Glynn P. Gremillion v. Anita Grimes Gremillion

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

07-492

GLYNN P. GREMILLION

VERSUS

ANITA GRIMES GREMILLION

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APPEAL FROM THE
TWELFTH JUDICIAL DISTRICT COURT,
PARISH OF AVOYELLES, NO. 04-6979 A
HONORABLE MARK A. JEANSONNE, DISTRICT JUDGE

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J. DAVID PAINTER
JUDGE

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Court composed of Jimmie C. Peters, Glenn B. Gremillion, and J. David Painter,
Judges.

REVERSED AND RENDERED IN PART;
REVERSED AND REMANDED IN PART;
AMENDED IN PART; AND AFFIRMED IN PART.

Kenneth A. Doggett, Attorney at Law
P.O. Box 13498
Alexandria, LA 71315-3498
Counsel for Plaintiff-Appellant:
Glynn P. Gremillion

Terry W. Lambright, Attorney at Law
100 South 3rd Street, Suite A
Leesville, LA 71446
Counsel for Defendant-Appellee:
Anita Grimes Gremillion

PAINTER, Judge.

In this very contentious domestic dispute, both parties appeal different portions

of the trial court’s various judgments. Glynn P. Gremillion appeals the trial court’s

ruling regarding the valuation of his former wife’s interest in the family home, the

categorization of certain credit card debt as community debt, and the failure to

recognize his claims for reimbursement for payments allegedly made on community

debts following the filing of the petition for divorce. Anita Grimes Gremillion

appeals the trial court’s modification of the considered custody decree and several

findings regarding the community property partition. For the reasons set forth below,

we reverse that portion of the trial court’s ruling which modifies the August 30, 2005

custody decree, and we also reverse the trial court’s order that child support be set at

zero and remand the matter for further determination as to child support.

Furthermore, we affirm the trial court’s finding that Glynn was not a partner in

Gremillion Farms and that Anita, therefore, has no interest in that entity. However,

we find that the trial court erred in not awarding Anita a one-sixth interest in both the

$82,000.00 that Glynn removed from the feed mill account and the value of the corn

held by the feed mill. We affirm the trial court’s refusal to award Anita a one-half

interest in the account in the name of Stanley Gremillion and its refusal to find that

Glynn had accumulated at least $100,000.00 in cash that he kept in a file cabinet.

Next, we amend the trial court’s ruling to include an award of $9,746.09 to Anita,

representing her one-half interest in the proceeds of the sale of the Leon Kimball

House. We agree that the family residence was built on Glynn’s separate property

and, therefore, we amend the trial court’s ruling with regard to Anita’s interest therein

to reflect that she is entitled to $30,184.54, representing one-half the value of the

community funds used to construct the residence ($60,369.07) pursuant to La.Civ.

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Code Art. 2366. We also reverse that portion of the trial court’s ruling which ordered

to Glynn to pay one-half of Anita’s total credit card debt as we find that the majority

of those charges were incurred after the dissolution of the community and, therefore,

amend the trial court’s ruling to reflect that Glynn is responsible for one-half of only

$894.46 which represents the portion of the credit card debt that is classifiable as

community debt. Finally, we amend the trial court’s ruling to include a

reimbursement to Glynn for $3,250.00, representing one-half of his attorney’s fees

incurred in obtaining the divorce.

FACTUAL AND PROCEDURAL BACKGROUND

Glynn P. Gremillion and Anita Grimes Gremillion were married on July 8,

1995 in Leesville, Louisiana. They established their matrimonial domicile in

Avoylles Parish. One child, Taylor Gremillion, was born during the marriage, on

October 28, 1997. Glynn filed a petition for divorce on October 13, 2004, and the

judgment of divorce was signed on June 13, 2005. A consent judgment as to custody

was also signed on June 13, 2005. That judgment granted joint custody of the minor

to the parties, with Anita being designated domiciliary parent and Glynn having

specific visitation privileges. Glynn was also ordered to pay $634.00 per month in

child support.

