Stanley Charles Lewis VS Mary Magdelene Donovan Lewis

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STATE OF LOUIS ANA COURT OF APPEAL FIRST CIRCUIT 2010 CA 1811 STANLEY CHARLES LEWIS VERSUS MARY MAGDELENE DONOVAN LEWIS Judgment Rendered EC Qn Appeal from the Eighteenth Judicial District Court In and far the Parish of Pointe Coupee State of Louisiana Docket No 40 708 Honorable William C Dupont Judge Presiding G Bruce Kuehne Baton Rouge Lauisiana Jamie Elizabeth Fontenot Port Allen Louisiana Caunsel far Plaintiff Appellant Mary Magdelene Donavan Lewis Counsel for Defendant Appellee Stanley Charles Lewis RE BEF WHIPPLE KUHN GAIDRY McDQNALQ AND McCI 77 ENDON i G McCLENDON J An ex seeks r a trial court judgment partitioning former wife view of s Finding that the trial caurt erred in classifying the former community property community home as a movable we remand this matter to the trial court ta appoint an expert appraiser or alternatively to allow the parties ta submit appraisals and to assess the value of th former community hame as an immovable as set forth in more detail herein W alsa remand for the trial court to hold a hearing and to rule an the ex reimbursement claims with regard s wife farming to the income In all other rthe judgment af partitian is spects affirmed FACTS AND PROCEDURAL HISTORY Stanley Charles Lewis and Mary Magdalene Danavan were married an March 11 1977 Stanley filed a petition for divorce on April 23 2007 and a judgment of divarce was signed by the district court on October 24 zoo retroactively terminating the community of acquets ar gains to the date the d petitian was filed n January 30 2008 Stanley filed pleadings seeking to partition the community property d During their marriage the couple purchas a home but not the underlying land from the estate of Stanley grandmother The home is locat s d an a large tract consisting of roughly 522 acres It is undisputed that the home is community properky insafar as both parties classified the home as such on their r spective detailed descriptive lists Stanley along with numerous co inherited an undivided interest in heirs tract Additionally Stanley Mar and others later obtained r d undivid interests in the 522 tra through the following acre the 522 acre dditional transactions 1 We cannot ascertain the specific ownership interest that Stanley acquired through the inheritance because the original succession document indicating Stanley sundivided share was not entered inta evidence However Mary acknowledges Stanley inherited int in the s rest property in her past memorandum trial 2 A quitclaim deed wherein Michael Ray Satterley assign his interest in d 34 168 acres l 17 and 156 acres Lot 18 to Stanley along with ot 14 several of Stanley srelatives Two cash sales wherein Richard Lester Satterley and Charlo Anne te Satterley in separate instruments sald their interest in 16 acres l 34 ot 17 and 156 acres I18 to Stanley along with several of Stanley 14 at s relatives Qne cash sale wherein Corri Lewis Enright sold her interest in 198 69 acres Lot 16 of the land at issue to StanleY and Mary as well as to several of Stanley relatives and their spouses s At some point thereafter all of the co of the 522 tract decided to owners acre partition the tract in kind so that each co wo acquire a separate lot in owner ld full ownership rather than an undivided interest in the whole tract In 2p01 Mary and Stanley decided to refinance their home ir order to remodel it In ord ta secure financing however the bank required that the r mortgagor have a clear undivided title to the immovable praperty underneath the house On December 17 2001 Stanley and Mary had purchased the after home but before the entire tract was partition damong the co the owners other owners in indivision agreed to donate an acre of land to Stanley as an advance of a portion of his undivided st inter in Lat 3 L Mary signed an Acknowledgment and Ratificatian wherein she indicated that all immovable properry acquired in the three cash sal were part of tanley parate estate s ss and form na part of the community of gains existing between her and Stanley Thereafter by act of parkition dated October 4 2006 hereinafter the Act of Partition all owners of undivided interests irr the 522 tract acre exchanged their undivided interest for 1 of 6 lots in full awnership The document lists the percentag of undivided ownership interests in the entirety s of the 522 tract which interests were being exchartged for a full ownership acre interest in a smaller portion of the larger tract Spzcifically it indicates that z In the quitclaim deed Stanley declared that he purchased the property with se funds arate for his separate eskate 3 The recqrd however is unclear as to whether the home is located on this one tract but it acre is undisputed that the house is IacatEd on Lot L as discussed la herein 3 er 4 While Mary asserts that the Act of Donation and the