Succession of George D. Carprenter

NOT DESIGNATED FOR PUBLICATION

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

16-29

SUCCESSION OF GEORGE D. CARPENTER

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APPEAL FROM THE
FOURTEENTH JUDICIAL DISTRICT COURT
PARISH OF CALCASIEU, NO. 36,745
HONORABLE ROBERT LANE WYATT, DISTRICT JUDGE

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JOHN E. CONERY
JUDGE

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Court composed of Ulysses Gene Thibodeaux, Chief Judge, Billy Howard Ezell,
and John E. Conery, Judges.

AFFIRMED.

Winfield E. Little, Jr.
Little Law Firm
Post Ofice Box 3759
Lake Charles, Louisiana 70602
(337) 430-0907
COUNSEL FOR APPELLANTS:
Edith McKinney
Gail Landry
Christine Bertrand
Karrie Neely
Vickie Boulet
Hollie Neely
James Neely, Jr.

Thad Minaldi
Attorney at Law
500 Kirby Street, Suite 201
Lake Charles, Louisiana 70601
(337) 433-1386
COUNSEL FOR APPELLEE:
Crystal Marcantel Von Rosenberg

CONERY, Judge.

This case involves a determination by the trial court that a home purchased

during the marriage of a couple was part of the couple’s community of acquets and

gains and not the separate property of one of the spouses. For the following

reasons, we affirm.

FACTS AND PROCEDURAL HISTORY

George Carpenter and Lola Carpenter were married in 1974, and remained

married for twenty-five years until George’s death in 1998. The couple lived

under a community property regime. Approximately twelve years before George’s

death, they bought property and built and furnished a home located in Lake

Charles, Louisiana, which will be referred to in this opinion as the Home. Lola

died on December 22, 2011, while still living in the Home. This was the second

marriage for both parties and each had children born of the first marriage.

The Home is at the center of this dispute between Lola’s daughter and

George’s children and one group of grandchildren. The litigants include Lola’s

only child, Crystal Marcantel Von Rosenberg (Crystal), who is presently serving as

the independent executrix of Lola’s estate, opened under Docket # 52144 “B” in

the Fourteenth Judicial District Court. Crystal is also serving as co-administrator

of George’s estate, opened under Docket # 36,745, also in the Fourteenth Judicial

District Court, having replaced Lola, the original executrix. George’s daughter,

Edith Carpenter McKinney (Edith), is serving as co-administrator with Crystal of

George’s estate.1

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Edith represents the interests of George’s other heirs/legatees, which include his
daughter Gail Carpenter Landry, and the descendants of George’s predeceased daughter, Jenell

On August 13, 1998, George’s succession proceeding was opened with the

filing of his Last Will and Testament dated March 2, 1992, and Codicil dated July

12, 1993. Lola was recognized as executrix of George’s succession. While acting

as executrix of George’s succession, Lola filed the Preliminary Listing of

Distribution of Possession for the Succession of George D. Carpenter. The Home

was listed and Lola sought to “be recognized as usufructuary and sent into

possession of a usufruct for life” over the Home and furnishings. Such a

preliminary listing was apparently required to file the Louisiana Inheritance and

Estate Transfer Tax Return in accordance with La.R.S. 47:2405.2 The trial court

signed an order for Lola’s attorney to file the return, which stated:

IT IS HEREBY ORDERED that Lola M. Carpenter, Executrix of the
Succession of George D. Carpenter, is authorized in accordance with
La.R.S. 47:2425 to file the Louisiana inheritance tax return by
providing the preliminary listing of the distribution of possession
attached to the petition in these proceedings in lieu of the petition of
possession.

Edith claims that during the succession proceeding, Lola, as executrix, also

signed a Sworn Detailed Descriptive List listing the home as George’s separate

property. It is undisputed that the original Sworn Detailed Descriptive List at issue

and allegedly signed by Lola was never filed in George’s succession proceeding.

