STATE OF LOUISIANA COURT OF APPEAL, THIRD CIRCUIT
16-175
SUCCESSION OF AUDREY MAE JOHNSON TYLER
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APPEAL FROM THE NINTH JUDICIAL DISTRICT COURT PARISH OF RAPIDES, NO. 39,913 HONORABLE THOMAS M. YEAGER, DISTRICT JUDGE
PHYLLIS M. KEATY JUDGE
Court composed of James T. Genovese, Phyllis M. Keaty, and D. Kent Savoie, Judges.
AFFIRMED AS AMENDED.
Larry B. Minton Attorney at Law 711 Washington Street Post Office Box 13320 Alexandria, Louisiana 71315-3320 (318) 487-0115 Counsel for Appellant: Deborah Marie Esteen Christopher K. LaCour Attorney at Law 3717 Government Street, Suite 11 Alexandria, Louisiana 71302 (318) 487-0210 Counsel for Appellee: Jernell Groves KEATY, Judge.
Appellant, Deborah Marie Esteen, appeals the trial court’s judgment in favor
of Appellee, Jernell Groves. For the following reasons, the trial court’s judgment
is affirmed with respect to the distribution of the funds on deposit in the registry of
the court and amended with respect to its allocation.
FACTS & PROCEDURAL HISTORY
This matter involves the Succession of Audrey Mae Johnson Tyler. Audrey
married Alvin Owen Tyler on June 9, 1956, in New Orleans. Four children were
born of this marriage: Gregory O. Tyler, Dwain A. Tyler, Leslie Tyler Williams,
and Melissa Tyler Chambers. This was the second marriage for both Audrey and
Alvin. Deborah is Audrey’s child of her first marriage, and Jernell is the child of
Alvin’s first marriage.
During their marriage, Alvin was a musician and earned income from music
royalties. The royalties, therefore, became community property. Following
Alvin’s death on April 3, 1998, Audrey lived in the family home in New Orleans
until 2005, when Hurricane Katrina destroyed it. She moved to Alexandria, and
the destroyed home was purchased by the Road Home Corporation under a grant.
In order to complete the transaction, Alvin’s succession was opened on
November 19, 2008. Audrey, Gregory, Dwain, Leslie, Melissa, and Jernell were
joint petitioners therein. The family home was listed as a community asset in
Alvin’s succession. In the Judgment of Possession, Audrey was recognized as
owner in her own right of an undivided one-half interest in the home. Alvin’s
children, Gregory, Dwain, Leslie, Melissa, and Jernell, were recognized as his
heirs. The Road Home Corporation purchased the property for $106,374.00.
Alvin’s one-half share of the proceeds was $53,187.00, which was divided equally
between his five children, i.e., $10,637.40 per child, after Audrey relinquished her
usufruct over Alvin’s share of the house proceeds. There was no evidence
indicating what Audrey did with her one-half share of the proceeds.
During their marriage, Audrey and Alvin maintained a joint bank account
with The Fidelity Homestead Association (joint Fidelity account). Audrey was
employed by the City of New Orleans during their marriage. When she retired, she
received a monthly pension from the New Orleans Municipal Employees
Retirement System as well as her Social Security benefits. She also received
Alvin’s music royalties. These funds were apparently commingled in various bank
accounts over time. The testimony in the record does not provide any explanation
as to what happened to those funds.
Audrey died on May 14, 2011. Audrey’s succession was opened on
March 22, 2012, in Rapides Parish, by attorney James Rex Fair, Jr., on behalf of
Leslie Tyler Williams as administratrix. A Judgment of Possession was signed on
March 23, 2012. A dispute arose regarding the proposed distributions of the assets,
prompting a “Petition To Deposit Succession Proceeds In Concursus Proceeding”
to be filed on June 29, 2012, on behalf of the heirs, which included Gregory,
Dwain, Leslie, Melissa, and Deborah. The petition was filed by attorney Jeffery H.
Thomas, who represented James Rex Fair, Jr., as the petitioner. The deposited
funds totaled $475,232.93. At issue herein is the division of the remaining
principal amount of $470,861.78.
