746 So. 2d 65 | La. Ct. App. | 1999
Lead Opinion
Plaintiff, June Coleman, appeals the trial court’s dismissal of her Petition for Supplemental Partition.
FACTS
Leslie L. Robinson, Jr., and June Coleman were married on June 30, 1955, and physicahy separated in January of 1986. The community of acquets and gains was terminated on February 14, 1986. On March 26, 1986, Ms. Coleman obtained a judgment of separation, based on abandonment, against Mr. Robinson in Civil District Court, Orleans Parish. Shortly thereafter, Mr. Robinson, who was employed by the federal government as an
The parties entered into a “Separation, Support, and Property Settlement Agreement” on August 27,1987. On January 18, 1994, Ms. Coleman filed a ^petition for supplemental partition alleging that certain pension rights were community property or marital property, and had not been partitioned in the property settlement agreement. Mr. Robinson answered, asserting that, pursuant to the terms of the agreement and under the controlling North Carolina law, the pension benefits had been partitioned, lifter a trial on the merits, the court below rendered judgment in favor of Mr. Robinson and dismissed Ms. Coleman’s petition. It is from this judgment that Ms. Coleman now appeals.
ISSUES
At issue in this appeal is 1) whether the trial court erred in determining that the agreement between the parties should be governed by the law of North Carolina, or in the alternative that the trial court erred in its construction and application of that law, 2) whether the lower trial court erred in failing to enforce the provision of the agreement requiring Mr. Robinson to designate Ms. Coleman as beneficiary of the survivor’s annuity and in failing to award attorney’s fees as provided for in the agreement, and 3) whether the trial court erred in failing to find that Mr. Robinson was in fraud and bad faith and breached his fiduciary duty to Ms. Coleman thereby making him hable for damages and attorney’s fees.
STANDARD OF REVIEW
The appellate court’s function is not to substitute its collective decision for that of the trial court, but to review the decision for error of law. Leche v. Leche, 531 So.2d 565 (La.App. 4 Cir.1988), writ denied, 534 So.2d 449 (La.1988). An appellate court must accord great weight to the factual findings and conclusions of 13the trial judge who was in a position to observe the witnesses and their demeanor. It is not within the province of the appellate court to disturb reasonable evaluations of credibility or reasonable factual inferences, even though other, equally reasonable, conclusions could have been reached. Canter v. Koehring Co., 283 So.2d 716 (La.1973); Arceneaux v. Domingue, 365 So.2d 1330 (La.1978); Alphonso v. Alphonso, 422 So.2d 210 (La.App. 4 Cir.1982).
CHOICE OF LAW
The contractual choice of law is expressly set forth in the agreement. Paragraph 13 of the agreement specifically states: “This agreement shall be governed by and construed in accordance with the laws of the State of North Carolina.” According to Louisiana Civil Code Article 3540, “[a]ll other issues of conventional obligations are governed by the law expressly chosen or clearly relied upon by the parties, except to the extent that law contravenes the public policy of the state whose law would otherwise be applicable under Article 3537.” By the clear and unambiguous language of the Separation, Support, and Property Settlement Agreement, the parties agreed that North Carolina law would apply to the interpretation of the agreement.
Under North Carolina law, the retirement benefits sought by Ms. Coleman are partially marital property as defined by North Carolina General Statute § 50-20, because the benefits were acquired both during and after the parties’ marriage. That statute defines marital property as:
All real and personal property acquired by either spouse or both spouses during the course of the marriage and before the date of the Lseparation of the parties, and presently owned, except prop*68 erty determined to be separate property in accordance with subdivision (2) of this section. Marital property includes all vested pension, retirement, and other deferred compensation rights, including military pensions eligible under the federal Uniformed Services Former Spouses’ Protection Act.
Paragraph 3 of the Agreement between the parties states:
The Wife, for herself, her heirs, executors, administrators, and assigns, hereby releases and relinquishes unto the Husband, his heirs, executors, administrators, and assigns, all right of future support, all right of dower, inheritance, descent and distribution, and right to dissent from his will, and any and all other rights arising out of their marriage relationship, and to any and all property or interest in property, real, persona], and mixed, now owned or hereafter acquired by Husband, and hereby agrees that Husband henceforth may acquire, hold, manage, alienate, lease, and convey his property without her knowledge, further consent, or join-der, in accordance with the provisions of law, the same as if she never had been married to him, and further hereby does release, relinquish, and renounce any and all right to administer upon his estate.
