Ioana Baltag Cosman v. Radu Cosman

STATE OF LOUISIANA

COURT OF APPEAL

FIRST CIRCUIT

NO. 2022 CA 0694

IOANA BALTAG COSMAN

VERSUS

RADU COSMAN

1 Judgment Rendered: ` JAN 10 2023

Appealed from
The Family Court
In and for the Parish of East Baton Rouge
State of Louisiana
Case No. F216757

The Honorable Charlene Charlet Day, Judge Presiding

Vincent A. Saffiotti Counsel for Plaintiff/Appellee
Natalie C. Neale Ioana Baltag Cosman
Baton Rouge, Louisiana

Mary Katherine " Katie" Shoenfelt Counsel for Defendant/Appellant
Baton Rouge, Louisiana Radu Cosman

Carmen T. Hebert
Gonzales, Louisiana

BEFORE: WELCH, PENZATO, AND LANIER, JJ.
u

LANIER, J.

This appeal concerns the trial court' s judgment in a community property
partition. For the reasons that follow, we affirm.

PERTINENT FACTS AND RULING OF THE LOWER COURT

Ioana and Radu Cosman met in Romania in 1998 and began a romantic

relationship. Mr. Cosman moved to the United States in 1999, leaving Ms.

Cosman behind in Romania. However, the parties maintained contact, with Mr.

Cosman visiting Ms. Cosman twice a year in Romania. When Mr. Cosman arrived

in Louisiana in 1999, he started doing stucco work under the tradename Stucco

Design. Ms. Cosman moved to the United States in 2001 and began living with

Mr. Cosman. They were married on November 26, 2005. Just four days prior to

their marriage, at the request ofMr. Cosman, the parties entered into a " Marriage

Contract" that stated, in pertinent part, as follows:

I.

All property and effects of the said appearers, owned by him or
her at the time of the celebration of said intended marriage, are hereby
declared to be separate property, and that of the wife, separate and
paraphernal property, andthey and each of them do hereby expressly
reserve to themselves individually the entire administration of their
respective p articular movable or immovable property owned by them
at the time of the marriage and the respective free enjoyment of each
of their revenues.

II.
All of the earnings, interest, fruits, revenues and products of the
separate property of each spouse, whether such property is now
owned or is hereafter acquired, shall belong to the separate estate of
the spouse from which same was derived and shall not form a part of
the community of acquets and gains which will otherwise exist
between the parties.

According to the record, Mr. Cosman continued to do stucco work as a self-

employed, sole proprietor doing business as Stucco Design. Mr. Cosman formed

Stucco Design, LLC with the Secretary of State on February 22, 2009, four years

after the parties' marriage.

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Ms. Cosman filed for divorce in March 2019, requesting a divorce pursuant

to La. Civ. Code article 102 as well as a determination of other incidental matters.

Subsequently, in May 2019, Ms. Cosman filed a petition for partition of

community assets. Theparties filed several preliminary detailed descriptive lists.

Mr. Cosman listed Stucco Design, LLC as his separate asset " existingprior to date

of the marriage." Ms. Cosman listed the business as " presumed community" and

established during the marriage."

The trial on the traversal of the classification of Stucco Design, LLC and

eight immovable properties purchased during the marriage took place over a span

of six days. After hearing testimony and considering the documentary evidence

introduced by the parties, the trial court took the matter under advisement.

Thereafter, on January 26, 2021, the trial court issued written reasons for

judgment, finding that Stucco Design, LLC and the eight pieces of immovable

property at issue were all community property. A judgment in accordance with

these findings was signed on March 2, 2021.

Thereafter, on June 14, 2021, the p arties filed a joint detailed descriptive list.

The community property partition trial was held over a period of five days, before

which the parties entered into numerous stipulations as to the classification and

valuation regarding many ofthe parties' assets. The primary issue remaining for

the trial court to decide was the valuation of Stucco Design, LLC.

After hearing from the p arties' respective exp erts regarding the valuation of

the company, and considering all of the documentary evidence that was introduced,

the trial court adopted the calculations made by Ms. Cosman' s expert, Jason

MacMorran, including the allocation for Mr. Cosman' s personal goodwill, and set

the value for Stucco Design, LLC at $ 3, 875, 000. 00. The trial court issued

extensive reasons for judgment on December 1, 2021, and a judgment in

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accordance with those findings was signed on February 14, 2022. 1 This appeal by

Mr. Cosman followed.

ASSIGNMENTS OF ERROR

1. The trial court erred when it interpreted a marriage contract to only
reserve the "fruits" of the p arties' sep arate property, when the contract
reserved " the free enjoyment of each of their revenues,["] and " all

earnings, interest, fruits, revenues and products of the separate
property of each spouse, whether such separate property is now
owned or hereafter acquired."