On October 7, 2013, before any succession funds were distributed, Jernell
filed a petition to reopen Audrey’s succession. Therein, Jernell alleged that
2 unnamed assets listed in the concursus proceeding were not Audrey’s separate
assets, but remained community assets owned by Alvin and Audrey. She stated
that if the assets were community property, she should be included in the
distribution. Audrey’s succession was reopened pursuant to a consent judgment
signed on December 2, 2013. After the November 5, 2014 trial, the trial court
ruled in favor of Jernell, found that the funds on deposit in the trial court’s registry
were community property, and ordered payment from the funds in the following
percentages to: Jernell, 10%; Deborah, 10%; Gregory, 20%; Dwain, 20%; Leslie,
20%; and Melissa, 20%. A Judgment was signed on August 1, 2015, and Deborah
appealed.
On appeal, Deborah asserts the following assignments of error:
I. The trial court erred as a matter of law in failing to hold Jernell Groves, the petitioner in this case, to her burden of proving that the assets contained in the Succession of Audrey Mae Johnson Tyler were community property.
II. The trial court erred as a matter of law in holding that all of the assets contained in the Succession of Audrey Mae Johnson Tyler were presumed to be community property due to commingling, based only upon hearsay evidence, even though the community property regime had been terminated many years before.
DISCUSSION
I. Burden of Proof
In her first assignment of error, Deborah contends that the trial court erred as
a matter of law in failing to hold Jernell to her burden of proving that the assets
contained in Audrey’s succession were community property. She alleges that
Jernell, as the mover in this matter, had the burden of proving, by a preponderance
of the evidence, that certain assets contained in Audrey’s succession belonged to
the former community estate between Audrey and Alvin.
3 In opposition, Jernell concedes that she was the moving party. She contends,
however, that Deborah had the burden of proving the separate nature of the
property brought into the property regime.
In this case, Jernell argued in her petition to reopen Audrey’s succession that
some, if not all, of the property was community since it was earned during Audrey
and Alvin’s marriage. A consent judgment reopening Audrey’s succession was
signed by the trial court on December 2, 2013. The trial court held that Deborah
had the burden of proving at trial the separate nature of the property contained in
Audrey’s succession in order to overcome the community property presumption
pursuant to La.Civ.Code art. 2340.
In Louisiana, “[t]he legal regime of community property is terminated by the
death . . . of a spouse[.]” La.Civ.Code art. 2356. Therefore, upon Alvin’s death in
1998 and termination of community, Alvin’s undivided one-half interest in the
former community estate was transferred to his five children, subject to the legal
usufruct of Audrey. La.Civ.Code art. 890. In addition, at Alvin’s death, Audrey
maintained ownership of her undivided one-half interest in the former community
property. La.Civ.Code art. 2336.
Then, at Audrey’s death, her five children inherited her undivided one-half
interest in the former community estate and any income derived from it.
La.Civ.Code art. 888. In addition, Audrey’s usufruct over Alvin’s undivided one-
half interest in the former community estate terminated at Audrey’s death, entitling
Alvin’s five children to an accounting and the return of their undivided one-half
interest in any former community assets, as well as their undivided one-half
interest in any income derived from former community assets. La.Civ.Code arts.
890 and 535-549.
4 As such, there is no presumption in this case that the funds in Audrey’s
possession at her death, fourteen years following Alvin’s death, were either former
community assets or income derived from community assets. The trial court
committed legal error in imposing the presumption of community since the
community property regime terminated in 1998. Errors and questions of law are to
be reviewed under the de novo standard of review. Land v. Vidrine, 10-1342 (La.
3/15/11), 62 So.3d 36. Using the de novo standard of review, we will identify
what assets comprised the former community estate, and the extent of which those
assets comprised the funds in Audrey’s possession at her death.
II. Classification of Assets
There is no evidence tracing the source of the funds deposited into the
registry of the trial court other than that they were in Audrey’s possession at her
death. With the exception of Audrey’s separate interest in 50% of the Road Home
proceeds, however, we find there is sufficient evidence establishing that the funds
in the trial court’s registry were either part of the former community estate or
income derived from the former community assets.
A. $10,000.00 & Joint Fidelity Account
It is undisputed that Audrey and Alvin maintained a joint Fidelity account
which contained $71,970.29 on the date of his death. It is also undisputed that a
balance of $59,166.42 remained following deductions alleged to have been made
for Alvin’s funeral costs, and that a lump sum payment of $10,000.00 was
distributed to Alvin’s five heirs and Deborah in 2006. The issue is whether the
lump sum payment originated from the joint Fidelity account or another account.