On August 30, 2005, following a trial on Glynn’s petition for change of

custody, the trial court signed a judgment granting joint custody to the parties, with

Anita being designated as domiciliary parent and Glynn receiving additional specific

visitation privileges. That judgment specifically states that it is a considered decree.

In the interim, the parties filed detailed descriptive lists, traversals of the other

party’s lists, rules for contempt, and various other pleadings regarding custody and

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child support. Glynn was found in arrears for child support from November 2004

through August 16, 2006.

The present dispute arises, in part, out of a judgment on the partition of the

community property and custody issues following a trial held on September 22, 2006.

On October 9, 2006, the trial court issued its written reasons for ruling, finding that

shared custody would be in the best interest of the child; that Glynn had no ownership

interest in either Gremillion Farm or Gremillion Cattle, and therefore, any increase

in value of those entities would have no effect on the community property issues; that

Anita was entitled to one-sixth of the value in a Simmesport State Bank account for

Gremillion Feed Mill, or $5,883.00; that Anita was entitled to one-half the equity in

a motorcycle, or $3,557.50; that Anita was entitled to $62,500.00, characterized by

the trial court as one-half of the funds used to build the home where the parties lived

during the marriage; that there was no credibility in Anita’s allegations that Glynn

had a large amount of cash in a filing cabinet; that Anita was entitled to $23,820.00,

representing one-half the amount of funds which were clearly and distinguishably

community funds in the Valic account; that Anita was entitled to $500.00,

representing one-half the value of a four-wheeler; that Anita was awarded possession

and ownership of a Mercedes automobile, but must assume any and all debt

associated therewith; that Anita was entitled to one-half of Glynn’s personal bank

funds; and that the credit card debt was community debt and, therefore, was to be split

equally between the parties. In sum, Anita’s interest in the community assets was

determined to total $100,489.50. Judgment to that effect was signed on December 11,

2006. Both parties filed motions for new trial, which were denied. However, the trial

court did amend the judgment to include an award of $5,895.00 to Anita for one-half

interest in another automobile. In response to Glynn’s rule to establish child support

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and to remove Anita from his separate property, the trial court, at the same time, set

child support at zero and ordered that that the parties equally divide all tuition and

lunch expenses for the minor child, with Glynn being responsible for the 2006-2007

calendar year and the parties alternating each school year thereafter. The trial judge

also ordered Anita to vacate Glynn’s separate property, bearing municipal address of

3591 Highway 1182, Simmesport, Louisiana, no later than March 31, 2007. Anita

was also ordered to continue to maintain major medical health insurance on the

minor, with the parties dividing equally all out-of-pocket medical expenses and the

cost of the child’s portion of coverage. Judgment to that effect was signed March 6,

2007. Both parties then appealed to this court.

DISCUSSION

Custody and Child Support

The standard of review in child custody matters has been clearly stated by this

court:

The trial court is in a better position to evaluate the best interest
of the child from its observances of the parties and witnesses; thus, a
trial court’s determination in a child custody case is entitled to great
weight on appeal and will not be disturbed unless there is a clear abuse
of discretion.

Hawthorne v. Hawthorne, 96-89, p. 12 (La. App. 3 Cir. 5/22/96), 676 So.2d 619, 625,

writ denied, 96-1650 (La. 10/25/96), 681 So.2d 365.

However, Anita argues that the trial court applied the improper legal standard

by simply ruling that a shared custody arrangement was in the best interest of the

child and that she is entitled to a de novo review of the record as to the custody

determination. We agree, and since the trial court committed legal error in applying

the wrong burden of proof, we will perform a de novo review of this case. See

Arrington v. Campbell, 04-1649 (La. App. 3 Cir. 3/9/05), 898 So.2d 611.

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This court has recognized that:

The burden of proof on a party seeking to modify a prior
permanent custody award is dependent on the nature of the underlying
custody award. Custody awards are commonly made in two types of
decisions. The first is through a stipulated judgment, such as when the
parties consent to a custodial arrangement. The second is through a
considered decree, wherein the trial court receives evidence of parental
fitness to exercise care, custody, and control of a child.

