Ziegler v. Ziegler

537 So. 2d 1207, 1989 WL 2773
CourtLouisiana Court of Appeal
DecidedJanuary 17, 1989
Docket88-CA-0810
StatusPublished
Cited by6 cases

This text of 537 So. 2d 1207 (Ziegler v. Ziegler) 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
Ziegler v. Ziegler, 537 So. 2d 1207, 1989 WL 2773 (La. Ct. App. 1989).

Opinion

537 So.2d 1207 (1989)

Deborah Carroll ZIEGLER
v.
Charles W. ZIEGLER, III.

No. 88-CA-0810.

Court of Appeal of Louisiana, Fourth Circuit.

January 17, 1989.

*1209 R. Lee Eddy, III, Metairie, for plaintiff-appellee.

Anthony J. Engolia, III, New Orleans, for defendant-appellant.

Before SCHOTT, C.J., and WARD and PLOTKIN, JJ.

SCHOTT, Chief Judge.

This is a partition suit between divorced spouses, Charles W. Ziegler, III (hereinafter appellant), and Deborah Carroll Ziegler (hereinafter appellee). The case was tried to a commissioner whose recommendations were adopted by the trial judge. The judgment made numerous classifications of property as community or separate property and adjudicated numerous claims by appellant for reimbursement of separate funds he alleged were used for the benefit of the community. On appeal appellant specifies six errors in the judgment, and appellee, in answer to the appeal, raises nine issues.

The parties were married in May, 1950 and the community was dissolved in January, 1978. The case was tried in April, 1986. Appellant's first specification of error challenges the trial court's classification of the "Beaver Bluff" property as community property rather than his separate property. This property, consisting of 195 acres in Washington and St. Tammany Parishes, was purchased for $18,500 in 1960. The purchase price consisted of $10,000 cash and a note for $8,500 paid the following year. Title was in appellant's name but there was no declaration of paraphernality in the act of sale.

The property in question is presumed to be community placing the burden on appellant to prove the contrary. LSA-C.C. art. 2340. Appellant may rebut the presumption by proving that he acquired the property with separate funds or with a mixture of funds where the community's contribution is inconsequential compared to the amount of separate funds used. C.C. art. 2341. Where separate and community funds are commingled indiscriminately so that separate funds cannot be identified or differentiated from the community funds, all the funds are characterized as community funds. Curtis v. Curtis, 403 So.2d 56 (La.1981). In order to overcome the presumption of community appellant has to present clear and positive evidence. Lenard v. Lenard, 386 So.2d 1043 (La.App. 4th Cir.1980).

Appellant testified that he was only earning $10,000 per year and he argues that he could not have purchased the property from these earnings which were being used to support his family. He claims his mother gave him the funds to purchase the property. Appellant offered no documentary evidence to support his testimony. As the trial court noted he offered no income tax records to establish his earnings at this time. He did offer a copy of his mother's estate tax return which showed that she had given him some stock in 1959, but appellant testified that he sold the stock and used all of the proceeds except for $3,000 to retire a mortgage on the family home. After a discussion of the evidence relating to this issue the trial court concluded that appellant failed to carry his burden of proof to rebut the presumption that Beaver Bluff was a community asset. This conclusion was not manifestly erroneous.

*1210 By his next two specifications appellant contends that the trial court erred in finding his interests in two partnerships were community property. The record shows that he stipulated at the trial and in his testimony he acknowledged that these interests were community property. We conclude that this is not a viable issue on appeal.

Appellant's next claim, that a share of stock in the New Orleans Country Club he purchased for $2,800 in 1960 was his separate property, is without merit for the same reason as his Beaver Bluff claim. The trial court found that appellant's unsubstantiated, uncorroborated testimony that he used funds given to him by his mother was insufficient to overcome the presumption that this share of stock was community property. This conclusion is not clearly wrong.

Appellant next assigns error in the classification of the family home on Benjamin Street, a large diamond ring, and a silver dish as community property. The Benjamin Street home was purchased in 1956 for $32,500. In his brief appellant does not even suggest any evidence in the record which would rebut the presumption that this property was community. As to the ring, he admits he gave it to his wife, but testified that he told her at the time that she would have to return it to him if the marriage failed. The trial court rejected this testimony as preposterous. We accept that as a credibility determination of the trial court which will not be disturbed on appeal. As to the dish, appellant insists that his grandmother gave it to him. On the other hand, appellee testified that the grandmother sent the dish to her after she showed her around the City on a visit, and appellee contends that the dish is her separate property. From this conflicting testimony the trial court concluded the dish was given jointly to both parties. We cannot find this resolution to be manifestly erroneous.

Appellant's final specification is leveled against the inclusion in the judgment of a monetary award in appellee's favor to balance the assets which were allocated to appellant. Before addressing this argument we will consider the specifications of error raised by appellee in her answer to the appeal.

Appellee's first three specifications address values assigned by the trial court to three assets, i.e. two partnership interests allocated to appellant and the Benjamin Street property allocated to appellee. Appellant is the general managing partner of two partnerships in commendam, Ziegler Limited Partnership # 1 and Ziegler Limited Partnership # 3. The business of Partnership # 1 is the ownership and management of an apartment complex in New Orleans, and that of Partnership # 3 is the ownership and development of a piece of commercial real estate on Read Boulevard. Appellant's interest in each partnership is 75% and 52% respectively. Appellee called an expert real estate appraiser, Max Derbes, to establish the value of this real estate. He had done an appraisal of the properties in January, 1985 and found the market values to be $1,500,000 for the apartments and $885,516 for the Read Blvd. property. The apartments had been on the market and listed for $1,500,000 for several months prior to the trial and at trial time in April, 1986 were listed for $1,400,000. Appellant testified that the partnership had rejected an offer of $1,200,000 for the property. He stated that he would buy or sell the property for $1,150,000. The trial court assigned this last value to the property, added to it the balances of some cash accounts owned by the partnership, deducted the mortgage balance on the property, and took 75% of the remainder as the value of appellant's partnership interest.

Appellee contends that the trial court's method of evaluating the partnership interest was correct but she insists that the court erred in failing to assign a value of $1,500,000 to the property thus shortchanging her by $131,250. On the surface this argument appears to be meritorious because Derbes was the only expert to testify. Appellant produced no expert testimony. Furthermore, the figure assigned by the trial court was the one for *1211 which appellant would buy or sell. Appellant did not even profess to be a real estate appraiser.

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Cite This Page — Counsel Stack

Bluebook (online)
537 So. 2d 1207, 1989 WL 2773, Counsel Stack Legal Research, https://law.counselstack.com/opinion/ziegler-v-ziegler-lactapp-1989.