Rose Klinger Adams v. Jimmy G. Adams

NOT DESIGNATED FOR PUBLICATION

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

17-1030

ROSE KLINGER ADAMS

VERSUS

JIMMY G. ADAMS

CONSOLIDATED WITH

17-1031

JIMMY G. ADAMS

VERSUS

ROSE KLINGER ADAMS

**********

APPEAL FROM THE
FIFTEENTH JUDICIAL DISTRICT COURT
PARISH OF LAFAYETTE, NO. C-20123433 C/W 20152454
HONORABLE EDWARD D. RUBIN, DISTRICT JUDGE

**********

D. KENT SAVOIE
JUDGE

**********

Court composed of Shannon J. Gremillion, Phyllis M. Keaty, and D. Kent Savoie,
Judges.

REVERSED IN PART, AND RENDERED;
AFFIRMED IN PART.

Randy J. Fuerst
Fuerst Law Firm
130 W. Kirby Street
Lake Charles, LA 70601
(337) 436-3332
COUNSEL FOR PLAINTIFF/APPELLANT:
Jimmy G. Adams

Allan L. Durand
235 Rue France
Lafayette, LA 70508
(337) 237-8501
COUNSEL FOR DEFENDANT/APPELLEE:
Rose K. Adams

SAVOIE, Judge.

In these consolidated matters, Dr. Jimmy Adams appeals the trial court’s

denial of his petition seeking the return of his separate property from his former

wife, Rose Klinger Adams, and also his petition seeking the revocation of inter-

spousal donations made to her during their marriage. For the following reasons,

we reverse in part and affirm in part.

FACTUAL AND PROCEDURAL BACKGROUND

Dr. Adams and Ms. Adams were married in 1993, and they resided in Dr.

Adams’ separate property home on Beverly Drive in Lafayette. They had a

prenuptial agreement that established a separate property regime between them.

They had two sons, one of whom was born on November 26, 1996, and the other

on March 24, 1998.

Dr. Adams owned an art gallery, which was his separate property.

According to Dr. Adams, he had been a continuous collector of art for thirty years

before investing in the art gallery, he chose the pieces that went into the gallery,

and he anticipated that the artwork purchased by the gallery would be resold. The

gallery closed in approximately 2008 or 2009, and the art pieces in the gallery were

brought to Dr. Adams’ home, where he and Ms. Adams resided.

In June of 2012, Dr. Adams was working as an assistant professor at a

college in Maryland. On June 19, 2012, Ms. Adams filed a petition for divorce

while Dr. Adams was in Maryland. According to Ms. Adams, she moved out of

Dr. Adams’ separate home on Beverly Drive and into a home on Brookshire,

which was purchased for her by her mother. Dr. Adams returned to Lafayette, and

he filed a reconventional demand for divorce on July 5, 2012.

After Dr. Adams returned to Lafayette, he suffered a stroke during a medical

procedure, and thereafter went to live at a home in Youngsville, which was owned

by a friend. He indicated that the art pieces from the gallery that were previously

located in his Beverly Drive home were moved to storage.

According to Dr. Adams, while he was recovering from his stroke, Ms.

Adams drove to Youngsville and asked him to reconcile their marriage, which he

agreed to do. Dr. Adams moved into Ms. Adams’ home on Brookshire on

September 1, 2012. Around that time, the artwork was moved into the Brookshire

home. On October 10, 2012, the parties’ respective divorce petitions were

dismissed pursuant to joint motions. They thereafter resided as husband and wife

in the Brookshire home.

In March 2015, Dr. Adams left for a mission trip to Africa, and he returned

on approximately May 4 or 5, 2015, after having stopped over in Paris. While he

was in Paris, he purchased a purse for Ms. Adams. According to Ms. Adams, on

May 13, 2015, Dr. Adams “left,” and on May 15, 2015, she changed the locks to

the Brookshire home, even though he did not have a key. According to Dr.

Adams, however, he did have a key and he tried to enter the matrimonial home on

May 18, 2015, but to his surprise, the key did not work. In the meantime, Ms.

Adams was out of town, and she instructed her neighbors to call the police after

being informed of Dr. Adams’ presence at the home. The police arrived, and

according to Dr. Adams, he was handcuffed. Ms. Adams disputes this.

Dr. Adams filed for divorce on May 19, 2015. On that date, he also obtained

an ex parte order allowing him “to go to the former family home at 107

Brookshire . . . with a law enforcement escort to remove his personal property,

including his personal wearing apparel, essential medicines, and other items

necessary for his safety and well-being.” He also obtained a temporary restraining

order enjoining Ms. Adams from encumbering or disposing of any of his separate

property, “including his separately-owned art collection.” According to Dr.
2

Adams, on May 29, 2015, he went to the Brookshire home in accordance with the

May 19, 2015 order and put as many of his belongings into his vehicle that he

could, but that he was not able to fit all of the artwork and sculptures into his

vehicle.

