ODOM v. ODOM

GLADNEY, Judge.

This suit was instituted by Lizzie Knight Odom, surviving widow in community of the late Peter S. Odom, against Grover Davis, Amelia Odom Owens, Jane P. Odom Mitchell and James Odom, children of a former marriage of the deceased. Plaintiff's petition seeks to annul a judgment rendered in the succession of Peter S. Odom, which decree recognized the defendants as heirs of the decedent and placed them in possession of certain property. Further relief requested was the appointment of an administrator for her late husband's estate. Following adjudication by the district court, plaintiff's claims for relief for the most part were determined to the satisfaction of all parties or abandoned to the end that at the time this appeal was lodged the only serious controversy remaining concerned the ownership of a bank deposit of $1,218 in the Rapides Bank and Trust Company, standing in the name of plaintiff. The trial court resolved this particular issue by recognizing plaintiff to be entitled to $68 and the defendants to $1,150 of the account. Plaintiff has appealed from the decision.

Peter S. Odom was first married to Mary Jane Martin, who died prior to 1946. Later, on September 24, 1947, Odom was married to the plaintiff in this suit. The named defendants are the children of the first marriage. At the time of his second marriage, Peter S. Odom was seventy-two years of age and during the last eighteen months of his life he was afflicted with an incurable disease which confined him to his home and from which he died December 2, 1956.

Prior to the formation of the community of acquets and gains between plaintiff and Peter S. Odom, the latter had two bank accounts, one of which was in the Guaranty Bank & Trust Company of Alexandria, together with certain other property, both real and movable. Plaintiff's separate property on September 24, 1947 consisted of a home in which she and the deceased lived, a few cattle, and something over $1,000 in cash, which was held for her order by her son, Roscoe Knight. She testified this money was used to pay some of the debts of the community.

Upon the case being first submitted to the district court, judgment was rendered decreeing plaintiff to be the owner of an undivided one-half interest in two bank accounts in the Rapides Bank & Trust Company, and a Ford truck. Defendants filed a motion for rehearing, wherein they averred receipt of additional evidence especially affecting the status of the balance of $2,036.85 which was on deposit at the Guaranty Bank & Trust Company of Alexandria in the name of Mr. Odom, and which bank account was closed on October 23, 1956, upon Mrs. Odom cashing a check for said amount, signed by her husband. Defendants assert the $1,000 deposited by Mrs. Odom on October 23, 1956, in her name in the account in the Rapides Bank & Trust Company was the separate property of the deceased and did not constitute a repayment of Mrs. Odom's separate funds as claimed. Upon consideration of the additional evidence presented the judge a quo ruled the $2,036.85 withdrawn from the account in the Guaranty Bank & Trust Company was identified as the separate funds of Odom.

In tracing the origin of the $2,036.85 withdrawn on October 23, 1956, the evidence disclosed that on March 7, 1949, there was a balance of $473.01, an undetermined part of which unquestionably was derived from community funds. Subsequently, the following deposits were made: $4,020.23 on March 7, 1949, $200 on March 9, 1949, and $2,000 on May 17, 1955. Of the $4,020.23 only $20.23 was not identified as paraphernal funds and undeniably the deposit of May 17, 1955, was the separate property of Odom. It is clear, therefore, that of the deposits made in the account since March 7, 1949, only $220.23 of a total of $6,220.23 were not proven to be the separate and paraphernal property of Odom. Of the $2,036.85 remaining on October 23, 1956, after withdrawals it is necessarily true that only a very small interest therein could possibly belong to the community. The amount which might be subject to a claim as community property is not sufficient to justify a finding of commingling of such a nature as to stamp the checking account as being community property. We, therefore, approve of the ruling of the judge a quo that the $1,000.00 which was deposited by plaintiff in the Rapides Bank & Trust Company originally was paraphernal property of her husband.