Paragraph 7 of the Agreement goes on to state:
Husband and Wife have accomplished a complete liquidation and division of their property in full settlement of all of their property rights, whether arising out of the equitable distribution statute (N.C.G.S.50-20, etc.) or under the community of acquets and gains laws in the State of Louisiana, or any other provision of the law of any other jurisdiction, statutory or otherwise, and hereby ratify the division of their property.
Ms. Coleman’s contention that her former husband’s retirement benefits were not partitioned because she was unaware that they may have been community property seems incredulous. The very language of the agreement between the parties states that a complete liquidation and division of their property has been accomplished. The North Carolina Supreme Court has held; “It must be presumed the parties intended what the language used clearly expresses.” Hartford Accident & Indemnity Co. v. Hood, 226 N.C. 706, 40 S.E.2d 198 (1946). In the instant case, the parties willingly, knowingly, and with the advice of counsel entered into this agreement which under the laws of [sboth North Carolina and Louisiana constituted a full settlement of all property rights between them. The trial court did not err in determining that North Carolina law controlled the agreement, nor did it err in its construction and application of North Carolina law.
SURVIVOR’S ANNUITY
Ms. Coleman contends the trial court erred in failing to enforce the provision of the agreement requiring Mr. Robinson to designate her as beneficiary of the survivor’s annuity and in failing to award attorney’s fees as provided for in the agreement. This provision is contained in paragraph 6 of the agreement, which deals with issues of support and maintenance. Paragraph 6 reads as follows:
6. Wife waives any and all rights to support and maintenance, except as set forth as follows:
(A) Husband has paid to the Wife as alimony the sum of Two Thousand and °9ioo Dollars ($2,000.00) per month, commencing January 1, 1987, and the Husband shall pay to the Wife as alimony the sum of Two Thousand One Hundred and 00/ioo Dollars ($2,100.00) commencing the first month next subsequent to the execution of this Agreement, until the Wife shall die or remarry, except, however, when the Husband retires, and such payment shall be reduced to an amount to be determined by taking his current monthly gross income and dividing it into his gross monthly retirement*69 income, and multiplying the percentage obtained therefrom with the alimony payment of $2,100 per month. Husband shall have the right to make the alimony payments herein, 50% on the first of the month, and 50% on the 15 th of the month.
(B) During the period that Husband shall have a duty to make alimony payments to the Wife, he shall keep his life insured in an amount equal to one year’s salary earned by Husband, with Wife named as beneficiary. The amount of this life insurance shall be decreased after retirement pursuant to any then-existing rules of the United States Government.
(C) In the event Husband shall predecease Wife, alimony shall cease; however, Husband agrees to choose Option B of the Government Retirement Plan providing for Wife to receive retirement checks pursuant to government regulations.
| (¡After a careful reading of Paragraph 6, it is apparent that the purpose of Mr. Robinson’s having to choose Option B was to provide his former wife with some sort of income to replace the alimony she would lose should he predecease her. However, when Ms. Coleman remarried, Mr. Robinson was no longer obligated to pay her alimony. When this logic is applied, Mr. Robinson was also no longer required to choose option B of the Government retirement Plan. Clearly, the trial court did not err in so finding. Accordingly, the trial court’s decision to deny attorney’s fees was also free from error.
FRAUD, BAD FAITH, and BREACH OF FIDUCIARY DUTY
Ms. Coleman also contends the trial court erred in failing to find fraud, bad faith, and a breach of fiduciary duty on the part of Mr. Robinson. The court found that at all time pertinent to the execution of the Agreement, Ms. Coleman was represented by counsel, the Agreement was reviewed by counsel and Ms. Coleman, and Ms. Coleman signed the Agreement as it was presented to her and her attorney. In the area of domestic relations, much discretion must be vested in the trial judge and particularly in evaluating the weight of evidence which is to be resolved primarily on the basis of the credibility of witnesses. The trial judge having observed the demeanor of the witnesses is in the better position to rule on their credibility. Trosclair v. Trosclair, 337 So.2d 1216 (La.App. 1 Cir.1976). The factual findings of the trial court are therefore to be accorded very substantial weight on review. Gilberti v. Gilberti, 338 So.2d 971 (La.App. 4 Cir.1976); Pearce v. Pearce, 348 So.2d 75, 78 (La.1977). The trial court made a credibility determination based on the testimony and the trial exhibits introduced into evidence, and it accepted the testimony of Mr. Robinson that he had not acted in bad faith or attempted to defraud his former wife. Therefore, the trial court did not |7err in finding that there was no fraud, bad faith, or breach of fiduciary duty on the part of Mr. Robinson.
