Wahlborg v. Wahlborg, 2007 CA 0157 (La. App. 12/21/2007)
| Decision Date | 21 December 2007 |
| Docket Number | 2007 CA 0157. |
| Parties | HAROLD JOHN WAHLBORG v. ANNE SHERMAN WAHLBORG. |
| Court | Court of Appeal of Louisiana — District of US |
ON APPEAL FROM THE FAMILY COURT, (NUMBER 59078 DIV. "C"), PARISH OF EAST BATON ROUGE, STATE OF LOUISIANA, HONORABLE TONI HIGGINBOTHAM, JUDGE.
JACK M. DAMPF, THOMAS G. HESSBURG, Counsel for Appellee, Harold John Wahlborg.
BRIAN J. PRENDERGAST, and CHARLES F. WALTER, Counsel for Appellant Anne Sherman Wahlborg.
Before PARRO, KUHN, AND DOWNING, JJ.
Anne Sherman Wahlborg appeals a judgment that denied the relief requested in her "Petition to Partition Community Property," whereby she sought a supplemental partition of the retirement plan and retirement annuity ("retirement benefits") resulting from the employment of her former husband, Harold John Wahlborg. The court found Mr. Wahlborg had received all of the retirement benefits pursuant to the terms of a September 23, 1983 community property partition, implicitly finding merit in Mr. Wahlborg's peremptory exception that raised the objection of res judicata. In written reasons for judgment, the trial court set forth a detailed factual and procedural background and an analysis of the pertinent law. (See "Attachment A"). We affirm the trial court's judgment in accordance with Uniform Rules — Courts of Appeal, Rule 2-16.2A(2), (4), (5), (6), (7) and (8).
On appeal, Mrs. Wahlborg contends the trial court erred in sustaining Mr. Wahlborg's exception of res judicata. She asserts the trial court erred by: 1) failing to apply the pre-1991 standard for res judicata and in finding that Mr. Wahlborg had met his burden of proof; 2) determining the intent of the parties based on Mr. Wahlborg's testimony, and, in particular, that Mrs. Wahlborg intended to convey her rights in the retirement benefits when she executed the partition; 3) finding that the testimony of Elizabeth Wahlborg, the parties' daughter, was credible; 4) finding that Mr. Wahlborg exchanged most of the assets of the former community property for Mrs. Wahlborg's interest in the retirement benefits; 5) concluding that John Morton acted as a mandatory for Mrs Wahlborg although no written mandate was offered into evidence;1 6) imputing to Mrs. Wahlborg the knowledge of her attorney, who had represented her before the partition was executed and who was aware that the retirement benefits existed before the partition was executed; 7) considering various items introduced as evidence during the trial of the exception; 8) admitting the testimony of a certified public accountant for the purpose of valuing the properties included in the partition; and 9) denying Mrs. Wahlborg an opportunity to amend prior to dismissing her petition.
Mrs. Wahlborg correctly urges that pre-1991 res judicata law is controlling. At the time the parties executed the community property partition, former La. C. C. art. 2286, the precursor of La. R.S. 13:4231, provided:
The authority of the thing adjudged takes place only with respect to what was the object of the judgment. The thing demanded must be the same; the demand must be founded on the same cause of action; the demand must be between the same parties, and formed by them against each other in the same quality.
Thus, under the prior law, relitigation of the object of a judgment was barred when there was present: (1) identity of the thing demanded; (2) the same cause of action; and (3) the same parties appearing in the same quality. Terrebonne v. Theriot, 94-1632, p. 4 (La. App. 1st Cir. 6/23/95), 657 So.2d 1358, 1361, writ denied, 95-2249 (La. 11/27/95), 663 So.2d 743. The burden of proof is upon the party pleading the exception to establish the essential facts to sustain the plea of res judicata. If any doubt exists as to its application, the exception of res judicata must be overruled, and the second suit maintained. Id.
Although the trial court did not reference La. C. C. art. 2286, the trial court's reasons for judgment indicate it made the appropriate factual determinations in ruling on the exception, i.e., whether Mr. and Mrs. Wahlborg had considered the retirement benefits and whether Mrs. Wahlborg had waived her interest in the retirement benefits when the 1983 partition agreement was executed, such that there was an identity of the cause of action and the thing demanded in both the prior compromise and in the current suit. See Robinson v. Robinson, 99-3097 (La. 1/17/01), 778 So.2d 1105; Brignac v. Brignac, 96-1702 (La. App. 3d Cir. 6/18/97), 698 So.2d 953, writ denied, 97-2584 (La. 1/16/98), 706 So.2d 976; Chrisman v. Chrisman, 487 So.2d 140 (La. App. 4th Cir. 1986).