Jernell claims that the lump sum payment originated from a different account and
that an additional $71,970.29 in community property funds remains unaccounted
5 for and undistributed. Deborah contends that the lump sum was paid from the joint
Fidelity account and distributed to the heirs in 2006.
At trial, Dwain testified on Jernell’s behalf. On direct examination, he
recalled receiving a $10,000.00 check from Audrey in 2006. Dwain stated that the
money came from funds left by Alvin upon his death. He remembered that prior to
Alvin’s death, his father said that he “had put aside I think seventy thousand
dollars . . . to be . . . disbursed between his . . . six children.” Dwain could not
remember which account the money came from. He stated that his parents
maintained a joint Fidelity account, “but they also both had separate accounts.”
Dwain did not recall the amount of money remaining in the joint Fidelity account
at the time of Alvin’s death, although he did not dispute that $71,970.29 remained.
When asked whether Audrey closed all of her accounts with Fidelity or whether
she always maintained an account with Fidelity, Dwain responded: “[A]s far as I
know of she always had one.” Dwain testified that he did not know where Alvin
stored the $71,970.29. On cross-examination, Dwain stated that each heir received
$10,000.00 in 2006. On direct examination and cross-examination on rebuttal,
Dwain could not definitively say whether the lump sum paid in 2006 came from
the joint Fidelity account.
Jernell also testified at trial. On direct examination, she agreed with Dwain
that she received $10,000.00 from Audrey in 2006. She stated that her sister,
Melissa, informed her about the money while Alvin was in the hospital. Jernell
could not recall whether the money came from the joint Fidelity account or another
account.
Melissa testified on Deborah’s behalf. On direct examination, Melissa
stated that she was the administratrix of Audrey’s estate. She testified that Alvin
6 and Audrey maintained a joint Fidelity account although she was unaware of
whether they had separate accounts. Melissa stated: “There was a joint account[,]
and there was an account that was just my mother’s, uh, checking account.”
When Melissa was asked “what went into that account[,]” she responded that it
contained Audrey’s Social Security and retirement benefits, along with “ . . .
disability retirement then [sic] my father was alive.” Melissa stated that when
Alvin died, the joint Fidelity account contained $71,970.29. She testified that
$10,000.00 and $2,803.87 was thereafter deducted from that account to pay for
Alvin’s funeral and for the opening and closing of his grave respectively.
Deborah’s counsel noted that the remaining balance of $59,166.42 was less than
the $60,000.00 needed for Audrey to disburse $10,000.00 to the six children.
When asked to explain this discrepancy, Melissa revealed that Audrey wrote the
lump sum checks from the joint Fidelity account with the remaining money
coming from Audrey’s funds.
On cross-examination, Melissa again said that the lump sum came from the
joint Fidelity account. When asked, “if she paid out the [joint Fidelity] account,
how is it that at the time of her death she still had a savings account with Fidelity
in the amount of a hundred and twenty-one thousand if she paid out sixty from that
account?” Melissa responded that Audrey was receiving music royalties from
Broadcast Music, Inc. (BMI) and the American Federation of Musicians.
According to Melissa’s testimony, Audrey also received money from pensions,
Social Security, and deductibles from annuities. Melissa could not prove from
which fund the lump sum was paid. Melissa agreed that Dwain took care of
Audrey following Alvin’s death. When asked whether Melissa doubted Dwain’s
testimony that their parents maintained separate accounts, she said: “If there is a
7 separate account, it would be in my father’s name.” Melissa did not have personal
knowledge as to where or what account Audrey drew the funds for the 2006 lump
sum payment.
Based on the above, we find that the former community estate included the
joint Fidelity account with a balance of $71,970.29. Even though a lump sum
payment of $10,000.00 was disbursed to each of Alvin and Audrey’s four children
as well as to each of their separate children in 2006, it remains unclear as to the
source of the money, i.e., from the joint Fidelity account or a separate account.