CONCLUSION
For the foregoing reasons, we find that the trial court did not err. Accordingly, the judgment of the trial court is affirmed in its entirety.
AFFIRMED.
KATZ, J„ DISSENTS IN PART, AFFIRMS IN PART, WOULD REMAND AND ASSIGNS WRITTEN REASONS.
. A great deal of litigation has already occurred in this matter. It will not be discussed in this opinion unless it has bearing on the particular issues before our Court in this appeal.
. On December 18, 1986, Mr. Robinson filed a Petition for Divorce in the Civil District Court, Orleans Parish, but then after filing a preliminary default, abandoned that action.
Dissenting Opinion
dissenting in part, affirming in part.
I respectfully dissent from the majority decision to affirm the trial court’s judgment insofar as the trial court judgment: (1) dismisses the Supplemental Petition of June Coleman to Partition the federal pension benefits of Leslie Leon Robinson, Jr., attributable to the time both spouses were residing in Louisiana in accordance with the formula set forth by the Supreme Court in T.L. James & Co., Inc. v. Mont
I would affirm the trial court judgment insofar as it: (1) grants Leslie Leon Robinson, Jr., judgment on the promissory note; (2) denies the Motion for Summary Judgment filed on behalf of Leslie Leon Robinson, Jr.; (3) denies any other relief requested by Leslie Leon Robinson, Jr., or June Coleman.
| ^Background:
The plaintiff and defendant were married on June 30, 1955, and lived together until they physically separated in January, 1986. During all or most of this period of time Mr. Robinson was employed by the federal government as an administrative law judge. The federal government transferred Mr. Robinson several times outside of Louisiana and then transferred him back to Louisiana. Mrs. Robinson followed Mr. Robinson wherever his tour of duty brought him. However, in January, 1986, the parties physically separated and Mrs. Coleman filed a petition for legal separation based on abandonment against Mr. Robinson in the Civil District Court. A judgement of separation was obtained on March 26,1986.
As Mrs. Robinson was filing her petition for legal separation, Mr. Robinson was moving to North Carolina. On December 18, 1986, Mr. Robinson filed a petition for divorce in the Civil District Court and after obtaining a preliminary default he then decided not to obtain a final divorce judgement in New Orleans. Subsequently, the defendant filed an action for divorce in Mecklenburg County in North Carolina and obtained a divorce judgement in North Carolina on July 20,1987.
On July 28, 1987, the defendant signed a document prepared by his North Carolina attorney and entitled “Separation, Support and Property Settlement Agreement” (“Agreement”) while residing in North Carolina and then mailed it to the plaintiff in Louisiana who then signed it in Louisiana on August 27,1987. Also, the plaintiff has continued to reside in Louisiana.
The defendant testified at the hearing in the Civil District Court to the following: he was employed with the Office of Hearings & Appeals, Social Security Administration as an Administrative Law Judge from 1965 through December, 1992; he began receiving Civil Service System pension benefits ¡¡¡effective January, 1993 in the approximate sum of $4,000.00 monthly; he remarried on December 28, 1989 and moved to Mississippi and then to Tennessee in 1992 where he was residing at the time of the hearing in December, 1997 in the Civil District Court.
Discussion:
It is the contention of the defendant Mr. Robinson that under the “Agreement” he is entitled to full ownership of the federal pension benefits because the “Agreement” states that North Carolina law applies to the interpretation of the “Agreement” and according to the language in paragraph 3 of the “Agreement” the ex-wife has relinquished all rights to the federal pension.
