Succession of Schmolke

119 So. 3d 916, 2012 La.App. 4 Cir. 1630, 2013 WL 2713617, 2013 La. App. LEXIS 1204
CourtLouisiana Court of Appeal
DecidedJune 13, 2013
DocketNo. 2012-CA-1630
StatusPublished

This text of 119 So. 3d 916 (Succession of Schmolke) 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 Schmolke, 119 So. 3d 916, 2012 La.App. 4 Cir. 1630, 2013 WL 2713617, 2013 La. App. LEXIS 1204 (La. Ct. App. 2013).

Opinion

PAUL A. BONIN, Judge.

| ,Darren Schmolke, the independent administrator of this succession, amended the sworn descriptive list he had previously filed in these proceedings. Darren1 is the surviving spouse in community of the decedent, Tara Burst Schmolke, and the natural tutor of their minor child. The decedent died intestate. Her parents, Yolande and Bernard Burst, under the authority of a consent judgment, filed a motion to traverse the amended sworn descriptive list.

The principal issues before the trial court arise from the proper classification of assets and liabilities as community or separate property and the ensuing reimbursement claims which would result therefrom. After an evidentiary hearing, the trial court ordered further amendment by Darren of the descriptive list and rendered a judgment. The Bursts obtained an order designating the judgment as final and appealable, and timely appealed the judgment on the traversal. Darren answered the appeal of that judgment, but he did not appeal the consent judgment which he had previously entered into with the Bursts.

UAt the outset, we find that the trial court correctly decided that the Bursts did have standing to traverse the descriptive list. We too conclude that Darren is bound by the express terms of the consent judgment he entered with the Bursts and more fully explain our decision in Part II, post.

With respect to the classification and reimbursement issues, having reviewed the judgment on the traversal, we for the most part find that the trial judge was not clearly wrong in her determinations. We find, however, that the trial judge was clearly wrong in failing to re-classify the decedent’s $18,000 engagement ring from community to separate property, in the treatment of the proceeds of a $125,000 loan from the Hibernia Bank, and in allowing Darren’s $78,000 reimbursement claim.2 We explain our decision on each issue raised by the parties in more details in Parts III through VII, post.

We accordingly amend the judgment on the traversal and affirm it as amended. We also remand with instructions to the trial judge to inquire into the lack of tutorship proceedings, especially the lack of an appointment of an undertutor and, if necessary, take necessary remedial measures.

I

Tara and Darren were married on April 21, 2003. They had no matrimonial agreement modifying the legal regime of the community of acquets and gains. See [3La. [919]*919Civil Code arts. 2327 and 2328. Shortly before her marriage, Tara acquired immovable property on Catina Street in New Orleans. Darren was the sole shareholder of a corporation known as Green Acres Towing, Inc. located on West Napoleon Avenue in Metairie, Louisiana. It is undisputed that Tara’s Catina property and Darren’s business were each one’s exclusive separate property, having been acquired prior to the establishment of the community property regime. See La. Civil Code art. 2341. These two separate assets are implicated in the contentions made by the parties to the present appeal.

During their marriage, the Schmolkes purchased immovable property on West Napoleon Avenue, which is the location at which Darren operated his auto repair business; it is undisputed that this property was community property. See La. Civil Code art. 2338. The acquisition of this property figures prominently in this dispute.

The Schmolkes were the parents of one child, a minor, who is Tara’s sole heir as well as a forced heir. See La. Civil Code arts. 888 and 1493 A. Tara died intestate on September 5, 2005, and the community property regime terminated on that date. See La. Civil Code art. 2356. Darren became entitled to the usufruct of his late wife’s share of the community property which devolved to their minor son until his remarriage on May 5, 2009. See La. Civil Code art. 890.

And upon Tara’s death the tutorship of the minor child belonged of right to Darren as a tutorship by nature. See La. Civil Code art. 250. As surviving spouse in community and natural tutor of the decedent’s sole heir, Darren obtained 14appointment as the independent administrator of Tara’s succession. See La. C.C.P. arts. 3396.5 and 3396.9.

Apparently dissatisfied with Darren’s handling of their daughter’s succession and concerned for the financial welfare of their grandson, the Bursts sought the appointment of a separate tutor of the minor’s property. See La. C.C.P. art. 4069. During the contradictory hearing on their petition, Darren and the Bursts entered into a consent judgment which stipulated that the Bursts were interested persons for the purposes compelling the filing of a sworn descriptive list and of traversing any such list filed.

Once the Bursts filed their traversal of his amended sworn descriptive list, Darren reversed course and argued that they had no standing. We now turn in the following Part to a fuller consideration of that contention and why we reject it.

II

Darren excepted to the Bursts’ pleading which sought the appointment of a separate tutor and undertutor of the minor child’s property. The basis of Darren’s exception was that the Bursts lacked “standing” to proceed in the succession; they were not heirs of their late daughter and they were not the tutors of the sole heir. The Bursts made several allegations about Darren’s suitability to attend to his son’s financial affairs. But then, as we stated, during the hearing on the matter Darren and the Bursts entered into a consent judgment. See La. C.C.P. art. 1916 B.

Among the matters covered in the consent judgment were the provision of a deadline for Darren to file a sworn descriptive list of assets and liabilities from | sTara’s date of death until the date of the judgment and another provision in which Darren “stipulates that [the Bursts] are both interested parties with regard to this Succession and that they have full rights to traverse the Accounting and/or Sworn De[920]*920scriptive List and to take any and all such actions as may be taken by an interested party with reference to this Succession.”3 Also, the consent judgment provides, seemingly in emphasis, that Darren “stipulates that he will not contest their capacity to do so.” But that is precisely what he is now doing.

“When the facts alleged in the petition provide a remedy to someone, but the plaintiff who seeks the relief for himself is not the person in whose favor the law extends the remedy, the petitioner lacks standing.” In re Melancon, 05-1702, p. 10 (La.7/10/06), 935 So.2d 661, 668. “Any interested person may traverse the descriptive list at any time, on contradictory motion served on the person filing it.” La. C.C.P. art. 3137. Thus, an interested person is someone to whom the law extends a remedy to traverse a descriptive list and who would have standing.

Darren relies on a decision by the fifth circuit which found that grandparents, who are not heirs of and not the tutors of the minor heirs of the decedent, lack standing to traverse the descriptive list in their deceased child’s succession. See Succession of LeRuth, 561 So.2d 183 (La.App. 5th Cir.1990). The LeRuth court opined that “interested parties contemplate someone whose rights are being affected and therefore have standing to protect their own property |r,rights.” Id. at 184.

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Bluebook (online)
119 So. 3d 916, 2012 La.App. 4 Cir. 1630, 2013 WL 2713617, 2013 La. App. LEXIS 1204, Counsel Stack Legal Research, https://law.counselstack.com/opinion/succession-of-schmolke-lactapp-2013.