APPEAL FROM THE TWENTY-FOURTH JUDICIAL DISTRICT COURT PARISH
OF JEFFERSON, STATE OF LOUISIANA NO. 712-074, DIVISION
"N" HONORABLE STEPHEN D. ENRIGHT, JR., JUDGE
COUNSEL FOR PLAINTIFF/APPELLEE, ELIZABETH WEBB Deborah A.
COUNSEL FOR DEFENDANT/APPELLANT, DANIEL ANDREW WEBB Amy C.
Cowley Frank P. Tranchina, Jr. Mark J. Mansfield Jennifer C.
composed of Judges Susan M. Chehardy, Fredericka Homberg
Wicker, and Robert A. Chaisson
FREDERICKA HOMBERG WICKER JUDGE.
Daniel Andrew Webb, seeks review of the trial court's
January 13, 2016 community property partition judgment. On
appeal, Mr. Webb assigns as error the trial court's
classification of certain debts as his separate obligations
and, relatedly, the denial of his reimbursement claims
associated with payments made toward those debts after
termination of the community. Mr. Webb further assigns as
error the trial court's denial of his reimbursement
claims for community use of his separate income generated
from a Trust, as well as the denial of his rental
reimbursement claim arising out of Mrs. Webb's exclusive
use of the community home. For the following reasons, we
reverse the trial court's judgment in part and affirm in
answer to the appeal, Elizabeth Webb alleges that the trial
court erred in granting Mr. Webb's motion for new trial
in part, finding that Mr. Webb is entitled to reimbursement
from the community for one-half of the expenses related to
their daughter's wedding. For the reasons discussed
herein, we find that Mr. Webb is not entitled to
reimbursement for those expenses and we reverse the trial
court's granting of a new trial as to that issue.
History and Factual Background
Webb and Elizabeth Webb were married on December 29, 1972.
During their marriage, the parties had three children: Craig,
Preston and Pierce, all of whom have reached the age of
majority. On March 6, 2012, after she discovered that Mr.
Webb had fraudulently forged her signature on a home equity
mortgage, resulting in a $250, 000.00 loan encumbering the
family home, Mrs. Webb filed a petition for divorce,
requesting interim and final spousal support in addition to
exclusive use of the family home and a partition of community
31 2012, Mr. and Mrs. Webb stipulated to the Recommendations
of the Hearing Officer that granted Mrs. Webb interim use and
occupancy of the family home at 322 Hector Avenue in
Metairie, and deferred to trial the issue of whether Mr. Webb
would be entitled to rental reimbursement.
community property partition trial was held on June 15, 2015,
and July 27, 2015. At the center of the partition trial, and
pertinent to this appeal, were the following issues: (1)
whether a $250, 000.00 First National Bank of Commerce (FNBC)
loan-fraudulently executed without the approval of Mrs.
Webb-should be classified as a separate or community
obligation; (2) whether a $46, 037.94 Capital One line of
credit should be classified as a separate or community
obligation; (3) whether Mr. Webb is entitled to reimbursement
for: (a) payments Mr. Webb made after termination of the
community toward the FNBC loan and the Capital One line of
credit; (b) community use of his separate funds generated
from a family trust; (c) the rental value for Mrs. Webb's
exclusive use of the family home prior to partition; and (d)
expenses paid from the FNBC loan funds related to Mr. and
Mrs. Webb's daughter's wedding. Additional issues
were determined at trial, such as the valuation of Mr.