B. Retirement
Audrey’s retirement benefits were another issue discussed at trial. In
Louisiana, “a former spouse is entitled to a pro rata share of the retirement benefits
of a member spouse to the extent the retirement benefits were attributable to the
former community.” Bordes v. Bordes, 98-1004, p. 3 (La. 4/13/99), 730 So.2d 443,
445. On the other hand, disability benefits under a policy purchased with
community funds are generally considered separate property. Id. Social Security
disability benefits are also considered separate property. Young v. Young, 06-77
(La.App. 3 Cir. 5/31/06), 931 So.2d 541. Deborah’s counsel argued at trial that
Audrey’s retirement benefits were disability benefits and, therefore, separate
property.
In support, Melissa testified on direct examination that Audrey worked for
the City of New Orleans. Melissa said that Audrey retired in the late 1980s or
early 1990s after she was hit and injured by a city van. She indicated that as a
result, Audrey began receiving monthly disability retirement benefits in the amount
of $342.00, which payments ceased upon her death.
8 On cross-examination, Melissa agreed that Audrey retired before Alvin died
and that she received retirement benefits before his death. Melissa, however, was
unable to specify whether her retirement benefits were considered disability
benefits, based upon the following colloquy:
Q. Okay. And you, you’re calling the retirement disability retirement, but do you have any documentation to show that that retirement is due to disability or that she just (interrupted)[?]
A. It’s, it’s from her employment.
Q. Okay. During the marriage?
A. During the marriage.
Q. So wouldn’t that make her retirement community property?
A. I believe it was community property but I also believe that it was, um, deposited into that seventy-one thousand dollar account.
This confusion was compounded by Melissa’s testimony that Audrey received “her
pension from her job” and “disability from Social Security.” Melissa, however,
had no documentation showing that Audrey’s retirement resulted from a disability.
She further testified that Audrey deposited her Social Security and retirement
checks in her separate Fidelity checking account.
Jernell testified that Audrey worked for the City of New Orleans during the
marriage and retired before Alvin died. She stated that any retirement Audrey
earned was earned during the marriage. Dwain testified that he cared for Audrey
from 2000 to 2011. He was unsure whether Audrey was receiving retirement
funds from her job. Dwain stated, however, that Audrey was receiving Social
Security disability benefits. When asked whether he “[c]ould . . . say whether or
not the retirement was just that her receiving her retirement benefit[,]” he
responded that he “ha[d] no knowledge to that.”
9 There is no indication in the record as to whether the benefits are retirement
pension or disability benefits. The documents indicate that the benefits began
following Alvin’s death given the January 1, 2000 start date. However, Melissa
testified that Audrey was receiving her “retirement benefits” before he died.
Accordingly, it is reasonable to find that Audrey’s retirement pension was earned
during the marriage and was not disability benefits. During Audrey’s lifetime, she
was paid at least $57,500.00 from her retirement account. It is unclear what
happened to these funds, but they were formerly community property.
Social Security benefits were another issue at trial. Generally, Social
Security payments are considered separate property. See Young, 931 So.2d 541.
Melissa, who testified on behalf of Deborah, stated that Audrey’s Social Security
payments were directly deposited into Audrey’s Fidelity checking account.
Deborah did not provide any other evidence or additional witness testimony that
would have identified the source of the funds. This includes, but is not limited to,
evidence showing when Audrey started receiving Social Security benefits and the
amount she received over her lifetime. The Social Security funds have been
commingled to such an extent that it is impossible to trace its origin. The Social
Security benefits are, therefore, part of the former community property.
C. Music Royalties
At trial, it was stipulated that Alvin was a successful musician who wrote,
played, and recorded music. It was further stipulated that he received royalties
from his music. Melissa testified on cross-examination that in 2006, Audrey’s
separate Fidelity savings account had double the money because she was receiving
music royalties from the American Federation of Musicians Pension Fund in the
amount of $61.65 per month. However, more information is needed to determine
10 the separate nature of any music benefits, such as when Audrey began receiving
the benefits and what account(s) it was deposited into. The music royalties are,
therefore, part of the former community property.
D. Funeral Amounts
At trial, it was stipulated that Audrey and Alvin maintained a joint Fidelity
account containing $71,970.29. After Alvin’s death, two deductions were made
totaling $12,803.87. The issue at trial was whether those deductions would be
Alvin’s separate debts that would come out of that account and not be part of
Audrey’s estate.
