Shantel Young Tate v. Chatwin Tate, Sr. ( 2021 )

STATE OF LOUISIANA
COURT OF APPEAL
FIRST CIRCUIT
NUMBER 2020CA0783
c/ w
NUMBER 2020CA0784
T
SHANTEL YOUNG TATE
VERSUS
CHATWIN TATE, SR.
Judgment Rendered:
MAY 1 0 2021
The Family Court
In and for the Parish of East Baton Rouge
State of Louisiana
Suit Number F20412Icw210877
Honorable Lisa Woodruff White, Presiding
Charles E. Griffin, II Counsel for Defendant/ Appellant
St. Francisville, LA Chatwin Tate, Sr.
Mark M. Lazarre Counsel for Plaintiff/Appellee
Baton Rouge, LA Shantel Young Tate
Heidi M. Vessel
Zachary, LA
BEFORE: GUIDRY, McCLENDON, AND LANIER, JJJJ..
p
j 0
GUIDRY, J.
Defendant, Chatwin Tate, Sr., appeals from a judgment of the trial court
finding insufficient evidence to nullify a May 5, 2016 marital donation. For the
reasons that follow, we affirm.
FACTS AND PROCEDURAL HISTORY
Chatwin Tate, Sr. and Shantel Young Tate were married on August 4, 1998.
Thereafter, Mrs. Tate filed two petitions for divorce, one in 2011 and another in
2015, with each resulting in a stipulated judgment followed by reconciliation of the
parties. On April 5, 2016, Mrs. Tate again filed a petition for divorce, alleging that
the parties separated on February 1, 2016. On July 26, 2016, Mrs. Tate filed a
petition to judicially partition community property, to which she attached a detailed
descriptive list dated May 5, 2016, listing the marital home located at 1830 Saul
Avenue, Zachary, Louisiana, as a community asset. The trial court signed a
judgment of divorce on July 12, 2017.
Thereafter, on April 4, 2018, Mr. Tate filed a motion to modify custody,
support and exclusive use of former matrimonial domicile. Mrs. Tate answered the
motion and filed exceptions raising the objection of no cause of action and no right
of action. In her exceptions, Mrs. Tate alleged that Mr. Tate had no cause or right
of action to claim entitlement to use of the former marital home because on May 5,
2016, he donated his undivided one- half interest in the community family home to
her and as such, the residence became her separate property. Mrs. Tate attached a
copy of the martial donation as an exhibit to her exceptions.
Mr. Tate thereafter filed a petition for nullity, seeking to have the July 12,
2017 divorce judgment and the May 5, 2016 marital donation declared null and void
and formally vacated and set aside. Mr. Tate alleged that Mrs. Tate fraudulently
asserted that the parties had been living separate and apart when in fact, they were
living together and had been travelling together as a family. Additionally, Mr. Tate
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denied ever signing the martial donation or alternatively, that he did not know and
was not told that the document was a donation.
Following a trial on July 17, 2019, the trial court signed a judgment ordering
that the divorce granted Mrs. Tate on July 12, 2017 is an absolute nullity and finding
insufficient evidence to nullify the May 5, 2016 marital donation. Mr. Tate filed a
motion for new trial on the issue of the nullity of the marital donation. The trial
court held a hearing on Mr. Tate' s motion for new trial on October 29, 2019, at the
conclusion of which the trial court orally denied the motion. Mr. Tate now appeals
from the trial court' s judgment.
DISCUSSION
Rule to Show Cause
On November 23, 2019, this court, ex proprio motu, issued a rule to show
cause, noting that the appellate record did not contain a ruling on Mr. Tate' s motion
for new trial. As such, this court found that the appeal appeared to be premature and
ordered the parties to show cause why the appeal should not be dismissed.
Louisiana Code of Civil Procedure article 2087( D), related to the delay for
taking a devolutive appeal and La. C. C.P. art. 2123( C), related to the delay for taking
a suspensive appeal, both provide that "[ a] n order of appeal is premature if granted
before the court disposes of all timely filed motions for new trial or judgment
notwithstanding the verdict. The order becomes effective upon the denial of such
motions." ( Emphasis added.)
In the instant case, the record demonstrates that the trial court issued an oral
ruling at the conclusion of the hearing on the motion for new trial denying the
motion.
Accordingly, we find that the trial court " disposed" of the motion for new
trial prior to Mr. Tate filing the instant appeal, and as such, we recall the show cause
order issued by this court.
