Stacy Ann Cook v. Richard William Cook, Jr.

STATE OF LOUISIANA
COURT OF APPEAL

FIRST CIRCUIT

NUMBER 2021 CA 1558

y fa STACY ANN COOK

fii) VERSUS
RICHARD WILLIAM COOK, JR.
Judgment Rendered: jut. 07 76122,

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Appealed from the
T'wenty-Second Judicial District Court
In and for the Parish of St. Tammany
State of Louisiana
Suit Number 2019-11754

Honorable Patrice W. Oppenheim, Presiding

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Zara Zeringue Counsel for Plaintiff/Appellant
Kathleen M. Legendre Stacy Ann Cook
Covington, LA
Jessica L. Karr Counsel for Defendant/Appellee
Covington, LA Richard William Cook
And
James E. Moorman, III
Covington, LA
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BEFORE: GUIDRY, HOLDRIDGE, AND CHUTZ, JJ.

GUIDRY, J.

Stacy Cook appeals from a judgment of the trial court granting Richard Cook’s
petition to revoke two June 8, 2018 donations of immovable property and declaring
those donations revoked. For the reasons that follow, we affirm.

FACTS AND PROCEDURAL HISTORY

On October 17, 2002, Richard Cook purchased immovable property located at
143 Brandywine Court in Mandeville, Louisiana. Thereafter, Richard married Stacy
Cook on August 28, 2004, and they used the Mandeville property as their marital
residence. During the marriage, Richard also acquired as his separate property
immovable property located at 705 Phlox Avenue, Metairie, Louisiana by way of
donation from his mother.

Thereafter, on June 8, 2018, Richard executed two acts of donation. The first
act donated an undivided one-half interest in the Mandeville property to Stacy in
consideration “of the affection that he has for his wife, Stacy Cook.” The second act
donated an undivided one-half interest in the Metairie property to Stacy, also in
consideration “of the affection that he has for his wife.” However, on April 2, 2019,
Stacy filed a petition for divorce pursuant to La. C.C. art. 102, alleging that the parties
physically separated on March 14, 2019.

On January 24, 2020, Richard filed an answer to Stacy’s petition, generally
denying the allegations and further raising as an affirmative defense that Stacy was at
fault in the break up of the parties’ marriage and has been guilty of cruel treatment
against him by engaging in an adulterous relationship and by denying him
psychological and physical affection. Richard also filed a reconventional demand,
requesting that divorce be granted based on La. C.C. art. 103(2), and a petition to
revoke the two inter vivos donations. Richard alleged that the property that was the
subject of the two donations was his separate property. Richard further alleged that

beginning twelve months prior to the filing of divorce, Stacy began withdrawing from

the marriage, becoming psychologically and emotionally distant without just cause,
and continuously denied Richard all forms of physical affection. Furthermore,
Richard alleged that Stacy had engaged in an adulterous relationship during the
marriage, but he did not discover her infidelity until after she had filed her petition for
divorce. Richard alleged that Stacy’s conduct caused him severe emotional distress
and constitutes psychological and emotional cruel treatment; as such, he requested
that the donations be revoked because of Stacy’s ingratitude pursuant to La. C.C. art.
1557(2).

Stacy filed another petition for divorce on April 16, 2020, stating that she and
Richard had lived separate and apart since March 14, 2019, a period of more than one
year from the date the petition was filed, and requested a judgment of divorce. The
trial court subsequently signed a default judgment granting a divorce to Stacy on July
29, 2020.

Thereafter, following a hearing on January 25, 2021, on Richard’s petition to
revoke donations, the trial court signed a judgment granting Richard’s petition and
revoking the June 8, 2018 donations of the Mandeville and Metairie property pursuant
to La. C.C. art. 1557(2). Stacy filed a motion for new trial on February 22, 2021,
arguing that the trial court’s judgment was contrary to the law and evidence, in part,
because it relied on this court’s unpublished opinion in Gorman v. Gorman, 16-0332
(La. App. Ist Cir. 1/10/17), 2017WL 123350 (unpublished opinion), writ denied, 17-
0397 (La. 4/24/17), 219 So. 3d 1098, which Stacy argued was legally and factually
misplaced. The trial court denied Stacy’s motion for new trial. Stacy now appeals
from the trial court’s judgment, asserting that the trial court erred in revoking the

donations based on adultery committed by Stacy.!

* The appeal was taken from the judgment denying the motion for new trial on the revocation
judgment. Generally, where it is clear from the appellant’s brief that the appellant intended to appeal
a judgment on the merits, along with a judgment denying a motion for new trial, an appellate court
will consider the appeal to be an appeal of the judgment on the merits even though the notice of
appeal only refers to the judgment denying the motion for new trial. In re Interdiction of Cockerton,
21-1316, p. 2 n.1 (La. App. 1st Cir. 4/8/22), _ So.3d_, nl.

