clark, III, a business valuation expert, and Troy Pardue, an insurance agent who was Butch's business partner for 11 years.

According to Mr. Guillot's analysis, the fair market value of P & S as of February 2005 was $310,766. When he compiled his report in June 2006, he based his opinions on fair market value, a willing buyer and a willing seller. However, Mr. Clark — who was hired two months before trial — estimated the value at $34,000 for purposes of the community property partition. In reaching this figure, he estimated that P & S had a total value of $220,008, but a total goodwill value of $207,094. He then assessed 90 percent of the total goodwill value of the company to personal goodwill, as opposed to enterprise goodwill.

Jody testified that a ring purchased for more than $15,000 was given to her as a birthday gift and thus was her separate property. According to her, it was purchased two days before her birthday in 2002. She testified that her husband had said they should get her a ring for her birthday when they were joking about their daughter-in-law's engagement ring being larger than hers.[1] She testified that she signed the check for the purchase when she picked the ring up at the jewelry store a few days after they picked it out. Jody admitted that the ring was bought at about the same time they received money back from a cancer policy after Butch's bout with cancer. Butch testified that after they received money back from a cancer policy claim, they each got an expensive item — she got the ring and he got a four-wheeler.[2] He identified a deposit in their joint checking account made on Jody's birthday in 2002 as the insurance proceeds. According to him, his birthday gift to Jody in 2002 was a portrait of their son which was placed on a billboard.

On August 28, 2007, the trial court issued a written ruling. Among the court's determinations was a finding that the ring was community property. It concluded that it was not convinced that the ring was a gift. It found the testimony of Jody and Butch about their "perceptions" as to the ring equally persuasive. Since the ring was presumed to be community and Jody failed to carry her burden of proof on this issue, the court classified the ring as community.

*898 As to the value assessment of P & S, the court found the testimony of Mr. Clark more convincing than that of Mr. Guillot. Specifically, it concluded that the basis of Mr. Clark's opinion was more valid since Mr. Guillot's report used 2005 data and failed to assess goodwill. Thus, the court assigned a value of $34,000 to the company. On the issue of post-termination distributions from P & S to Butch, the court found that this income resulted from effort, skill and industry exercised by Butch after the termination of the community; thus, it was classified as his separate property.

On October 22, 2007, the trial court signed a judgment in conformity with its ruling.

Jody appealed.

CLASSIFICATION OF RING

Jody argues that the trial court erred when it disregarded the hearing officer's finding that, based upon the circumstances and timing of the purchase, it was "very probable" that the ring was intended as a birthday gift to her which should be classified as her separate property. On the other hand, Butch emphasizes the evidence he presented that his birthday gift to Jody in 2002 was a portrait of their son and the display of the portrait on a billboard; this included an invoice from the photographer and corroboration of his own testimony by his friend and former business partner, Mr. Pardue.

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. C.C. art. 2340. The spouse seeking to rebut the presumption bears the burden of proving that the property is separate in nature. Ross v. Ross, 2002-2984 (La.10/21/03), 857 So.2d 384.

A trial court's findings regarding the nature of the property as community or separate is a factual determination subject to manifest error review. Ross, supra.

An appellate court may not set aside a trial court's finding of fact in the absence of manifest error or unless it is clearly wrong, and where two permissible views of the evidence exist, the fact finder's choice between them cannot be manifestly erroneous or clearly wrong. Cole v. Department of Public Safety & Corrections, 2001-2123 (La.9/4/02), 825 So.2d 1134; Stobart v. State through Department of Transportation and Development, 617 So.2d 880 (La.1993). Even though an appellate court may feel its own evaluations and inferences are more reasonable than the fact finder's, reasonable evaluations of credibility and reasonable inferences of fact should not be disturbed upon review where conflict exists in the testimony. Cole, supra; Rosell v. ESCO, 549 So.2d 840 (La.1989). To reverse a fact finder's determination, the appellate court must find from the record that a reasonable factual basis does not exist for the finding of the trial court and that the record establishes that the finding is clearly wrong. Stobart, supra.

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Bluebook (online)
986 So. 2d 894, 2008 WL 2357353, Counsel Stack Legal Research, https://law.counselstack.com/opinion/statham-v-statham-lactapp-2008.