2. The trial court erred in ruling that Radu Cosman did not acquire the
membership interest of the LLC through real subrogation of his
separate tangible and intangible assets that he had reserved under the
marriage contract.

3. The trial court erred in classifying the membership interest [ in] the
LLC as a community asset acquired through contribution of
community assets when I) no community assets were contributed to
the LLC, and 2) the court disregarded the contribution of intangible
assets used by the LLC on its formation.

4. The trial court erred in refusing to admit evidence of the value of
Radu' s separate assets contributed in exchange for the membership
interest in the LLC.

5. The trial court erred in classifying eight immovable properties as
community assets when those assets were purchased by Radu Cosman
as his separate property and paid for with civil fruits of his separate
assets, which had been reserved under the marriage contract.

6. The trial court erred in awarding the funds in LLC -awned bank
accounts to the parties individually.

7. The trial court erred in refusing to admit the 2011- 2014 federal tax
returns for the LLC when the tax returns showed that all money in the
LLC bank accounts were revenues and earnings of the company.

8. The trial court erred in refusing to admit evidence establishing
community tax liabilities for tax years 2018, 2019, and 2020, and
refusing to allocate the liabilities, when the issue was raised multiple
times before and during trial, and the evidence was presented before
all parties rested.

9. The trial court erred in accepting [ Mr.] MacMorran' s valuation of
the membership interest ofthe LLC, which was not based on reliable
data, including in its value immovable properties and vehicles not

1 Pursuant to an interim order of this court, the matter was previously remanded to the trial court
for the signing of an amended judgment to correct deficiencies in the judgment' s decretal
language. The trial court signed an amended judgment on October 31, 2022, and the record has
been supplemented with same.

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titled to the LLC, excluding bank accounts owned by the LLC,
excluding tax liabilities, and not correctly calculating the value of
Radu' s goodwill.

STANDARD OF REVIEW

The trial court' s allocation or assigning of assets and liabilities in the

partition of community property is reviewed under the abuse of discretion

standard. Berthelotv. Berthelot, 2017- 1055 (La. App. 1 Cir. 7/ 18/ 18), 254 So. 3d

500, 508. In community property partitions, the trial court is granted much

discretion in valuing and allocating assets and liabilities and is required to consider

the source and nature of each asset or liability, the financial situation of the other

spouse, and any other relevant circumstances. See La. R. S. 9: 2801( A)(4)( c);

Berthelot, 254 So. 3d at 508. Given this great discretion, the trial court is not

required to accept at face value a spouse' s valuation of assets or debts, or claims

against the community, Berthelot, 254 So. 3d at 816.

A trial court' s factual findings and credibility determinations made in the

course of valuing and allocating assets and liabilities in the p artition of community

propertymay not be set aside absent manifest error. Berthelot, 254 So. 3d at 806.

A trial court' s finding regarding the nature of property as being either community

or separate is a factual determination subject to the manifest error/clearly wrong

standard of review. Benoit v, Benoit, 2011- 0376 ( La. App. 1 Cir. 318112), 91

So. 3d 1015, 1021, writ denied, 2012- 1265 ( La. 9128/ 12), 98 So. 3d 838.

Concerning interpretation of a marriage contract, whether a contract is

ambiguous or not is a question of law and subject to the de novo standard ofreview

on appeal. Where factual findings are p ertinent to the interpretation of a contract,

those factual findings are not to be disturbed absent manifest error. Guest House

of Slidell v. Hills, 2010- 1949 (La. App. 1 Cir. 8117/ 11) 76 So. 3d497, 499; see also

Strachan v. Eichin, 2015- 1431 ( La. App. 1 Cir, 4/ 15116), 195 So. 3d 61, 64.

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Where one or more legal errors by the trial court interdict the fact- finding

process, the manifest error standard is no longer applicable. The standard of

review for mistakes oflaw by the trial court requires the appellate court to engage

in a de novo review of the entire record and render a judgment on the merits. See

Rosell v. ESCO, 549 So. 2d 840, 844 n. 2 ( La. 1989); Berthelot, 254 So. 3d at 807.

The trial court is granted broad discretion in its evidentiary rulings, which will not

be disturbed absent a clear abuse of that discretion. Politz v. Politz, 49, 242 ( La.

App. 2 Cir. 9110114), 149 So. 3d 805, 818.

