Opinion
NUMBER 2022 CA 0105
11-04-2022
Connie S. LEBLANC v. Michael McKinley ELAM, The Louisiana Department of Public Safety and Corrections, and The Louisiana State Employees’ Retirement System
Robert J. Carter, Jessica C. Ledet, Greensburg, Louisiana, Attorney for Plaintiff-Appellant, Connie S. LeBlanc Charles E. Griffin, II, St. Francisville, Louisiana, Attorney for Defendant-Appellee, Michael McKinley Elam
Robert J. Carter, Jessica C. Ledet, Greensburg, Louisiana, Attorney for Plaintiff-Appellant, Connie S. LeBlanc
Charles E. Griffin, II, St. Francisville, Louisiana, Attorney for Defendant-Appellee, Michael McKinley Elam
BEFORE: WHIPPLE, C.J., GUIDRY, AND WOLFE, JJ.
WHIPPLE, C.J.
This matter is before us on appeal by plaintiff, Connie S. LeBlanc, from a judgment of the trial court declaring that the parties’ prior extrajudicial partition of community property included defendant, Michael McKinley Elam's, retirement account, and dismissing Ms. LeBlanc's petition. For the reasons that follow, we affirm.
FACTS AND PROCEDURAL HISTORY
This case has been before us in a previous appeal, LeBlanc v. Elam, 2018-0552 (La. App. 1st Cir. 11/2/18), 266 So. 3d 935, 936-37, wherein we outlined the undisputed facts:
[Ms. LeBlanc and Mr. Elam] married on January 3, 1981 and divorced on March 5, 2012. On March 30, 2012, the parties entered into an extrajudicial partition of their community property. According to the salient terms, the parties declared "that they desire to fully and finally settle and liquidate the community which formerly existed between them." They agreed to transfer all of Ms. LeBlanc's rights, title, and interest in and to "[a]ll movables currently in the possession of’ Mr. Elam. They concomitantly agreed to a transfer to Ms. LeBlanc of all Mr. Elam's rights, title, and interest in and to a house and land, all the movables currently in Ms. LeBlanc's possession, and certain specified deposits held by third parties. In addition to dividing the community assets, the parties also settled the community debts, with Mr. Elam assuming certain loans and accounts and Ms. LeBlanc assuming others, including the mortgage on the house. Lastly, the parties agreed that the agreement formed "a complete and final settlement of the community."
In the community property settlement agreement, titled "Full Settlement of Community," the parties additionally declared "that no further accounting shall be due by either party to the other for any claims arising from the marriage, including but not limited to any and all reimbursement claims related to community or separate property." The agreement does not contain any specific reference, stipulation, or reservation regarding the division of either party's retirement benefits.
On December 20, 2017, more than five years after the settlement agreement, Ms. LeBlanc filed a petition seeking a supplemental partition of retirement benefits owed to Mr. Elam as a result of his employment during the time of the marriage. In response, Mr. Elam filed a peremptory exception raising the objection of prescription, alleging that her action was prescribed pursuant to LSA-C.C. arts. 2369 and 3497. The trial court sustained Mr. Elam's exception and dismissed Ms. LeBlanc's claims. Ms. LeBlanc appealed and this court reversed, finding that this action for partition was not subject to an exception of prescription. See LeBlanc, 266 So. 3d at 938. Additionally, this court noted that the merits of Ms. LeBlanc's entitlement to the partition of Mr. Elam's retirement benefits was not before the trial court where the notice issued to the parties was solely for a hearing on the exception of prescription. LeBlanc, 266 So. 3d at 938-39.
Ms. LeBlanc also named the Louisiana Department of Public Safety and Corrections, Mr. Elam's former employer, and the Louisiana State Employees’ Retirement System as defendants in this matter. In addition to the request for partition of the retirement benefits, Ms. LeBlanc sought injunctive relief prohibiting all three defendants from alienating, encumbering, or paying out any benefits from the account.
Louisiana Civil Code article 2369 provides that a spouse's obligation to provide an accounting of the community property under his control at the termination of the community to the other spouse prescribes three years from the date of the termination of the community property regime. Louisiana Civil Code article 3497 provides that recission of a partition is subject to a liberative prescription of five years.