In support, Deborah’s counsel introduced into evidence the joint Fidelity
account passbook which shows credits and debits. Melissa testified that
$10,000.00 was deducted on April 8, 1998, to pay for Alvin’s funeral. She stated
that an additional $2,803.87 was deducted on May 26, 1998, for the opening and
closing of Alvin’s grave. The passbook shows these deductions. Deborah
provided no documentary evidence, however, specifically showing that these
deductions related to Alvin’s funeral expenses. Thus, the trial court was not bound
to consider the alleged funeral expenses of Alvin when calculating what Audrey’s
estate owed to Jernell.
II. Distribution
Pursuant to the above evidence, at Alvin’s death, the former community
estate included: (1) the community home, (2) the joint Fidelity account, (3)
Audrey’s retirement benefits, and (4) Alvin’s royalties. There was no evidence
that Audrey had any separate assets at Alvin’s death. There was also no evidence
suggesting that, after Alvin’s death, Audrey received any income other than that
11 deriving from Audrey’s retirement benefits and Alvin’s royalties, both of which
were former community assets.
Upon Audrey’s death and termination of the usufruct, Alvin’s five children
obtained full ownership of Alvin’s undivided one-half interest in both the former
community estate and income derived from the former community assets.
Similarly, Audrey’s five children inherited Audrey’s undivided one-half interest.
With respect to the Road Home proceeds, Audrey gave up her usufructuary
interest in Alvin’s 50% interest in those proceeds and distributed that interest
equally among Alvin’s five children. There is no indication that she spent her 50%
ownership interest in those funds prior to her death. Therefore, Audrey’s five
children would each be entitled to 20% of Audrey’s $53,187.00 from the sale of
the community home.
The distribution of the $470,861.78 in the trial court’s registry is as follows:
Gregory, Dwain, Leslie, and Melissa each receive $94,172.34; Deborah receives
$52,404.87; and Jernell receives $41,767.47, based on the following: Audrey’s
five children, Gregory, Dwain, Leslie, Melissa, and Deborah, each receive 20% of
Audrey’s $53,187.00 interest in Road Home proceeds, i.e., $10,637.40 each. As to
the remaining $417,674.78 in the trial court’s registry after subtracting the Road
Home proceeds, Audrey’s five children receive 20% of Audrey’s one-half interest
in that amount, or $41,767.47 each. In addition, Alvin’s five children, Gregory,
Dwain, Leslie, Melissa, and Jernell, receive 20% of Alvin’s one-half interest, over
which Audrey was the usufructuary prior to her death, or $41,767.47 each.
III. Hearsay
In her second assignment of error, Deborah contends that the trial court erred
as a matter of law in holding that all of the assets contained in Audrey’s succession
12 were presumed to be community property due to commingling, based only upon
hearsay evidence, even though the community property regime had been
terminated many years before.
This court in Taunton v. Cane Air, Inc., 405 So.2d 624, 626 (La.App. 3 Cir.
1981), discussed hearsay evidence as follows:
It is well settled that failure to object to hearsay or secondary evidence when admitted at trial constitutes a waiver of the right to object to its admissibility and that such evidence may then be considered and given probative effect. The aggrieved party may not subsequently on appeal urge that such evidence was not actually admissible.
In this case, both Jernell’s counsel and Deborah’s counsel elicited hearsay
testimony from the witnesses who testified. Neither Jernell’s counsel nor
Deborah’s counsel raised any hearsay objections. Thus, Deborah’s counsel “may
not subsequently on appeal urge that such evidence was not actually admissible.”
Taunton, 405 So.2d at 626. Deborah’s second assignment of error, therefore, is
without merit.
DECREE
The trial court’s judgment in favor of Appellee, Jernell Groves, is amended
with respect to the distribution of the $470,861.78 in the trial court’s registry in
that the allocation of the funds shall be as follows: Gregory, Dwain, Leslie, and
Melissa each receive $94,172.34; Deborah receives $52,404.87; and Jernell
receives $41,767.47. The judgment is affirmed as amended. All costs associated
with this appeal shall be assessed equally between Appellant, Deborah Marie
Esteen, and Appellee, Jernell Groves.