McCorvey v. McCorvey, 05-174, pp. 18-19 (La. App. 3 Cir. 11/2/05), 916 So.2d 357,

370, writ denied, 05-2577 (La. 5/5/06), 927 So.2d 300. (Citations omitted.)

In Bergeron v. Bergeron, 492 So.2d 1193, 1200 (La.1986) (citations omitted),

the Louisiana Supreme Court explicitly laid out the burden of proof for modification

of child custody as follows:

When a trial court has made a considered decree of permanent custody
the party seeking a change bears a heavy burden of proving that the
continuation of the present custody is so deleterious to the child as to
justify a modification of the custody decree, or of proving by clear and
convincing evidence that the harm likely to be caused by a change of
environment is substantially outweighed by its advantages to the child.

In this case, there is no doubt that the judgment awarding custody that Glynn sought

to modify was a considered decree. Glynn, however, in brief, mentions only the

consent judgment signed June 13, 2005. Glynn filed a petition for change of custody

relative to that consent judgment, and after a hearing thereon where testimony was

heard and evidence was received, the August 30, 2005 judgment was rendered. That

judgment specifically states that it is a considered decree. Thus, we find that the trial

court applied the wrong legal standard in changing the joint custody arrangement with

Anita being the domiciliary parent to a shared custody arrangement with the parties

sharing time equally on a week-to-week basis. The trial court specifically stated, in

its written reasons for ruling, that it “favors shared custodies when it is otherwise in

the best interest of the child.” The court, however, was bound to apply the Bergeron

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burden of proof. After a de novo review of the record, we find that Glynn did not

meet the heavy burden of Bergeron.

The trial court apparently placed much weight on the testimony of Bernice

Voiselle, a friend and neighbor of the Gremillion family, who has been the child’s

babysitter for some time. She was of the opinion that Glynn was more responsive to

Taylor’s needs and that Anita was always gone and did not attend to the child’s

everyday needs. However, a close reading of her testimony establishes that Glynn

does not spend any more time attending to Taylor’s everyday needs than does Anita.

According to Ms. Voiselle, she is the child’s primary caregiver. Ms. Voiselle’s

testimony was disputed by that of Anita and Anita’s daughter, Madison Brouillette.

The trial court also considered the report of Dr. James Logan, the psychologist

who evaluated the child and the parties. The trial court noted that Dr. Logan did not

recommend that Glynn be given sole custody of Taylor but that Dr. Logan did not any

way indicate that a shared custody arrangement would not be appropriate in this case.

The testimony is replete with inconsistencies about Taylor’s care and

whereabouts at any given moment. In sum, it is clear that Glynn did not meet the

heavy burden required of him to change the considered custody decree in this matter.

He simply did not prove that the continuation of the present custody is so deleterious

to the child as to justify a modification of the custody decree or present clear and

convincing evidence that the harm likely to be caused by a change of environment is

substantially outweighed by its advantages to the child. Therefore, the trial court

erred in altering the custody decree, and we reverse that portion of the judgment. We

hereby render judgment returning custody of Taylor to that outlined in the August 30,

2005 judgment.

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Following the hearing on both parties’ motions for new trial and Glynn’s rule

to establish child support, the trial court ordered child support fixed at zero. Child

support had previously been fixed at $634.00 per month payable by Glynn. Glynn did

file a rule for child support reduction prior to his being found in arrears for the period

from November 2004 through August 16, 2006. Even though some limited testimony

as to the amount of income of the parties and expenses associated with Taylor’s care

was taken, we are left to assume that the trial court fixed the amount at zero based on

its decision to modify the custody arrangement. Because the record is incomplete in

this regard, we remand the matter to trial court for determination of the amount of

child support to be paid consistent with the return of Taylor’s custody to that

specified in the August 30, 2005 judgment.

