Nash v. NashNash v. Nash
Kennedy, Goodman & Donovan by John M. Frazier, Shreveport, for defendant-appellant Robin Gullo Nash.
Before MARVIN, JASPER E. JONES and SEXTON, JJ.
In this suit for the judicial рartition of community property defendant-appellant, Robin Gullo Nash, appeals certain portions of the trial court judgment partitioning community assets.
The parties to this cause were married on February 28, 1981 and established their matrimonial domicile in Shreveport. On August 31, 1983, subsequent to separation demands by both, a judgment of separation based on the mutual fault of both parties was rendered and signed. This judgment also dissolved the community of acquets and gains existing between the parties.
On Decembеr 13, 1983, the defendant filed a petition to judicially partition the community property. On May 24, 1985, a judgment was signed partitioning the assets of the community of acquets and gains existing between the parties.
The defendant now appeals that judgment asserting three аssignments of error. Defendant contends that (1) the trial court erred in determining that $20,500 given by Dr. Nash to purchase the community home was a gift to the separate estate of his son, thereby entitling him to reimbursement from the community; (2) assuming that the $20,500 was a gift to the separate estate of the plaintiff, the trial court erred in ruling that plaintiff is entitled to be reimbursed in full for that sum from any available community assets; and (3) the trial court erred in determining that $3,469.34 loaned by Dr. Nash represents a community debt.
Funds Advanced by Dr. Nash To Purchase Community Immovable
The defendant contends the trial court erred in determining that the $20,500 given by Dr. Nash to purchase the community home was a gift to the separate estate of his son, Joseph Craig Nash, thereby entitling him to reimbursement. Defendant contends that the gift was made to the community of acquets and gains existing between herself and her husband and therefore, no reimbursement is due.
In August of 1981, the plaintiff and his wife purchased a condominium to serve as their community home. The purchase price for that property was $21,000 down plus the assumption of the vendor‘s mortgage on the property. To assist the couple in the purchase of the house, plaintiff‘s father, Dr. Nash, provided $20,500 of the $21,000 down payment. Dr. Nash wrote and tendered a check for $20,500 to Jim Spurgeon, the seller of the home.
Dr. Nash and his wife testified positively that thе money he tendered to the vendor of the condominium was a specific donation
Under these circumstances we find that the evidence was sufficient to support the finding of the trial court that the $20,500 used for the purchase of the community home was a gift by Dr. Nash to the separate estate of his son and therefore was his separate property as defined by
Defendant also argues that no reimbursement should be due because plaintiff has no obligation tо repay the money given by his father. This contention is without merit. Since we have found that plaintiff‘s separate property was used to acquire community property, plaintiff becomes entitled to reimbursement pursuant to
Defendant also argues that no reimbursement is due because by using his separate property for the down payment, plaintiff donated that down payment to the community, citing Carter v. United States, ex rel. Director of Internal Revenue, 399 F.2d 340 (5th Cir.1968), in support of this contention. In Carter, the spouses were under a separation of property regime. The issuе to be decided was whether the Internal Revenue Service could be enjoined from seizing and selling certain real property donated by the husband to the wife to satisfy federal income tax liability owed by the husband spouse. Thus, that case is so faсtually inopposite from the instant case that the findings there are of no benefit in evaluating the instant case.
We therefore agree that the funds at issue are plaintiff‘s separate property and that he is entitled to be reimbursed.
Proper Measure of Reimbursement
Defendant contends that in the event that this court should hold that the $20,500 given by Dr. Nash is plaintiff‘s separate property that the trial court erred in awarding plaintiff full reimbursement of this sum from the community. Defendant argues that under
We find defendant‘s argument to be valid. Although the trial court correctly determined that the $20,500 used in the down payment of the townhouse was the husband‘s separate property, the trial court incorrectly concluded that thе husband was entitled to full reimbursement from the community for the $20,500 used to purchase the home.
We therefore find that the trial court was in error in determining that plaintiff was entitled to full reimbursement from the community in the amount of $20,500. Pursuant to
Sums Advanced by Dr. Nash As a Community Liability
Defendant contends that the trial court erred in determining that various sums totaling $3,469.34 advanced by Dr. Nash was a community debt. Defendant argues that the various sums advanced by Dr. Nash were gifts to the community. Our review of the record supports the trial cоurt‘s factual finding that these advances were loans and that the funds at issue represented a community obligation owed to Dr. Nash.
In September of 1982, plaintiff was hospitalized due to stress problems. Plaintiff was hospitalized for approximately ten days and was released. Plaintiff suffered a relapse and was readmitted to the hospital in October of 1982 and remained hospitalized until February of 1983. During the time plaintiff was hospitalized, various bills representing community debts incurred by the couple had come duе. The couple‘s only source of income at this time was plaintiff‘s disability benefits and defendant‘s unemployment compensation.3 It appeared the parties would not be able to pay these bills, so on September 21, 1982, while plaintiff was in the hosрital, Dr. Nash went to the couple‘s house and had defendant write out checks for the outstanding balances owed on each of the couple‘s bills. Dr. Nash then reimbursed her with his check for $2,800, representing the total of these bills. Dr. Nash testified that at that time he told defendant that this advance was not a gift and that he expected to be repaid for this money.
Defendant did not deny that the money was advanced but said there was never any indication to her that this money was expected to be paid back. She denied that she knew of any arrangements or agreement to repay her former father-in-law. Defendant‘s father, who was also present at the time Dr. Nash tendered defendant the check, testified that he could not state one way or thе other whether the money advance was intended as a gift or as a loan.
In addition to the $2,800 advanced on medical bills, Dr. Nash advanced $669.34 to cover other obligations incurred by the couple. The advances made by Dr. Nash to the couple totaled $3,469.34, which the trial court found to be a community obligation.
An oral obligation to pay money above $500 in value may be proved by one credible witness and corroborating circumstances.
Considering the testimony of Dr. Nash, the circumstances surrounding the payment of the couple‘s bills, and a promissory note executed by plaintiff in the amount of $3,469.34 on April 27, 1983 as evidence of the community indebtedness to Dr. Nash, we cаnnot say that the trial court was manifestly erroneous in its factual determination in this regard.5
Therefore, in summary, we affirm the judgment of the trial court in its entirety with the exception of the specific amount of reimbursement determined to be called for by
The trial court judgment of May 24, 1985 is hereby amended to delete the second paragraph after the preamble thereof and the first paragraph after the preamble is recast as follows:
IT IS ORDERED, ADJUDGED AND DECREED that there be Judgment herein in favor of Joseph Craig Nash and against Robin Gullo Nash, decreeing that the sum of TWENTY THOUSAND FIVE HUNDRED AND NO/100 ($20,500.00) DOLLARS used for the purchase of the community home was a gift by Dr. Charles H. Nash to the separate estate of Josеph Craig Nash; and that Joseph Craig Nash is entitled to reimbursement from the community in the amount of one-half (1/2) the value the property had at the time it was used, the sum of TEN THOUSAND TWO HUNDRED AND 50/100 ($10,250.00) DOLLARS, if there are community assets from which reimbursement may be made.
In all other respects, the trial court judgment is affirmed. The costs of this appeal are apportioned equally between appellant and appellee.
AMENDED, AND AS AMENDED, AFFIRMED.