Mary C. Vinet Versus Russell M. Vinet

MARY C. VINET NO. 20-CA-387

VERSUS FIFTH CIRCUIT

RUSSELL M. VINET COURT OF APPEAL

STATE OF LOUISIANA

ON APPEAL FROM THE TWENTY-FOURTH JUDICIAL DISTRICT COURT
PARISH OF JEFFERSON, STATE OF LOUISIANA
NO. 784-683, DIVISION "E"
HONORABLE FRANK A. BRINDISI, JUDGE PRESIDING

April 14, 2021

ROBERT A. CHAISSON
JUDGE

Panel composed of Judges Marc E. Johnson,
Robert A. Chaisson, and Stephen J. Windhorst

JUDGMENT AMENDED; AFFIRMED AS AMENDED
RAC
MEJ
SJW

COUNSEL FOR PLAINTIFF/APPELLEE,
MARY C. VINET
Jennifer C. Carter

COUNSEL FOR DEFENDANT/APPELLANT,
RUSSELL M. VINET
Gary S. Brown

CHAISSON, J.

In this community property partition, Russell Vinet appeals a judgment of

the trial court that accepted the recommendation of the hearing officer to grant

Mary Vinet a reimbursement claim of one half of $91,695.01 for her separate funds

used to purchase the community home. Ms. Vinet has also filed an answer to the

appeal wherein she asserts that the trial court legally erred by adopting the

recommendations of the hearing officer in toto, contrary to stipulations made by

the parties following the issuance of the hearing officer’s recommendations. For

the following reasons, we amend the judgment of the trial court and affirm the

judgment as amended.

FACTS AND PROCEDURAL HISTORY

Mr. Vinet and Ms. Vinet were married on October 16, 2009, separated in

May of 2018, and divorced on December 6, 2019. No antenuptual agreement was

signed, and it is uncontested that they were subject to the legal regime of

community of acquets and gains. On November 13, 2017, the parties purchased a

property at 8108 Ferrara Drive in Harahan, Louisiana for $355,000.00. At the time

of the parties’ separation, Ms. Vinet was granted interim use and occupancy of the

property, which continued through the date of the trial court’s final judgment.

Following the termination of the matrimonial regime, Mr. Vinet and Ms.

Vinet disagreed over the partition of the community. Pursuant to the procedure set

forth in La. R.S. 9:2801, each party submitted a sworn descriptive list of all

community property and all community liabilities. The parties concurred on the

valuation of most of the assets and liabilities but traversed others, including the

value of the home, the value of the rental reimbursement rate owed by Ms. Vinet as

offset for her exclusive use of the home, and the entitlement to and value of a

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reimbursement claimed by both Ms. Vinet and Mr. Vinet for approximately

$91,695.01 in funds used as a down payment for the home.

After a hearing on the matter, the hearing officer itemized and allocated the

community assets and liabilities and recognized some claims for reimbursement.

The parties stipulated to the values and allocation of most of the assets and

liabilities. In accordance with La. C.C. art. 3071, these stipulations were made a

Consent Judgment of the court. Both parties acknowledged that they could not

object to or appeal these stipulations.

In addition to the stipulations, the hearing officer also made the following

key recommendations: that the property, a community asset, valued at

$355,000.00 (its purchase price) should be allocated to Ms. Vinet; that Mr. Vinet

was entitled to a reimbursement for Ms. Vinet’s use of the community home set at

one half of $2,200.00 per month; and that Ms. Vinet is entitled to a reimbursement

for use of $91,695.01 of her separate funds as the down payment to purchase the

property.1 Following the entire accounting, the hearing officer found that Ms.

Vinet owed Mr. Vinet a cash equalizing sum of $44,432.81. These

recommendations were made the Interim Judgment of the Court.

Both parties filed objections to the hearing officer’s recommendations. Mr.