Acknowledgment and Ratificatip were n temporary documents that would be changed after the Act of Partition was entered we note that Mary has never directly attacked the validity of the Acknowledgment and Ratification 3 Stanley had an undivided separa interest afi 21 in the 52Z tract while e 200 acre Mary and Stanley together awned an undivided cammunity interest of 1 in 25 the 522 tract acre Moreover the partition agreement provided STANLEY CHARLES LEWIS and MARY DONOVAN LEWIS agree to take the property described below and listed as LQT 3 L consisting af 7p acres which tract 69 af land shall be owned in full ownership The act of partition was signed by Stanley and Mary ollowing a trial over numerous days on the various community property issues the trial court issued an Opinion on May 21 2009 wherein it among other things found that Stanley owned a separate 72 interest in Lot L 4 3 while the community owned a 27 interest in Lot L The trial court arrived 6 3 at these percentages by utilizing the numbers reflected in the Act of Partition which indicated that Stanley owned as separate property 21 oF th undivided 200 sts inter in the S22 tract while the community owned 1 or 8 in acre 25 200 the tract for a total of 29 of he entire tract The trial court found that after 2Q0 Stanley and Mary enter the Act of Partition Stanley owned 21 72 af d 29 4 Lot L as his separate property while the community owned 8 27 af 3 29 5 Lot L The trial court also found that the community home was a community 3 movable and valued the home at 72 On March 10 2010 the trial court QQ QOO signed a Judgment of Partition which reflected its prior rulings Mary has aled app the trial court judgment assigning the following errors or review s ASSIGNMENTS OF ERROR The Trial Court erred in categorizing community property as part separate and part community 1 2 The Trial Cour erred in not categorizing a community Lot 3 immovable L 00 community property because the as contribution of community assets to the purchase price was not ial quen incons 5 There is also an additional 275 tract which is referred to by the parties as Tract B and acre was partitioned by the trial court but it is not part of this appeal 6 The trial tqurt initially indicated that Stanley separate interest in Lot L was 74 but later s 3 4 correGted the calCulation error 4 erred not categorizing a community Lot as immovable L 100 community property because the 3 3 The Trial Court in documents clearly demanstrate that this was the intent of the rties p 4 The Trial Court erred in categorizing a community home as a movabl 5 on The Trial Court erred in causing appraisals to be conducted things that wEre allocated to no one and which na one ahouse withaut land and land withaut a house received The Trial Caurt erred in not allowing reimbursement claims of Appellant based an community use af her separate inherited 6 funds and based on a presumptian of community xpenditures under La C art 2361 The Trial Caurt erred in refusing ta evidence that admit certain community immavable farm properky produced commianity 7 income and in not requiring an accounting an reimbursement for d such farm incame from community property DISCUSSION ASSIGNMENTS OF ERROR 1 2 AND 3 In the Act of Partition the parties r cognized that Stanley had an undivided separate interest qualing 21 of the entire 522 tract while 200 acre Mary and Stanley had an undivided cammunity interest equaling 1 or 8 25 200 of the entire 522 tract The trial court found that the parties intended the acre interests that they obtained in Lot L to be in propartion to their ownership 3 interest in the entirety of the 522 tract acre However Mary asserts that the Act of Partition rather than assigning a separate inter of 21 ta Stanley and a community interest of 8 gave the st 29 29 full ownership interest in Lot L to the community Mary cantends that even if 3 a portion of the property was properly classified as Stanley separate property s prior to the Act of Partition he transferred it to the community when he signed th Act of Partition See LSA art Z343 C 1 Each provision in a contract must be interpret in light of the other d provisions so that each is given the meaning sugg by the sted contract as a whole LSA art 2050 A doubtful provision must be interpreted in light of GC An authentic act constitutes full proof of the agreemenk it contains as against the parties their heirs and successors by universal or particular title LSA art 1835 C 5 i the nature of the contract equity usages the conduct of the parties b and fore after the formation af the contract and of other contracts of a like nature between th different meanings must same parties GC LSA art 2053 A provisian susceptible to be d interpret with a meaning that renders the provision effective and not with one that renders it ineffective LSA art C 2049 We not that the Act of Partitian provides each co ownership s owner interest in the