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Biondo v. Biondo7/31/2000
e funds cannot later dispute the separate nature of the property. Gautreau v. Gautreau, 96-1548 (La. App. 3rd Cir. 6/18/97), 697 So.2d 1339, 1350, writ denied, 97-1939 (La. 11/7/97), 703 So.2d 1272; see LSA-C.C. art. 2342.
In this case, the declaration provides that Vedelia purchased Andrew's ownership interest in the lot with her separate funds. Andrew concurred with the declaration by placing his signature on the act as seller. Therefore, he cannot controvert the declaration that Vedelia acquired the property with her separate funds. See LSA-C.C. art. 2342. Moreover, since LSA-C.C. art. 2341 declares that separate property of a spouse comprises property acquired with separate things, we find that the Debbie Street lot is the separate property of Vedelia. Accordingly, we conclude the trial court erred in classifying the lot as community property.
Along with the act of sale, the parties purportedly entered into a separate act of donation with respect to the four mobile homes situated on the Debbie Street lot and available for rental. Vedelia contends that she gave Andrew $7,125 from her separate funds as consideration for the donations. This contention was denied by Andrew. Andrew testified that the donations were executed simply to identify Vedelia as the registered owner of the mobile homes. According to Andrew, in substituting the name of the registered owner of the mobile homes, they did not wish to change the characterization of the mobile homes from community property to separate property. He explained that the transactions were admittedly styled as donations instead of sales to avoid the payment of sales taxes. His testimony is supported by the following language in the acts of donation:
This affidavit is made for the purpose of requesting [exemption] of Sales or Use Tax on a bona fide donation and the undersigned attest to the fact that there was no consideration involved.
Furthermore, the parties continued to use community funds to maintain these mobile homes. He explained that although the rent was placed in one of Vedelia's accounts, he understood that his one half of the rental income from this property was being used to repay Vedelia for the money she had advanced to him.
A donation inter vivos is an act by which the donor divests himself, at present and irrevocably, of the thing given, in favor of the donee who accepts it. LSA-C.C. art. 1468. Such a donation must meet strict requirements of form. See LSA-C.C. art. 1467. As to the donation of an immovable or movable, corporeal or incorporeal, the general rule is the donation must be made by an act passed before a notary public and two witnesses. LSA-C.C. arts. 1536 and 1538. A codal exception to this general rule is found in LSA-C.C. art. 1539, which governs a manual gift. The manual gift, that is, the giving of corporeal movable effects, accompanied by a real delivery, is not subject to any formality. LSA-C.C. art. 1539.
In the instant case, the acts of donation were executed by Vedelia and Andrew in the presence of a notary. They were not signed in the presence of two witnesses. Accordingly, the requirement of an authentic act was not complied with in this case. See LSA-C.C. art. 1538. In the absence of authentic acts, Vedelia must rely on proof of delivery as required by LSA-C.C. art. 1539. A donee of a manual gift must also show by strong and convincing proof that the donor had the intent to presently and irrevocably divest himself of the thing and that real delivery was made. Bergeron v. Bergeron, 411 So.2d 1183, 1187 (La. App. 4th Cir. 1982). In this case, Andrew, the alleged donor, denied that a donation was intended by him. Even Vedelia's testimony regarding the giving of
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