Family Law Cases
Proceeds of Life Insurance Policies are Separate PropertyFowler v. Fowler, 2003-0590 (La. 12/12/03), 861 So.2d 181.
Couple divorced 8 years after son died. Life insurance policies on him totaling $500,000 named his mother as primary beneficiary, were paid to her and deposited into an account in her name only.
(1) Issue: whether proceeds of life insurance policies of deceased insured son were community or separate property.
(2) TC declared the proceeds of the life insurance policies W’s separate property. H appealed. CA affirmed.
(3) Affirmed. Life insurance proceeds received by a spouse during a community property regime are separate property. Overruled Thigpen v. Thigpen, 231 La. 206, 91 So.2d 12. A life insurance policy is a legal contract between the policy owner and the insurance company.
(4) The disposition of life insurance proceeds is sui generis and subject to separate rules which may or may not coincide with the rules of the Civil Code generally applicable to community property.
(5) Proceeds of son’s life insurance policies paid W during marriage after son died were W’s separate property.
(a) W was primary beneficiary while H was named secondary beneficiary.
(b) H would have been entitled to receive the proceeds only if W had predeceased son.
Burden of Proof to Rebut Community Presumption is Preponderance of the Evidence
Talbot v. Talbot, 2003-0814 (La. 12/12/03) 864 So.2d 590, rehearing den. (La. 2/6/04).
After 8 day trial, TC valued and allocated community property. Court of Appeal affirmed in part and reversed and rendered in part. Court of Appeal affirmed in part and reversed in part; District Court’s judgment reinstated.
(1) Presumption of Community:
(2) Things in the possession of a spouse during the existence of the marriage are community property. LSA-C.C. art. 2340.
(a) Applies to all property possessed by either spouse during the marriage, regardless of the time of acquisition.
(b) Applies to property acquired by a spouse before the marriage but possessed by the spouse during the marriage.
(c) See Katherine S. Spaht & W. Lee Hargrave, 16 Louisiana Civil Law Treatise, Matrimonial Regimes § 4.8, at 207-08 (2nd ed.1997).
(3) As broadened by 1979’s revision and expansion, the revised presumption has potential for unfairness, e.g. in situations where prior to marriage one spouse acquires property either through donations or independent purchases.
(a) It is presumed community, and the donee/purchaser spouse has to prove the separate nature of the property.
(b) La. Civ.Code article 2340 subjects property which was clearly separate at the time of its acquisition prior to marriage to community classification, potentially effecting a legal change in the nature of the property upon marriage.
(c) It creates the possibility and the potentiality that a spouse will be called upon to establish the source or origin of property that may have been acquired years before the marriage and potentially decades before the termination of the community regime.
(4) Rebuttable by either spouse upon a showing by a preponderance of the evidence of the separate nature of property brought into the community;
(a) “The ‘burden of persuasion’ is the burden of a party to establish a requisite degree of belief in the mind of the trier of fact as to the existence or nonexistence of a fact.” La.Code Evid. art. 302(1) (2003).
(b) Proof constituting a “preponderance of the evidence”: when the entirety of the evidence, both direct and circumstantial, establishes that the fact or causation sought to be proved is more probable than not.
(5) Rejected and overruled long line of cases holding BOP was by clear and convincing evidence.
(6) Bank Stocks:
a. W rebutted presumption that bank stocks she owned prior to marriage and possessed during marriage were community property:
b. W was registered holder of stocks;
c. W received the stocks from her grandfather when she
d. W received stock certificates in acquiring banks in
e. W’s siblings testified they also received bank stocks from grandfather;
f. W’s sister testified that as employee of one of the banks, sister would have been in position to know if W had purchased any other bank stocks;
g. Trial court did not abuse its discretion in accepting W’s and her siblings’ parol testimony;
h. H was not aware that he or W had ever purchased bank stocks during their marriage; and
i. “Significantly, H’s attorneys did not cross examine W about the stocks.”
j. CA held “the ‘best evidence’ rule required W to produce the act of donation where her grandfather donated the stock to her or the judgment of possession from her grandfather’s succession to prove the stock was actually donated or inherited.