Community Property Issues

We will address the community property issues in the order in which the trial

court handled them in its written reasons for judgment. We will not discuss those

matters to which neither party objects. We review these matters under the manifest

error standard of review since the factual findings of the trial judge are in dispute.

See Young v. Young, 06-77 (La.App. 3 Cir. 5/31/06), 931 So.2d 541.

A. Farm Accounts and Cottonport Bank Account

Gremillion Farms, Gremillion Cattle, and Gremillion Feed Mill are three

separate entities in which Glynn and his brothers participate. The trial court found

that Glynn is one-third owner of Gremillion Feed Mill with his two brothers, Alden

and Stanley. With respect to Gremillion Farms and Gremillion Cattle, the trial court

found that the testimony and evidence established that Glynn had no ownership

interest in either entity and was merely “compensated for his labor and industry which

benefitted those two entities.”

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There is apparently no dispute as to the finding regarding Gremillion Cattle.

However, Anita claims that the trial court erred in finding that Glynn was not a

partner in Gremillion Farms and that she did not have an interest in a Simmesport

State Bank account for Gremillion Farms, soybeans in storage, and farm equipment.

We find no manifest error in the trial court’s rulings and, therefore, affirm the trial

court’s rulings as to these issues.

Anita also alleges that trial court failed to include all of the assets and

funds/money of Gremillion Feed Mill in its calculation of the community property.

Specifically, Anita argues that she is entitled to a one-sixth interest in $82,000.00

which Glynn transferred from the Gremillion Feed Mill account for tax purposes and

that she is entitled to a one-sixth interest in both the corn held by Gremillion Feed

Mill and the grain tanks owned by Gremillion Feed Mill. With respect to the

$82,000.00 and the corn, we agree. The testimony was clear that this was Feed Mill

money. The testimony was also clear that the corn belonged to the feed mill and was

valued at $13,000.00. Anita is entitled to one-sixth of both these amounts. With

respect to the grain tanks, we agree with the trial court’s refusal to award any interest

therein to Anita. The testimony established that the grain tanks were owned by

Gremillion Farms.

Anita next alleges that the trial court erred in failing to rule on or address the

Cottonport Bank account. This account is in the name of Stanley Gremillion;

however, Anita claims that Glynn is the only one using the account and that it was set

up in attempt by Glynn to hide money from her. We note that the amount withdrawn

by Glynn from the Valic account is accounted for in the total value of that account;

therefore, we find no error in the trial court’s refusal to award Anita any interest in

this account.

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B. Cash

Anita contends that the trial court erred in refusing to find that Glynn had

accumulated at least $100,000.00 in cash that he kept in a file cabinet and in not

awarding her one-half of that amount. Anita and Madison testified that they found

a large amount of cash in a file drawer. There was much discrepancy about who

counted the cash and as to how much cash was actually counted in Anita’s trial and

deposition testimonies. The trial court found that Madison’s testimony was

“rehearsed, scripted, and robotic in her description of finding and counting the

money.” We agree with the trial court that “taken as a whole, there is no credibility

toward the allegations of finding cash in a filing cabinet.” Therefore, we find Anita’s

assignment of error in this regard to be without merit and affirm the trial court’s

ruling.

C. Leon Kimball House

Finally, Anita alleges that the trial court erred in refusing to award her

$9,746.09 in connection with the sale of the Leon Kimball house. This real estate

was owned by Glynn prior to his marriage to Anita. The parties agreed, at trial, that

the profit from the sale of the Leon Kimball house was $19,492.17 and that this

amount was community property. Therefore, we find that the trial judge manifestly

erred in refusing to award Anita one-half of that amount. The judgment is amended

to include an award of $9,746.09 as her one-half interest in the proceeds of the sale

of the Leon Kimball house.

D. Family Residence

Glynn contends that the parties used community funds to construct a residence

on land owned by Glynn which was his separate property. Glynn contends that Anita

should receive only one-half the the value of the community assets used to build the

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home. Anita, on the other hand, contends that the land upon which the house was

built was community property and that she is entitled to one-half the current value of

the home and land.