Webb's law firm, Sutterfield and Webb, as a community
asset, as well as the calculation of tax liabilities, which
are not at issue in this appeal.
the two day trial, the following witnesses testified: Daniel
Webb, Elizabeth Webb, Mark DeRouen, Albert Pappalardo, and
evidence presented at trial reflects that, during the course
of their marriage, Mr. Webb took on a series of debts with
multiple banks without notifying Mrs. Webb. Despite his
contention that Mrs. Webb was aware of the debt incurred
throughout their marriage, the record reflects that Mr. Webb
took steps to hide his debt from his wife. In his testimony,
Mr. Webb acknowledged that he concealed from his wife a
lawsuit filed against Mr. and Mrs. Webb after he defaulted on
a $75, 000.00 Capital One loan. He testified that he requested
that service of process on Mrs. Webb be waived, because he
"didn't want her to know about the
lawsuit." Further, as discussed in more detail
below, Mr. Webb additionally testified that he concealed from
his wife a $250, 000.00 FNBC loan, providing his office
address on the FNBC documentation because he
"probably" did not want his wife to know about the
debt, and knew that Mrs. Webb absolutely would not have
agreed to execute a home equity mortgage.
the FNBC loan, Mr. Webb testified that, on December 12, 2011,
he executed a $250, 000.00 loan with First NBC and that the
funds were deposited into a newly created FNBC bank account
in Mr. Webb's name only, opened on October 21, 2011. To
secure this loan, Mr. Webb executed a home equity mortgage on
the family home, securing indebtedness up to one million
dollars in favor of FNBC. The record reflects, and Mr. Webb
admits, that he fraudulently affixed Mrs. Webb's
signature on the FNBC mortgage documents and intentionally
concealed from Mrs. Webb the existence of the mortgage.
Webb testified that a portion of the $250, 000.00 FNBC loan
paid in full a previously executed, unsecured $120, 000.00
loan balance, also with FNBC, which he incurred to satisfy
past due federal tax obligations. Additionally, Mr. Webb
testified that a portion of the $250, 000.00 FNBC loan funds
were used to settle the Capital One lawsuit filed after he
defaulted on the $75, 000.00 loan, to pay Louisiana state
taxes, and to pay the remaining portion of the expenses
related to his daughter's wedding.
his claim for reimbursement for his separate funds used to
satisfy community obligations, Mr. Webb testified that he
received separate income from The Harold A. Webb Trust
created by his father, Harold Webb, before his death. The
Trust was created for the benefit of Harold Webb's
children and grandchildren. Pursuant to the terms of the
Trust, according to Mr. Webb, the Trust was divided into
equal shares to Mr. Webb, his siblings, his children, and his
nieces and nephews.
the terms of Trust, Mr. Webb received a 1/8 interest and each
of his three children received a 1/8 interest. Mr. Webb
testified that the Trust was established to pay for the
tuitions of Harold Webb's grandchildren, and was used to
pay for the children's summer camps as well as for the
children's portion of the expenses for a family trip to
Europe in 2000 to celebrate Mrs. Webb's fiftieth
Webb received income from the Trust from 1988 to 2000. In
1993, Mr. Webb filed a "Reservation of Income From
Separate Property" to keep the Trust income as his
separate property, which he "probably" did not
disclose to his wife. Mr. Webb testified that the largest
distributions he received from the Harold A. Webb Trust were
in the years 1993 and 1994. The Webb's federal tax
returns from 1993and 1994 show that Mr. Webb earned $31,
997.00 in 1993 and $20, 322.00 in 1994in dividend
distributions from the Trust. Although Mr. Webb filed a
Reservation of Income from Separate Property in 1993, he
testified on the first day of trial that the income
distributions from his father's Trust were not deposited
into a separate bank account, and the money was used to
enhance the community.
on the second day of trial, Mr. Webb changed his story and
testified that he deposited the Trust income into a separate
Smith Barney account that contained no community funds. In
support of this assertion, Mr. Webb provided documents
prepared by his expert, Mr. DeRouen, reflecting various
deposits into the Smith Barney account, only for the years
1998-2001, totaling $221, 070.88. Mr. Webb testified that the
deposits into the Smith Barney account are his separate funds
distributed from the Trust.
testimony, Mrs. Webb portrayed herself as a frugal woman who
lives on a budget. Mrs. Webb testified that her father opened
a separate bank account for her when she was in seventh
grade, in which he regularly deposited funds, and she
maintained that account as separate throughout her marriage.