The law contemplates that when separate funds are mixed with community funds, they only become a part of the community when such separate funds are no longer capable of identification. When only a relatively small amount of the deposit is community it will be considered inconsequential and insufficient to constitute commingling and does not warrant the designation of the checking account as community property. Succession of Land, 1947, 212 La. 103, 31 So.2d 609; Abunza v. Olivier, 1956, 230 La. 445, 88 So.2d 815.

In support of appellant's contention the funds in the checking account in the Guaranty Bank & Trust Company were commingled, counsel cite Bruyninckx v. Woodward, et al., 1950, 217 La. 736, 47 So.2d 478. The decision is inapposite for the issue therein was resolved in favor of the community for the reason the bank ledger disclosed that throughout the existence of the community numerous substantial deposits of funds belonging to the community had been indiscriminately placed in the account with the result it was impossible to determine what part of the balance remaining could be attributed to the separate estate. Of course, in the instant case the facts are different from those presented in Bruyninckx v. Woodward, and our ruling must follow Succession of Land and Abunza v. Olivier, cited above.

With this background, we turn to a consideration of the ownership of the remaining $1,218 deposited in the name of Mrs. Odom, as of the time this suit was instituted. The district court made the following analysis of the account:

Plaintiff claims the entire account of $1,218 is her separate property. We do not understand the $300 deposit made on August 24, 1956, which was held by the trial court to be community property, is seriously contested. This item which plaintiff said was derived from the proceeds of her cattle is largely foreclosed by unsatisfactory evidence which fails to show such cattle sold were not of "the increase" which under LSA-C.C. Arts. 593, 2407 and 2408, falls into the community. It is urged that plaintiff received the $1,000 in reimbursement of separate funds which she had advanced to pay community debts, and, alternatively, if the foregoing position be not recognized, then the sum was hers as a manual gift. Proof of plaintiff's claim that her husband gave her this sum as reimbursement of a community debt to her separate estate must be tested by LSA-C.C. Art. 2277, which reads:

The record is bare of corroborative testimony or other evidence and must be questioned for there is no satisfactory explanation as to the disposition of the remainder of the $2,036.85 check of her husband.

In Funderburk v. Funderburk, 1949, 214 La. 717, 38 So.2d 502, 506, a resume of the law apropos to this issue is set forth thus:

The trial court determined the proof tendered in support of plaintiff's claims is unsatisfactory and we agree with this holding. Nor can we see how plaintiff can claim the amount as a manual gift on the one hand and as repayment of a debt on the other. The evidence offered does not substantiate the claim for we are unable to ascertain with any reasonable degree of certainty that any part of the check on the Guaranty Bank & Trust Company was intended by Odom as a manual gift to his wife. It seems more probable the withdrawal was prompted by a desire to facilitate the handling of his money because of his inability to go to the bank for the purpose of more readily paying his debts. Our consideration of the record does not reveal manifest error in the rulings of the trial judge of which appellant complains.

The appellees after filing a motion to dismiss the appeal under C.P. Article 567 on the ground plaintiff has acquiesced in the judgment appealed from, have further petitioned this court praying for alternative relief "if the court does not dismiss this appeal on the basis of facts as disclosed by the record in its present form", asserting that "the matter should be returned to the lower court for proper resolution of the facts in controversy." In case of remand respondents would have the court resolve the correctness of the averments of paragraph 5 of the plaintiff's petition, which are:

The motion to dismiss the appeal has been traversed and we find there has not been an unconditional, voluntary and absolute acquiescence in the judgment on the part of the appellant as to justify dismissal. Scott v. Scott, 1950, 218 La. 211, 48 So.2d 899; Rex-Metallic Casket Company v. Gregory, La.App.1958, 104 So.2d 185; C.P. Art. 567.

The alternative relief by remand sought by appellees is not clearly explained. This cause has received two hearings in the trial court and the merits of all issues raised in the pleadings have been adjudicated. Prior to the filing of the plea for remand counsel for both sides were in accord that the only question to be resolved was the status of one bank account, which we think has been correctly adjudicated. We fail to see that anything would be granted by a remand, and we deny the plea.

The judgment is affirmed at appellant's cost.