Gambino v. Gambino (In re Gambino)
| Decision Date | 23 December 2020 |
| Docket Number | C/W 19-CA-153,NO. 19-CA-152,19-CA-152 |
| Citation | 309 So.3d 427 |
| Parties | IN RE: INTERDICTION OF Eunice Lirette GAMBINO Calvin J. Gambino, Jr. and Cynthia A. Gambino, as Curator for Interdictee Eunice L. Gambino v. Calvin J. Gambino, Sr. and Brad Joseph Gambino |
| Court | Court of Appeal of Louisiana — District of US |
COUNSEL FOR PLAINTIFF/APPELLANT, CALVIN J. GAMBINO, JR. AND CYNTHIA A. GAMBINO, CURATORS FOR EUNICE L. GAMBINO M. Elizabeth Bowman, New Orleans, Christy M. Howley, Gretna
COUNSEL FOR DEFENDANT/APPELLEE, CALVIN J. GAMBINO, SR. Don C. Gardner
Panel composed of Judges Fredericka Homberg Wicker, Jude G. Gravois, and Stephen J. Windhorst
Appellants, Calvin J. Gambino, Jr. and Cynthia A. Gambino curators for Eunice L. Gambino, appeal the trial court's January 9, 2019 judgment denying their "Petition to Nullify Act of Donation." 1 For the reasons that follow, we reverse the trial court's judgment finding that the Tangipahoa immovable property was Mr. Gambino's separate property. We conclude that the Tangipahoa immovable property is community property, and set aside the August 16, 2017 donation inter vivos to Brad Joseph Gambino. These consolidated cases are remanded to the trial court for further proceedings.
Appellee, Calvin J. Gambino, Sr., and Eunice L. Gambino were married in 1952 and they had ten children: Calvin J. Gambino, Jr.; David J. Gambino; Cynthia A. Gambino; Laurie Gambino Kraemer; Joy Gambino Landry; Anthony J. Gambino; Catherine Gambino Rando; Linda Gambino Gunn; and Brad Joseph Gambino. Mr. and Mrs. Gambino had one child predecease them, Tina M. Gambino.
On August 16, 2017, Mr. Gambino executed a Donation Inter Vivos in favor of his son, Brad Joseph Gambino, of 94.67 acres of immovable property ("the immovable property") in Tangipahoa Parish.
On December 19, 2017, appellants, along with six siblings filed a petition to interdict their mother, Mrs. Gambino, contending that she had advanced dementia and Alzheimer's disease. At the same time, the siblings also filed a petition to interdict their father, Mr. Gambino. Brad Joseph Gambino did not join in either petition to interdict his parents. The trial court dismissed the petition to interdict Mr. Gambino, but granted the petition to interdict Mrs. Gambino, on January 1, 2018.2 A consent judgment was entered into whereas it was agreed that appellants would serve as curators, and Mr. Gambino would serve as undercurator of Mrs. Gambino.
On May 24, 2018, appellants as curators for Mrs. Gambino filed a "Petition to Terminate Community Property Regime, and to Annul Donations." In the petition, appellants alleged that the August 16, 2017 donation of the immovable property was invalid. Specifically, appellants contended that (1) the immovable property was community property; (2) Mrs. Gambino did not have capacity to consent to the donation of the immovable property due to her medical condition; and (3) Mrs. Gambino did not jointly execute the written donation. On September 24, 2018, appellants filed a supplemental petition. On October 18, 2018, Mr. Gambino filed an answer to the petitions and a reconventional demand. On November 8, 2018, appellants filed an answer and opposition to the reconventional demand.
On November 14, 2018, the parties appeared before the trial court on appellants’ claim to annul the August 16, 2017 donation of the immovable property. In the January 9, 2019 judgment, the trial court stated that Mr. Gambino "presented credible testimony, supported by corroborating evidence, sufficient to overcome the presumption of community." The trial court found that the immovable property at issue was Mr. Gambino's separate property and denied appellants’ "Petition to Nullify Act of Donation." Appellants filed this appeal.
Property of married persons is generally characterized as either community or separate. La. C.C. art. 2335. Community property comprises: property acquired during the existence of the legal regime through the effort, skill, or industry of either spouse; property acquired with community things or with community and separate things, unless classified as separate property under Article 2341; property donated to the spouses jointly; natural and civil fruits of community property; damages awarded for loss or injury to a thing belonging to the community; and all other property not classified by law as separate property. La. C.C. art. 2338. Things in the possession of a spouse during the existence of a regime of community of acquets and gains are presumed to be community, but either spouse may prove that they are separate property. La. C.C. art. 2340 ; In re Succession of Firmin, 09-411 (La. App. 4 Cir. 04/21/10), 38 So.3d 445, 450, writ denied sub nom, Succession of Firmin, 10-1176 (La. 09/17/10), 45 So.3d 1046.