Louisiana Civil Code Article 493 concerns the ownership of improvements and

provides, in pertinent part:

When buildings, other constructions permanently attached to the ground,
or plantings are made on the separate property of a spouse with
community assets or with separate assets of the other spouse and when
such improvements are made on community property with the separate
assets of a spouse, this Article does not apply. The rights of the spouses
are governed by Articles 2366, 2367, and 2367.1.

(Emphasis added.)

Louisiana Civil Code Article 2366 provides:

If community property has been used for the acquisition, use,
improvement, or benefit of the separate property of a spouse, the other
spouse is entitled upon termination of the community to one-half of the
amount or value that the community property had at the time it was used.

Buildings, other constructions permanently attached to the
ground, and plantings made on the separate property of a spouse with
community assets belong to the owner of the ground. Upon termination
of the community, the other spouse is entitled to one-half of the amount
or value that the community assets had at the time they were used.

In its written reasons for judgment, the trial court’s reasoning makes clear that

it determined that the family home was built on land which was Glynn’s separate

property. The trial court then ruled that Anita was entitled to one-half of the funds

used to build the home, or $62,500.00. However, the amount awarded by the trial

court appears to be one-half the present value of the home, which is $133,000.00.

The land on which the home was built was donated to Glynn by his brother,

Alden. At some point during the marriage, Glynn donated the land back to Alden.

Anita testified that she believed Glynn was buying the land from his brother for

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$3,000.00 and that she knew nothing of the donation back to Glynn’s brother. The

trial judge did not find Anita to be a very credible witness.

The trial court's findings regarding the nature of the property as community or

separate are factual determinations which are governed by the manifest error standard

of review. Young v. Young, 06-77 (La. App. 3 Cir. 5/31/06), 931 So.2d 541. We find

no manifest error in the trial court’s determination that this land was Glynn’s separate

property. However, we do find error in the trial court’s application of Lormand v.

Lormand, 96-62 (La. App. 3 Cir. 5/8/96), 673 So.2d 1345, writ denied, 96-1432 (La.

9/13/96), 679 So.2d 109. In the Lormand case, at the time the family home was built,

the land was owned by the husband’s adoptive parents. At the time of the trial on the

community property issues, the parents had died, leaving Mr. Lormand as their sole

heir. Mr. Lormand argued that the provisions of La.Civ. Code art. 2366, rather than

La.Civ. Code art. 493 should apply. This court disagreed and found that Ms.

Lormand was entitled to one-half the fair market value of the house under art. 493

rather than being limited to one-half the value the community assets had at the time

they were used. The trial court failed to recognize the distinction in Lormand that the

property was not owned by either of the spouses at the time the house was built.

Thus, the case at bar is distinguishable from Lormand, and the holding in Lormand

is inapplicable in a case where the property is owned by one of the spouses at the time

of the construction. In such a case, art. 493 is clear that “[t]he rights of the spouses

are governed by Articles 2366, 2367, and 2367.1.” Thus, we find that trial court erred

in awarding one-half of the fair market value of the home to Anita. We reverse that

portion of the judgment and render judgment awarding Anita $30,184.54,

representing one-half the value of the community funds used to construct the

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residence ($60,369.07). Furthermore, we affirm the trial court’s order for Anita to

vacate the premises.

E. Credit Cards

The trial court’s judgment ordered that the parties divide all credit cards where

a balance remained at the time of the dissolution of their matrimonial regime on

October 13, 2004. Glynn contends that Anita did not prove that the credit card

balance on an account in her name was a community debt. Anita contends that there

is a presumption of community and that the record reflects that the balances were due

and payable during the marriage.

The record contains only a copy of an MBNA America credit card statement,

dated November 19, 2004, in the name of Anita G. Gremillion, showing a balance due

of $4,353.17 and a November 9, 2004 payment of $2,000.00. All of the current

charges, totaling $3,458.71, were incurred after Glynn filed the petition for divorce

on October 13, 2004.