entire 5Z2 tract and classifies each specific interest in the acre tract as separate or community The term in full ownership does signify that Stanley and Mary together obtained direct immediat and exclusive authority over Lot L and that only they as opposed ta the other individuals that had an 3 interest in the entire 522 tract may use enjoy and dispose of Lot L acre 3 within the limits and under the conditions established by law See LSA art GC 477 Therefare we cannot conclude that the trial court was manifestly rroneous in finding that the parties intended StaN to own 72 of Lot L y 4 3 as his separate property and the community to own 27 of Lot L 6 3 Mary alsa contends that the trial court rr as a matter of a law in d categorizing Lot L as 3 part separate and part community In support she cites Curtis v Curtis 403 So 56 57 La 1981 wherein the court noted that 2d 58 hile w other community property states may categs property paid for in rize part with separate funds and in part with community funds as mixed Louisiana s do nat do sa Under our law properky is characteriz as either community or d separate Foatnate amitted Relevant to this argument Mary cites LSA C art 2341 which pravides in pertinent part The separate property of a spouse is h exclusively It s comprises praperty acquired by a spause prior to the g Reading the two provisions together indicates that the parties intended tq acquir Lot L as 3 part separate 21 and part community 8 Otherwise there would have been no need to 29 29 specifically categorize the parties interests in the undivided tract as being part separate and part tommunity We recognixe that in a separate Att of Partition involving a different tract of land not at issue in this appeal and introduc at trial as Exhibit J the partie5 SpeCifically designated d 9 their ownership interests in the partitioned tract as 5eparate or community However Exhibit J 9 and the Act of Partition at issu on appeal introduced at trial as Exhibit J were pr by 2 pared kwo difFerent notaries at different times 6 establishment of a community property rproperty acquired gime by a spouse with separate things or vith separ arad community te things when the value of the community things is inconsequentlal in cpmparison with the value of the separate things used Mary avers that the use of Z7 of cammunity assets to obtain an interest in 6 Lot L was not incansequential in comparison to the separate assets utilized in 3 obtaining the tract and pursuant to Article 2341 the properry should have been classified as community See McMorris v McMorris 09 La 1 q e 059Q App Cir 4 654 So 742 95 1Q 2d Although Mary assert that Louisiana law anly allows prop ta b rty d classifi as community ar separate we note that the law in effect at the time Mary nd Stanley cquired their interest in Lat L allqvrs a spouse under cerk 3 in circumstances to retain an undivided separate inter in property that would st otherwise be classified which was added as whally community Specifically LSA art 2341 C 1 by 1991 La Acts No 329 2 provides A A spouse undivided interest in property otherwise classified s as separate prop under Articl 2341 remains his separate rty praperty regardless of the acquisition of other undivided interests in the property during the xist of the legal regime the source of nce impravements thereto or by whom the property was managed d us ar enjoyed property in which an undivided interest is held as community praperty and an undivided interest is held as separate praperty each spouse owns a present undivided one interest half B In in that partion af the undivided interest which is community and a spouse owns a present undivided interest in that partion of the undivided interest which is separate In analyzing LSA ar 2341 professor Katherin S Spaht and attorney C 1 Richard D Moreno not that the undivided fractionai inter in property that is st separate remains such regardless of th acquisition of undivided interests in property during the I regime 15 Katherine 5 Spaht gal Louisiana Civil Law Treatise Matrimonial Regimes 29 3 Richard D Mareno 3d ed 2pp7 Th authors also note that the provisian is not limited to inherited property ar donated prop but covers any undivided interest in property otherwise rty 7 classifled as separate property under Article 2341 Id Th we must refore first address whether Stanl undivided 72 w properly classified as s y 4 s separate property under Arkicle 2341 Louisiana Civil Cod article 2341 provides that property acquired by a spouse individually as well as property acquired by a spouse with separat things is a s rate spouse sep property It is undisput that the initial interest in the d acre 522 tract was abtained by Stanley through inh to him individually ritance over Mor Mary also acknowledged that Stanley acquired other interests in he acre S22 tract with his separate funds and such interests were his separate rty prop Stanley and Mary later acknowl