DISCUSSION

As previously noted, there were two trials in this matter (the traversal trial

and the community partition trial) that spanned almost two weeks in length, during

which the trial court heard from numerous witnesses and considered an extensive

amountofdocumentary evidence regarding the parties' assets. After considering

all of the evidence before it at the traversal trial, the trial court issued very

thorough reasons for judgment, noting in part:

The Marital Contract

The legal regime is the community ofacquets and gains... La.
C. C. art. 2327. Spouses may enter into a matrimonial agreement
before or during marriage as to all matters that are not prohibited
under public policy. La. C. C. art. 2329. A matrimonial agreement is
a contract establishing a regime of separation of property or
modifying or terminating the legal regime. La. C. C. art. 2328.

Mr. Cosman's foremost position on the matrimonial agreement
is that his intangible assets, such as his goodwill, are his separate
property because he " acquired" those intangible assets prior to the
marriage. Regardless of any marital contract, any property acquired
by the spouseprior to the establishment of the community regime is
the separate property of that spouse by law, and Mr. Cosman' s
argument regarding any intangible assets ownedprior to the marriage
is addressed directly, infra. However, Mr. Cosman seemingly also
argues, in his post -trial brief, that his "earnings generated from stucco
work" were "reserved to Mr. Cosman as his separate property." The
Court rejects this position. Asa whole, the "Matrimonial Agreement"
makes little sense. The only part of the agreement that' s entirely clear
is that the parties clearly intended to enter into a community of
acquets and gains, per the last line of section II of the " matrimonial

G

agreement," where it explicitly states, "... the community of acquets
and gains which will otherwise exist between the parties."
Emphasis added]. However, the first paragraph of the " matrimonial
agreement" makes little sense as written. The beginning of the
paragraph states,

All property and effects of said appearers owned
by him or her at the time of the celebration of said
intended marriage, are hereby declared to be separate
property, and that of the wife, separate and paraphernal
property, and they and each of them hereby expressly
reserve to themselves individually the entire
administration of their respective particular movable or

immovable property owned by them at the time of the
marriage..."

This phrase in paragraph unnecessarily addresses property
owned at the time of marriage. Any property owned prior to marriage
is already separate property ofthe spouses bylaw. The remainder of
the phrase in paragraph I reads as follows: " and the respective free
enjoyment of each of their own revenues." Mr. Cosman argues in his
post-trialbrief that this phrase entitles Mr. Cosman to retain all of his
earnings from his stucco work as his separate property. The Court
rejects this argumentfor several reasons. First, this paragraph does
not " reflect a clear intent of the parties to modify their matrimonial
regime." See Robert v. Robert, [ 2015 -03 13 ( La. App, l Cir. 2125116),

2016 WL 763881]. On the contrary, the Cosmans clearly had the
intent to have a community of acquets and gains " otherwise exist
between the parties." The only clear intent of the parties per this
matrimonial agreement was to reserve fruits oftheir separate property,
retain any property as sep crate that was acquired prior to the marriage,
and otherwise enter into a community property regime.

Further, it makes no sense, and would be entirely inequitable,
for Mr. Cosman to retain all his [ S] tucco [ D] esign revenue as his
separate property but also have a community of acquets and gains
otherwise exist between the parties," when the only monies brought
into the marriage, by his own admission, were Mr. Cosman's earnings.
Therefore, the Court rejects the argument that Mr. Cosman' s earnings
were entirely his separate property, as that was not clearly the intent
of the parties in their matrimonial agreement, and this argument was
not even sufficiently argued before the [ C] ourt, nor addressed nearly
enough in depth, at the time of trial. Further, if it was truly the parties'
intent to be separate in property, not only should it have been made
abundantly clear upon the execution of the matrimonial agreement,
but also, the Court would not have spent unnecessary time over four
days of trial addressing the " intangible assets" acquired before the
marriage and allegedly used to capitalize Stucco Design, LLC.

The Alle ed Intangible Assets Includin " Goodwill"

The Court vehemently rejects the argument that Mr. Cosman, in
his capacity as a natural p erson, could be viewed as " property" for the
purposes of community property classification. The Court has no
doubt that Mr. Cosman is a successful stucco contractor. However,
the Robinson [ v. Heard, 2001- 1697 ( La. 2126/ 02), 809 So -2d 9431
court makes it clear that, under Louisiana law, a sole proprietorship
has no separate legal identity apart from the individual. Therefore,
Radu Cosman d/ b/ a Stucco Design has no legal distinction from Mr.
Cosman himself. Allowing a party to claim himself as an asset for
community property partition purposes could set a dangerous
precedent, and the Court rejects this theory.