Louisiana Civil Code Article 159 provides:

A judgment of divorce terminates a community property regime
retroactively to the date of filing of the petition in the action in which
the judgment of divorce is rendered. The retroactive termination of the
community shall be without prejudice to rights of third parties validly
acquired in the interim between the filing of the petition and recordation
of the judgment.

Thus, the $3,458.71 in charges listed on the statement at issue are not presumed

to be community debt. Only $894.46 is presumed to be community debt. We find

nothing in the record to support Anita’s assertion that the current charges of

$3,458.71 were community debt. Thus, we find the trial court erred in assessing one-

half of the total debt to Glynn and amend the judgment to reflect that Glynn is

responsible for one-half of only $894.46, which represents the portion of the credit

card debt that is classifiable as community debt.

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F. Reimbursements

Glynn further complains that the trial court erred in refusing to award him any

reimbursement for $1,922.00 paid towards the Mercedes vehicle note and for one-half

of his attorney’s fees incurred in getting the divorce. Anita contends that Glynn is not

due any reimbursement for the Mercedes note payment because he had previously

failed to pay his half of the note as ordered by the trial court. We find no error in the

trial court’s refusal to grant a reimbursement for the $1,922.00 paid towards the

Mercedes vehicle note.

With respect to the attorney’s fee issue, however, La.Civ. Code art. 2362.1

provides that: “An obligation for attorney's fees and costs in an action for divorce

incurred before the date of the judgment of divorce that terminates the community

property regime is a community obligation of that regime.” Thus, the trial court erred

in refusing to grant a reimbursement of $3,250.00 to Glynn.

DECREE

For the foregoing reasons, we reverse that portion of the trial court’s judgment

which modifies the August 30, 2005 custody decree and re-instate the custody decree

set forth therein. We reverse that portion of the judgment fixing child support at zero

and remand the matter for a determination as to the amount of child support to be paid

consistent with the return of Taylor’s custody to that specified in the August 30, 2005

judgment. Furthermore, we affirm the trial court’s finding that Glynn was not a

partner in Gremillion Farms and that, as a result, Anita has no interest in that entity.

However, we find that the trial court erred in not awarding Anita a one-sixth interest

in the $82,000.00 that Glynn removed from the Gremillion Feed Mill account and a

one-sixth interest in the corn held by Gremillion Feed Mill and amend the judgment

to reflect Anita’s interests in those regards. We affirm the trial court’s refusal to

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award Anita a one-half interest in the account in the name of Stanley Gremillion and

its refusal to find that Glynn had accumulated at least $100,000.00 in cash that he

kept in a file cabinet. Next, we amend the trial court’s judgment to include an award

of $9,746.09 to Anita representing her one-half interest in the proceeds of the sale of

the Leon Kimball House. We agree that the family residence was built on Glynn’s

separate property and, therefore, we amend the trial court’s ruling with regard to

Anita’s interest therein to reflect that she is entitled to $30,184.54, representing one-

half the value of the community funds used to construct the residence ($60,369.07),

pursuant to La.Civ. Code art. 2366. We also reverse that portion of the trial court

judgment which ordered Glynn to pay one-half of Anita’s total credit card debt as we

find that the majority of those charges were incurred after the dissolution of the

community and amend the judgment to reflect that Glynn is responsible for one-half

of only $894.46, which represents the portion of the credit card debt that is

classifiable as community debt. Finally, we amend the judgment to include a

reimbursement to Glynn for $3,250.00, representing one-half of his attorney’s fees

in obtaining the divorce. Costs of this appeal are assessed equally to Plaintiff-

Appellant, Glynn P. Gremillion, and to Defendant-Appellee, Anita Grimes

Gremillion.

REVERSED AND RENDERED IN PART; REVERSED AND REMANDED IN
PART; AMENDED IN PART; AND AFFIRMED IN PART.

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