Upon remand to the trial court, the matter proceeded to a full trial on the merits on August 13, 2021. The trial court signed a judgment on September 2, 2021, finding that the March 30, 2021 "Full Settlement of Community" included Mr. Elam's retirement benefits, and thus, Ms. LeBlanc's lawsuit was again dismissed. Ms. LeBlanc then filed the instant appeal, averring that the trial court erred by: (1) finding that the retirement benefits were included in the settlement agreement; (2) allowing parol evidence to vary the contents of the settlement agreement; and (3) finding that a contract existed as to Mr. Elam's retirement benefits and failing to find consent of the parties to divide the retirement benefits.
DISCUSSION
Louisiana jurisprudence is clear that general divestiture language in a community property settlement agreement does not necessarily divest the non-employee spouse of his or her right in the employee spouse's retirement benefits. When the agreement does not expressly address the employee spouse's retirement benefits, the issue of whether the agreement divests the non-employee spouse of any community property rights in the retirement benefits depends on the intent of the parties. Jennings v. Turner, 2001-0631 (La. 11/28/01), 803 So. 2d 963, 964, citing Robinson v. Robinson, 99-3097 (La. 1/17/01), 778 So. 2d 1105, 1121.
The issue of whether a retirement benefit was considered in property settlement discussions is a question of fact, with the fact finder afforded much discretion. See Jennings, 803 So. 2d at 964, citing Robinson, 778 So. 2d at 1119. The general rule of appellate review is that the fact finder is in the best posture to decide the factual issues. Thus, the fact finder's decision is entitled to great deference and will be reversed only if it is manifestly erroneous or clearly wrong. Faucheux v. Faucheux, 97-1369 (La. App. 4th Cir. 1/28/98), 706 So. 2d 654, writ denied, 98-0482 (La. 4/9/98), 717 So. 2d 1146. If there is a conflict in testimony, reasonable evaluations of credibility and reasonable inferences of fact should not be disturbed. Rosell v. ESCO, 549 So. 2d 840, 844 (La. 1989).
Although parol evidence is generally not admissible to vary or contradict the terms of an authentic act, in the interest of justice, it may be admitted under certain circumstances. Day v. Day, 2002-0431 (La. App. 1st Cir. 5/28/03), 858 So. 2d 483, 487, writ denied, 2003-1845 (La. 11/7/03), 857 So. 2d 492. For example, when the terms of a written contract are susceptible to more than one interpretation, there is uncertainty or ambiguity as to its provisions, or the intent of the parties cannot be ascertained from the language employed, parol evidence is admissible to clarify the ambiguity and to show the intention of the parties. McCarroll v. McCarroll, 96-2700 (La. 10/21/97), 701 So. 2d 1280, 1286. Additionally, any ambiguity in the settlement agreement is generally construed against the party who drafted the document, who, in this case, was Ms. LeBlanc, through her attorney. See Robinson, 778 So. 2d at 1120.
The central issue in this appeal is whether at the time of their community property settlement, the parties contemplated that Mr. Elam would keep the retirement benefits, an incorporeal movable, that he earned during the marriage. See Peters v. Haley, 99-0866 (La. App. 1st Cir. 5/12/00), 762 So. 2d 695, 699, writ denied, 2000-1513 (La. 6/30/00), 766 So. 2d 547 ("Retirement benefits are incorporeal movable property."). The parties do not dispute that the language of the settlement agreement does not explicitly address the partition of Mr. Elam's retirement benefits. Ms. LeBlanc argues that silence as to the division of retirement benefits is not equivalent to a waiver of her ownership rights. Conversely, Mr. Elam maintains that the silence creates an ambiguity in the settlement agreement, which allowed the trial court to consider parol evidence to interpret the partition intended by the parties. Mr. Elam further contends that the parties intended for the settlement to be complete and his retirement benefits are the only asset he received.
We agree with Mr. Elam that the terms of the settlement agreement in this case are unclear and ambiguous, thus warranting the use of parol evidence in this case to clarify the ambiguity and to show the intention of the parties. McCarroll, 701 So. 2d at 1286. In McCarroll, 701 So. 2d at 1282, 1286, parol evidence was allowed to clarify an ambiguity in an authentic act to determine whether retirement benefits were contemplated by the parties when the act stated that the ex-husband would keep "[a]ny and all movable property in [his] name... or in his possession." The language of the settlement agreement between Ms. LeBlanc and Mr. Elam, which references "[a]ll movables currently in the possession of" Mr. Elam, is very similar. Thus, the use of parol evidence was necessary and properly admitted to determine whether his retirement benefits are included in the movables possessed by Mr. Elam, as well as whether Ms. LeBlanc was entitled to half of those retirement benefits.