La. C.C. art. 2341, in part, classifies separate property as property acquired by a spouse prior to the establishment of a community property regime, property acquired by a spouse with separate things or with separate and community things when the value of the community things is inconsequential in comparison with the value of the separate things used; property acquired by a spouse by inheritance or donation to him individually; and things acquired by a spouse as a voluntary partition of the community during the existence of a community property regime.
It is well-settled that the presumption that property acquired during the marriage is community property is a strong one. Further, the spouse seeking to rebut the strong presumption of community has the burden of proving that such assets are separate, and not community. Talbot v. Talbot, 03-814 (La. 12/12/03), 864 So.2d 590, 600 ; Ross v. Ross, 02-2984 (La. 10/21/03), 857 So.2d 384 ; Tullier v. Tullier, 464 So.2d 278, 282 (La. 1985) ; McCorvey v. McCorvey, 05-889 (La. App. 3 Cir. 02/01/06), 922 So.2d 694, writ denied, 06-435 (La. 04/28/06), 927 So.2d 295 ; In re Succession of Hebert, 03-531 (La. App. 1 Cir. 09/17/04), 887 So.2d 98, 100-101, writ denied, 04-2571 (La. 12/17/04), 888 So.2d 872. In this case, Mr. Gambino, must prove by a preponderance of the evidence that the immovable property is his separate property. Talbot, 864 So.2d at 600 ; McLaughlin v McLaughlin, 17-645 (La. App. 5 Cir. 05/16/18), 247 So.3d 1105, 1111. Proof by a preponderance of the evidence is defined as considering the evidence as a whole, the fact to be proved is more probable than not. Talbot, 864 So.2d at 600 ; Boxie v. Smith-Ruffin, 07-264 (La. App. 5 Cir. 02/06/08), 979 So.2d 539, 545. A trial court's findings regarding the nature of the property as community or separate is a factual determination subject to manifest error review. Biondo v. Biondo, 99-890 (La. App. 1 Cir. 07/31/00), 769 So.2d 94, 99 ; Ross, 857 So.2d at 395. An appellate court may not set aside a trial court's finding of fact in the absence of manifest error or unless it is clearly wrong, and where two permissible views of the evidence exist, the fact finder's choice between them cannot be manifestly erroneous or clearly wrong. Cole v. Department of Public Safety & Corrections, 01-2123 (La. 09/04/02), 825 So.2d 1134 ; Stobart v. State through Department of Transportation and Development, 617 So.2d 880 (La. 1993).). However, as this Court recently stated in Greene v. Greene, 19-37 (La. App. 5 Cir. 12/11/19), 286 So.3d 1103, 1128 :
When there is conflicting testimony, "reasonable evaluations of credibility and reasonable inferences of fact should not be disturbed upon review, even though the appellate court may feel that its own evaluations and inferences are as reasonable." Morris v. Morris, 04-676 (La. App. 5 Cir. 11/30/04), 889 So.2d 1048, 1054-55, writ denied, 04-3185 (La. 03/11/05), 896 So.2d 68. Only where "documents or objective evidence so contradict a witness's story, or the story itself is so internally inconsistent or implausible on its face that a reasonable factfinder would not credit the witness's story," may the appeals court find manifest error in the fact determined. Id."
On appeal, appellants contend that the trial court (1) erred in allowing a document into evidence; (2) erred in classifying the immovable property as separate property, not community property; and (3) erred in denying the petition to annul donation of the immovable property.
Appellants argue that Mr. Gambino did not overcome the strong presumption that the immovable property is community property. Specifically, appellants argue that (1) since the immovable property was purchased during Mr. and Mrs. Gambino's marriage, the property is community; (2) the mere statement by Mr. Gambino in the act of sale that it is his separate property is not sufficient to overcome the presumption of community; (3) Mrs. Gambino did not join or concur in the act of sale or donation and she did not acknowledge that the immovable property was Mr. Gambino's separate property;3 (4) Mr. Gambino cannot show that the funds used to purchase the immovable property were his separate funds; and (5) Mr. Gambino does not show that he reserved the civil and natural fruits of the alleged separate funds. Appellants argue that because the trial court erred in finding the immovable property to be Mr. Gambino's separate property, the trial court erred in denying the petition to annul donation of the immovable property.
Appellants contend that the trial court erred in admitting into evidence the Eureka Homestead Society passbook, which had not been previously produced in discovery. A trial court is granted broad discretion in determining the admissibility of evidence and its determinations will not be disturbed on appeal absent a clear abuse of that discretion. Aaron v. McGowan Working Partners, 16-696 (La. App. 5 Cir. 06/15/17), 223 So.3d 714, 729-730. Further, courts are to resolve the admissibility of evidence in favor of receiving the evidence. Dardeau v. Ardoin, 97-144 (La. App. 3 Cir. 11/5/97), 703 So.2d 695, 697 ; writ denied, 98-0359 (La. 3/27/98), 716...
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