(1) W was not required to produce an act of donation or a judgment of possession to rebut the presumption that bank stocks were community property;
(2) Allowances must be made when an acquisition occurred many years before a claim is asserted, especially when opponent does not refute the claim.
(3) Certificates that would have been received by W and that may have revealed grandfather’s donative intent may have been surrendered, canceled, and reissued as certificates of an acquiring bank’s stock, in connection with buyouts and mergers of banks.
k. Transfer or donation of stocks are not subject to the Civil Code’s strict form requirements.
l. Stocks may be donated by a valid transfer made in accordance with stock-transfer legislation or commercial law.
m. If a stock share is validly transferred by reason of the stock-transfer legislation, which inter alia permits shares to be transferred without consideration paid to the transferor, its transfer is valid as a donation without the necessity of the additional formality of a notarial act.
n. See La.Rev.Stat. Ann. §§ 10:8-101 et seq. (West 2003).
o. This method of transferring stocks “supercedes the requirement that donations inter vivos be by authentic act.” Fredrick William Swaim, Jr. & Kathryn Venturatos Lorio, 10 Louisiana Civil Law Treatise, Succession and Donations § 9.4, at 213 (1995).
(7) Commingling and Certificates of Deposits:
a. When a spouse’s separate funds are commingled with community funds indiscriminately, so that the separate funds cannot be identified or differentiated from the community funds, all the funds are characterized as community funds.
b. Once a spouse allows separate funds to be commingled with community funds, the spouse must meet the burden of proof by a preponderance of the evidence to demonstrate the separate ownership of property purchased with the commingled funds.
(1) Where a spouse’s separate funds can be traced with sufficient certainty to establish the separate ownership of property paid for with those funds, the separate status of such property will be upheld.
(2) Spouse must trace with sufficient certainty the separate nature of the funds used to purchase the property.
d. Funds comprising the CDs:
(1) W received from her grandfather interests in three limited liability companies, all were subsequently sold, and she placed the money she received from these sales in CDs, which continuously “rolled over” and presently exist as the CDs at issue.
(2) Held: W did not establish that “roll-over” certificates of deposit (CD), purchased after original CDs which W had bought with her separate funds had matured, were separate rather than community property.
(3) Some of the interest on the CDs was community property, because such interest was a fruit of the CDs.
(4) The roll-over CDs commingled principal which was separate property and interest which was community property.
(1) Identity of these CDs was proven by mere assumption when W could have produced bank records of the CDs but failed to do so.
(2) W argued H failed to subpoena the relevant bank records after TC gave him the authority to do so;
(3) W’s BOP as the party asserting property’s separate nature to prove separate ownership of the CDs.
(8) Insurance Policy:
a. Under Louisiana law, life insurance policies are treated as unique contracts governed by their own rules rather than by the Civil Code. Spaht & Hargrave, supra § 3.32, at 122.
b. “The contracting spouse is the sole manager of the contractual rights that are provided under the policy.” Id. at 124 (referencing S. Mckenzie & H. Johnson, 15 Louisiana Civil Law Treatise, Insurance Law and Practice, § 263, n. 19 (West 1986).
c. Upon termination of the community, a life insurance policy purchased with community funds during the community is “a co-owned asset subject to partition by the co-owners.” Spaht & Hargrave, supra § 3.32, at 125.
d. The policy should be awarded to the owner of the policy, with the other spouse receiving property of an equal value. Id. at 125.
e. To provide otherwise would interfere with the contractual relationship between the insurer and the owner of record.
f. Held: Policy was community property and H as the owner retains ownership of the policy, with W receiving property of equal value (a share in the cash surrender value).
(9) Three Dissents: Justice Traylor dissented in part and concurred in part assigning reasons; Justice Johnson adopted Traylor’s reasons. Justice Hightower also dissented and concurred in part and basically agreed with Traylor’s reasoning:
a. Disagreed with decision to lower the burden of proof necessary to overcome the La. Civ.Code art. 2340 presumption of community property;
(1) Would maintain the clear and convincing standard for both commingled and non-commingled property and hold the bank stocks were community property.