Vinet objected to the hearing officer’s setting the value of the home at $355,000.00

instead of the value set by his appraiser of $370,000.00, and similarly objected to

the setting of the market rate for rental reimbursement at $2,200.00 per month

instead of $2,400.00 per month. Most notably, Mr. Vinet objected to the decision

of the hearing officer to allow Ms. Vinet a reimbursement for the use of

$91,695.01 of her separate funds for the down payment of the family home. Mr.

1
In the hearing officer’s calculations, Ms. Vinet was awarded one half of the $91,695.01 reimbursement
claim. As discussed below, pursuant to La. C.C. art. 2367, the spouse whose separate property was used
for the acquisition of community property is entitled to reimbursement from the other spouse for one half
of the amount or value that the separate property had at the time it was used.

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Vinet argued that these funds were donated to him and became his separate funds,

which he then used as the down payment for the home, entitling him to the

reimbursement claim in that amount.

Ms. Vinet also objected to the recommendations of the hearing officer. She

disputed the values for the home and the rental value assigned by the hearing

officer, arguing that her appraiser had assigned lower values to both. She also

objected to the valuation of her retirement account, stating that it did not reflect a

true cash value. Further, she objected to the allowance of a reimbursement claim

to Mr. Vinet for payments made on credit cards subsequent to the date of

termination of the community property regime. Finally, she objected to the failure

of the hearing officer to give her a full reimbursement of $94,000.00, contending

that was the amount she transferred from her separate account to the community

account to facilitate the purchase of the home.

The parties submitted the matter to the trial court on the briefs and evidence

previously admitted at the hearing officer conference. At the time of submission,

the parties had stipulated that the home should be valued at $320,000.00, the rental

reimbursement rate should be set at $2,000.00 per month, resulting in a total rental

reimbursement claim in Mr. Vinet’s favor in the sum of $50,000.00, and that, due

to additional mortgage payments made, the mortgage reimbursement claim in favor

of Ms. Vinet resulted in a total mortgage reimbursement claim of $43,407.64.

On September 8, 2020, the trial court rendered judgment dismissing both

parties’ objections and made the recommendations of the hearing officer the

judgment of the Court.

Mr. Vinet appeals the judgment of the trial court, raising multiple

assignments of error that all concern the trial court’s allowance of Ms. Vinet a

reimbursement for the separate funds used as the down payment on the home. Ms.

Vinet filed an answer to the appeal wherein she contends that the trial court erred

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in failing to use the value for the home, the figures for Mr. Vinet’s rental

reimbursement claim, and the figures for Ms. Vinet’s mortgage payment

reimbursement claim that the parties stipulated to prior to the submission of the

case to the trial court. She also raises as error her previous objections concerning

the valuation of her retirement account, Mr. Vinet’s reimbursement for credit card

payments made subsequent to termination of the community property regime, and

the failure to provide her with a full reimbursement of $94,000.00 for the down

payment funds.

DISCUSSION

The trial court has broad discretion in adjudicating issues raised by divorce

and partition of the community regime. Vedros v. Vedros, 16-735 (La. App. 5 Cir.

10/25/17), 229 So.3d 677, 680, writ denied, 17-2119 (La. 2/23/18), 237 So.3d

1185, and writ denied, 18-004 (La. 2/23/18), 237 So.3d 520. The trial court is

afforded a great deal of latitude in arriving at an equitable distribution of the assets

between the spouses. Id. The trial court’s allocation or assignment of assets and

liabilities in the partition of the community property is reviewed under the abuse of

discretion standard. Id. In addition, whether a reimbursement claim is allowed is a

finding of fact which is reviewable under the manifest error standard. Id.

