96-1702 La.App. 3 Cir. 6/18/97, Brignac v. Brignac

• Court: Court of Appeal of Louisiana (US)
• Writing for the Court: COOKS
• Citation: 698 So.2d 953
• Decision Date: 18 June 1997
• Parties: 96-1702 La.App. 3 Cir

Page 953

698 So.2d 953 96-1702 La.App. 3 Cir. 6/18/97 Audrey Desormeaux BRIGNAC, Plaintiff--Appellee,
v.
Ray BRIGNAC, Defendant--Appellant. No. 96-1702. Court of Appeal of Louisiana,
Third Circuit. June 18, 1997.
Rehearing Denied Sept. 30, 1997.

Gregory P. Hardy, St. Martinville, for Audrey Desormeaux Brignac.

Alex Andrew Lopresto, III, Lafayette, for Ray Brignac.

Before COOKS, PETERS and SULLIVAN, JJ.

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[96-1702 La.App. 3 Cir. 1] PETERS, Judge.

The plaintiff, Audrey Desormeaux Brignac, brought this suit to be declared the owner of a part of her former husband's retirement benefits. The defendant, Ray Brignac, contends that this ownership issue was previously resolved by a community property settlement agreement entered into after he and Ms. Brignac divorced. The trial court rendered judgment in favor of the plaintiff, and Mr. Brignac has appealed.

DISCUSSION OF THE RECORD

On January 1, 1950, Ray Brignac began employment with the State of Louisiana, Department of Agriculture, as a marketing specialist. As a state employee, Mr. Brignac became enrolled in and contributed to the Louisiana State Employees Retirement System (LASERS). On December 15, 1958, Mr. Brignac terminated his employment with the state and withdrew the funds in his LASERS account. On March [96-1702 La.App. 3 Cir. 2] 28, 1972, Mr. Brignac married the plaintiff, Audrey Desormeaux. Mr. Brignac returned to state employment on September 1, 1972, as the Assistant Director of the Louisiana Department of Public Works.

In September 1976, Mr. Brignac exercised his right to repurchase his prior years of state employment in the LASERS program. This process is called a repayment of refunded member contributions. By repaying the amount refunded plus interest, Mr. Brignac received credit under the LASERS program for his previous nine years of state employment. Mr. Brignac testified that he used his separate funds, not community assets, to repurchase these years of service. According to Mr. Brignac, he inherited sufficient funds to start and maintain a small real estate business, and he used $3,001.00 from that business to complete the transaction, even though the checks repurchasing the credit were written on a community account. Mr. Brignac testified that LASERS would not accept a business account check so it was necessary for him to deposit funds into a community joint checking account and write personal checks to the state agency. In support of his testimony, he introduced into evidence the bank statement from the community checking account, reflecting a deposit of $3,940.00 on September 29, 1976. He also produced the two checks written off of that account to LASERS on September 30, 1976. One was written for $2,600.00 and the other for $401.00. Mr. Brignac explained that the first check represented the refund that he had received in 1958 from the LASERS program and the second check represented the accumulated interest required to repurchase the time in the LASERS program. ¹

On May 1, 1979, Mr. Brignac became the Administrator and Executive Director of the Teche-Vermilion Fresh Water District. Mr. Brignac remained in this position [96-1702 La.App. 3 Cir. 3] until his retirement in February 1995. Retirement benefits in this new position were covered by the Parochial Employees Retirement System (PERS), not by LASERS. Mr. Brignac transferred his years of service under the LASERS program into the PERS program. At the time of the transfer, he had accumulated 15.9 years of service in the LASERS program. However, due to differences in the funding of the programs, Mr. Brignac could only receive credit for 11.448 years of service in the PERS program, unless he chose to pay the difference between the plans. ² Mr. Brignac opted to only receive 11.448 years of service rather than pay the difference.

On February 9, 1981, the community property regime existing between Mr. and Ms. Brignac was terminated as a result of Mr. Brignac filing a petition for divorce. The parties were divorced on March 5, 1982, and on March 12, 1982, they entered into a community property settlement consisting of two separate documents. One of the documents is entitled "COMMUNITY PROPERTY SETTLEMENT" and is recorded in the conveyance records of St. Martin Parish. ³ In

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that agreement, Ms. Brignac received 1.771 acres, which included the family home; an automobile; and all movable property in her possession. Mr. Brignac received certain listed movable property, and Ms. Brignac gave him an equalizing promissory note in the amount of $42,000.00 due and payable on or before September 1, 1982. The agreement provides "that [the parties] desire to settle and liquidate community property existing between them and that they have agreed to settle same." It further provides that:

[T]he parties hereto discharge each other from any further accounting to the community which formerly existed between them the same being [96-1702 La.App. 3 Cir. 4] fully liquidated as above set forth.

The second document is entitled "COMMUNITY PROPERTY SETTLEMENT AND SIDE AGREEMENT" and was not filed into the public records. This agreement acknowledged the existence of the recorded agreement, explained certain aspects of that agreement, and imposed other obligations on both parties. Of particular importance to this litigation is the following language:

It is further agreed and stipulated that by execution of this community property settlement, AUDREY DESORMEAUX will drop all suits before the Courts and will not pursue any further litigation against RAY BRIGNAC resulting from the marriage between them or claim alimony hereafter.

At trial on the current suit, Ms. Brignac acknowledged that when the 1982 settlement was consummated, she had suits pending addressing community property issues and ownership of Mr. Brignac's business interests. ⁴ Over ten years later, on February 9, 1994, Ms. Brignac filed this petition for partition of community property and settlement of claims, alleging that the original partition had not addressed Mr. Brignac's pension plan and that she was entitled to a portion of such benefits.

In February 1995, Mr. Brignac retired with 28.91 years of creditable service and began to receive $3,510.10 per month in retirement benefits. He could have received a maximum monthly retirement...