(2) When the 1979 revisions were passed, the law regarding the burden of proof necessary to overcome the presumption of community property was well-established, the legislature was certainly aware of it, and could have statutorily changed the BOP for rebuttal if it had wanted to.
b. Strong policy considerations support the use of the clear and convincing standard
(1) Usually employed “where there is thought to be special danger of deception, or where the court considers that the particular type of claim should be disfavored on public policy grounds.” (quoting McCormick on Evidence, § 340(b), p. 798 (2nd ed.1972).
(2) The ease with which the parties may claim lost documents combined with the emotionally charged, intensely personal nature of partitions give ample opportunity for deception.
c. Acknowledged transfer or donation of stocks are not subject to the Civil Code’s strict form requirements
(1) No evidence revealed W received the stocks in the form provided for donation of stocks.
(2) W’s failure to keep records is no excuse;
(3) Possession of stock didn’t prove transfer by inheritance.
(4) Judgment of possession from her grandfather’s estate, would have established a date of acquisition.
(6) “evidence of an order of any court of competent jurisdiction ordering the transfer of shares to an executor or the judgment of any court of competent jurisdiction recognizing and putting such heirs or legatee in possession … shall be full and sufficient authority for the making of said transfer.”
(7) W failed to prove date of acquisition of stock through sister’s testimony that Citizen’s had merged with other banks.
(8) W could produce bank records regarding the various mergers and trace her stock to the date of acquisition.
Renewal Commissions on Insurance Policies Written Before Marriage
Ross v. Ross, 2002-2984 (La.10/21/03), 857 So.2d 384.
(2) Extensive review of the historical background of the concept of “fruits” in Louisiana and the rights of spouses with regard to fruits under the Louisiana community property regime.
(3) Renewal of a pre-existing State Farm insurance policy constituted a juridical act and, thus, a thing under La. Civ.Code art. 551 from which civil fruits were be derived.
(4) If the renewal commissions are the result of the State Farm agent’s effort, skill, or industry during the existence of the community property regime, the renewal commissions, or at least a portion thereof, are community property.
Louisiana Child Support
Gallo v. Gallo, 2003-0794 (La. 12/23/03), 861 So.2d 168.
S.Ct. Reversed on certiorari review. PF’s right to rebut presumption of paternity was preempted.
(1) PF was married to M at the time of child’s birth.
(4) PF could not recover monies paid for child support.
Even if disavowal action was not time barred, he would be barred from recovering monies he paid for child support.
LSA-R.S. 9:305: child support payments may not be reimbursed if they are “paid, due, or owing prior to the filing of a disavowal action if an order of disavowal is subsequently obtained…”
QUESTION: How does this holding reconcile with civilian doctrine of “Payment of a Thing Not Due”???
Reese v. State, 2003-1615 (La. 2/20/04), 866 So.2d 244.
(1) TC granted State’s exception of no right of action based on C’s failure to plead action for filiation within a year of alleged father’s death and did not allow supplemental petition to relate back to original filing date. C appealed.
(2) CA Affirmed. C appealed again.
(3) Supreme Court Reversed and remanded.
(4) A claim relates back per La. Code Civ. P. art 1153, “when the action or defense asserted in the amended petition or answer arises out of the conduct, transaction, or occurrence set forth or attempted to be set forth in the original pleading…”
(5) Amended petition filed outside the time limitations for filiation related back to the original petition.
(6) Supplemental petition simply clarified factual issues re filiation.
A. Only distinction between first and second petition was the amended petition stated F’s marital status.
B. Filiation claim related back to the original petition because its facts arose out of the same transaction or occurrence.
Hoover v. Hoover, 1999-3055 (La. App. 1st Cir. 06/22/01), 798 So.2d 165, revsd., 01-2200 (La. 4/03/02), 813 So.2d 329.