Regarding the parties’ assignments of error relating to the claim for

reimbursement for the funds used towards the down payment of the home, the

following facts are undisputed: at the time the Vinets decided to purchase the

home, they agreed that, in order to obtain better terms from their lender, Mr. Vinet

would be the sole signatory on the promissory note for the loan, while Ms. Vinet

would provide funds from the sale of her previous home to be used as a down

payment for the purchase of the new home. In multiple increments, Ms. Vinet

transferred $94,000.00 of her separate funds into the couple’s joint Capital One

checking account. Once the precise amount of the down payment was calculated,

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$91,695.01 of those funds were withdrawn from the joint checking account in the

form of a Capital One cashier’s check dated November 13, 2017. This check was

made out and tendered to the title company for the closing, TitleSource, LLC, and

contained the notation “RE: Mary and Russell Vinet.” In accordance with the

bank’s lending requirements, Ms. Vinet also signed a “gift letter,” dated

November 6, 2017, which stated that Ms. Vinet certified that she had given

$110,000.00 to Mr. Vinet to be applied toward the purchase of the home. This gift

letter was signed only by Mr. Vinet and Ms. Vinet. Both Mr. Vinet and Ms. Vinet

signed the mortgage and title documents for the home.

La. C.C. art. 2367 allows for a spouse to claim a reimbursement for one-half

the value of any separate property used during the existence of the community

property regime for the acquisition of community property. Mr. Vinet argued to

the trial court that the gift of funds to him meant that the down payment funds were

his separate property and that he was therefore entitled to claim the reimbursement.

He asserted that the gift letter is evidence of Ms. Vinet’s intent to donate the funds

to him, and that the transfer of funds to him was completed when she deposited the

money in the couple’s joint checking account and signed the gift letter, or when the

funds were withdrawn in the form of a cashier’s check that Mr. Vinet used to

purchase the home. To the contrary, Ms. Vinet argued to the trial court that she

never intended to make a gift of the funds to Mr. Vinet and that the funds were

meant solely to be used for the down payment on the family home. In its written

reasons for judgment accepting the recommendations of the hearing officer to

allow Ms. Vinet to claim a reimbursement for the use of the funds, the trial court

found Ms. Vinet’s testimony regarding her intent in transferring the funds to be

credible.

An inter vivos donation is a contract by which a person, called the donor,

gratuitously divests himself, at present and irrevocably, of the thing given in favor

20-CA-387 5

of another, called the donee, who accepts it. La. C.C. art. 1468. A donation inter

vivos must be made by authentic act unless otherwise expressly permitted by law.

La. C.C. art. 1541. The donation inter vivos of a corporeal movable may be made

by delivery of the thing to the donee without any other formality. La. C.C. art.

1543. In order for the donation to be valid, there must be a divestment

accompanied by donative intent. In re Succession of O’Krepki, 16-50 (La. App. 5

Cir. 5/26/16), 193 So.3d 574, 579, writ denied, 16-1202 (La. 10/10/16), 207 So.3d

406. The burden of proving the donation is on the donee, and this proof must be

strong and convincing. Id. at 580. When the donor’s will to give and the donee’s

actual possession of the movable property operate simultaneously, there is

sufficient delivery to constitute a valid manual donation inter vivos. In re

Succession of Hunt, 47,372 (La. App. 2 Cir. 9/20/12), 135 So.3d 654, 658. For the

purposes of a donation inter vivos, delivery is defined as relinquishing control or

dominion over property and placing it within the dominion of the donee,

irrevocably. Dastugue v. Fernan, 95-394 (La. App. 5 Cir. 10/18/95), 662 So.2d

538, 541. Funds deposited into a joint bank account remain the property of their

original owner absent an authentic act of donation. O’Krepki, 193 So.3d at 580.

The right of withdrawal, or having one’s name listed on the account, is not

tantamount to ownership of the funds therein. Id.

It is undisputed that the gift letter was not signed before a notary and two

witnesses, and therefore, not an authentic act as required under Louisiana law. A

review of the undisputed facts before us indicate that, regardless of Ms. Vinet’s

actual intent, there is no evidence of a completed manual delivery of Ms. Vinet’s

separate funds to Mr. Vinet. The mere act of placing them in the joint checking

account did not effect a donation to Mr. Vinet because Ms. Vinet could have

withdrawn them at any time. Additionally, the withdrawal of the funds in the form

of a cashier’s check made payable to TitleSource, LLC did not result in a manual

20-CA-387 6

transfer of the funds to Mr. Vinet. Mr. Vinet never had complete, irrevocable

control over the funds, and therefore there was no completed inter vivos gift.

