D'Spain v. D'Spain

• Decision Date: 08 February 1988
• Docket Number: No. 87-CA-629,87-CA-629
• Citation: 527 So.2d 309
• Parties: Glenda Schubert D'SPAIN v. James L. D'SPAIN.
• Court: Court of Appeal of Louisiana — District of US

Page 309

527 So.2d 309

Glenda Schubert D'SPAIN v. James L. D'SPAIN.

No. 87-CA-629.

Court of Appeal of Louisiana Fifth Circuit.

Feb. 8, 1988.

On Rehearing June 7, 1988.

Writ Granted April 29, 1988.

Lowe, Stein, Hoffman & Allweiss, Robert C. Lowe, Terence L. Hauver, David H. Bernstein, New Orleans, for plaintiff/appellee.

Gauthier, Murphy, Sherman, McCabe, Chehardy & Ellis, David R. Sherman, Richard J. Tomeny, Susan M. Chehardy, William C. Harrison, Jr., Metairie, for defendant/appellant.

Before KLIEBERT, GRISBAUM and GOTHARD, JJ.

GOTHARD, Judge.

Mr. James D'Spain appeals from a judgment partitioning the community property between him and his former wife, Mrs. Glenda Tanner. The appellant contends that the trial judge made several errors which resulted in an inequitable distribution of the community assets and liabilities. Our review of the record reveals that the lower court's judgment is correct, and for the reasons given below, it is affirmed.

The law provides that when spouses are unable to agree upon a partition of community property, the court shall divide the community assets and liabilities so that each spouse receives property of an equal net value. LSA-R.S. 9:2801. The statute further provides:

(a) The court shall value the assets as of the time of trial on the merits, determine the liabilities, and adjudicate the claims of the parties.

* * *

(c) In allocating assets and liabilities, the court may divide a particular asset or liability equally or unequally or may allocate it in its entirety to one of the spouses....

In the event that the allocation of assets and liabilities results in an unequal net distribution, the court shall order the payment of an equalizing sum of money ... upon such terms and conditions as the court shall direct....

The trial court is obligated to follow the dictates of R.S. 9:2801 in effecting the partition. On appeal, we may not disturb the trial court's judgment in the absence of manifest error. Canter v. Koehring Co., 283 So.2d 716, 724 (La.1973); Jackson v. Hurst, 480 So.2d 487 (La.App. 5 Cir.1985).

James D'Spain and Glenda Tanner were married on May 31, 1975. Mrs. D'Spain's petition for separation was filed on November 2, 1984. Coupled with the separation was a prayer for a restraining order and injunction, restraining her husband from disposing of or encumbering any community property during the pendency of the suit. The restraining order was granted to take effect immediately. A legal separation followed on June 28, 1985. After lengthy litigation, the couple was divorced on April 1, 1987 and their community property finally partitioned in two judgments rendered July 6, 1987.

I.

Appellant's major objection to the partition concerns the trial court's evaluation of the D'Spain Enterprises-Coursey Boulevard Partnership, which appellant listed as a community asset on his sworn Descriptive List of the assets and liabilities in the former community.

The D'Spain Enterprises-Coursey Boulevard Partnership is a Louisiana general partnership. Its Articles of Partnership were duly registered with the Secretary of State on May 3, 1983. Its partners are appellant and one Kevin Lakins. Their proportionate ownership and capitalization interest was established by the Articles at 85 percent and 15 percent, respectively. Lakins is the managing general partner. The partnership was formed to own and develop a certain tract of land in Baton Rouge, Louisiana, denominated the Coursey Tract, which is the partnership's primary asset.

The Coursey tract consists of 54.19 acres ¹ located in a very desirable section of South Baton Rouge. It is divided into five vacant, unimproved, but developed sites (i.e., with service from public utilities, police, and fire protection), zoned for heavy commercial and urban use, situated on the north and south sides of Coursey Boulevard with access to Airline Highway and Interstate 12. The trial court assigned this partnership asset a gross value of $13,095,000 with debts of $4,169,836 and a community interest of 85 percent. The trial court further discounted the asset by five percent or $654,750 in consideration of (then) current economic conditions, resulting in a $7,029,852 net value of the asset to the community which was allocated to appellant.

a. Community Interest

The appellant first complains that the trial judge should have determined the former community's interest in the partnership to be 75 percent, rather than 85 percent to conform with an Amendment to the original Articles of Partnership duly registered with the Secretary of State on August 19, 1985. This Amendment reads in pertinent part:

"... First Amendment to the Articles of Partnership of D'SPAIN ENTERPRISES-COURSEY BOULEVARD PARTNERSHIP.... Was filed and registered in this Office on August 19, 1985....