1. Couple executed a voluntary community property partition that was not homologated into a judgment of the court.
2. Attorney H had several contingency fee cases. The partition agreement specifically identified two.
3. A third case was not mentioned in the agreement, and H procured a judgment > $3,000,000 in the unmentioned case.
4. W then filed a supplemental partition proceeding to divide this allegedly recently discovered community asset. Alternatively she sought to set aside the partition for fraud or lesion. Trial court granted H’s motion for summary judgment dismissing W’s claims with prejudice. W appealed.
5. Court of Appeals Affirmed.
(1) Fraud is defined as a misrepresentation or a suppression of the truth made with the intention either to obtain an unjust advantage for one party or to cause a loss or inconvenience for the other.
(a) H claimed that prior to execution of the voluntary
6. Held: W lacked factual support to prove up her fraud claim. Trial court properly granted H’s summary judgment on the issue of fraud.
(a) C.C. art. 814 => an extra judicial partition may be rescinded on account of lesion if the value of the part received by the co-owner is less by more than 1/4 of the fair market value of the portion that he should have received.
(b) Plain English => if the complaining spouse can prove by clear and convincing evidence that he/she received less than 37.5% of the action, the partition is vulnerable to the claim of lesion.
(c) Held: A valid transaction/compromise is invulnerable to any claim of lesion. See, e.g. C.C. art. 3071.
i) W chose to accept the proposed settlement knowing that there were other contingency cases out there.
ii) Accordingly, the partition agreement constituted a valid compromise invulnerable to attack on the basis of lesion.
7. Supreme Court granted certiorari to determine whether a community property settlement signed by the parties but never made a judgment of the court can be set aside on the basis of lesion.
(a) A community property settlement that was never made a judgment of the court can be set aside on the grounds of lesion.
Williamson v. Amilton, 13 La. Ann. 387 (1858).
(b) Williamson case was decided at a time when the statutes were substantially similar to the current provisions under the Louisiana Civil Code.
(c) Williamson held that a partition could be attacked for lesion even though it had some qualities of a transaction or compromise (which could not be attacked for lesion).
Robinson v. Robinson, 778 So.2d 1105 (La. 1/17/01)
1. Parties married in 1955 and moved to Louisiana in 1978; lived here until they separated in 1986. Husband moved to North Carolina. The community was terminated when wife got a judgment of separation. The parties divided movables and shared revenue from sale of the matrimonial domicile. Husband filed for divorce in Louisiana but later filed in North Carolina which issued a default judgment in 1987.
2. The parties entered into a property and support settlement drafted by husband’s N.C. attorney which included choice of law clause choosing N.C. law. Both parties subsequently remarried.
3. In 1994, wife filed a Petition for Supplemental Partition, seeking:
(a) Division of husband’s pension benefits not partitioned in the property settlement;
(b) Enforcement of a provision where husband agreed to designate wife as recipient of the survivor benefit; and
(c) A determination that husband’s actions and silence amounted to fraud, bad faith, and a breach of fiduciary duty.
(d) Both trial and appellate court held N.C. law governed and granted summary judgment to husband. The supreme court granted the writ to determine:
(1) Whether La. or N.C. law applied;
(2) Whether general waiver language in the settlement agreement included the pension plan; and
(3) Whether termination of alimony affected a husband’s obligation to designate his former wife as beneficiary of the survivor’s annuity.
(e) Louisiana Supreme Court held:
(1) Choice of Law: Louisiana law had to be applied because
(a) The comparative level of contacts with the two states favored Louisiana; and
(b) Imposition of N.C. law would impose undue hardship on wife by denying her one-half of her community property.
(2) General Waiver Insufficient: General divestiture language does not necessarily divest a non-employee spouse of his or her right in the employee spouse’s pension.
(a) Since there was no specific mention of the pension plan in the parties’ agreement, the general boilerplate release did not divest wife of her community property interest in husband’s pension plan.
(b) Reversed and remanded for trial court to determine the precise ownership rights of each party.
(3) Alimony & Survivor Benefit: Held -Construing the contract as a whole in light of surrounding events and circumstances, the survivor benefit was intended to replace alimony in the event husband died while still paying alimony. Once wife remarried, husband was no longer obligated to pay alimony and name her as the beneficiary.
