Guilott v. Guilott
| Decision Date | 22 January 1976 |
| Docket Number | No. 5109,5109 |
| Citation | 326 So.2d 551 |
| Parties | Gloria Ann GUILOTT, Plaintiff-Appellee, v. Clyde E. GUILOTT, Defendant-Appellant. |
| Court | Court of Appeal of Louisiana — District of US |
McLeod & Dow by William L. McLeod, Jr., Lake Charles, for defendant-appellant.
W. Ellis Bond, Lake Charles, for plaintiff-appellee.
Before CULPEPPER, MILLER, DOMENGEAUX, WATSON and MORRIS, JJ.
On October 30, 1972, the plaintiff-appellee, Gloria Ann Guilott, obtained a judgment in her favor against her husband, Clyde E. Guilott, Defendant-appellant, decreeing a separation from bed and board. No appeal was taken from this judgment. The petition in that suit was filed May 1, 1972, and, therefore, the community of acquets and gains existing between the parties was dissolved as of that date under the provisions of LSA-C.C. Art. 155, which makes the judgment of separation retroactive to the date on which the petition for same was filed.
The separation decree having become final, Mrs. Guilott on January 16, 1973 filed a suit for partition of the community of acquets and gains formerly existing with her husband. From a judgment ordering a partition of the community and restitution of certain paraphernal effects belonging to the plaintiff, and the fruits thereof, the defendant, Clyde E. Guilott, has appealed.
The record reveals that the parties were married in 1949 and were domiciled in Calcasieu Parish, Louisiana. In 1956 Mrs. Guilott received from her father, Robert Barber, an alleged donation consisting of an interest in the partnership, Barber Brothers Company of Baton Rouge, Louisiana, a construction firm. Over the years Mrs. Guilott received cash distributions from the partnership as follows:
1. These distributions were made after the formation of the corporation hereinafter mentioned.
1957 - $ 13,459.12
1958 - $ 12,500.00
1959 - $ 28,642.47
1960 - $ 17,105.78
1961 - $ 15,036.12
1962 - $ 30,935.61
1963 - $ 7,644.44
1964 - $ 536.62
1965 - $ 2,021.16
1966-1968 - $ 0
1969 - $ 7,500.00 1
Note 1. These distributions were made after the formation of the corporation
Note hereinafter mentioned.
1970 - $ 33,342.901
Total - $168,724.22
In 1965 the partnership of Barber Brothers Company allegedly made an additional cash distribution to the partners. With this cash distribution the partners, including Mrs. Guilott, purchased stock in a corporation, Barber Brothers Contracting Company, Inc. in a simultaneous transaction in the same proportions that the partnership was owned. However, the existence of the partnership continued until June 30, 1970. On January 31, 1969, Mrs. Guilott sold her stock back to the corporation for the sum of $156,243.76, of which amount the sum of $39,060.94 was paid at the time of the sale and the same amount paid on January 2, 1970, February 1, 1971 and on January 28, 1972. Besides the principal installments on the stock sale, Mrs. Guilott received $9,244.43 in interest on the credit portion of the sale, making a total of $165,488.19 received in principal and interest on the stock transaction.
Mrs. Guilott also claims in the proceeding restitution of direct donations made to her in 1961 and 1962 by her father, Robert Barber, in the total sum of $57,785.98, which she claims were used for the benefit of the community.
In summary, Mrs. Guilott claims the following paraphernal funds or fruits thereof, to-wit:
Cash distributions of partnership 1957-1970
(above itemized) 168,724.22
Principal from sale of corporate stock 156,243.76
Interest on sale of corporate stock 9,244.43
Fair market value of municipal bonds 69,063.60
Direct donations from Robert Barber 57,785.98
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Total $461,061.99
These separate funds and earnings thereof were deposited in various accounts maintained by Mrs. Guilott. At the trial counsel for the parties entered into the following stipulation:
'I'll (agreed to by both counsel) stipulate on behalf of the plaintiff that all the funds received by her (Mrs. Guilott) as her separate property were commingled and converted to community assets during the course of the marriage prior to its termination.' Explanatory words in brackets supplied.
This stipulation has the effect of a judicial admission or confession and both the parties and the court are bound thereby. LSA-C.C. Art. 2291; Placid Oil Company v. A. M. Dupont Corporation, 244 La. 1075, 156 So.2d 444 (1963).