This Agreement effective as of the 27th day of November, 1984....

WHEREAS D'Spain and Lakins desire to amend the Articles to increase the Distributive Share of Lakins and to decrease the Distributive Share of D'Spain ... and ... hereby amend the Articles of Partnership ... as follows.... D'Spain 75% Lakins 25% ..."

Appellant alleges that the reason for the Amendment dates back to the formation of the partnership in 1983 at which time he orally agreed to sell Lakins an additional 10 percent of his partnership interest. Lakins allegedly exercised his option on November 27, 1984 in an instrument entitled "Sale and Assignment of Partnership Interest." ² However, the trial court refused to admit testimony regarding the alleged oral agreement without supporting written proof; said evidence was then made by proffer.

Appellant proffered testimony from Lakins which corroborated the alleged oral agreement, and testimony from two attorneys involved in drafting various partnership agreements. The first attorney to testify, Rudolph Ramelli, merely identified the Sale and Assignment of Partnership Interest as drafted by his law firm. The other attorney, Michael Castex, testified that he had drafted it on November 27, 1984 at the request of Kevin Lakins who was concerned over the D'Spains' marital situation. This attorney also testified that it was through his oral conversations with Lakins that he was familiar with the appellant's alleged previously existing oral agreement to transfer additional interest to Lakins.

In our view, the sale of an interest in a partnership which owns immovables should follow those requisites of form which apply to sales of immovable property. See, LSA-C.C. arts. 1832, 2801, 2802, 2806; Wolf v. Whitney, 424 So.2d 300 (La.App.Cir. 1 1983), writ denied, 428 So.2d 807. An option to purchase an immovable must be evidenced in writing. LSA-C.C. art. 2462; McMikle v. O'Neal, 207 So.2d 922 (La.App.Cir. 2 1968); Greenleaf Plantation, Inc. v. Kieffer, 403 So.2d 100 (La.App. 3 Cir.1981) writ denied, 409 So.2d 675 (La.). Nevertheless, parol evidence may be admitted in the interest of justice to prove a modification of a written act by a subsequent and valid oral agreement. LSA-C.C. art. 1848. In addition, an oral transfer of an immovable has effect between the parties thereto who recognize it, but it does not affect third parties until filed for recordation. LSA-C.C. 1839.

Here, while the profferred testimony could have been admitted to prove that an oral agreement modified the original Articles of Partnership, the trial court chose not to, finding it incredible. And, as regards the alleged sale of interest on November 27, 1984, the trial court found that an injunction was in effect at the time prohibiting said sale. Rabalais v. Hillary Builders, Inc. 62 So.2d 846 (La.App.Cir. 2 1953). The trial judge was quite frank in his disbelief of the appellant's evidence. He made the following Findings of Facts dated January 21, 1987:

The original partnership allotted 85% to James D'Spain and 15% to Kevin Lakins. Subsequent to the law suit filed by Mrs. D'Spain on November 2, 1984 and allegedly before service of the injunction on James D'Spain, D'Spain attempted to transfer an additional 10% interest in the Partnership to Lakins on November 27, 1984. This midnight, shadowy transaction is not supported by any believable evidence other than some after the fact acknowledgment on August 1, 1985 filed with the Secretary of State, August 19, 1985.

The Court finds this attempted partnership amendment of no legal effect insofar as Mrs. D'Spain's interest is concerned and awards her one half ( 1/2) of the original D'Spain community interest (85%) in this partnership asset. The validity of James D'Spain's alleged transfer to Lakins is for them or a Court to resolve, vis a vis.

From our review of the record we can find no sound reason for this court to disturb the trial court's disposition of this issue, even considering the appellant's proffered testimony. Jackson v. Hurst, supra. We accordingly hold, as did the trial court, that the First Amendment to the Articles of Partnership is ineffective to reduce the former community interest in this asset from 85 percent to 75 percent.

b. Counter Letter

Appellant next claims the trial court erred in finding that appellant and Lakins owned as individuals in a proportion of 85 percent and 15 percent respectively an undivided 45.87 percent of the Coursey tract. Appellant argues that the ruling is contrary to the real estate's taxing status and now clouds its title. Because we find, as did the trial court, that the resolution of this issue does not affect the former community's legal share in the asset, we discuss it only briefly.

The record establishes that title to the Coursey Tract was previously owned on the public records by Howard W. Kindig, Jr., but the actual owner, pursuant to a counter letter, was a partnership known as the Coursey Boulevard Investment Partnership (Old Coursey). Appellant and Lakins owned a 45.87 percent partnership interest in Old Coursey. As stated, appellant and Lakins withdrew from Old Coursey and formed ...