(2) Justice Victory joined by Justice Traylor –
(a) Finding wife did not intend to waive her interest in the pension is erroneous. Wife received valuable consideration in settlement for waiving her interest.
(b) Finding that Louisiana law applies is also wrong. The statutes relied on deal with situations when no choice of law has been made by the parties. The settlement contained a choice of law provision and that should govern.
(c) Majority is also wrong about the survivor benefit. The agreement is ambiguous because it does not specifically say the duty ends when wife remarries. Any ambiguity should be construed against husband because he drafted the agreement.
Uniform Interstate Family Support Act (UIFSA)
Jurado v. Brashear, 782 So.2d 575 (La. 3/16/01).
(1) Father and mother are parents of two children born out of wedlock in Louisiana. In 1995, a consent judgment was filed in Louisiana granting mother sole custody of children, with visitation rights to father and an obligation for father to pay child support. At the time of the judgment, father lived in Mississippi.
(2) After 1995, mother and children relocated to Ohio. In 1997, mother filed a rule in Louisiana to increase child support based on father’s increased income.
(3) After his objection to Louisiana jurisdiction was overruled, the father filed a rule for change of custody. The trial court increased child support payments and awarded mother past due support. The court also maintained sole custody with mother, but increased father’s visitation rights. The court of appeal affirmed.
(4) Held: -When a state that issues a child support order loses continuing exclusive jurisdiction (such as when all the parties relocate out of state) and no party takes action to establish jurisdiction in another state two issues arise:
(5) Whether the court of the issuing state may enforce the order it issued; and
(6) Whether the court of the issuing state may modify the order it issued.
(7) In applying UIFSA in La. Ch. Code art 1302.5, the Supreme Court relied on the official comments to the model act and several treatises to hold:
(8) A Louisiana court, as the issuing state court, has the authority to enforce the order until it is modified by another court with the authority to do so.
(9) Because the Louisiana court no longer had continuing, exclusive jurisdiction due to both parents’ departure from Louisiana, it did not have the authority to modify the order.
State ex rel. C.J.K. and K.K., 744 So.2d 107 (La. 11/28/00).
(1) DSS’s Office of Community Services (OCS) filed petition to terminate parental rights. The District Court granted the petition and the mother appealed. The Court of Appeal 3rd Cir. reversed and OCS appealed. The Supreme Court granted cert.
(2) Husband abused mother and her two children. Mother could not protect children from husband and asked OCS to take and protect the children. OCS created a reunification plan for the children but later petitioned for termination of parental rights because mother failed to
A. attend therapy
(1) trial court failed to appoint an attorney two years prior to the filing of the petition to terminate parental rights rendering the transfer of custody to the state invalid because of lack of due process; and
(2) there was not sufficient evidence to support the decision to terminate.
(3) Supreme court relied on State ex rel. J.A. 99-2905 (La. 2000) to guide its analysis of the considerations used in determining if parental rights are terminated. That case held that the best interest of the child is the paramount concern, not the interests of the parent.
A. The state must prove one ground under La. Ch. Code 1015 by clear and convincing evidence in order to terminate parental rights.
B. Supreme Court stressed that the Legislature expressed its clear intent that courts shall construe the procedural provisions of Title X of the Children’s Code liberally.
C. Reversed. Wife’s repeated returns to abusive husband:
D. constituted neglect that is chronic and life threatening; or
E. resulted in gravely disabling physical or psychological injury as required by La. Ch.Code Art 1015.
State ex rel. S.M.W., 781 So. 2d 1223 (La. 2/21/01).
a. Mother’s children taken into state custody after she was incarcerated. Upon release from jail, OCS developed a plan to reunite the mother and children.
b. Mother failed to meet the requirements of the plan. She continued to use drugs, lose jobs, failed to acquire stable housing, consorted with abusive men, and continually failed to tell caseworkers of changed conditions.
c. Eventually mother acquired stable housing and relatively consistent work. OCS allowed the children to return to mother for a trial placement. During the trial placement the children developed behavior and school performance problems, witnessed mother’s drug use, were left unsupervised for long periods at night, and one child was declared a delinquent.
d. The trial court severed mother’s parental rights after hearing all the facts from mother’s caseworkers and testimony of several mental-health professionals.
e. The Court of Appeals reversed the trial court’s decision, blaming all of the family’s problems on the State’s involvement with the family.
f. Supreme Court reversed:
(1) Severing of parental rights is one of the most drastic actions the State can take against a citizen.