However, Mr. Robinson must have entertained some doubt as to the validity of his position because he chose not to simply rely upon the “Agreement” as written. Rather, he filed suit in North Carolina seeking a declaratory judgment to support his contention that the ex-Mrs. Robinson had relinquished and transferred to him any interest she may have had to his federal pension by virtue of her having signed the “Agreement”.
Needless to say, Mr. Robinson and his North Carolina attorney must have been dumbfounded by the reception given by the North Carolina trial Court and then the Court of Appeal — since both courts
Hence, it is obvious that the North Carolina courts were sending a clear message that North Carolina had no interest in applying its law to this “Agreement” and was signaling the parties to return to Louisiana and Louisiana |4law for a resolution of their respective rights arising out of the property settlement that ensued the legal separation and divorce.
But Mr. Robinson is not the first to have tried to disenfranchise an ex-spouse of her interest in community property by applying non-Louisiana law to the settlement of community property. As long ago as 1919 the argument was made to the Supreme Court of Louisiana in Succession of Popp, 83 So. 765, 146 La. 464 at page 768 (1919) that: “...if married people of this state change their domicile to another state where the law of community of acquets and gains does not prevail, the wife ipso facto loses her rights to the community property, which becomes at once the husband’s separate property.”
The Supreme Court responded with this sobering observation: “If this is so, husbands have at their disposal an easy method of transferring to themselves the interest of their wives in community property. All they have to do is to go and live at Bay St. Louis, Pass Christian, Biloxi, or some other place on the Mississippi coast. The proposition is startling, to say the least." Succ. of Popp, supra, at 768.
In the case sub judiee, Mr. Robinson has merely exhibited a new twist to an old scheme in an attempt to deprive his ex-spouse of her interest in the federal pension. And it is equally obvious that the North Carolina courts are not going to condone or bless these legal machinations.
The public policy of Louisiana is very clear that a spouse’s entitlement to retirement benefits is determined under the law of states in which the parties were domiciled for respective periods of time during which the benefits accrued. See Allen v. Allen, 484 So.2d 269 (La.App.3rd Cir.1986), writ denied, 488 So.2d 199 (La.1986), U.S. cert. denied, 479 U.S. 850, 107 S.Ct. 178, 93 L.Ed.2d 114 (1986) (“Rights to retirement benefits accrue continuously throughout the husband’s period of service, and the wife’s entitlement to those benefits should be determined under the law of the States in which the parties were domiciled for the respective periods during which |Rretirement benefits accrued”); Little v. Little, 513 So.2d 464, 471 (La.App.2nd Cir.1987) (“...a portion of the military retirement pay, which a former husband is receiving but which had not vested nor matured on the date of termination of the community or of divorce (some 20 years previously), is properly classified as community property under Louisiana law and is subject to division in accordance with Louisiana law governing matrimonial regimes”); Messersmith v. Messersmith, 86 So.2d 169, 173 (La.1956) (“There is nothing more fundamental in our law than the rule of property which declares that this community is a partnership in which the husband and wife own equal shares, their title thereto vesting at the very instant such property is acquired...”); Blackwell v. Blackwell, 606 So.2d 1355 (La.App.2nd Cir.1992) at 1358 (“Retirement benefits are incorporeal movable property which generally accrue over a significant period of time. The classification of this movable property as community or separate calls for the court to look to the parties’ domicile for the period during which these retirement benefits accrued. The status of this movable property as community or separate is determined by the law of the State where it was acquired. Succession of Dunham, 408 So.2d 888 (La.1981);
The majority opinion relies upon paragraph 13 of the Agreement which designates the laws of North Carolina to govern the interpretation of the provisions of the Agreement and Civil Court Article 3540 which at first blush appears to permit parties to a contract to designate which state laws shall apply in interpreting the contract.
It is true that the first part of the sentence in CC Art. 3540 states that “All other issues of conventional obligations are governed by the law expressly chosen or clearly relied upon by the parties...” However, the last part of this sentence clearly states that there is an exception to the freedom of choice of law by the parties to an agreement. This exception reads as follows: “...except to the extent |7that law contravenes the public policy of the state whose law would otherwise be applicable under Article 3537.”
And CC Art. 3537 provides inter alia: “...an issue of conventional obligations is governed by the law of the state whose policies would be most seriously impaired if its law were not applied to that issue.”