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Action for Nullity
It is undisputed that at the time the parties executed the subject donation, they
were still married. Louisiana Civil Code article 1744 provides:
A person may make a donation inter vivos to his future or present
spouse in contemplation of or in consideration of their marriage in
accordance with the provisions of this Chapter. Such a donation shall
be governed by the rules applicable to donations inter vivos in general,
including the rules that pertain to the reduction of donations that exceed
the disposable portion, but only insofar as those general rules are not
modified by the following articles.
A donation inter vivos by a person to his future or present spouse in
contemplation of or in consideration of their marriage that is not made
in accordance with the provisions of this Chapter shall be governed
solely by the rules applicable to donations inter vivos in general.
Louisiana Civil Code article 1747 further provides:
The donation shall be made by a single instrument in authentic form.
The instrument, which shall expressly state that the donor makes the
donation in contemplation of his prospective marriage or in
consideration of his present marriage,as the case may be, shall be
signed at the same time and at the same place by the donor and the
donee.
Mr. Tate asserts on appeal that the record is clear that the parties did not sign
the instant donation " at the same time" and as such, the trial court erred in finding
that the donation was valid as to form.
We agree that the record in fact establishes that Mr. and Mrs. Tate did not sign
the donation at the same time. However, this failure does not render the May 5, 2016
donation null and void. Louisiana Civil Code article 1747 must be read in
conjunction with the other Civil Code articles governing inter vivos interspousal
donations, including La. C. C. art. 1744. As such, under the plain language of Article
1744, a marital donation not made in accordance with Article 1747 is " governed
solely by the rules applicable to donations inter vivos in general." Watts v. Watts
17- 0369, p. 4 ( La. App. 1st Cir. 12/ 29/ 17), 241 So. 3d 330, 333, writ denied, 18-
0185 ( La. 3/ 23/ 18), 239 So. 3d 294.
Louisiana Civil Code article 1541 requires that donations inter vivos be made
by authentic act under the penalty of absolute nullity. An authentic act is defined by
La. C. C. art. 1833 as " a writing executed before a notary public or other officer
authorized to perform that function, in the presence of two witnesses, and signed by
each party who executed it, by each witness, and by each notary public before whom
it was executed."
In the instant case, after reviewing the testimony and evidence, and
considering the credibility of the witnesses, the trial court found the testimony of
Mrs. Tate and Heidi Vessel, Mrs. Tate' s attorney who prepared and notarized the
donation, to be more credible regarding the facts surrounding the execution of the
donation. According to Ms. Vessel, on May 5, 2016, Mr. Tate came into her office
and signed the donation in her conference room, in her presence and in the presence
of two of her office staff. Ms. Vessel stated that she, Mr. Tate, and the two witnesses
signed the donation at that time. Ms. Vessel and Mrs. Tate both stated that Mrs.
Tate came into the office the same day, after Mr. Tate had signed the donation, and
Mrs. Tate signed the donation in the presence of the same notary and two witnesses.
Ms. Vessel stated that the process she followed complied with her standard office
policy in signing authentic acts. Mr. Tate, however, stated that he had no
recollection of the events surrounding the execution of the donation, but he did not
believe Ms. Vessel was in the room when he signed the donation.
Accordingly, from our review of the record, we find no error in the trial court' s
decision to credit the testimony of Mrs. Tate and her attorney regarding the facts
surrounding the signing of the donation and as such, likewise find no error in the
trial court' s finding that the donation was valid as to form.
Furthermore, we find no error in the trial court' s finding that Mr. Tate knew
he was signing a donation, signing over his one- half interest in the community home
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to Mrs. Tate. Again, the trial court evaluated the credibility of the witnesses,
particularly noting the specificity of recollection by Ms. Vessel and Mrs. Tate.
According to the record, Ms. Vessel stated that Mr. Tate had contacted her
and her mother-in-law, who Mr. Tate had known for years, several times expressing
remorse and wanting to reconcile with Mrs. Tate. Ms. Vessel further stated that Mr.
Tate also expressed to her that he and Mrs. Tate had reached an agreement regarding
him signing the donation, and that he wanted to complete whatever Mrs. Tate' s
wishes were. Ms. Vessel stated that Mr. Tate reviewed the donation, that he knew
what he was signing, and that he signed the donation without any reservations. Mrs.
