author: | gPARRO, J.

text:
    SUCCESSION OF Margaret Meyers HEBERT Succession of Theodule Henry Hebert
    Nos. 2003 CA 0531, 2003 CA 0532.
    Court of Appeal of Louisiana, First Circuit.
    Sept. 17, 2004.

      Neil H. Mixon, Powers & Willard, L.L.C., Baton Rouge, for Appellant Althea Whitfield, Administratrix of the Succession of T.H. Hebert.
    DeVan Pardue, Springfield, for Appellee Jeanne Hebert, Administratrix of the Succession of Margaret Meyers Hebert.
    Before: PARRO, GUIDRY, and DOWNING, JJ.
   | gPARRO, J.

In the succession proceeding for Margaret M. Hebert, the administratrix of her husband’s succession filed a motion to traverse the detailed descriptive list relative to its ownership classification of a 10 foot by 40 foot burial plot in the Ponchatoula Municipal Cemetery. After recognizing Mrs. Hebert as the sole owner of the said plot, the trial court dismissed the motion to traverse. The administratrix of Mr. Hebert’s succession appealed from that judgment, as well as two subsequent related judgments rendered in Mr. Hebert’s succession proceeding, which incorporated this finding.

Factual Background and Procedural History

Margaret M. Hebert and Theodule Henry Hebert were married in the 1920s. To their union, three children were born, Delores Hebert (Delores), John H. Hebert (John), and Althea H. Whitfield (Althea). Mr. Hebert and Mrs. Hebert had been married previously and had children born to those marriages. Mr. Hebert had nine children from his prior marriage, including Lilly H. Fendlason and Jessie H. Rottman, and Mrs. Hebert had one child from her prior marriage.

Mr. Hebert died on April 14,1952. Mrs. Hebert died on April 10, 1958. Their successions were not opened via court filings until 2002 and then each was opened separately in order to resolve an ownership dispute as to the 10 foot by 40 foot burial plot in the Ponchatoula Municipal Cemetery (Ponchatoula Cemetery) in which Mr. and Mrs. Hebert had been buried. This dispute arose when Mrs. Fend-lason’s daughter, Joy Yochim, attempted to have her husband, Willard D. Yochim, Jr., buried in the plot in question. John’s daughter, Jeanne Hebert (Jeanne), instructed cemetery officials not to allow the burial of Mr. Yochim in the plot in question as neither he nor Mrs. Yochim was a relative of Mrs. Hebert, who was the record owner. Despite Jeanne’s objection, Mr. Yochim was buried in said plot.

Jeanne was appointed as administratrix of Mrs. Hebert’s succession, as was Althea of Mr. Hebert’s succession. In the detailed descriptive list filed in Mrs. Hebert’s | ^succession proceeding, Jeanne listed the burial plot as Mrs. Hebert’s separate property. On the other hand, Althea took the position that the cemetery plot belonged to the former community of acquets and gains that existed between Mr. and Mrs. Hebert. Her position was set forth in the detailed descriptive list filed in Mr. Hebert’s succession proceeding, as well as a traversal of the detailed descriptive list filed by her in Mrs. Hebert’s succession proceeding. Subsequently, Jeanne filed a motion for summary judgment seeking a declaration that the cemetery plot in question was owned solely by the estate of Mrs. Hebert and seeking an order directed to the funeral home that was responsible for the burial of Mr. Yochim in said plot to remove his body therefrom and place it elsewhere. Jeanne’s motion was denied by the trial court. Subsequently, the trial court conducted a hearing on Althea’s traversal. Based on the evidence presented at that hearing, the trial court found that the burial plot was Mrs. Hebert’s separate and paraphernal property. Accordingly, in a judgment dated October 9, 2002, Althea’s motion to traverse was dismissed, and she was ordered to pay costs. Althea filed a suspensive appeal from that judgment.

On November 21, 2002, a judgment was entered in Mr. Hebert’s succession proceeding, granting a motion to consolidate the two succession proceedings and decreeing that Mr. Hebert’s estate had no interest in the burial plot in question pursuant to the prior ruling made in Mrs. Hebert’s succession proceeding. A similar judgment was also signed on November 25, 2002. Althea has also appealed from those two judgments.

On appeal, Althea urged that the trial court legally erred in:

1. failing to give legal effect to the operation of the civilian doctrine of seizin embodied in LSA-C.C. arts. 934 and 935;
|42. failing to apply LSA-C.C. art. 2452 regarding the sale of a thing by a non-owner;
3. failing to apply LSA-C.C. arts. 1837 and 1839 and finding that the bill of sale, which was not in authentic form or signed by Mrs. Hebert, could transfer title of the plot to Mrs. Hebert;
4. excluding all evidence relative to the issue of ownership, except the September 3,1952 bill of sale;
5. classifying the burial plot in question as Mrs. Hebert’s separate property; and
6. assessing Althea with court costs.