For whatever reason, the attorney handling George’s succession proceeding failed

to file the document into the record of George’s succession. The Sworn Detailed

Descriptive List, like the Louisiana Inheritance and Estate Tax Return, was found

after Lola’s death in her former attorney’s closed files.

Carpenter Neely, namely Christine Margaret Bertrand, Karrie Lois Neely, Vickie Annette Boulet,
Hollie Bernice Neely, and James Edward Neely, Jr., George’s grandchildren.
2
Louisiana Revised Statute 47: 2425 was repealed effective January 1, 2010.

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There has been no final judgment of possession. The sale of the Home was

authorized in an order of the court dated December 19, 2012, in George’s

succession proceeding. The Home was sold by a “CASH WARRENTY [sic]

DEED” on April 21, 2014. The document listed as “vendor” the “Succession of

George D. Carpenter,” and the “Succession of Lola Mary Carpenter[.]” Counsel

stipulated prior to trial that the proceeds from the sale of the Home, its furnishings,

and other miscellaneous amounts were deposited in the trust account of Crystal’s

counsel pending final resolution of the issue of designation of the Home and

furnishings as community or separate property, now on appeal before this court.

On June 29, 2012, following Lola’s death, Crystal filed notice in George’s

succession proceedings to replace her mother Lola as executrix. In 2014, as

executrix of Lola’s succession, Crystal initially filed, in George’s succession, a

Petition for Declaratory Judgment to determine the nature of the Home acquired

during the marriage of Lola and George. Edith responded by filing a copy of the

so-called Sworn Detailed Descriptive List, allegedly signed by Lola, and found in

her then-attorney’s office file. A copy of the Sworn Detailed Descriptive List was

filed into evidence over objection of counsel for Crystal, as an exhibit 3 in a hearing

held on October 2, 2014, to determine what debts were actually owed between

George’s and Lola’s estates. This document listed the Home as George’s separate

property.

Crystal responded to the filing of the copy of the Sworn Detailed Descriptive

List with a motion objecting to the filing. She sought to traverse the Sworn

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The Sworn Detailed Descriptive List was admitted into evidence as “McKinney 1 – In
Globo-Sworn Detailed Descriptive List of Property[.]” Crystal objected to the filing of a copy of
the Sworn Detailed Descriptive List on the basis that Edith had offered no evidence of why they
were unable to produce the original, pursuant to La.Code Evid. arts. 1002 and 1004.

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Detailed Descriptive List pursuant to La.Civ.Code art. 3137, which allows an

interested party to traverse a descriptive list at any time as authorized by

La.Civ.Code art. 3136. A sworn detailed descriptive list may be filed in lieu of an

inventory in a succession proceeding, and is prima facie proof of all matters

contained therein, unless traversed. However, the sworn detailed descriptive list

must be filed in the succession proceeding. It is undisputed that the Sworn

Detailed Descriptive List allegedly signed by Lola, as executrix of George’s

succession, was never filed in the record of George’s succession proceeding.

Edith responded to Crystal’s filing with an answer and motion and order for

a rule to show cause to determine whether the Home was part of the community

between George and Lola or George’s separate property.

The trial court held a hearing on all motions filed. At the hearing, the parties

filed written stipulations and presented oral stipulations and documentary evidence,

all of which were entered into the record. Arguments for both sides were presented,

and the trial court took the matter under advisement. The trial court issued its

written reasons for ruling on October 6, 2015, and found that the Home was part of

the community property of George and Lola and not the separate property of

George. A judgment was entered on October 28, 2015, from which a timely appeal

was filed by Edith, as co-administrator of George’s estate.

ASSIGNMENTS OF ERROR

On appeal, Edith alleges the following as errors:

ASSIGNMENT OF ERROR NUMBER ONE

THE TRIAL COURT ERRED IN RULING THAT THE
SWORN DETAILED DESCRIPTIVE LIST AND LA
INHERITANCE AND ESTATE TRANSFER TAX RETURN

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SIGNED BY THE SURVIVING SPOUSE/EXECUTRIX OF
DECEDENT’S ESTATE WAS NOT A JUDICIAL CONFESSION
THAT THE SUBJECT PROPERTY WAS PART OF HIS
SEPARATE ESTATE AND DID NOT COMPRISE THE
PROPERTY OF THE COMMUNITY OF ACQUETS AND GAINS
BETWEEN THE DECEDENT AND HIS SURVIVING SPOUSE.