In other words, the parties are not completely free to choose any state’s laws to apply; rather, the parties must consider the respective states’ public policy with respect to the property issues involved. This is in accord with subparagraph (f) under the Revision Comments to Civil Code Article 3540 which contains the following language: “However, the application of the chosen law is subject to limitations imposed by the public policy of the state whose law would otherwise, that is,
Under the cited jurisprudence, it is clear that Louisiana has a very strong public policy supporting the concept of community property whereas North Carolina has no public policy supporting community property. It also follows that the public policy of Louisiana in protecting the rights of the non-employee spouse in the pension benefits attributable to the service while domiciled in Louisiana is superior to any interest of North Carolina. It is equally obvious that Mrs. Robinson acquired an incorporeal movable right to one-half of the federal pension benefits attributable to the time they resided in Louisiana and | Rup until the Judgment of Separation in 1986 notwithstanding the fact that Mr. Robinson did not begin receiving any pension benefits until 1993.
The final issue to be discussed is the language found in the “Agreement” and which is cited in the majority opinion for the proposition that the ex-spouse Mrs. Robinson relinquished any rights she may have had to the federal pension of Mr. Robinson.
Paragraph 3 of the agreement reads as follows:
The Wife, for herself, her heirs, executors, administrators, and assigns, hereby releases and relinquishes unto the Husband, his heirs, executors, administrators, and assigns, all right of future support, all right of dower, inheritance, descent and distribution, and right to dissent from his will, and any and all other rights arising out of their marriage relationship, and to any and all property or interest in property, real, personal, and mixed, now owned or hereafter acquired by Husband, and hereby agrees that Husband henceforth may acquire, hold, manage, alienate, lease, and convey his property without her knowledge, further consent, or joinder, in accordance with the provisions of law, the same as if she never had been married to him, and further hereby does release, relinquish, and renounce any and all right to administer upon his estate.
This is general boiler-late language and does not specifically mention the incorporeal movable right of Mrs. Robinson to a portion of the federal pension of Mr. Robinson.
By the same token, Mr. Robinson in paragraph 4 reciprocally “releases and relinquishes unto wife (Mrs. Robinson)...any and all other rights arising out of their marriage relationship”.
|Jn actuality the boiler-plate language used in paragraphs 3 and 4 is identical and effectively nullifies any transfers of marital property between Mr. and Mrs. Robinson notwithstanding the arguments by Mr. Robinson and the majority opinion. Accordingly, the Agreement is void insofar as it attempts to transfer any of Mrs. Robinson’s incorporeal rights to the pension to Mr. Robinson and Mrs. Robinson is entitled to a judgment acknowledging her interest to a portion of the federal pension of Mr. Robinson attributable to the time the parties were residing in Louisiana and up to the Judgment of Separation in 1986.
Accordingly, I would affirm the trial court judgment insofar as it grants Leslie Leon Robinson, Jr., judgment on the promissory note but would reverse the trial court judgment insofar as it grants a Declaratory Judgment in favor of Leslie Leon Robinson, Jr. on the issue of the federal pension and would award interest on the loan by Mr. Robinson to the ex-Mrs. Robinson and would deny any other relief requested by either Leslie Leon Robinson, Jr., or June Coleman.
|10And, I would remand this matter to the District Court for hearing to determine the appropriate allocation in accordance with the formula set forth by the Supreme Court in the T.L. James case, supra, and would assess all costs to be taxed against the pension.
. This principle first appears in Art. 3515 of the Civil Code, which reads inter alia: "an issue in a case having contacts with other States is governed by the law of the State whose policies would be most seriously impaired if its law were not applied to that issue.”
. These provisions beginning with Article 3515 of the Civil Code are contained in Book IV which is entitled "Conflict of Laws” and was amended by the legislature to become effective January 1, 1992. Hence, these provisions would not apply to the parties of the case sub judice since the community was terminated in 1986 except that the legislature specifically provided: "this act shall become effective on January 1, 1992 and shall apply to all actions filed after that date.” Thus, since the petition of Mrs. Robinson to partition the pension benefits was not filed until subsequent to January 1, 1992, the provisions commencing with Article 3515, etc. are applicable in the analysis of this case.
. In determining how to apportion to the respective parties their interest in the pension, the Supreme Court stated: "In our original
