In re Succession Burns
| Decision Date | 17 November 2021 |
| Docket Number | 54,168-CA |
| Citation | 331 So.3d 1062 |
| Parties | SUCCESSION OF Willie C. BURNS |
| Court | Court of Appeal of Louisiana — District of US |
RITA KAY BACOT, ALAN PESNELL LAWYER, LLC, By: William Alan Pesnell, Shreveport, Counsel for Appellants, Annie Burns, Sharon Burns & Estelle Green
OFFICES OF CHRIS L. BOWMAN, By: Chris Lane Bowman, Colby L. Bowman, Sean Nicholas Crain, Counsel for Appellees, James Burns, Willie Burns, & Tommy Burns
KITCHENS LAW FIRM, By: Paul E. Kitchens, Minden, Counsel for Appellee, Silver Burns
Before MOORE, PITMAN, and COX, JJ.
Annie Burns, the putative wife of the decedent, appeals a judgment that awarded her only 25% of the succession of the common husband, Willie C. Burns, and found that two large certificates of deposit (totaling about $300,000) were not part of the succession but belonged to Burns's son James. For the reasons expressed, we amend to specify the usufruct of the putative and legal spouses, and otherwise affirm.
FACTUAL BACKGROUND
This contentious case began innocently enough. Burns died on June 1, 2015, at the age of 74. The next day, two of his sons, James and Willie L., filed a motion and order to override the wishes of Annie, whom they alleged to be the "spouse of Decedent," and have an autopsy performed on their father.
The day after that, Annie, alleging that she was the "surviving spouse of the decedent," filed a petition to open Burns's succession. She alleged that Burns had been married twice, first to Silver Cooper, from whom he was divorced and by whom he had three children (Willie L., James, and Tommy), and then to her, Annie, by whom he had two children (Sharon and Estelle). She asked to be named administratrix and attached a detailed descriptive list of community property including four developed lots in Homer, La., and bank accounts at Regions, First Guaranty, and Chase Banks, worth $500,000.
Simultaneously, James filed a motion to be named provisional administrator of his father's estate. He alleged that Burns was "never legally divorced" from his mother, Silver, and, moreover, had executed a declaration of separation of property from Annie in 2003. In other words, James felt that much of the property that Annie alleged to be "community" was not. The district court appointed James and Sharon, his half-sister, as independent co-administrators.
Burns's first wife, Silver, then intervened asserting that she had married him in 1959, had "never been lawfully divorced," and was his legal surviving spouse. In support, she attached three documents. First was a petition of divorce filed in the Chancery Court of Columbia County, Arkansas, on July 18, 1966, captioned "Sybia Ruth Burns v. W. C. Burns," with an affidavit signed by "Sybia Ruth Burns," and a divorce decree dated August 26, 1966; however, she alleged that her name is not "Sybia" and that she never went by that name. Second was a petition for divorce filed in Claiborne Parish on January 25, 1967, captioned "W.C. Burns v. Sylvia Ruth Burns," with a citation signed by "Sylvia Ruth Burns"; however, she alleged that her name is not "Sylvia," that she never went by that name, and that this petition was never taken to judgment. Third was a report from Robert G. Foley, a certified forensic handwriting analyst in Monroe, who declared that the signatures of "Sybia" and "Sylvia" on the divorce papers were not the handwriting of Silver; they were forgeries.
Soon after this, Sharon (the co-administrator and Burns's daughter by Annie) alleged that the day after their father's death, when everybody was rushing to the courthouse, James (the other co-administrator) had rushed to First Guaranty Bank and cashed out a CD owned jointly by James and Burns worth $150,000, and to Regions Bank and withdrawn from an account owned jointly by James and Burns some $104,000 in cash. Sharon wanted an order directing James to place all this money in the court registry until ownership could be ascertained.1
THE FIRST HEARING
At a hearing in April 2017, the district court heard testimony from Robert Foley, the handwriting expert, and received his forensic report, to the effect that Silver's signatures on all the 1966 and 1967 divorce papers were forgeries.
Silver testified that in 1967, Burns told her he had gotten them a divorce in Arkansas, so she remarried a man named Welcome Boyd, and had two children with him; she later divorced Boyd, and then married a man named Talton Kingsby; she was still living with Kingsby, but had got the marriage annulled when she found out she was still legally married to Burns. One of Silver's daughters (by Boyd) corroborated her mother's testimony.