ASSIGNMENT OF ERROR NUMBER TWO

THE TRIAL COURT ERRED IN RULING THAT THE
SUBJECT PROPERTY WAS COMMUNITY PROPERTY FAILING
TO RECOGNIZE THAT LA. CIVIL CODE ARTICLE 2340
CREATES A “REBUTTABLE PRESUMPTION OF COMMUNITY
PROPERTY” WHICH CAN BE REBUTTED BY THE PARTIES.

LAW AND DISCUSSION
Standard of Review

A trial court’s determination of the nature of property as either community

or separate property is a factual determination which is reviewed on appeal under

the manifest error standard of review. See Young v. Young, 06-77 (La.App. 3 Cir.

5/31/06), 931 So.2d 541.

The Louisiana Supreme Court in the recent case of Snider v. Louisiana

Medical Mutual Insurance Co., 14-1964, p. 5 (La. 5/5/15), 169 So.3d 319, 323

reiterated the applicable standard of review and stated:

It is well settled that a court of appeal may not set aside a trial
court’s or a jury’s finding of fact in the absence of “manifest error” or
unless it is “clearly wrong,” and where there is conflict in the
testimony, reasonable evaluations of credibility and reasonable
inferences of fact should not be disturbed upon review, even though
the appellate court may feel that its own evaluations and inferences
are as reasonable. Rosell v. ESCO, 549 So.2d 840, 844 (La.1989).
This test dictates that a reviewing court must do more than simply
review the record for some evidence that may controvert the trial
court ruling. Rather, it requires a review of the entire record to
determine whether manifest error has occurred. Thus, the issue before
the court of appeal is not whether the trier of fact was right or wrong,
but whether the fact-finder’s conclusion was a reasonable one. Clay v.
Our Lady of Lourdes Regional Medical Center, 11-1797 (La. 5/8/12),
93 So.3d 536, 543. The appellate court must not reweigh the evidence

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or substitute its own factual findings because it would have decided
the case differently. Pinsonneault v. Merchants & Farmers Bank &
Trust Co., 01-2217 (La.4/3/02), 816 So.2d 270, 278-79. Where the
factfinder’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. This rule applies equally to the
evaluation of expert testimony, including the evaluation and
resolution of conflicts in expert testimony. Bellard v. American
Central Ins. Co., 07-1335 (La.4/18/08), 980 So.2d 654, 672.

Louisiana Civil Code Article 2338 discusses what comprises community

property and provides:

The community property comprises: property acquired during
the existence of the legal regime through the effort, skill, or industry
of either spouse; property acquired with community things or with
community and separate things, unless classified as separate property
under Article 2341; property donated to the spouses jointly; natural
and civil fruits of community property; damages awarded for loss or
injury to a thing belonging to the community; and all other property
not classified by law as separate property.

Louisiana Civil Code Article 2341 discusses what comprises separate

property and provides:

The separate property of a spouse is his exclusively. It
comprises: property acquired by a spouse prior to the establishment of
a community property regime; property acquired by a spouse with
separate things or with separate and community things when the value
of the community things is inconsequential in comparison with the
value of the separate things used; property acquired by a spouse by
inheritance or donation to him individually; damages awarded to a
spouse in an action for breach of contract against the other spouse or
for the loss sustained as a result of fraud or bad faith in the
management of community property by the other spouse; damages or
other indemnity awarded to a spouse in connection with the
management of his separate property; and things acquired by a spouse
as a result of a voluntary partition of the community during the
existence of a community property regime.

Louisiana Civil Code Article 2340 provides that “[t]hings in the possession

of a spouse during the existence of a regime of acquets and gains are presumed to

be community, but either spouse may prove that they are separate property.”