Each spouse owns a present undivided one-half interest in the community during its existence. LSA-C.C. art. 2336. To the extent that a property right derives from the spouse's employment during the existence of the marriage, it is a community asset subject to division upon dissolution of the marriage. See LSA-C.C, art. 2338 ; Sims v. Sims, 358 So. 2d 919, 924 (La. 1978). Consequently, when the community is terminated, each spouse becomes a fully vested co-owner in indivision of all property of the former community regime, including retirement benefits acquired during the community. Robinson, 778 So 2d at 1115.
The record in this matter reveals that both parties in this case ultimately acknowledged that Mr. Elam's retirement benefits were openly discussed before they each signed the community property settlement agreement. At trial , Ms. LeBlanc testified that during the negotiation process, the parties discussed Mr. Elam's retirement benefits, but claimed they could not come to an agreement as to how they should be partitioned. She further testified that she "never" agreed that Mr. Elam would keep his retirement benefits in the partition. However, at a previous hearing on an exception of prescription, Ms. LeBlanc testified that the parties had reached an agreement and that she told Mr. Elam she would sign over all rights to his retirement account if he continued to pay for a life insurance policy, which she claimed he later failed to pay. With regard to the parties’ intent, and her subsequent reliance on the absence of a reference to this specific account as proof of their intent and her right to seek a share of his retirement account, Ms. LeBlanc conceded that although their vehicles were not expressly listed in the partition agreement, they each kept their vehicles and she considered them to be "movables" within the meaning of the agreement. Thus, her testimony regarding the parties’ intent was inconsistent.
The transcript of the earlier hearing on prescription was entered into evidence at trial for the limited purpose of impeaching Ms. LeBlanc's trial testimony.
Mr. Elam testified that they both intended for him to keep his retirement benefits because Ms. LeBlanc was keeping the house and the property. In response to questioning by counsel and the trial court, Mr. Elam steadfastly maintained that "the only thing" he "got out" of the partition agreement was his portion of the debt, his automobile, and his retirement account, and that he would not have signed the agreement if he was not allowed to keep his entire retirement account. Mr. Elam also stated that he and Ms. LeBlanc did not have an agreement in place about his continuing to pay a life insurance policy as a contingency to his receiving his retirement account benefits. With regard to the partition agreement, Mr. Elam noted that he has never attempted to make a claim for Ms. LeBlanc's social security benefits, which likewise were not specifically listed, but which they recognized were to be hers.
It is clear that after considering all of the evidence and the conflicting testimony at trial, the trial court was called on to make a credibility determination, which it did, finding Mr. Elam's testimony to be more credible than Ms. LeBlanc's. Where findings are based on determinations regarding the credibility of witnesses, the manifest error standard demands great deference to the trial court's findings of fact. Indeed, where the fact finder's determination is based on its decision to credit the testimony of one of two or more witnesses, that finding can virtually never be manifestly erroneous. Manchester v. ANPAC Louisiana Ins. Co., 2018-1379 (La. App. 1st Cir. 5/31/19), 278 So. 3d 993, 997. Additionally, as demonstrated in Louisiana jurisprudence, in cases where both spouses were aware of and discussed the retirement benefits prior to confecting their community property settlements, courts have reached the conclusion that the parties intended for the agreement to settle all community property, including the benefits which were not specifically addressed in the document. See Day, 858 So. 2d at 491-92.
Considering the relevant jurisprudence and the trial court's finding of fact as a critical factor, we find no error in the trial court's conclusion that in confecting the settlement agreement, Ms. LeBlanc waived her rights to receive a portion of Mr. Elam's retirement benefits. This finding is reasonably supported by the record and is not manifestly erroneous. Moreover, we will not disturb the findings of the trial court as the fact finder, who listened to the testimony of all of the witnesses and has vast discretion in determining the weight and credibility of each witness. See Wahlborg v. Wahlborg, 2007-0157 (La. App. 1st Cir. 12/21/07), 2007 WL 4465780, *2 (unpublished ), writ denied, 2008-0154 (La. 3/14/08), 977 So. 2d 934.