Based upon this stipulation and other evidence the trial court held that the following were community assets:
(1) The items listed in the inventory in this proceeding.
(2) The Ann Guilott Trust in the Lakeside National Bank, Account No. 1017.
(a) Balance as of May 1, 1972, $161,203.34;
(b) Accumulated interest, dividends and net gains therefrom from May 1, 1972, to January 17, 1974, $25,357.81.
(Counsel for both parties used the date of January 17, 1974, as the pertinent date for the calculation of increase in this account.)
(3) Promissory note of Richard T. Cooley for the sale of the Contraband Place property in the principal sum of May 1, 1972, of $12,893.43.
(4) The business known as AAA Drive-In Cleaners, (exclusive of the immovable property.)
(5) The Clyde E. Guilott Trust in the Lakeside National Bank, Account No. 1074.
(a) Balance as of May 1, 1972, $30,780.45;
(b) Accumulated dividends, interest, and gains therefrom from May 1, 1972, until January 21, 1974, $2,644.27.
(Counsel for both parties used the date of January 17, 1974, as the pertinent date for the calculation of increase in this account.)
(6) Account of Ann Guilott in the McNeese Branch of the Lakeside National Bank, $12,216.16.
(7) Account of Ann Guilott in the Fidelity National Bank of Baton Rouge, Louisiana, in the sum of $2,772.93.
(8) The Life Insurance Company of Virginia Policy #755590 on the life of Clyde Guilott, cash surrender value $820.72.
(9) The Life Insurance Company of Virginia policy #754128 on the life of Clyde Guilott, cash surrender value $375.93.
(10) Cash surrender value of the Continental Service Insurance Company Policy on the life of Clyde Guilott (the amount of the cash surrender value was not furnished to the court.)
(11) Coin collection.
(12) Municipal bonds. 2
(a) Iberia Parish Consolidated School District No. 13
(b) Calcasieu Parish Gravity Drainage District No. 4
(c) St. Bernard Parish School Board No. 1
(d) State of Louisiana, State Bond and Building Commission, Series AA
(13) The sum of $500.00 per month received as rent by Clyde Guilott from AAA Drive-In Cleaners for the rent of the community owned building on Prien Lake Road for the period from May 1, 1972, and continuing to the date of the partition of the community property.
The trial court then ordered that the community assets be partitioned by licitation, with the exception of those items that are cash assets, and any items other than cash items to be retained by the respective parties as debits against their community interest. The judgment also recognized the parties as owners of an undivided one-half interest each in and to the proceeds of a expropriation proceeding then pending.
The court then ordered the debiting of each parties' community interest with the assets of which each was in possession. Mrs. Guilott's community interest was debited with the following items:
(1) The Ann Guilott Trust in the Lakeside National Bank, Account No. 1017,
(a) Balance as of May 1, 1972, $161,203.34.
(b) Accumulated interest, dividends and net gains therefrom from May 1, 1972, to January 17, 1974, $25,357.81.
(2) Ann Guilott checking account in the McNeese Branch of the Lakeside National Bank, $12,216.16.
(3) The account of Ann Guilott in the Fidelity National Bank of Baton Rouge, Louisiana, $2,772.93.
(4) Proceeds derived from sale of Municipal Bonds of the Iberia Parish School District No. 13, and of the State of Louisiana, State Bond and Building Commission, Series AA, in the amount of $25,000.00.
Mr. Guilott's community interest was debited with the following items in his possession:
(1) The Clyde Guilott Trust in the Lakeside National Bank, Account No. 1074.
(a) Balance as of May 1, 1972, $30,780.45.
(b) Accumulated interest, dividends and net gains therefrom from May 1, 1972, to January 17, 1974, $2,644.27.
(2) Cash surrender value of Life Insurance Company of Virginia Policy #755590, $820.72.
(3) Cash surrender value of the Continental Service Insurance Policy on the life of Clyde Guilott.
(4) Cash surrender value of Life Insurance Company of Virginia Policy #754128, $375.93.
(5) The sum of $500.00 per month received as rent by Clyde Guilott from AAA Drive-In Cleaners for the rent of the community owned building on Prien Lake Road for the period from May 1, 1972, and continuing to the date of the partition of the community property.
The trial court further ordered restitution by the husband of the entire amount of the wife's separate funds, and fruits therefrom, in the sum of $461,061.99 3 holding that both the paraphernal effects and the fruits thereof were...
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