Tate also stated that she had presented Mr. Tate with the suggestion of her buying
him out of the community home, in which she ran a daycare business, or donating
his interest in the home to her, and Mr. Tate suggested donating his interest in the
home. Mrs. Tate stated that Mr. Tate called her after he signed the donation and told
her that he had signed it so she didn' t have to worry about buying him out of the
house. Mrs. Tate stated that he specifically used the word " donation" when speaking
to her. Mrs. Tate said Mr. Tate only complained about the donation when he
subsequently became aware that she was in a new relationship.
Mr. Tate did not dispute that it was his signature on the donation. However,
Mr. Tate stated that he did not read the donation and thought he was signing
something granting Mrs. Tate the temporary use of the home. Mr. Tate stated that
he did not call Ms. Vessel' s mother- in- law, he did not ask his wife for forgiveness,
and he did not agree to give Mrs. Tate his one- half interest in the community home.
Again, considering the conflicting testimony and the reasonable evaluations
of credibility made by the trial court, we do not find that the trial court erred in
finding that Mr. Tate knowingly signed the donation, giving Mrs. Tate his one- half
0
interest in the community home.' Accordingly, having found no manifest error in
the trial court' s factual findings, we likewise find no error in the trial court' s
judgment finding that there was insufficient evidence to nullify the May 5, 2016
marital donation.
CONCLUSION
For the foregoing reasons, we affirm the judgment of the trial court. All costs
of this appeal are assessed to Chatwin Tate, Sr.
AFFIRMED.
Mr. Tate asserts on appeal that a detailed descriptive list signed by Mrs. Tate on the same date as
the donation acknowledges the marital home as community property. However, Ms. Vessel
testified that, although she could not recall when the detailed descriptive list was signed that day,
her practice is to prepare the detailed descriptive list prior to any donations or settlement
agreements. ( R. 204) Ms. Vessel stated that she has never done it any other way, and she did not
think that the detailed descriptive list was signed after the property was donated. ( R. 204) From
our review of the entire record, we cannot say the trial court' s decision to credit the testimony of
Ms. Vessel is unreasonable or erroneous.
7
STATE OF LOUISIANA
COURT OF APPEAL
FIRST CIRCUIT
2020 CA 0783
c/ w
2020 CA 0784
SHANTEL YOUNG TATE
VERSUS
CHATWIN TATE, SR.
McClendon, J., agrees and assigns additional reasons.
XADonations inter vivos consist of two parts: the donation and the acceptance.
Wiedemann v. Wiedemann, 09- 41 ( La. App. 5 Cir. 12/ 29/ 09), 30 So. 3d 972, 973,
1
writ denied, 2010- 0242 ( La. 4/ 9/ 10), 31 So. 3d 390. While the donation must be made
by authentic act, the acceptance may be made in the act of donation or subsequently in
writing. LSA- C. C. arts. 1541 and 1544.
As noted by the majority, the record in this matter reflects that the notary and
two witnesses signed the act of donation, thereby attesting that they observed the
appearance and signatures of both the donor and donee, before the donee appeared
and affixed her signature to the document.
In Wiedemann, 30 So. 3d 972, decided under the current version of LSA- C. C.
art. 1544 ( prior art. 1540), the Fifth Circuit determined that although the notary and
witnesses signed attesting that the donee had appeared and signed before the donee
actually did so, the donee' s signature on the act of donation was nonetheless " a
sufficient writing to perfect the acceptance in accordance with present Art. 1544." Thus,
the donation inter vivos was found to be valid. Wiedemann, 30 So. 3d at 974.
Accordingly, with respect to the donation, the attestations of the notary and
witnesses as to the donor's appearance and signature satisfy the authentic act
requirements. Regarding the acceptance, the attestations of the notary and witnesses
do not apply to the donee"s appearance and signature; however, the donee' s signature
on the document is nevertheless a writing that satisfies the requirements for a valid
acceptance under LSA- C. C. art. 1544. 1 Accordingly, I agree with the majority that the
donation inter vivos is valid and enforceable.
1 I additionally note that under the facts of this case, had the acceptance been required to be made by
authentic act, the outcome would have been different. To hold that the attestations made to Mr. Tate' s
signatures were also applicable to Mrs. Tate' s signature would have allowed the notary and witnesses to
attest to false information. See Zamjahn v. Zamjahn, 02- 871 ( La. App. 5 Cir. 1/ 28/ 03), 839 So. 2d 309,
314, writ denied, 2003- 0574 ( La. 4/ 25/ 03), 842 So. 2d 410 ( considering similar facts under the prior law,
LSA- C. C. art. 1540, which required that acceptance of a donation be made by authentic act).