At trial, Mr. Cosman pivoted his argument to focus primarily
on his allegation that Stucco Design, LLC was capitalized with
separate property " intangible assets," including Mr. Cosman' s
personal and professional goodwill, contractor' s license, business
relationships, workforce in place etc.
However, Ms. Cosman's cxp ert,
Jason MacMorran, could only affirmatively conclude that there were
seven fixed assets used to capitalize Stucco Design, LLC. He also
testified that even if intangible assets did exist, no such asset was ever
valued. On the other hand, Mr. Cosman' s expert, Mark Shirley,
placed great weight on Mr. Cosman's alleged " goodwill," despite [the]
fact that he did not and seemingly could not place a value on same. In
fact, the Court found Mr. Shirley' s testimony largely speculative in
nature and less credible than Mr. MacMorran' s.

The tangible assets used to capitalize Stucco Design, LLC were,
as follows:

1) $ 1, 000 in capital stock;
2) Loan from shareholders in the amount of $41, 754. 00;
3) Fixed assets, as follows:
1. 2003 Chevrolet Truck
2. Scaffold
3. Compressor
4. 2001 Chevrolet Truck
5. 2007 Chevrolet Truck
6. 2001 Chevrolet Truck
7. Generator

First,the capital stock initiated as a debt funded by a
promissory note. Mr. MacMorran noted that the $ 1, 000 " comes off
thebooks in2010," suggesting that the promissory note was paid the
year after incorporation. This $ 1, 000 promissory note was executed
during the marriage and paid back during the marriage. Therefore,
absent evidence to the contrary, which there was none, the $ 1, 000

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capital stock is presumed to have originated as a community debt and
paid out a year later with community funds. Thus, the $ 1, 000 in
capital stock is presumed to be community. As for the loan from
shareholders, the experts had little information from which to glean
information about this loan, but Mr. MacMorran's report states that it
appears, from the 2009 balance sheet, that this loan appears to be a
balance adjustment. Nevertheless, no evidence was presented to show
the separate nature of this loan, so the Court presumes it to be
community.

Second, three of the seven fixed assets were acquired prior to
the marriage. Those three assets are: the 2003 Chevrolet Truck, the
scaffold, and the compressor. All three of these items were fully
depreciated at the time of incorporation and had no value. The

remaining four fixed assets ( the 2001 Chevrolet truck, the 2007
Chevrolet truck, the 2001 Chevrolet truck, and the generator) were
acquired after the date ofmarriage. Again, because these items were
acquired after the date of marriage, they are presumed to be
community. Mr. Cosman- could not show that these assets were
acquired with separate funds,absent a finding that his sole
proprietorship is the separate property that acquired them or absent a
finding that they were purchased with separate funds, both of which
the Court has already rejected supra. Therefore, the Court presumes
these assets to be community. The value ofthese fixed assets used in
the incorporation amounted to $ 76, 667. 00. Of the assets used to
capitalize Stucco Design, LLC, which can be valued, the Court fords
that the separate tangible assets used are clearly inconsequential to the
community assets used. Therefore, the Court finds that Stucco
Design, LLC is a community asset of the parties.

The Immovable Properties

Mr. Cosman purchased eight pieces of immovable property
during the marriage.

All of the ... properties were purchased after the parties'

marriage on November 26, 2005. All of the ... acts of sale were

introduced into evidence during the trial. loana Cosman did not
concur or appear in any of the acts of sale introduced into evidence.
A declaration in an act of acquisition that things are acquired with
separate funds as the separate property of a spouse may be
controverted by the other spouse unless he concurred in the act. La.
C. C. art. 2342. Absent this declaration, the Court presumes these
properties are community, as they were purchased during the marriage
of the parties. Mr. Cosman did not introduce any sufficient evidence
to show the source of the funds used to purchase the properties.
Therefore, the Court finds that Mr. Cosman did not meet his burden of
proof in proving, by a preponderance of the evidence, that the above
properties are his separate property (see Talbot, [v. Talbot, 2003- 0814
La. 12/ 12/ 03), 864 So. 2d590]). The Court finds that all eight of the

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above properties are community property of the parties. ( Footnotes
omitted.)

After hearing from the parties and their experts at the partition trial with

regard to the valuation of Stucco Design, LLC, and considering an allocation for

Mr. Cosman' s personal goodwill, the trial court adopted the value of Stucco

Design, LLC proposed by Mr. MacMorran, $ 3, 875, 000. 00. Moreover, the trial

court divided the assets between the p arties such that, after an equalizing payment

p aid by Mr. Cosman to Ms. Cosman, they would each receive property ofequal net

value. Included in the division of assets was Stucco Design, LLC, which was

allocated to Mr. Cosman, and the fiends from four separate bank accounts in. the

name of Stucco Design, LLC. Mr. Cosman was allocated funds from two of the

accounts, and Ms. Cosman the other two.