Annie testified that she married Burns in 1970, but had been living with him for four or five years prior to that. She knew that he had been married to Silver, but believed they were divorced; she was still living with Burns when he died in 2015.
The court ruled from the bench that it accepted the expert's opinion that the divorce papers were forgeries, and found that Silver and Burns were never divorced. However, he added, Annie could still try to prove that she was a putative spouse, under La. C.C. art. 96. The court rendered judgment granting Silver's intervention, and declaring that Silver and Burns were still legally married when he died and that the marriage between Annie and Burns was an absolute nullity.
Annie promptly filed a motion to declare that even though her marriage to Burns was an absolute nullity, she was in good faith when she married him and was entitled to the status of a putative spouse, with all its civil effects, under C.C. art. 96. Silver, of course, opposed this, contending that Annie could not possibly be in good faith.
THE SECOND HEARING
At a hearing in September 2017, Annie testified, on cross-examination, that she had only a fourth-grade education, and she was using the rent proceeds from the couple's houses to pay her living expenses.
Silver testified that she had known Annie since about 1966; Annie and Burns had started a flirtatious romance at the Jitney Jungle (where Annie shopped with her mother and Burns worked as a courtesy clerk) before he was divorced from Silver; Sharon, Annie's first daughter, would have been conceived before she (Silver) separated from Burns; therefore, Silver thought Annie must have been in bad faith.
On direct examination, however, Annie insisted that Burns had assured her, multiple times, that he had divorced Silver after she "ran off with a ***."2
The court ruled from the bench that Annie had no duty to go to the clerk of court and verify Burns's marital status, and that Annie was a reliable witness. The court therefore declared her a putative spouse, and later rendered judgment declaring her a good faith putative spouse.
With her status declared, Annie demanded all the civil effects of marriage. Specifically, she argued that all bank accounts and CDs in Burns's name were acquired during his putative marriage to her, were community property, and thus had to be returned to the succession to be divided. She proposed that the assets belonged to her (Annie) and the estate, one-half each, all subject to her usufruct.
Sharon, the co-administrator, filed a new detailed descriptive list that included six lots in Homer, worth a total of $85,000, and various bank assets totaling $658,488. She contended that James still had control (through his attorney) of three checks from the bank assets, totaling $399,678, and that this sum had to be restored to the estate.
James contended that the three checks came from accounts that were his own personal property, not Burns's, and that he should get to keep the $399,678.
Silver initially argued that she would prove that Burns was a bad-faith common husband, with the result that the two wives would get one-half each, and his heirs nothing. Later, however, she conceded that Burns was actually a good-faith common husband; hence, under the law of putative community, his heirs (the five children) would get one-half of the estate, and Silver and Annie, one-fourth each. She also decided to concur with James that the three large checks were always James's personal property. In the alternative, she argued that even if the accounts were originally owned by Burns, he validly manually donated them to James, under La. C.C. art. 1543.
THE THIRD HEARING
At a hearing in December 2019, James and Silver stipulated that Burns was in good faith.3 James testified, with respect to a $100,000 check from the Regions Bank account, that his dad had previously owned the account, and his (James's) signature was added in 2014; after Burns's death, he (James) closed the account and got the cashier's check made out to himself. With respect to the $149,564 check drawn from a First Guaranty Bank CD, however, James testified that this account was always his (James's), and "at some point" he added his dad's name; he offered copies of Form 1099s he received for this account in 1999, 2011, and 2015. With respect to the $150,093 check drawn from First Guaranty Bank, he testified the same, but said he had no 1099s. On cross-examination, James testified that in 1999 he was working as a lead finisher at Berry Plastics, in Homer, and "worked and saved" to amass those large CDs at First Guaranty. In addition, he maintained, he made money selling used cars with his dad, but none of that money came directly from his dad, Burns, or his mom, Silver.
Annie testified that when she and Burns got married, they were both broke, and lived in a rented shotgun house in Homer; everything he had at his death, he acquired while married to her. She denied that James ever worked together with Burns, selling cars or doing anything else. However, she admitted that she had never in her life opened a bank account, always traded in cash, and had no idea where her husband got the impressive sums on deposit at Regions and First Guaranty Banks.
ACTION OF THE DISTRICT COURT
In June 2020, the district court...
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