Therefore, the party seeking to rebut the presumption of community bears the

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burden of proof and is required to show by a preponderance of the evidence the

separate nature of property. See Talbot v. Talbot, 03-814 (La. 12/12/03), 864

So.2d 590.

Louisiana Civil Code Article 1853 governs judicial confessions and provides:

“A judicial confession is a declaration made by a party in a judicial proceeding.

That confession constitutes full proof against the party who made it. A judicial

confession is indivisible and it may be revoked only on the ground of error of

fact.”

Assignment of Error One

In the first assignment of error, Edith urges that the Sworn Detailed

Descriptive List and the Louisiana Inheritance and Estate Tax Transfer Tax Return

allegedly signed by Lola in connection with George’s succession constitute a

judicial confession that the Home was George’s separate property. The trial court

found that on April 8, 1999, when Lola signed the Sworn Detailed Descriptive List

and the Louisiana Inheritance and Estate Tax Transfer Tax Return, she believed the

Home to be George’s separate property.

However, the trial court further found, and it is undisputed, that the

documents relied on by Edith, the Sworn Detailed Descriptive List and the

Louisiana Inheritance and Estate Tax Transfer Tax Return, for whatever reason,

were never filed by Lola’s counsel in the court record of George’s succession

proceeding.

Counsel for Edith argued both in the brief on appeal and at oral argument

that the former attorney’s closed files also contained a “Louisiana Inheritance and

Estate Transfer Tax Receipt No. 308739[,]” dated April 14, 1999, from the State of

Louisiana Department of Revenue, Inheritance Tax Section. The receipt indicates,

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in pertinent part, a “Formal Inventory or Sworn Descriptive List” was submitted

with the filing of the Louisiana Inheritance and Estate Tax Transfer Tax Return.

Edith claims that the “filing” of the Sworn Detailed Descriptive List with the

Department of Revenue is tantamount to the filing of the document in George’s

succession proceeding and is considered a judicial admission that the Home was

George’s separate property. The receipt from the State Department of Revenue

indicated a “Sworn Descriptive List” had been filed with the State and that no state

taxes were owed on George’s estate.

However, the record reflects that Edith did not raise or argue in the trial

court the issue that filing of the Sworn Detailed Descriptive List with the

Department of Revenue was tantamount to filing in the actual succession

proceeding, and, as such, was a judicial confession. Therefore, without submission

to the trial court for review, we are precluded from consideration of that specific

argument under Uniform Rules—Courts of Appeal, Rule 1-3, which provides, in

pertinent part: “The Courts of Appeal will review only issues which were

submitted to the trial court and which are contained in specifications or

assignments of error, unless the interest of justice clearly requires otherwise.”

The trial court did find that although a copy of the Sworn Detailed

Descriptive List had been filed in the proceeding involving the debts owed

between George and Lola’s estates, it had not been filed in George’s actual

succession proceeding and is “ now in the record only as a result of an order of this

Court when presented by counsel-not as a result of a filing by Lola.”

The trial court then relied on the case of Goines v. Goines, 08-42 (La.App. 5

Cir. 6/19/08), 989 So.2d 794, as support for its conclusion that Lola was required

to file the Sworn Detailed Descriptive List in George’s succession proceeding in

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order for it to constitute a judicial confession that the Home was George’s separate

property. In Goines, Mr. Goines attempted to traverse the detailed descriptive list

seeking to prove that the family home was his separate property. However, he had

previously filed in the same proceedings an affidavit in connection with the

refinancing of the family home, designating it as community property, and a

detailed descriptive list, stating the family home was community property and

listing the family home as a donation of his separate property. The fifth circuit

reversed the trial court and found that the statements made by Mr. Goines in the

documents filed in the proceedings, which included the affidavit and his detailed

descriptive list, constituted judicial confessions that the family home was

community property, and that there was no error of fact for any of the documents

cited to be revoked.

In this case, however, it is undisputed that the original Sworn Detailed

Descriptive List, was not filed by Lola in George’s succession proceeding. We

affirm the trial court’s ruling that the Sworn Detailed Descriptive List in question

does not constitute a judicial confession as defined in La.Civ.Code art. 1853.

