IN RE: INTERDICTION OF Eunice Lirette GAMBINO (2021)

Writ application granted. See per curiam.

Writ granted. To defeat this claim seeking to annul a donation, Calvin J. Gambino Sr. had the burden of proving by a preponderance of the evidence the donated land was his separate property. See Talbot v. Talbot, 03-814 (La. 12/12/03), 864 So. 2d 590, 600. Gambino was the only witness at trial. He testified he paid for the property entirely with his separate funds, using money donated or bequeathed to him by his parents. He introduced bank account ledgers, referred to as “passbooks,” for several accounts he maintained during that time. The passbooks are in Gambino's name and contain type-written notations stating the accounts are “separate and paraphernal funds.” According to Gambino, he used these accounts exclusively to deposit the money he received from his parents. He identified the withdrawals from those accounts used to purchase the subject land in 1989. He also introduced a copy of the act of sale whereby he acquired the land, which states it was purchased “with his own separate and paraphernal funds under his separate administration and control.”

Finding Gambino “presented credible testimony, supported by corroborating evidence, sufficient to overcome the presumption of community,” the trial court concluded the land was Gambino's separate property and was validly donated by him. See La. Civ. Code. Art. 2341. A trial court's findings regarding the nature of the property as community or separate is a factual determination subject to manifest error review. Ross v. Ross, 02-2984 (La. 10/21/03), 857 So. 2d 384, 395. Under this standard, a trial court's factual determination cannot be set aside unless, based on the record as a whole, the determination has no reasonable factual basis and is clearly wrong. See Hayes Fund for First United Methodist Church of Welsh, LLC v. Kerr-McGee Rocky Mountain, LLC, 14-2592 (La. 12/8/15), 193 So. 3d 1110, 1116. When findings are based on credibility determinations, the manifest error-clearly wrong standard demands great deference to the trier of fact's findings; for only the factfinder can be aware of the variations in a witness's demeanor and tone of voice that bear so heavily on the listener's understanding and belief in what is said. See Rosell v. ESCO, 549 So. 2d 840, 844 (La. 1989).

The trial court's factual finding in this case is not manifestly erroneous. It is based primarily on the trial court's assessment of Gambino's credibility, a determination that must be given great deference on appeal. See Rosell, 549 So. 2d at 844. This is not a case where “documents or objective evidence so contradict the witness's story, or the story itself is so internally inconsistent or implausible on its face, that a reasonable fact finder would not credit the witness's story.” Rosell, 549 So. 2d at 844-45. To the contrary, Gambino's testimony was corroborated by documentary evidence.

If, as plaintiffs argue, some of the donations to Gambino from his father occurred during his father's interdiction, those transactions were relative nullities subject to rescission only by the interdict or his legal representatives, which were Gambino and his sister. See La. Civ. Code arts. 395, 1482B, 1919, and 2031. The donations occurred decades ago and were never challenged or rescinded. We are likewise not persuaded that the relatively small amount of interest earned on the passbook accounts converted all funds therein to community property. See Biondo v. Biondo, 99-0890 (La. App. 1 Cir. 7/31/00), 769 So. 2d 94, 103. The court of appeal judgment is reversed, and the trial court judgment is reinstated.

COURT OF APPEAL JUDGMENT REVERSED; TRIAL COURT JUDGMENT REINSTATED.

Weimer, C.J., would grant and docket.