FROM ST. BERNARD 34TH JUDICIAL DISTRICT COURT NO. 2014-0131,
DIVISION "E" HONORABLE JACQUES A. SANBORN, JUDGE
E. BROUILLETTE THE LAW OFFICE OF JAMES BROUILLETTE COUNSEL
G. BOUTERIE ALAN G. BOUTERIE, JR. MELANIE LICCIARDI BOUTERIE
LAW FIRM, COUNSEL FOR APPELLEES
composed of Judge Rosemary Ledet, Judge Paula A. Brown, Judge
Tiffany G. Chase
Tiffany G. Chase Judge.
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"). For the reasons that follow, we affirm.
AND PROCEDURAL HISTORY
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. 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.
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. 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.
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.
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
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.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
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. ...