Following her father's advice, Mrs. Webb testified she
never deposited any community funds into her separate bank
account during her marriage.
record reflects that, throughout the parties' thirty-nine
year marriage, Mrs. Webb paid for various community expenses
from her separate account. Mrs. Webb testified that she used
her separate funds to pay for a portion of Mr. Webb's law
school tuition, his credit card bills, a $15, 000.00
executed by Mr. Webb and her medical bills after a
miscarriage. Mrs. Webb testified that, at the time of trial,
her separate bank account was almost completely depleted due
to various expenses including: long-term health care,
property taxes, tax liabilities, and attorneys' fees.
the marriage, Mrs. Webb was in charge of the household
checking account and handled all household expenses for the
Webb family. According to Mrs. Webb's testimony, she and
Mr. Webb-to her knowledge-maintained two community bank
accounts. One account was a money market account, where
community funds were deposited to earn interest. The second
was a joint checking account. Mrs. Webb testified that Mr.
Webb would transfer money twice a month from the money market
account into the joint checking account for Mrs. Webb to pay
household bills. When business was doing well at Mr.
Webb's law firm, he would make two monthly deposits, each
approximately $8, 500.00, into the joint checking account,
which would be used exclusively for community expenses.
trial, Mrs. Webb testified to her understanding that the
Webbs' family home on Hector Avenue was free and clear of
any mortgage or encumbrance, after she had made a final $13,
000.00 payment in March of 2010. Mrs. Webb testified that she
was completely unaware of the FNBC loan and the Capital One
line of credit at issue in this appeal, and that she would
have remained unaware of the FNBC home equity mortgage and
loan had FNBC not inadvertently sent a copy of the loan
document to the Webb family home. Mrs. Webb testified that in
January of 2012-a week before her daughter's
wedding-documentation from FNBC arrived by mail to the family
home address. When she read the documents, Mrs. Webb noticed
that the home address had been crossed out on the return
address line on the mortgage application and had been
replaced, in Mr. Webb's handwriting, with 650 Poydras
Street-Mr. Webb's law firm's address. Sent with the
mortgage was a card asking whether the Webbs needed a
bankruptcy attorney-this correspondence also notified Mrs.
Webb, for the first time, of the pending lawsuit Capital One
filed against the Webbs for a separate loan in default. Mrs.
Webb testified she read through the mortgage and noticed that
her signature had been forged to the document. Mrs. Webb
reluctantly decided to wait until after her daughter's
wedding to ask Mr. Webb about the undisclosed mortgage, and
other debts he may have incurred without her approval.
two days after her daughter's wedding, Mrs. Webb
testified that she confronted Mr. Webb about the forged
mortgage documents. At that time, Mr. Webb admitted to
forging Mrs. Webb's signature on the FNBC documents and
further informed Mrs. Webb of an additional $120, 000.00
unsecured loan that Mr. Webb obtained without her knowledge,
as well as undisclosed $50, 000.00 and $75, 000.00 lines of
credit. Mr. Webb told his wife that the $75,
000.00 line of credit and the forged mortgage were
"taken care of." Mr. Webb explained to her that he
executed the $250, 000.00 FNBC loan in order to settle the
pending Capital One lawsuit and to pay off other debts. After
discovering the multiple lines of credit and loans that Mr.
Webb executed without her knowledge or approval, Mrs. Webb
filed for divorce on March 6, 2012.
30, 2012, Mrs. Webb filed an ethical conduct complaint with
the Louisiana Office of Disciplinary Counsel
("ODC"), contending that Mr. Webb, a licensed
Louisiana attorney, violated the Rules of Professional
Conduct by forging her signature to both the FNBC mortgage
documents as well as a 2010 IRS tax form. At trial, the
record from the disciplinary proceeding was introduced into
disciplinary record, Mr. Webb acknowledged his responsibility
for forging Mrs. Webb's signature onto the FNBC mortgage
application and also acknowledged he forged her signature to
a later electronic request to the IRS for an extension to
file federal income taxes.  In the ODC record, in an early
correspondence between Mr. Webb's attorney and the ODC,
Mr. Webb acknowledged the forgery, and stated that he would
take steps to "make it right" by working with the
lender to cancel the mortgage or, at the least, to remove
Mrs. Webb from personal exposure for the loan.