Following our thorough review of the evidence in this case and the very

insightful and thorough reasons for judgment offered by the trial court, we find no

abuse ofdiscretion or reversible error in the trial court' s findings below. We agree

with the essential factual findings provided in the trial court' s reasons for judgment.

With regard to Mr. Cosman's argumentthat the trial court erred in its interpretation

of the marriage contract, we have reviewed the language of the contract and agree

with the trial court that the " only clear intent" of the agreement was to " reserve

fruit oftheir sep arate property, retain any property as separate that was acquired

prior to the marriage, and otherwise enter into a community property regime."

Concerning Mr. Cosman' s allegation that he acquired the membership interest in

Stucco Design, LLC through real subrogation, we have considered the record

evidence and find nothing to support Mr. Cosman' s argument. Rather, the record

reasonably supports the trial court' s finding that based on the assets used to

capitalize Stucco Design, LLC that could be valued, any separate tangible assets

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used were clearly inconsequential to the community assets used, thus resulting in

the classification of Stucco Design, LLC as a community asset.

Moreover, concerning the funds in the four bank accounts owned by Stucco

Design, LLC, the trial court determined that the funds constituted community

property and allocated the funds in these accounts such that " each spouse [ would

receive] property of an equal net value." 2 See La. R. S. 9: 2841( A)(4)( b). As noted

by Ms. Cosman in her brief to this court, the evidence supports a finding that these

accounts, although in the name of Stucco Design, LLC, did not appear on the

company' s books or appear to be utilized by the company. Furthermore, neither

party wasp aid wages for the community labor they contributed to Stucco Design,

LLC. Thus, we find no abuse ofdiscretion by the trial court in allocating the funds

from these bank accounts to the parties.

Mr. Cosman also alleges the trial court erred in accepting Mr. MacMorran' s

valuation of the membership interest of Stucco Design, LLC, because his

calculations were not based on reliable data. Where expert testimony differs, it is

the trier of fact who must determine the more credible evidence, and factual

findings based upon that determination may not be overturned unless manifest

error appears in the record. The trier of fact is entitled to assess the credibility and

accept the opinion of an expert just as with other witnesses, unless the stated

reasons ofthe expert are patently unsound. Of course, the effect and weight to be

given such expert testimony depends upon the underlying facts and rests within the

broad discretion ofthe trial court. Moreover, in deciding to accept the opinion of

one expert and reject the opinion of another, a trial court can virtually never be

manifestly erroneous. Fox v. Fox, 97- 1914 ( La. App. 1 Cir. 1116198), 727 So. 2d

514, 516, writ denied, 99- 0265 ( La. 3/ 19199), 740 So. 2d 119. Based upon our

2 In subsequently rendered amended reasons for judgment, the trial court clarified that it was only the funds in these
accounts that were being allocated to the parties. Ownership of the accounts was never transferred from Stucco
Design, LLC,

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review of the record, we are unable to say that the trial court was manifestly

erroneous in its decision to accept the testimony of Mr. MacMorran, Ms. Cosman' s

expert, and the value he placed on Stucco Design, LLC, $ 3, 875, 000. 00.

Regarding the classification of the eight immovable properties as

community, the properties were all purchased during the community. There was

no declaration by Mr. Cosman that any of the properties were acquired with

separate funds. Thus, the properties are presumed to be community, and it was Mr.

Cosman' s burden to prove otherwise. We agree with the trial court that Mr.

Cosman failed to meet this burden as there is no evidence in the record to support

his argument that he used separate funds to purchase these eight immovables.

Accordingly, we find no error in the trial court' s classification of these eight

immovables as community.

Finally, we find no merit to Mr. Cosman' s claim that the trial court' s

evidentiary rulings concerning the alleged tax liability were in error. As noted, the

trial court is granted broad discretion in evidentiary rulings. Politz, 149 So. 3d at

818. The trial court denied the tax liability as a community liability, noting it " was

not presented enough evidence to establish the existence of, or an amount to

attribute thereto." We have thoroughly reviewed the evidence before us, including

the evidence proffered by Mr. Cosman, and find no abuse of discretion in this

ruling.

DECREE

For the above and foregoing reasons, we affirm the judgment of the trial

court and assess all costs associated with this appeal against defendant/ app ellant,

Radu Cosman. We issuethis memorandum opinion in accordance with Uniform

Rules— Courts of Appeal, Rule 2- 16. 1 B.

AFFIRMED.

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