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DISCUSSION

A donation inter vivos is a contract by which the donor gratuitously divests
himself, at present and irrevocably, of the thing given in favor of the donee who
accepts it. La. C.C. art. 1468. However, La. C.C. art. 1556 provides that a donation
inter vivos may be revoked because of ingratitude of the donee. Revocation of a
donation on account of ingratitude may take place only if the donee has attempted to
take the life of the donor or if the donee has been guilty towards the donor of cruel
treatment, crimes, or grievous injuries. La. C.C. art. 1557. Grievous injuries
sufficient to revoke a donation have been defined as any act or acts naturally offensive
to the donor. Gorman, 16-0332 at p. 9, 2017WL123350 at *4.2 The Jurisprudence
has held that cruel treatment or grievous injury sufficient to revoke a gratuitous
donation may include adultery by a spouse. See La. C.C. art. 1557, Comments-2008,
comment (c); see also Charles v. Charles, 20-1088, p. 4 (La. App. Ist Cir. 4/29/21),
2021 WL 1686234 *2 (unpublished opinion); Didier v. Simmons, 19-1100, p. 5 (La.
App. Ist Cir. 5/11/20), 312 So. 3d 279, 282, writ denied, 20-00700 (La. 9/29/20), 301
So. 3d 1162; Gorman, 16-0332 at p. 9, 2017WL123350 at *4; Porter v. Porter, 36,007,
p. 7 (La. App. 2nd Cir. 6/12/02), 821 So. 2d 663, 667.

The trial court’s determination as to whether a donee has committed a grievous
injury upon a donor is a factual determination, which depends heavily on the facts and

circumstances specific to the case. Charles, 20-1088 at p. 4, 2021 WL 1686234 at *2.

? Stacy argues in her brief to this court that the trial court legally erred in relying on this court’s
decision in Gorman because it is an unpublished opinion. However, in 2006, the Louisiana
legislature enacted La. C.C.P. art. 2168, which specifically provides:

A. The unpublished opinions of the supreme court and the courts of appeal shall be
posted by such courts on the Internet websites of such courts.

B. Opinions posted as required by this Article may be cited and, if cited, shall be
cited by use of the case name and number assigned by the posting court.

The Louisiana First Circuit Court of Appeal posts unpublished opinions and writ decisions on its
website, and as such, these opinions may be cited as authority. See Elee v. White, 19-1633, p. 5
(La. App. 1st Cir. 7/24/20), 2020WL4251974 *3 (unpublished opinion), writ denied, 20-01048 (La.
11/10/20), 303 So. 3d 1038. Accordingly, we find any argument that the trial court erred in relying
on Gorman because it is an unpublished opinion to be without merit.

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As such, a court of appeal may not set aside a trial court’s finding of fact in the absence
of manifest error or unless it is clearly wrong. Charles, 20-1088 at p. 4,
2021WL1686234 at *2.

At the hearing of this matter, Stacy testified that she filed for divorce on April
2, 2019, ten months following Richard’s execution of the two acts of donation. Stacy
admitted that at that time, Richard told her he did not want to be divorced and
suggested marriage counseling; however, Stacy told him there was no need for that.
(R. 119) Thereafter, on June 2, 2019, Stacy started dating H.D., who she had known
as the father of her daughter’s best friend. Stacy admitted that she and H.D. took
multiple trips out of town, beginning in late July 2019, wherein they stayed in the
same hotel room. Stacy further admitted that on one of those trips, on August 2, 2019,
she and H.D. had sexual relations. Stacy also admitted that she stayed the night at
H.D.’s home on occasion beginning in September 2019, and that she and H.D. went
on a cruise together in October 2019, sharing a cabin. Stacy stated that she became
aware on October 12, 2019, that Richard was upset about her relationship with H.D.
when Richard showed up at H.D.’s house angry and intoxicated, Richard and H.D.
had an altercation, and Richard was arrested. Stacy finally stated that a few days after
her default judgment of divorce was confirmed on J uly 29, 2020, she and H.D. signed
a lease on a rental house, where, as of the date of the trial, they resided together. Stacy
also testified she consulted with legal counsel regarding a divorce in 2017, before
Richard made the donations, but she never conveyed this information to Richard.

Richard testified that he signed the two acts of donation because he loved his
wife and he did it for Stacy and their children. Richard stated that he had no idea at
that time that Stacy was thinking about filing for divorce, and if he had known that
she had consulted with an attorney in 2017, he would not have donated his property
to Stacy. Richard stated that at the time of their separation, he did not want to be

divorced. Richard stated that he allowed Stacy and the children to live in the marital

home, and he moved into a smaller house on the property, because he loved Stacy and
wanted things to work out. Richard stated that when Stacy filed for divorce, he asked
her if they could go to marriage counseling, and she told him she didn’t need
counseling. Richard stated that he was upset and sought family counseling by himself.
According to Richard, he was in disbelief and still had hope that they would resolve
any issues they had and things would go back to the way they were. However, Richard
stated that he realized the marriage was over when he found out in August 2019 that
Stacy was seeing someone else.

From our review of the record, we find no error in the trial court’s judgment
revoking the two donations on account of ingratitude. Stacy admitted that she
engaged in a relationship with H.D. prior to any judgment of divorce being rendered,
which relationship began shortly after she filed her petition for divorce and continued
through the date of the revocation hearing. Stacy further admitted that this
relationship involved physical intimacy. Stacy and Richard also acknowledged that
Richard did not want to get divorced, that he wanted the parties to attend counseling,
and that he was upset upon learning of Stacy’s relationship with H.D. Accordingly,
the record reasonably supports a finding that the adultery by Stacy caused a grievous
injury to Richard, the donor, so as to support revocation of the two acts of donation.

CONCLUSION

For the foregoing reasons, we affirm the judgment of the trial court. All costs

of this appeal are assessed to Stacy Cook.

AFFIRMED.