Assignment of Error Two

Edith contends in Assignment of Error Two that the trial court erred in

failing to apply the “rebuttable presumption of La.Civ.Code art. 2340[,]” which

provides: “Things in the possession of a spouse during the existence of a regime of

community of acquets and gains are presumed to be community, but either spouse

may prove that they are separate property.”

Documents submitted into evidence at the beginning of the trial by Crystal,

and cited in both oral argument and briefing to this court, provide that during the

purchase of the property for the Home, each conveyance stated as follows:

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“George D. Carpenter, married to and living with Lola Carpenter, born Frieu.”

The cash sale of the couple’s former home provided, “GEORGE D. CARPENTER

AND LOLA CARPENTER, BORN FRIEU, HUSBAND AND WIFE,” as the

“SELLERS.” The collateral mortgage executed by George on August 18, 1987,

also stated, “GEORGE D. CARPENTER, MARRIED TO AND LIVING WITH

LOLA M. CARPENTER, BORN FRIEU-RESIDENTS OF 2226 – 22ND STREET,

LAKE CHARLES, CALCASIEU, PARISH, LA.”

The trial court reviewed all the evidence presented, and though not a

“judicial confession,” even considered the Sworn Detailed Descriptive List as part

of the evidence used by Edith to attempt to rebut the presumption that the Home

was George’s separate property. In its written reasons, the trial court determined

that based on La.Civ.Code arts. 2338 and 2341, which define both community

property and separate property respectively, prior to George’s death on July 25,

1998, the Home was part of the couple’s community of acquets and gains:

The facts furnished to the Court reflect that the property was
purchased during the marriage, document(s) acknowledge the marital
relationship between George and Lola, make [sic] no specific or
implied separateness of ownership as to George and no reference is
made to the status of the marital property relationship, either as
separate of a community of acquets or gains. The sole document that
is alleged suggests otherwise is a mortgage executed by George on
August 18, 1987 that addresses George’s undivided interest in the
family home – the property. However, that document does not even
delineate what that “individual interest” is, nor whether it(s) his
separate property or a portion of the community property interest in
that home.

Further, based on the clear language of Article One of George’s Last Will

and Testament, the trial court found that George included a special bequest to Lola

which puts to rest the designation of the Home as George’s separate property. The

final sentence of Article One of George’s Last Will and Testament provides

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emphasis added): “Further, as an additional legacy to her, I relieve my wife of any

obligation to reimburse my separate estate for separate property advanced to the

community for acquisition and construction of the residence or any furnishings.”

Based on the provisions of Article One of George’s Last Will and Testament,

at the time it was executed, George believed that a portion of his separate property

had been used “for the acquisition and construction” of the Home and its

furnishings. However, as found by the trial court, the issue of the nature of the

Home was resolved with George’s “special bequest” to Lola as he clearly

identified the Home and furnishings as community property.

After considering all the evidence in the record, we find no manifest error in

the trial court’s ruling that the Home was community property.

CONCLUSION

For the foregoing reasons, we affirm the trial court’s judgment of October 28,

2015, in its entirety which found that the former family residence, and furnishings

therein, of George D. Carpenter and Lola Marcantel Carpenter, located at 2226

22nd Street, Lake Charles, Louisiana 70601 are part of the community of acquets

and gains that existed between George D. Carpenter and Lola Marcantel Carpenter.

We also affirm the trial court’s division of the proceeds of the sale of the family

residence and furnishings. All costs of this appeal are assessed to Edith Carpenter

McKinney, Gail Carpenter Landry, Christine Margaret Bertrand, Karrie Lois Neely,

Vickie Annette Boulet, Hollie Bernice Neely, and James Edward Neely, Jr. in the

proportion of their ownership of the property.

AFFIRMED.

This opinion is NOT DESIGNATED FOR PUBLICATION. Uniform
Rules—Courts of Appeal, Rule 2–16.3

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