Moreover, as succinctly stated in this court's earlier opinion as to whether Ms. LeBlanc's claim was prescribed, albeit in dicta, there is no merit to Ms. LeBlanc's claim for partition of the retirement account. As noted therein:
[T]he trial court implicitly applied ... testimony by Ms. LeBlanc to find that during the negotiation process, the parties were aware of Ms. LeBlanc's interest in the retirement benefits, and they intended the provisions of the extrajudicial partition by which the parties agreed to a transfer of all Ms. LeBlanc's rights, title, and interest in and to "[a]ll movables currently in the possession of" Mr. Elam to include Ms. LeBlanc's interest in the retirement benefits. Thus, given this reasonable factual basis, the trial court's conclusion was not manifestly erroneous, and aside from the defendant's use of the improper procedural vehicle of an exception of prescription, there is no merit in Ms. LeBlanc's claim for partition.
LeBlanc, 266 So. 3d at 938, n. 3.
CONCLUSION
For the above and foregoing reasons, we affirm the trial court's September 2, 2021 judgment finding that Mr. Elam's retirement benefits were included in the March 30, 2012 full settlement of the community, and dismissing Ms. LeBlanc's lawsuit. Costs of this appeal are assessed to the plaintiff/appellant, Connie S. LeBlanc.
AFFIRMED.
Wolfe, J., concurs in part and dissents in part, with reasons.
WOLFE, J., concurring in part and dissenting in part.
I respectfully concur in part and dissent in part from the majority decision, as I would reverse the trial court's judgment finding that the retirement benefits were included in the partition. I concur with the conclusion by the majority that the parties’ extrajudicial partition agreement is ambiguous, thus warranting the use of parole evidence to clarify the ambiguity and to show the intention of the parties. See McCarroll v. McCarroll, 96-2700 (La. 10/21/97), 701 So.2d 1280, 1286. However, I dissent from the majority's ultimate conclusion that the parties’ partition included Mr. Elam's retirement account and, therefore, I would reverse the dismissal of Ms. LeBlanc's petition seeking a supplemental partition of retirement benefits owed to Mr. Elam as a result of his employment during the time of the marriage.
The record reveals that both parties in this case acknowledged that Mr. Elam's retirement benefits were openly discussed before they each signed the community property settlement agreement. The parties’ adult sons also testified at the first hearing (regarding the prescription issue) that those discussions took place. However, there is a direct conflict in testimony about the parties’ expectations surrounding the retirement benefits. Mr. Elam testified that they both intended for him to keep his retirement benefits because Ms. LeBlanc was keeping the house and the property. Ms. LeBlanc testified that she did not believe she was waiving her rights to the retirement benefits. Ms. LeBlanc was challenged with the reminder of her testimony in the first hearing where she stated that the parties had a separate verbal agreement that Mr. Elam would pay for a life insurance policy and she would give up her rights to Mr. Elam's retirement benefits. Both parties acknowledged that the settlement agreement did not contain the terms "retirement benefits" or "life insurance policy." Confronted with this conflicting testimony, the trial court made a credibility determination and found that the retirement benefits were part of the assets retained by Mr. Elam who gave up his right to the house and property.
This finding of fact is critical, and it is where I believe the trial court manifestly erred in concluding that in confecting the settlement agreement, Ms. LeBlanc knowingly waived her rights to receive a portion of Mr. Elam's retirement benefits. This finding is not reasonably supported by the record. The law is clear that where there is no transfer of rights in the partition document, an asset remains owned in indivision by the parties. Mire v. Mire, 2006-511 (La. App. 3d Cir. 9/27/06), 962 So.2d 1, 3. Furthermore, the fact that Ms. LeBlanc's attorney drafted the settlement agreement or that it contains language that the agreement formed "a complete and final settlement of the community," does not alter reality - that, at all times Ms. LeBlanc owned a one-half interest in Mr. Elam's retirement account which, for whatever reason, remained unpartitioned in the settlement agreement. See Holmes v. Willett, 2000-00791 (La. App. 3d Cir. 11/2/00), 773 So.2d 204, 207, writ denied, 2001-0291 (La. 3/23/01), 787 So.2d 999. Courts have consistently allowed supplemental partitions of omitted assets when the facts and intent of the parties warrant it. Mire, 962 So.2d at 3. Accordingly, I would reverse the September 2, 2021 judgment dismissing Ms. LeBlanc's lawsuit, and remand the case for further proceedings.