On June 3, 2015, Ms. Adams filed an answer and reconventional demand,

asserting that Dr. Adams violated the May 19, 2015 order “by appearing at the

home of [Ms.] Adams at 107 Brookshire . . . after May 19, 2015[,] without notice,

and not in the presence of a law enforcement officer, to remove some of his

personal property.” On June 5, 2015, the trial judge signed an order attached to

Ms. Adams’ answer and reconventional demand issuing a temporary restraining

order to Dr. Adams “forbidding him from going to the home of [Ms.] Adams at

107 Brookshire . . . , and further prohibiting him from having direct contact with

[Ms.] Adams.”

On September 3, 2015, Dr. Adams filed a petition seeking the return of

movable property located in the Brookshire home that he asserted he acquired with

separate funds during the parties’ marriage, including various artwork and

sculptures. Therein, he alleged that Ms. Adams refused to return the property to

him and that she obtained a restraining order preventing him from coming to her

house to retrieve them.

Dr. Adams filed an amended petition on June 3, 2016, seeking to revoke any

and all inter-spousal donations made to Ms. Adams on the grounds of Ms. Adams’

alleged ingratitude, including allegations of adultery. The petition specifically

listed items of jewelry that he had given to her.

A trial was held on Dr. Adams’ original and amended petitions on June 26,

2017. At issue was (1) various artwork that Ms. Adams claims she was not in

possession of; (2) whether Dr. Adams had donated certain artwork and sculptures
3

located in Ms. Adams’ home on Brookshire to Ms. Adams or their sons as gifts, so

that they had become Ms. Adams’ separate property, and if he had, whether the

donations should be revoked for ingratitude; and (3) whether Dr. Adams’ gifts of

jewelry, furniture, and the purse from Paris, should be revoked for ingratitude.

On July 27, 2017, the trial judge signed an order denying Dr. Adams’

petitions, stating that both were denied because of “Plaintiff’s failure to meet his

burden of proof.”

Dr. Adams appeals, asserting the following assignments of error:

1. The trial [c]ourt applied the wrong burden of proof as it relates to
return of separate property.

2. The trial [c]ourt erred in denying Dr. Adams’ action for return of
separate property.

3. The trial [c]ourt erred in finding that both parties did not have
‘clean hands’ as it relates to the cause of action for revocation of
donations and that Dr. Adams failed to meet his burden of proof
with regard to the actions of Rosie Adams being sufficient to result
in a finding of ingratitude.

4. The trial [c]ourt erred in denying Dr. Adam’s [sic] request for
revocation of donations due to ingratitude.

ANALYSIS

Standard of Review:

As recognized by the Louisiana Supreme Court in Evans v. Lungrin, 97-541,

pp. 6-7 (La. 2/6/98), 708 So.2d 731, 735 (citations omitted)

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.” However, where one or more trial court
legal errors interdict the fact-finding process, the manifest error
standard is no longer applicable, and, if the record is otherwise
complete, the appellate court should make its own independent de
novo review of the record and determine a preponderance of the
evidence. A legal error occurs when a trial court applies incorrect
principles of law and such errors are prejudicial. Legal errors are
prejudicial when they materially affect the outcome and deprive a
party of substantial rights. When such a prejudicial error of law
4

skews the trial court’s finding of a material issue of fact and causes it
to pretermit other issues, the appellate court is required, if it can, to
render judgment on the record by applying the correct law and
determining the essential material facts de novo.

Return of Dr. Adams’ Separate Property Not in Ms. Adams’ Possession

During trial, Dr. Adams sought the return of the following items that Ms.

Adams testified were not in her possession: a Ramon Kelley rabbit painting; coil

snake figurines; two paintings of a cheetah and a painting of a zebra; paintings of

an elephant, buffalo, and bird; a painting of a zebra; a painting of a puma; a

painting of a church; animal figurines; and an owl picture.

We find that the trial court did not err in placing the burden on Dr. Adams to

prove that these items were in fact in Ms. Adams’ possession; therefore, we review

the trial court’s ruling as to these items for manifest error. The only definitive

evidence concerning the whereabouts of these items is Ms. Adams’ testimony

indicating that these items were not in her possession or otherwise in her home on

Brookshire. Therefore, the record supports the trial court’s ruling as to these items,

and we affirm the trial court’s judgment to that extent.

Property in Ms. Adams’ Possession Claimed to be Gifts

Dr. Adams also seeks the return of the following artwork that Ms. Adams

admits is located in the Brookshire home, but which she asserts is her separate

property because Dr. Adams gave them to her or their sons as gifts during their

marriage: the “Sunflowers” bronze sculpture and “Amanda’s Hat” bronze

sculpture; the “Red Dress” and “Dance the Dream” sculptures; a Ramon Kelley

cigar box with a ballerina and a Ramon Kelley dog; four small “Dit Afchin”

paintings; two paintings of flowers in a vase; two paintings of a face; a painting of

multiple faces; a mallard duck painting; and a painting of a boat.