Mr. Vinet argues, in the alternative, that Ms. Vinet made a gift of her

separate funds to the community, and therefore, under La. C.C. art. 2343.1, the

funds used to purchase the home were community funds and neither party should

enjoy the benefit of a reimbursement claim for their use.

La. C.C. art. 2343.1 states:

The transfer by a spouse to the other spouse of a thing forming part of
his separate property, with the stipulation that it shall be part of the
community, transforms the thing into community property. As to both
movables and immovables, a transfer by onerous title must be made in
writing and a transfer by gratuitous title must be made by authentic
act.

The language of this article is clear that gratuitous transfers must be made by

authentic act. As noted above, no authentic act accompanied Ms. Vinet’s transfer

of the funds in this instance. We find therefore that this article does not apply, and

Mr. Vinet’s argument is without merit. Having found that there was no donation

of Ms. Vinet’s separate funds to either Mr. Vinet or to the community, we further

conclude that the trial court did not manifestly err in allowing Ms. Vinet a

reimbursement claim for the use of her separate funds for the down payment for

the purchase of the family home, a community asset, pursuant to La. C.C. art.

2367.

The final matter concerning the reimbursement claim for the down payment

is raised by Ms. Vinet in her answer to the appeal. She argues that the trial court

erred in awarding her reimbursement of only one half of $91,695.01, rather than

the $94,000.00 that the bank statements show she deposited into the joint checking

account. In support of this argument, Ms. Vinet cites Talbot v. Talbot, 03-0814

(La. 12/12/03), 864 So.2d 590 for the proposition that, once a party shows that

20-CA-387 7

separate funds are deposited into a community account then the burden shifts to the

other party to show that the community did not use those funds.

Ms. Vinet’s reliance on Talbot is misplaced in this instance. The burden of

proof is on the party making a reimbursement claim. Ponson v. Ponson, 17-469

(La. App. 5 Cir. 3/14/18), 241 So.3d 1213, 1223. The cashier’s check is sufficient

proof to show that $91,695.01 of Ms. Vinet’s separate funds were used towards the

down payment on the community home, thus entitling her to a reimbursement

claim in that amount under La. C.C. art. 2367. The evidence provided by Ms.

Vinet of the funds’ deposit into the joint checking account does not prove that the

remaining $2,304.99 was used to purchase the community home or some other

purpose which would allow for reimbursement under La. C.C. art. 2367.

Additionally, Ms. Vinet stipulated before the hearing officer that the

$5,617.93 remaining in the Capital One joint account at the time of termination of

the community regime, an amount which may or may not have included some of

these separate funds, was a community asset. Accordingly, we find this argument

to be without merit and conclude that the trial court did not manifestly err in

valuing Ms. Vinet’s reimbursement claim for the down payment on the family

home at one half of $91,695.01.

Ms. Vinet also raises in her answer to the appeal that the trial court erred in

accepting the valuations of the hearing officer regarding her retirement account,

which failed to take into account the present cash value of that account and in

allowing Mr. Vinet to claim a reimbursement for payments made on community

credit cards subsequent to the termination of the community regime. At the time of

the hearing officer conference, Ms. Vinet stipulated to the value of her retirement

account and to the value of Mr. Vinet’s claim for reimbursement for credit card

payments. These stipulations were made a Consent Judgment of the court signed

by Ms. Vinet wherein she acknowledged that no objection or appeal could be

20-CA-387 8

raised from said stipulations. Accordingly, we find these assignments of error

raised by Ms. Vinet in her answer to the appeal to be without merit.

Finally, Ms. Vinet argues in her answer to the appeal that the trial court

erred by adopting the recommendations of the hearing officer regarding the home

value, the rental reimbursement figure, and the mortgage reimbursement figure,

despite the subsequent stipulations that adjusted those values by agreement of the

parties prior to submission of the objections to the trial court. Specifically, the

parties stipulated that the value of the home was $320,000.00, the rental value of

the home was $2,000.00 per month, resulting in a $50,000.00 rental reimbursement

claim in Mr. Vinet’s favor, and that additional mortgage payments made by Ms.