that Stanley had a 7Z dged 4 e separa interest in the property when they acquired Lot L through the Act of 3 Partition In light of the faregoing we cannot conclude that the trial caurt was manifestly rroneous in finding that Stanley acquired 72 of Lot L as 4 3 separate praperty under LSA art 2341 C Despite Mary assertion that the community and separ te interests were s commingled when the co partitioned the property and the parties herein owners abtained Lot L the acquisition of full own in the smaller tr which w 3 rship ct s a part of the undivided larger 522 tract did not af itself cause Stanley acre s interest to lose its separate character Rather Stanley s interest and s parate th community interest were readily identifiable and the proportions of each cally speci recognized 9 in the Act of Partition Pursuant to L art 2341 C SA 1 A time relationship requiring the separate property be obtained first is suggested by the language of L C SA art Matrimonial Regimes 1 See Spaht and Moreno 16 Lquisiana Civil Law Treatise 2341 29 3 3d ed 2007 lo pn the recard before us we are unable to ascertain how the parkies arrived at the specific ownership interests referenced in the Act of Partition Notwithstanding the partie5 recognition of interests in the partition agreement Mary asserts that Stanley failed to introduce any evidence to rebut the presumption of community inspfar as the portion of property obtained through the three cash sales occurred during the existence of the marriage See LSA art 2340 C Arguably Mary acknowledgment regarding the separate nature of the property obtained s thraugh the cash sales relieves Stanley with the burden of proving the separate nature of that property See LSA art 2342 Albert v Albert 625 So 765 767 La 1 Cir C 2d App 93 15 10 Courts have recognized that the declaration need not necessarily occur in or contempnraneously wikh the aek of acquisition Spaht and Moreno 16 Louisiana Civil Law Treatise Matrimonial Regimes 3 3d ed 2007 57 Further even assuming that such declarations are required to be contemparaneous with the act of acquisition we note that Mary again recognized the separate nature of Stanley interest in the properly at the time Lot L was s 3 acquired in th Act of Partition We also note the first through Stanley sinheritance af an undivided interest 8 interest acquired in this property was I both Stanley and the community percentage interest in the land merely s s d transferr fram an undivided interest in the larger 522 tract to a larger acre d undivid interes between Stanley and the community in a smaller piece within that same tract property while As such Stanley received 21 of Lot as his s 29 3 parate the 3 29 community received 8 of Lot Accordingly we do not find any rror in the trial court classification of the interests in Lot L as part s 3 separate and part community See C LSA art 2341 1 We do not address whether the result might have been difFerent had the couple obtained a new interest in an entirely unrelated separate piece of land not within the original acre 522 tract Accordingly we conclude that assignments af error 1 2 and 3 have no merit ASSIGNMENTS OF ERROR 4 and 5 In these assignments Mary asserts that the trial court committed legal error in requiring the house to be appraised as movable property and by appraising it without the land Mary notes that throughout the course of the litigation she objected to the community home being appraised as a movable At trial Mary indicated that the house should be apprais as an immovable with d the land and provided a value for the total amaunt of the land and home together although no formal appraisal had been dane in this manner We note that tracts of land with their component parts are immovables C LSA ar 462 owner of the Generally buildings belonging to a person other than th ground are considered immovables C LSA art 464 Buildings permanently attach dto the ground are classified as component parts af a tract of land when they b long to the owner of the ground C LSA art 463 Accordingly w conclude that the trial court commit error in classifying the ed cammunity hame as a movable and requiring it to be appraised as such A legal error occurs when a trial court applies incorrect principles of law and such rrors are prejudicial Evans v Lungrin 97 p 7 Z 0541 La 6 98 11 We note that in this unique situation the temporal element under LSA art 2341 may C 1 not be met See Spaht and Moreno supra 9 7 So 731 735 Where orie or mor trial court egal errors interdict the fact 2d finding process th manifest error standard is no longer applicable and if th record is otherwise complete the appellate court should make its awn independent de novv review of the record and determine a preponderance of the evidenc Evans 97 at pp 5 70 So 731 735 0541 7 2d David Brent Loupe wha appraised the home at issue indicated that he was asked to do this appraisal and to exclude any land that