5

Louisiana Civil Code Article 1543 governs manual gifts and states that a

“donation inter vivos of a corporeal movable may . . . be made by delivery of the

thing to the donee without any other formality.” “For purposes of donation inter

vivos, delivery is defined as relinquishing control or dominion over property and

placing it within the dominion of the donee, irrevocably.” Brown v. Brown, 93-

1105, 93-1107 (La.App. 3 Cir. 4/6/94), 635 So.2d 255, 259, writ denied, 94-1667

(La. 10/28/94), 644 So.2d 649.

The donee has the burden of proving the donation by clear and convincing

evidence. Farrar v. Whaley, 16-790 (La.App. 3 Cir. 2/1/17), 211 So.3d 449, writ

denied, 17-409 (La. 4/13/17), 218 So.3d 626.

Proof by clear and convincing evidence “requires more than a
‘preponderance of the evidence’ but less than ‘beyond a reasonable
doubt.’” In other words, “[t]he existence of the disputed fact must be
highly probable, that is, much more probable that is non-existence.”
“This standard is usually employed ‘where there is thought to be
special danger of deception, or ‘where the court considers that the
particular type of claim should be disfavored on policy grounds.’

Id. at 454 (citations omitted).

The donee must prove by clear and convincing evidence that the donor “had

the intent to irrevocably divest himself of the thing and that real delivery was

made. The alleged donor’s outward acts, together with any admissible evidence of

the relationship of the parties, are important to prove a manual donation.”

Broussard v. Crochet, Broussard & Co., 477 So.2d 166, 174 (La.App. 3 Cir. 1985)

(citations omitted).

In the instant matter, we find that the trial court erred by placing the burden

on Dr. Adams, the alleged donor, to prove that he had not donated the items at

issue to Ms. Adams. Ms. Adams admits that these items would otherwise be Dr.

Adams’ separate property had he not manually donated them to her or to their sons.

“Applying the wrong burden of proof is not only an incorrect application of the
6

law, it is inherently prejudicial because it casts a more onerous standard than the

law requires on the parties.” Leger v. Leger, 03-419, p. 2 (La.App. 3 Cir. 7/2/03),

854 So.2d 955, 957. Therefore, we will conduct a de novo review with respect to

these items and consider whether Ms. Adams’ satisfied her burden by clear and

convincing evidence.

We first consider the “Sunflowers” and “Amanda’s Hat” sculptures, which

are heavy bronze sculptures located in Ms. Adams’ garden that Ms. Adams claims

Dr. Adams donated to each of the parties’ two sons sometime in 2015. She

provided no evidence concerning the alleged donation except her indication that

Dr. Adams donated other bronze sculptures to his daughters from another

marriage. Dr. Adams however, denied donating these sculptures to their sons, who

were only fourteen or fifteen at the time of the alleged donation. He further

explained that his daughters were adults with children of their own when he

donated the other sculptures to them.

Not only is Ms. Adams’ testimony insufficient to establish by clear and

convincing evidence that Dr. Adams donated these sculptures to their sons, Ms.

Adams provides no explanation concerning her authority to present this defense on

behalf of their sons, who were adults at the time of trial, in order to defeat Dr.

Adams’ claims seeking the return of these items that are in Ms. Adams’

possession.

As to the remaining artwork at issue in the Brookshire house, Ms. Adams

testified generally that Dr. Adams gave the artwork to her around August of 2012,

just prior to, or around the time that Dr. Adams moved in with Ms. Adams at the

Brookshire home and they had reconciled their marriage. She explained that these

items were displayed as decoration at the Brookshire home, whereas other artwork

was stored in an extra bedroom. She admitted that the items were not given to her
7

for her birthday or any other special occasion, and that the only evidence of the

alleged donations was her word that Dr. Adams had given the items to her.

Dr. Adams testified that the items at issue were purchased by the former art

gallery, and he denied that he donated the items as gifts to Ms. Adams. The

following colloquy with Dr. Adams occurred at trial:

A Correct. Everything had been moved to storage when she came
to the [Youngsville] residence and requested that we reconcile,
and we agreed to that. It was at that point that I began to move
the items of artwork to her house because there was no artwork.

Q So, is it fair to say that you simply helped decorate her house
with your separate property?

A Yes.

....

Q So, when - - did you ever get a time when this property was
donated to her? Did you hear her testify to any time that it was
donated?

A No. This is the first time I’ve heard this.

Q Do you know what date - - did you ever hear of a date or see
anything that lead [sic] you to believe there was a specific
date . . . where the stuff actually became hers in her mind?