trial, Mr. Webb vehemently denied that his statements to the
Supreme Court and the ODC constitute judicial confessions
sufficient to prove that he intended for the FNBC loan to be
classified as his separate obligation. Mr. Webb testified
that his statement promising to "make it right"
related to his attempt to remove Mrs. Webb's name from
the mortgage to avoid Mrs. Webb's personal exposure to
the creditor, FNBC. Mr. Webb, however, testified that he
stated clearly in his pleadings to the ODC that the $250,
000.00 loan was, in fact, a community debt.
the Harold A. Webb Trust, Mrs. Webb testified that she knew
of the Trust and knew that her husband and children were
receiving distributions from the Trust regularly. However,
she stated that Mr. Webb never allowed her access to the
Trust and that she was unaware of the amount of income the
Trust provided to Mr. Webb and their children. Mrs. Webb
testified that she at some point asked for an account
statement for her children's interest in the Trust, which
Mr. Webb refused to provide.
support of his claim that all of the loans he received during
the community were community obligations, Mr. Webb retained
Marc DeRouen, a certified public accountant ("CPA")
and certified valuation analyst ("CVA"). Mr.
DeRouen, accepted as an expert in divorce accountancy,
testified that he evaluated the parties' assets and
liabilities and created both a joint descriptive list as well
as other documents reflecting the activity related to Capital
One joint checking accounts as well as the $250, 000.00 FNBC
the FNBC loan, Mr. DeRouen testified that the $250, 000.00
loan was distributed by FNBC by direct payment of $120,
000.00 to satisfy a prior, unsecured FNBC loan and a direct
payment of $78, 652.90 to Capital One to satisfy a separate
unsecured loan. The remaining approximately $50, 000.00 was
deposited into an FNBC checking account in Mr. Webb's
regard to the $50, 000 deposited into Mr. Webb's FNBC
account, Mr. DeRouen traced the withdrawals from the FNBC
bank account to community expenses. Of the $50, 000.00
deposited into Mr. Webb's FNBC account, Mr. DeRouen
testified that certain community expenses were paid,
including a $29, 655.95 check made payable to the New Orleans
Country Club as a final payment for his daughter's
the $46, 037.94 Capitol One line of credit at issue in this
appeal, Mr. DeRouen testified briefly that Mr. Webb made
payments toward satisfying that debt after termination of the
community, and that Mr. Webb's one-half paid to be
reimbursed by Mrs. Webb totaled $4, 203.32. The parties
stipulated to that amount at trial, but did not agree that
the debt was a community obligation subject to reimbursement
by Mrs. Webb. No bank statements or other documentation
related to the $46, 037.94 Capital One line of credit were
introduced into evidence at trial.
DeRouen also testified concerning Mr. Webb's other
reimbursement claims. Mr. DeRouen prepared a second document
tracking the summary of activity from the Smith Barney bank
account, the account in which Mr. Webb alleged he deposited
the Trust income. The document tracked deposits and
disbursements from the account, only from 1998 to the
Trust's dissolution in 2001. Mr. DeRouen calculated the
income Mr. Webb made from the Trust through tax returns and
determined that $221, 070.88 was deposited into the Smith
Barney account which he testified was similar to the amount
identified on Mr. Webb's tax returns as attributable to
the Trust income.
to Mr. DeRouen, the community expenses from 1998 to 2001 paid
from the Smith Barney account totaled $206, 881.48. However,
in arriving at that figure of withdrawals from the Smith
Barney account, Mr. DeRouen could only determine the amount
of the withdrawals and to whom the payment was made. He could
not testify with certainty whether the withdrawals were for
community expenses, but stated that it "certainly [gave]
the appearance generally of being community
expenditures." Mr. DeRouen did not receive any cancelled
checks or other documentation to prove that the money
deposited into the Smith Barney account came from the Trust
or, conversely, that the money withdrawn from the Smith
Barney account was used to benefit the community. Mr. Webb
sought a reimbursement of half of his expenditures of his
separate assets from the Smith Barney account used to satisfy
community obligations-in his joint descriptive list, Mr. Webb
sought a total of $84, 720.00 in reimbursement.