wauld be with the hous Mr Loupe indicated that he was unable to apply a market appraach to determine the value because hom of this nature are generally sold with land s Qn the other hand it appears that Mrs Lewis was attempting to have an appraisal done based on a market appraach She requested the court allow her to obtain and submit a new appraisal which would have included both the house and the land It appears that Mrs Lewis may have been seeking to value the house based on an appraisal of the house with the land with the value of the unimpraved land thereafter being subtracted from that appraisal However the court stating that the house was movable property refused to allow such an appraisal Clearly if the house had been properly categorized as an immovable the court may have b willing to accept bath approaches to en valuation and then determine which mare fairly reflected the true value of the immovable i the house e Upon a de novo review of the record we do not find th record sufficient for us to fairly determine the valu of the home In Foley v Entergy Louisiana Inc 06 pp 28 La l i So 144 164 the 0983 29 06 29 946 2d Louisiana Supreme Caurt explained lZ We also note that neither LSA art 493 nor Z366 apply because there was no C improvement to the immovable tract made by the cammunity R the community purchased ather a pre improvement to immovable property Cf Lormand v Larmand 96 La exi5ting 67 App 3 Cir 5 673 So 1345 writ denied 96 La 9 679 5o 1p9 addressing 96 8 2d 1432 96 13 2d whether LSA art 493 or 2366 applied to determine the reimbursement due a spousz when a C community hame was built on property that was owned by neither spouse at the time the house was built but later acquired as the husband sseparate propNrty Moreover LSA art 2366 C cannot apply because the land was owned in part by the community and in part as Stanley s separate property 10 Where a flnding of fact is int because of some legal error rdicted implicit in the fact finding process or when a mistake of law such as a cons but erron ruling on the exclusion or ntial qu ous admission of euidence farecloses any finding of fact and the record is otherwise complete the appellate court should if it can render judgment on the record Nevertheless LSA art Z164 P C provides that an appellate court shall render any judgment which is just legal and proper upon the record on appeal It is well ttled s that an appellate court is empowered under this article to remand a case to the district court for the taking of additianal evidenc wher it is nccessary to ra just decision and to ach prevent a miscarriage of justice Although a court shauld always remand a case whenever th nature and extent of the proceedings dictate such a course whether or not any par case should be icular remanded is a matter which is vested largely within the court s discretion and depends upon the circumstances of the case Internal citations amitted We find that under these unique circumstances the best method to obtain the value of he house would be to appraise the house and land together and then subtract th value of the unimproved land from that figure Therefore we remand this matter to the trial court to appoint an expert to appraise the value of the house and land r th tog and to apprais the value of the unimpraved land separately or alternatively ta allaw the parties to submit such appraisals Thereafter we instruct the trial court to determine the fair market value of the home as an immovable as set forth above The fee of any court appointed appraiser is to be split by the parties ASSIGNMENTS OF ERROR 6 AND 7 In her final twa assignments of error Mary contends that the trial court erred in refusing to receive evidence on her reimbursement claim arising from sreceipt of farm income and in not allowing her claim far reimbursement Stanley for use of her separate inherited funds With regard to the reimbursement claims for inherited money Mary testified that she inherited approximately 34 from Ivonne Cuendet a 00 000 friend from her church Mary avers that the evidence showed that checks in the total amaunt of 9 from Mary inherited fun were written ta Stanley 00 000 s s and deposited in the community bank account Mary asserts that under these circumstances there is a presumption that the funds were spent during the 11 I marriage and used for community purposes Mary concludes that she is entitied to a reimbursement for the community suse of her separate funds W note that the judgment is silent with regard to Mary reimbursement s claims related to the inheritance When a judgment is silent as to a claim or demand it is presumed that the trier of fact denied the relief sought Parish Nat Bank v Wilks 04 p 4 1 Cir 8 923 So 8 11 1439 App La 05 3 2d This conclusion is furth rsupported by th tri court statement on the record ls that it had no prooF with regard to how the funds w spent r Louisiana Civil Code article 2365 provides in