A Rosie preferred diamonds.

Q What did you do about that? How’d you handle that?

A Second-hand art from an art gallery would not be something
Rosie would get excited about, so I focused on diamonds.

....

Q But you do not agree that these art pieces that you have - -

A No.

Q Or alleging you want back are gifts to her?

A No. They came directly from the gallery. They were to be
sold. It wasn’t . . . like “Oh, look I couldn’t sell it, so I’m going
to gift it to you.” No. That would be ludicrous.”

8

Ms. Adams also suggests on appeal that Dr. Adams’ failure to take the

artwork at issue on May 29, 2015, when he retrieved other personal belongings, is

evidence of his donative intent. Dr. Adams, however, testified at trial that he did

not bring the items with him at that time because they did not fit inside his vehicle,

and he also indicated that he was unable to return to the Brookshire home after

June 2, 2015, due to a restraining order.

We find that Ms. Adams’ self-serving, and otherwise unsubstantiated

testimony that Dr. Adams gave the artwork at issue to her does not satisfy her

burden of proving by clear and convincing evidence that Dr. Adams intended to

irrevocably divest himself of the artwork. We further disagree that Dr. Adams’

retrieval of some of his property on May 29, 2015, sufficiently establishes his

donative intent with respect to the items he did not take with him. Therefore, we

reverse the trial court’s ruling denying Dr. Adams’ petition with respect to the

artwork at issue, which is currently located in Ms. Adams’ home on Brookshire,

and we grant Dr. Adams’ petition in this respect.

Revocation of Donations for Ingratitude

Dr. Adams also seeks review of the trial court’s denial of his petition

seeking to revoke donations of furniture, diamond jewelry, and the purse purchased

in Paris on the basis of Ms. Adams’ ingratitude in accordance with La.Civ.Code

art. 1557. We first note that the trial court did not err in placing the burden of

proof on Dr. Adams. See, In re Succession of Rachal, 08-1379 (La.App. 3 Cir.

4/1/09), 7 So.3d 132.

Louisiana Civil Code Article 1557 provides that a revocation of a donation

inter vivos “may take place . . . if [the donee] has been guilty towards [the donor]

of cruel treatment, crimes, or grievous injuries.”

9

Grievous injuries sufficient to revoke a donation
have been defined as any act naturally offensive to the
donor. The jurisprudence has held that cruel treatment or
grievous injury sufficient to revoke a gratuitous donation
may include adultery by a spouse, seizing property
belonging to a parent, filing suit against a parent alleging
criminal activity, and slandering the memory of the
donor.

Erikson v. Feller, 889 So.2d 430, p. 4 (La.App. 3 Cir. 12/8/04), 889 So.2d 430,

433, quoting Porter v. Porter, 36,007, p. 7 (La.App. 2 Cir. 6/12/02), 821 So.2d

663, 667-68.

“The determination as to whether a donee has committed a ‘grievous injury’

upon a donor depends heavily upon the facts and circumstances specific to the

case. ‘The trial court heard the testimony in its entirety and has a first hand

impression of the credibility of all the witnesses.’” Erikson, 889 So.2d at 434

(internal citations omitted).

On appeal, Dr. Adams argues that the following constitutes ingratitude on

the part of Ms. Adams: (1) the May 18, 2015 incident wherein the police were

called while Dr. Adams was trying to enter the Brookshire house after the locks

were changed; (2) Ms. Adams’ June 2, 2015 answer and reconventional demand

alleging that Dr. Adams had violated a restraining order; and (3) infidelity and

adultery on the part of Ms. Adams, as shown by the circumstantial evidence.

However, conflicting evidence was presented at trial concerning these allegations,

including evidence concerning whether or not Dr. Adams was arrested or

handcuffed in connection with the May 18, 2015 incident, and evidence concerning

whether or not Ms. Adams had an adulterous affair with a family friend during the

marriage. After reviewing the record, we cannot say that the trial court erred in

concluding that Dr. Adams failed to prove ingratitude as contemplated by

La.Civ.Code art. 1556.

10

DECREE

For the reasons stated above, we reverse the trial court’s denial of Dr.

Adams’ petition seeking the return of the following property: the “Sunflowers”

bronze sculpture and “Amanda’s Hat” bronze sculpture; the “Red Dress” and

“Dance the Dream” sculptures; the Ramon Kelley cigar box with a ballerina and a

Ramon Kelley dog; four small Dit Afchin paintings; two paintings of flowers in a

vase; two paintings of a face; the painting of multiple faces; the mallard duck

painting; and the painting of a boat. We further grant Dr. Adams’ petition seeking

the return of those items. Otherwise, we affirm the ruling of the trial court. Costs

of this appeal are divided between the parties.

REVERSED IN PART, AND RENDERED. AFFIRMED IN PART.

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

11