(2) However, the primary concern of the courts and the State remains to secure the best interest for the child.
(3) Parents must do more than love their children and provide a home. They must provide adequate care for the children as well.
(4) The trial court’s findings were clearly and abundantly supported by the record and were reasonable in light of the record. The appellate court erred substituting its judgment for the trial court’s.
Appellate Court had no jurisdiction to hear appeal not timely filed.
State ex rel. C.P., K.P.P. and K.M.P., 2000-CJ-2703 (La. 1/17/01), 777 So.2d 470, Rehearing Denied Feb. 16, 2001.
2. The mother’s counsel received the Notice of Judgment on July 13th and the mother received personal service on July 17th. She filed an appeal on August 5, 1999.
3. The appellate court heard the appeal and reversed the trial court’s judgment granting the termination of parental rights. The state appealed.
4. Former Civ.Code art. 332 stated that appeals shall be taken “within 15 days from the rendering of a judgment.” The amended art. 332 provides that the prescriptive period begins from the signing of a judgment or from the mailing of notice when required.
5. The Supreme Court found that the appellate court erroneously relied on the amended article, which did not go into effect until Jan. 1, 2000, but that in any case even under the new article, the appeal was not timely filed.
6. Since all notices of judgment were mailed on July 8, 1999, the prescriptive period began running on that date and ended before the mother’s appeal was filed on August 5th. The appellate court’s judgment was reversed and the trial court’s decision reinstated.
In re A.J.F., 2000-0948 (La. 6/30/00), 764 So.2d 47.
Mother gave birth to a child, but listed a man other than the biological father as the father on the birth certificate. The man listed as the father and the mother both executed voluntary surrenders to allow the child to be adopted.
1. The biological father, after discovering the birth and subsequent surrenders, acknowledged paternity and filed it in the Putative Father’s Registry. The father then brought an action to annul the surrenders.
2. The appellate paned held that the biological father’s action to annul the surrender was prescribed under LSA-Ch.C. article 1148 because the father had actual notice of the birth within days thereof but brought the nullity action more than ninety days from the execution of the last surrender.
3. Reversed. The Supreme Court held:
A. The biological father’s actual knowledge of the child’s birth and the acts of surrender do not substitute for the detailed notice requirements set forth in LSA-Ch.C. article 1132.
B. Specifically, the biological father:
1. Is to be notified that he will lose his right to oppose the adoption of he fails to file a written objection within fifteen days after receipt of notice;
2. Is to receive information about the specific criteria with which a court will evaluate his opposition to the adoption and his assertion of parental rights to the child; and
3. Is to be provided with information of the consequences of his failure to act.
Bays v. Bays, 2000-1727 (La. 2/21/01), 779 So.2d 754.
1. Father sought protective order against mother, who did not reconvene. At hearing daughter testified father abused her. Trial court issued protective order against mother and sua sponte against father.
2. Appellate court affirmed citing La. R.S. 46:2136 as authority for a protective order to issue to prevent the abuse of a minor, holding expansion of pleadings occurred and implied consent by father existed.
3. Louisiana Supreme Court reversed.
b. Father’s procedural due process rights violated because trial court’s actions did not provide father with reasonable notice of the possibility that he might be subjected to a protective order against him or meaningful opportunity to be heard.
c. The Order protected mother, not daughter. R.S. 46:2136 is for the protection of children not adults.
d. LSA-R.S. 46:2133(c) granting authority to issue protective orders for adults specifically requires a petition be filed.
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