pertinent part as fallaws If separat property af a spouse has be used either during n the existence of the community property regime or thereafter to satisfy a community obligation that spouse is entitled to reimbursement for one of the amount ar value that th half property had at the time it was used Although the funds Mary inherited were her separate properky Mary off red nothing to show that the funds were utilized to satisfy a community obligation Rather the evidence presented only indicated that some of Mary separate s funds were placed intp a community account The mer mixing of s funds and community funds in a joint bank parate account does not in and of itself converk the entire account into community property only when separate funds are commingled with community funds indiscriminately so that the separate funds cannot be identified or differentiat d from the community funds are all of th funds characterized as cammunity funds Curtis 403 So at 59 Thus once the spouse allows separate funds to 2d be commingled with community funds the spouse must be able to show the separate nature of the funds used by tracing the use of the separate funds with sufficient certainty See Talbot v Talbot 03 p 17 La 12 864 0814 03 2d So 590 603 Although Mary present proof that sEparate funds were deposit d dinto a cammunity account no records of the community account were ever produced to trace the conclude use that of the funds with sufficient the trial court was certainty Accordingly w cannot festly man erraneous 12 in denying Mary s reimbursement with regard to the use of her separate inherit func for the ds spurported benefit community With r Mary reimbursem claim on St receipt of f gard to s nt s nley rm income the trial court indicated that it would not allow Mary to open the door back up and retry that issue that this issue After a thorough review of the record we note tried was never A demand may be impliedly r silence cted by j of judgment provided that the matter has be actually litigated and finally n adjudged Sewell v Argonaut Southwest Ins Co 362 So 758 50 La 2d 1978 r Afk the trial court declined to consider the matter Mary then proffer a d end r year ledg from the Nettie Lewis Estate as evidence that Stanl had y received incame from farming Although Mary proffered the referenced I dger we are unabl to ascertain which funds on the ledger if any are derived from farming income We nate that at the time th ledger was proffered Mary who was not represented by counsel at th hearing did not intraduce any further evidence or testimony th regarding amounts reflected on the ledger Accordingly pursuant to the dictates in Foley Q6 at pp 2 946 Sa 0983 29 2d at 164 we remand this matter to the trial court to hold a hearing and to rule on this issue CONCLUSION For the faregoing reasans th trial court judgment is vacated to the s xtent it accepted the appraised value of the community horne as a movable and this matter is r to the trial court to appoint an expert appraiser to manded assess the value af th former community home in a manner consistent with this ly alternativ to allaw opinian or further order the reimbursement with court hald regard to the a parties hearing to submit such to cansider s Stanley alleged receipt of appraisals s Mary claim farm income We for The By contrast she was repr at the prior hearing wherein reimbursement claims with sented regard to the use of her separate inherited funds for the community purported benefit were S d address 13 rch M 10 2010 Judgment of Partition is affirmed in ail other respects Casts of this appeal are to be split between the parti s UDGMENT AFFIRMED IN PART AND VACATED IN PART MATTER REMANDED WITH INSTRUCTIONS 14 IryANLEY S CHARLES LEWIS STATE Of LOUTSiANn OURT F C C PPEAL VERSIJS r FIRS C1RCU1 I RY M MAGUELENE I70NOVAN LEWIS 10 2 CA 1811 D NAI McD J DISSENTING IN I AND AGREEING IN I RT ART I respectfully dissent trom that portion of the ynajority opinion concerning s the house and lot I believe the Act of Partition dated 10 exhibit J that 2006 24 2 transferred lot L to the parties transferred it in full ownership without any 3 ther fui designation and this would mean it was owned equally by them both or equally in community that transfierred Contrast this with exhibit J that is the Act of Yartition 9 Tract B This nt docum also transferred the land in full ownership but it also specifies the precise ownership interests of the various rs own owns the e 21 i 4 10 21 200 1 and 1 Thus each of these own in J rs 9 25 raction in specitied t full awnership raction for p of rcentage ownership Exhbit J does not specify any 2 It only provides that they own in full rship own Thus I beli this property is owned as a community asset I agree ve with the opinion to remand the matter to the trial court for a hearing on tl issue of e ment imburs for r the ed alle receipt of farm income

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