Succession of Jenkins v. Leonard

87 So. 3d 230, 2012 WL 638060, 2012 La. App. LEXIS 226
CourtLouisiana Court of Appeal
DecidedFebruary 29, 2012
DocketNo. 47,001-CA
StatusPublished

This text of 87 So. 3d 230 (Succession of Jenkins v. Leonard) 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
Succession of Jenkins v. Leonard, 87 So. 3d 230, 2012 WL 638060, 2012 La. App. LEXIS 226 (La. Ct. App. 2012).

Opinion

BROWN, Chief Judge.

11 This appeal is from the trial court’s judgment rendered in an action for declaratory judgment filed by the Succession of Willie Jenkins to have six properties located in Jackson Parish removed from the judgment of possession rendered in the Succession of Thelma Atkins Jenkins.

On January 10, 1975, Willie Jenkins and Thelma Atkins Wilson Jenkins were married. Each spouse had been married previously, and each had children from his/her prior union. Three days before their marriage, on January 7, 1975, Willie and Thelma entered into a Marriage Contract wherein they renounced the community property regime in favor of a separate property regime. This premarital agreement was signed, witnessed and notarized, then filed for registry in the conveyance records of Jackson Parish, Louisiana.

During the marriage, ten properties were acquired. Four of these (tracts described in deeds introduced into evidence as Exhibits # 2, 4, 5 and 111) are co-owned property; they are not at issue in the instant appeal. Two other properties (described in deeds introduced into evidence as Exhibits # 9 and 10) were determined by the trial court to be the separate property of Willie Jenkins; these properties are also not at issue in this appeal. What is at issue in this appeal are the remaining four properties: three were held to be co-owned and thus one-half of each was found to be duly included in the Succession of Thelma Jenkins (properties described in deeds introduced 12into evidence as Exhibits # 1, 3 and 82); and one which the trial court failed to address in its judgment (property described in deed introduced into evidence as Exhibit # 7).

Willie predeceased his wife Thelma. His succession was opened, and an executrix was appointed. Thereafter, Thelma died. Her succession was opened, and a judgment of possession was rendered, placing defendants, Marietta W. Leonard and James Richard Wilson, III, into possession of certain described properties, which included full ownership of the ten tracts referred to above.

[232]*232The executrix of the Succession of Willie Jenkins asked the heirs of Thelma Jenkins to amend the judgment of possession to reflect the “true ownership” of the ten tracts. The heirs refused, and the instant action for declaratory judgment was instituted by plaintiff. On behalf of the Succession of Willie Jenkins, the executrix sought judgment declaring that at the time of her death, Thelma Jenkins owned an undivided one-half interest in four tracts (those described in Exhibits # 2, 4, 5 and 11) and had no interest in the other six tracts.

The matter was tried solely on the basis of documentary exhibits submitted by plaintiff, which included the marriage license and marriage contract of Willie and Thelma Jenkins; the judgment of possession in Thelma Jenkins’ succession; and ten deeds numbered # 1-5, 7-11.3 The trial court found two of the tracts to be the separate property of Willie Jenkins |3(# 9 and 10) and therefore improperly included in the judgment of possession of the Succession of Thelma Jenkins. The court then found seven of the tracts to be co-owned property, and declared that only one-half of each was to be included in the judgment of possession in the Succession of Thelma Jenkins. As noted above, one tract (# 7) was omitted from the judgment.

Plaintiff, the Succession of Willie Jenkins, has appealed from the trial court’s judgment, urging error in the court’s determination of the ownership of the properties described in Exhibits # 1, 3 and 8, and in its failure to determine the ownership of the property described in Exhibit # 7. For the reasons set forth below, we reverse in part and render judgment in accordance with reasons set forth herein.

Discussion

The law in effect when Willie and Thelma Jenkins were married (prior to 1980) provided that the regime for married persons was the community of acquets and gains, which exists by operation of law in all cases where there is no stipulation to the contrary. As provided by the legislature in the matrimonial regimes revision, Acts 1979, No. 709, § 1, effective January 1, 1980, spouses living under a separate property regime prior to the Act would continue to do so subject to its provisions. The parties could modify or limit the legal regime and could agree that it would not even exist between them. La. C.C. art. 2332 (1870); McAlpine v. McAlpine, 94-1594 (La.09/05/96), 679 So.2d 85. A matrimonial agreement had to be made by an act before a notary and two witnesses and |4had to be entered into prior to the marriage. La. C.C. arts. 2328, 2329 (1870); Succession of Ventre, 96-559 (La.App. 3d Cir.11/06/96), 682 So.2d 988. The authentic act constituted full proof of the agreement it contained, and was valid as to third persons from the date of its recordation. La. C.C. art. 2332.

Any provision in a marriage contract that is not violative of law or public policy is binding on the contracting parties as long as the contract lasts. Desobry v. Schlater, 25 La.Ann. 425 (1873). There is no public policy against a marriage contract abrogating the existence of a community of acquets and gains. Sarpy v. Sarpy, 323 So.2d 851 (La.App. 4th Cir.1975). The court in Clay v. United States, 161 F.2d 607 (5th Cir.1947), pointed out that the terms in a duly executed prenuptial agreement override any tacit understanding or conduct of the parties during the existence of the marriage.

The trial court’s findings regarding the nature of the property as community or separate are factual determinations. [233]*233Bhati v. Bhati, 09-1030 (La.App. 3d Cir.03/10/10), 32 So.3d 1107; Biondo v. Biondo, 99-0890 (La.App. 1st Cir.07/31/00), 769 So.2d 94; Harvey v. Amoco Production Company, 96-1714 (La.App. 1st Cir.06/20/97), 696 So.2d 672. In order to reverse a trial court’s determination of fact, an appellate court must review the record in its entirety and (1) find that a reasonable factual basis does not exist for the finding, and (2) further determine that the record establishes that the fact finder is clearly wrong or manifestly erroneous. Bonin v. Ferrellgas, Inc., 03-3024 (La.07/02/04), 877 So.2d 89; Stobart v. State, 5through Dept. of Transportation and Development, 617 So.2d 880 (La.1993).

In a marriage contract duly executed by authentic act and recorded three days before their wedding, Willie and Thelma Jenkins established a separate property regime. In this agreement, the soon-to-be spouses provided that:

[5]aid intended husband and wife each shall be separate in property. Accordingly, they and each of them does hereby formally renounce those provisions of the Revised Civil Code which establish a community of acquets and gains between husband and wife.
All property and effects of the said husband and wife, whether owned by him or by her at the time of the celebration of said intended marriage, or acquired by him or by her during said marriage, are hereby declared to be separate property, and that of the wife, separate and para-phernal property, and they and each of them does hereby expressly reserve to themselves individually the entire administration of their respective particular movable and immovable property, and the respective free enjoyment of each of the fruits and revenues of each.

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Bluebook (online)
87 So. 3d 230, 2012 WL 638060, 2012 La. App. LEXIS 226, Counsel Stack Legal Research, https://law.counselstack.com/opinion/succession-of-jenkins-v-leonard-lactapp-2012.