Vinet resulted in a mortgage reimbursement claim in her favor in the amount of

$43,407.64. Each of these figures are different than the figures used by the hearing

officer in his calculations and subsequently adopted by the trial court.

Stipulations have the effect of judicial confessions. Norman v. Norman, 99-

2750 (La. App. 4 Cir. 7/12/00), 775 So.2d 18. Stipulations become the law of the

case and are binding on the trial court when not in derogation of the law. Id. In his

appellate brief, Mr. Vinet acknowledges that the trial court was bound to accept the

parties’ stipulations regarding these values. Accordingly, we find that the trial

court erred in failing to accept the parties’ stipulations, and hold that the judgment

must be amended to take into account these stipulated values.

Applying the stipulated value of $320,000 to the home results in a decreased

net community estate of $109,477.50, to which each party is entitled to one-half, or

$54,738.75. Based upon the negative allocation of $7,651.11 in debt to Mr. Vinet,

Ms. Vinet would owe to Mr. Vinet, before consideration of reimbursement claims,

the equalizing sum of $62,389.86.

20-CA-387 9

Applying the stipulated figure of $43,407.64 in mortgage reimbursements to

Ms. Vinet’s reimbursement claims results in an increase in total reimbursements

owed to her of $146,798.85, of which Mr. Vinet owes her one-half, or $73,399.42.

Applying the stipulated figure of $50,000.00 in rental reimbursements to Mr.

Vinet’s reimbursement claims results in an increase in total reimbursements owed

to him of $74,942.60, of which Ms. Vinet owes him one-half, or $37,471.30. This

results in net reimbursements owed by Mr. Vinet to Ms. Vinet in the sum of

$35,928.12. Subtracting this net reimbursement owed by Mr. Vinet to Ms. Vinet

from the equalizing payment owed by Ms. Vinet to Mr. Vinet for allocation of

assets and liabilities ($62,389.86 - $35,928.12), results in a net equalizing payment

owed by Ms. Vinet to Mr. Vinet in the sum of $26,461.74.

CONCLUSION

Accordingly, the judgment of the trial court is amended to provide that Ms.

Vinet owes an equalizing payment to Mr. Vinet in the amount of $26,461.74. In

all other respects, the judgment of the trial court is affirmed.

JUDGMENT AMENDED;
AFFIRMED AS AMENDED

20-CA-387 10

SUSAN M. CHEHARDY CURTIS B. PURSELL

CHIEF JUDGE CLERK OF COURT

NANCY F. VEGA
FREDERICKA H. WICKER
CHIEF DEPUTY CLERK
JUDE G. GRAVOIS
MARC E. JOHNSON
ROBERT A. CHAISSON SUSAN BUCHHOLZ
STEPHEN J. WINDHORST
FIRST DEPUTY CLERK
HANS J. LILJEBERG
JOHN J. MOLAISON, JR. FIFTH CIRCUIT
MELISSA C. LEDET
JUDGES 101 DERBIGNY STREET (70053)
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GRETNA, LOUISIANA 70054 (504) 376-1400

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NOTICE OF JUDGMENT AND CERTIFICATE OF DELIVERY
I CERTIFY THAT A COPY OF THE OPINION IN THE BELOW-NUMBERED MATTER HAS BEEN DELIVERED
IN ACCORDANCE WITH UNIFORM RULES - COURT OF APPEAL, RULE 2-16.4 AND 2-16.5 THIS DAY
APRIL 14, 2021 TO THE TRIAL JUDGE, CLERK OF COURT, COUNSEL OF RECORD AND ALL PARTIES NOT
REPRESENTED BY COUNSEL, AS LISTED BELOW:

20-CA-387
E-NOTIFIED
24TH JUDICIAL DISTRICT COURT (CLERK)
HONORABLE FRANK A. BRINDISI (DISTRICT JUDGE)
JENNIFER C. CARTER (APPELLEE) GARY S. BROWN (APPELLANT)

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