Mr. Webb's request for rental reimbursement for Mrs.
Webb's exclusive use of the family home, both Mr. and
Mrs. Webb had experts present testimony regarding the overall
value of the home and the expected rental value.
Albert Pappalardo testified as an expert real estate
appraiser on behalf of Mrs. Webb. Mr. Pappalardo conducted
an appraisal of the Webb family home and determined the
market value to be $825, 000. To arrive at that valuation,
Mr. Pappalardo compared the Webb family home to six
properties-including one used by Mr. Webb's
appraiser-that were similar in size, condition and location.
It was Mr. Pappalardo's opinion that 322 Hector would
have a rental value of $4, 000.00 per month from 2012 to
Webb retained Dale Fleishmann, an expert real estate
appraiser, to appraise the value of the Webb family
home. Ms. Fleishmann's 2014 appraisal
valued the Webb family home at $950, 000.00. In Ms.
Fleishmann's opinion, the difference in value between Mr.
Pappalardo's appraisal and his appraisal value was due to
Ms. Fleishmann's choice of comparable houses closer in
proximity to the Webb home, and his use of price per square
foot comparable to the average in the area. Further, Ms.
Fleishmann opined that the monthly rental value of the Webb
home was $4, 100.00 in 2014.
January 13, 2016, the trial court issued a community property
partition judgment, denying all of Mr. Webb's
reimbursement claims and finding that the $250, 000.00 FNBC
loan and the Capital One line of credit are Mr. Webb's
separate obligations. In the court's Reasons for
Judgment issued the same day, the court found that Mr. Webb
"shall assume full responsibility" for the
fraudulent FNBC loan and mortgage-finding that the statements
made through his counsel to the Supreme Court during his
disciplinary proceedings constituted a judicial confession,
acknowledging the FNBC loan, as Mr. Webb's separate
property. Additionally, the trial court found that Mr. Webb
failed to meet the burden of proof to establish that the $46,
037.00 Capitol One line of credit is a community obligation,
and denied his reimbursement claim for payments made to
satisfy that debt after the termination of the community.
Further, the court denied Mr. Webb's reimbursement claim
for the community's alleged use of his separate Trust
income-finding that Mr. Webb failed to present evidence with
sufficient particularity to be entitled to show that his
separate income was used to satisfy community obligations.
Finally, the court denied Mr. Webb's rental reimbursement
claim, finding that an order requiring retroactive rental
reimbursement would be extremely prejudicial to Mrs. Webb.
Webb filed a motion for new trial on January 26, 2016, which
the court granted in part on May 24, 2016. The court amended
its January 13, 2016 judgment, and found that Mr. Webb was
entitled to reimbursement of one-half of the $29, 655.95 in
expenses from his daughter's wedding- a reimbursement
totaling $14, 827.98. In the judgment, the court again denied
Mr. Webb's rental reimbursement claim for Mrs. Webb's
use of the family home, denied his reimbursement claims for
payments made on the FNBC loan and Capitol One line of
credit, and his reimbursement claim for the community's
alleged use of Mr. Webb's separate Trust income.
Webb timely appealed the trial court judgments. Mrs. Webb
filed an Answer to Appeal on October 11, 2016, alleging only
that the trial court erred in granting Mr. Webb's motion
for new trial in part as to his reimbursement claim for the
expenses related to their daughter's wedding.
appeal, Mr. Webb first challenges the trial court's
classification of two loans-the FNBC loan with a balance of
$244, 356.92 and the Capital One line of credit, with a
balance of $46, 037.00-as his separate obligations. Mr. Webb
contends that both the FNBC loan and the Capital One line of
credit are debts incurred during the community regime and,