The issue of whether a pension was considered in property settlement discussions is a question of fact, with the fact-finder afforded much discretion. Robinson v. Robinson, 99-3097 at p. 14, 778 So.2d at 1119. Our review of the record reveals the trial court made factual findings related to this issue, i.e., that the parties were both aware that the retirement benefits existed, the parties considered these assets before executing the 1983 partition, and Mrs. Wahlborg waived her interest in the retirement benefits when she executed the partition. These findings are reasonably supported by the record and are not manifestly erroneous. A reviewing 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 there is conflict in the testimony, inferences of fact should not be disturbed upon review, even though the reviewing court may feel that its own evaluations and inferences are as reasonable. Linnear v. CenterPoint Energy Entex/Reliant Energy, 06-3030, p. 7 (La. 9/5/07), ___ So.2d ___.
We likewise find no manifest error in the trial court determinations that it found Elizabeth Wahlborg to be credible and that Mrs. Wahlborg had exchanged her interest in the retirement benefits for most of the assets of the former community. The trial court as the trier of fact, who listens to the testimony of all of the witnesses, has vast discretion in determining the weight and credibility of each witness. See Bourg v. Bourg, 96-2422, p. 6 (La. App. 1st Cir. 11/7/97), 701 So.2d 1378, 1382. The trial record establishes a reasonable factual basis for these findings and does not show they are clearly wrong. Further, the evidence pertaining to valuation of the assets supported the trial court's conclusions that Mrs. Wahlborg intended to waive her interest in the retirement benefits and that she had received a greater portion of the community assets at the time of the partition to offset Mr. Wahlborg's later receipt of his retirement benefits.
Mrs. Wahlborg urges that the trial court erred in imputing Mr. Morton's actions to her. She asserts Mr. Wahlborg failed to introduce competent evidence that established she had authorized Mr. Morton to negotiate the community property settlement on her behalf. She contends that because Mr. Wahlborg failed to introduce a written mandate into evidence, the court erred in considering parol testimony regarding this issue. Mrs. Wahlborg also challenges the trial court's action of construing ambiguities in the partition agreement against her based on the court's finding that an attorney hired by Mr. Morton drafted it.
A mandate is a contract by which a person, the principal, confers authority on another person, the mandatary, to transact one or more affairs for the principal. La. C.C. art. 2989. The contract of mandate is not required to be in any particular form. La. C.C. art. 2993. But when the law prescribes a certain form for an act, a mandate authorizing the act must be in that form. Id. Although pursuant to La. C.C. art. 2996, "express authority" is required to alienate or acquire property, in this instance, Mrs. Wahlborg executed the partition on her own behalf.2 Otherwise, we find no law that requires a written mandate for an agent to preliminarily negotiate the terms of an agreement on behalf of a principal.
Mr. Wahlborg testified that after Mr. Morton contacted him requesting that they finalize the property settlement, he did so. Mr. Wahlborg stated he received a power of attorney that authorized Mr. Morton to act on Mrs. Wahlborg's behalf. Mr. Wahlborg testified that during these negotiations, he told Mr. Morton he was willing to give up valuable property and equity therein to retain his retirement benefits.
Mrs. Wahlborg admitted that Mr. Morton had a general power of attorney to act on her behalf. She also admitted that he was her financial advisor and investor; she testified she handed over all of her financial documents to him, and he handled all of her money. Although Mrs. Wahlborg denied that she had charged Mr. Morton with negotiating the community property settlement, when the trial court questioned her as to whether Mr. Morton handled her affairs pursuant to a power of attorney, she responded, "It looks that way, yes." She also acknowledged that when Mr. Morton communicated to her that his attorney had prepared the partition agreement, she went to that attorney's office to sign the partition. Based on these facts, we find the trial court did not err either in determining that Mr. Morton acted pursuant to Mrs. Wahlborg's mandate or in attributing Mr. Morton's knowledge of the retirement benefits to Mrs. Wahlborg. Further, because the record reveals that Mr. Morton engaged the services of the attorney who drafted the settlement for Mrs. Wahlborg, we find the trial court properly construed its ambiguities against Mrs. Wahlborg. See Brignac v. Brignac, 96-1702 at pp. 7-8, 698 So.2d at 957.
Additionally, the correspondence in evidence reveals the parties' attorneys had discussed both the DSM Copolymer annuity and the Grant Chemical retirement plan before the partition was signed. The trial court apparently did not believe Mrs. Wahlborg's contention that although her attorney knew of these retirement benefits, she was not aware of them. Considering all of the...
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