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In re Succession of Ethel Lebourgeois Dauterive

Court of Appeals of Louisiana, Fourth Circuit

July 18, 2018

SUCCESSION OF ETHEL LEBOURGEOIS DAUTERIVE

          APPEAL FROM ST. BERNARD 34TH JUDICIAL DISTRICT COURT NO. 2014-0131, DIVISION "E" HONORABLE JACQUES A. SANBORN, JUDGE

          JAMES E. BROUILLETTE THE LAW OFFICE OF JAMES BROUILLETTE COUNSEL FOR APPELLANT

          ALAN G. BOUTERIE ALAN G. BOUTERIE, JR. MELANIE LICCIARDI BOUTERIE LAW FIRM, COUNSEL FOR APPELLEES

          Court composed of Judge Rosemary Ledet, Judge Paula A. Brown, Judge Tiffany G. Chase

          Tiffany G. Chase Judge.

         Margaret Dauterive Vairin (hereinafter "Ms. Vairin") appeals the trial court's November 13, 2017 judgment, which declared valid the donations inter vivos by Ethel Lebourgeois Dauterive (hereinafter "Mrs. Dauterive") to her daughter, Susan Dauterive Comeaux (hereinafter "Ms. Comeaux").[1] For the reasons that follow, we affirm.

         FACTUAL AND PROCEDURAL HISTORY

         Mrs. Dauterive had four children: Ms. Vairin, Ms. Comeaux, Raymond J. Dauterive Jr. (hereinafter "Mr. Dauterive Jr.") and Linda Dauterive Ricks (hereinafter "Ms. Ricks"). Beginning in the early 1980's, Ms. Comeaux served as Mrs. Dauterive's sole caregiver. She lived with her, managed her affairs, and, as her mother's health declined, fed, clothed and bathed her. While Mrs. Dauterive remained mentally sound until her death, she largely relied upon Ms. Comeaux to assist with her financial and medical decisions.[2] To facilitate that role, Ms. Comeaux was added as a joint account holder on all Mrs. Dauterive's bank accounts. Mr. Dauterive Jr. testified that Ms. Comeaux routinely wrote checks and electronically transferred funds for Mrs. Dauterive. Admittedly, while Mrs. Dauterive never utilized online banking, she allowed Ms. Comeaux to do so on Mrs. Dauterive's behalf.

         Several years prior to Mrs. Dauterive's death, her health declined. Her children hired daytime sitters but were unhappy with the care Mrs. Dauterive received. Shortly after the last sitter was let go, all four children held a meeting on May 26, 2011.[3] Three of the children, Ms. Comeaux, Mr. Dauterive, Jr. and Ms. Ricks, all testified in support of Ms. Comeaux and confirmed that Mrs. Dauterive participated in the meeting. The three children alleged that the meeting was held to discuss Mrs. Dauterive's long-term care, and all parties agreed Ms. Comeaux would retire early to assist their mother full time. Ms. Comeaux was best equipped to watch their mother, as her three siblings had homes and families and were unable to dedicate the time. It was discussed that since Ms. Comeaux's sole retirement income stemmed from social security, early retirement meant a reduction in her benefits. Ms. Comeaux suffered serious financial consequences as a result of leaving her job early; thus, the three siblings asserted that their mother wanted to remedy that loss by donating her remaining bank account funds to Ms. Comeaux. Ms. Comeaux, Mr. Dauterive Jr. and Ms. Ricks testified that all four siblings agreed with Mrs. Dauterive's oral request to donate the funds. Ms. Vairin disagreed with her three siblings' account of the meeting, contending that Mrs. Dauterive was not present and that it was only held to announce Ms. Comeaux's retirement. Ms. Vairin maintained she was completely unaware of the bank account funds.

         Following the meeting, Ms. Comeaux, Mr. Dauterive Jr. and Ms. Ricks testified that their mother continually urged Ms. Comeaux to transfer the money from the joint account into Ms. Comeaux's separate bank account. Ms. Vairin disputed this testimony as well. Beginning in July 2013 and ending in early September 2013, Ms. Comeaux electronically transferred funds from the joint account she held with Mrs. Dauterive into her personal account in six separate transactions.

         On September 30, 2013, Mrs. Dauterive passed away at the age of ninety-two, survived by her four children. Shortly thereafter, the heirs executed an Affidavit of Small Succession (hereinafter "Affidavit"), which identified the succession's sole asset as immovable property. Afterward, Ms. Vairin filed a petition to re-open her mother's succession, seeking to recover the bank account funds transferred from July 2013 to September 2013.[4]

         On November 13, 2017, the trial court determined that all funds electronically transferred prior to Ms. Dauterive's death were valid donations inter vivos. Ms. Vairin filed a request for written reasons and subsequently appealed the judgment.[5]On March 19, 2018, the trial court issued reasons for judgment (hereinafter "Reasons"), which stated that the electronic transfer of funds constituted donations inter vivos, perfected by manual delivery. This appeal followed.

         DISCUSSION

         Ms. Vairin lists three assignments of error on appeal, with one assignment of error taking issue with the trial court's consideration of two powers of attorney in support of its finding. However, we find the primary issue to be whether the trial court committed error in declaring Mrs. Dauterive's electronic transfers to Ms. ...


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