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

• Decision Date: 18 June 1997
• Citation: 698 So.2d 953
• Parties: 96-1702 La.App. 3 Cir
• Court: Court of Appeal of Louisiana — District of US

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.

[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 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 benefit of $4,344.29, but because he had remarried, he chose the option whereby he would receive less per month, but his wife would receive fifty percent of his monthly benefit in the event that he predeceased her.

Following a hearing, the trial court rendered judgment awarding Ms. Brignac $803.16 a month from Mr. Brignac's retirement benefits. In calculating Ms. Brignac's [96-1702 La.App. 3 Cir. 5] portion under the Sims formula, the trial court calculated 13.23 years of the total creditable service as arising during the community regime despite the fact that the parties were only married for approximately ten years. The extra time was awarded to Ms. Brignac because the trial court concluded that Ms. Brignac was entitled to credit for the years of service that Mr. Brignac had repurchased during the existence of the community property regime. ⁵ Mr. Brignac has appealed, asserting two assignments of error. These assignments can be reduced to two questions, namely, (1) is Ms. Brignac entitled to a portion of Mr. Brignac's retirement benefits and (2) if she is, how should that portion be calculated? We find that the trial court erred in awarding Ms. Brignac any portion of Mr. Brignac's retirement benefits and therefore, need not address the second issue.

OPINION

By his first assignment of error, Mr. Brignac argues that Ms. Brignac executed a valid voluntary transaction or compromise which relinquished any rights that she might have had to his retirement benefits.

La.Civ.Code art. 3071 defines a transaction or compromise as follows:

A transaction or compromise is an agreement between two or more persons, who, for preventing or putting an end to a lawsuit, adjust their differences by mutual consent, in the manner which they agree on, and which every one of them prefers to the hope of gaining, balanced by the danger of losing.

This contract must be either reduced into writing or recited in open court and capable of being transcribed from the record of the proceeding. The agreement recited in open court confers upon each of them the right of judicially enforcing its performance, although its substance may thereafter be written in a more convenient form.

The compromise instrument is the law between the parties, and it must be interpreted [96-1702 La.App. 3 Cir. 6] according to the true intent of the parties. Brown v. Drillers, Inc., 93-1019 (La.1/14/94); 630 So.2d 741. Additionally, the compromise instrument is governed by the same rules of construction that apply to contracts. Id. Under the rules of contract interpretation, any ambiguity in a contract is construed against the one who drafted the...