Motion to Traverse

The descriptive list of succession property authorized by LSA-C.C.P. art. 3136 shall be accepted as prima facie proof of all matters shown therein, unless amended or traversed successfully. Any interested person may traverse the descriptive list at any time, on contradictory motion served on the person filing it. LSA-C.C.P. art. 3137. Article 3137 clearly states that the original descriptive list does not constitute prima facie proof once the mover’s motion to traverse has been granted, and a copy of the traversed descriptive list shall be filed with the Department of Revenue.

Things in the possession of a spouse during the existence of a regime of community of acquets and gains are presumed to be community, but either spouse may prove that they are separate property. LSA-C.C. art. 2340. Article 2340 establishes a presumption in favor of the community which can be rebutted by either spouse. Since this presumption is rebuttable, the article is procedural in nature and can be applied retroactively to the facts of this case. See Tullier v. Tullier, 464 So.2d 278, 282 (La.1985). The proper burden of proof in overcoming the presumption of community contained in Article 2340 is a preponderance of the evidence. Talbot v. Talbot, 03-0814 (La.12/12/03), 864 So.2d 590, 600. The party asserting the separate nature of the property acquired diming the marriage has the burden of overcoming a strong presumption in favor of the community. Tullier, 464 So.2d at 283.

In her traversal, Althea asserted that the plot in question was community property, since it was acquired in the 1940s during the marriage of Mr. and Mrs. Hebert, and that property formerly belonging to the community served as the consideration in the exchange that resulted in the acquisition of the plot in question. | ^Jeanne’s adverse position was based on the fact that a “Bill of Sale” indicates that the plot in question was acquired by Mrs. Hebert after Mr. Hebert’s death when the community no longer existed.

The document in question provided in pertinent part:

Note: No charge due to error of selling plot purchased by Rottman to another person.
BILL OF SALE
Town of Ponchatoula to Mrs. T.H. Hebert
KNOW ALL MEN BY THESE PRESENTS, That in consideration of the sum of No charge Dollars, the receipt of which is hereby acknowledged, I, Gladys Dufreche Clerk, on the part of the Town of PONCHATOULA, LA., do hereby grant, sell, transfer and deliver unto Mrs. T.H. Hebert heirs, executors, administrators and assigns the following described lot of ground in the Ponchatoula Municipal Cemetery, viz: ... In Field ¡8 Immediately West of Sullivant Plot, measuring 4,0 feet North and South by 10 feet East and West. Must comply with the rules and regulations as per plan of said cemetery. To have and to hold the said described lot of ground unto said Mrs. T.H. Hebert heirs and assigns forever.
In testimony hereof I have hereunto affixed my official signature this the 3rd day of Sept. A. D., 1952.
/s/ Mrs. Edward B. Dufreche

Following the presentation of evidence at the hearing on Althea’s motion to traverse, the trial court stated in oral reasons that it would not consider the evidence that was offered to explain the “Bill of Sale” because it found no ambiguity in the (1) nature of the document, (2) property, (3) parties, and (4) consideration. In making these findings, the trial court recognized that the stated consideration was “[n]o charge,” with a notation as to the underlying reasons. In written reasons, the trial court found that the notation did not create sufficient ambiguity so as to require parol evidence as to the nature of the bill of sale. In oral reasons, the trial court observed that Mrs. Hebert had not been charged in connection with the 1952 sale because there had been an error somewhere along the line, which was occasioned at a date and time | fiafber the death of Mr. Hebert. The error having occurred after the termination of the community, the trial court, without resort to parol evidence, declared the plot to be Mrs. Hebert’s separate property.

Ownership interests in cemetery plots and rights to additional burials are established and regulated by statute, including the provision that “every right of interment and cemetery space shall be subject to the laws of Louisiana pertaining to community property.” Katherine S. Spaht & W. Lee Hargrave, Matrimonial Regimes, § 2.4 at 30, in 16 Louisiana Civil Law Treatise (2d ed.1997), quoting LSA-R.S. 8:803. Though the rights of use of such plots and tombs may be limited because of the nature of cemeteries, they are nonetheless patrimonial rights subject to being included in the mass of community assets. Spaht & Hargrave, Matrimonial Regimes, § 2.4 at 30.

Currently, title and rights to cemetery plots are governed by LSA-R.S. 8:801 through 814. These provisions were enacted pursuant to 1974 La. Acts, No. 417, which amended and reenacted Title 8 of the Louisiana Revised Statutes of 1950, formerly containing LSA-R.S. 8:1 to 211. Clearly, the 1974 amendments to the laws governing cemeteries were not in effect when the plot in question was acquired; therefore, they are not applicable to the facts of this case. Accordingly, we must look to the substantive law that was in effect when the plot in question was allegedly acquired.

At the time of Mrs. Hebert’s alleged acquisition in 1952, use rights relative to cemetery spaces were governed by LSA-R.S. 8:2 (West 1950), which provided in pertinent part:

Any burial lot or tomb in any cemetery controlled by any company or association incorporated for cemetery purposes may, by the owner or owners, be conveyed or willed back to and held by the company or association in perpetual trust for its preservation as a place of burial, and shall thereafter remain forever inalienable by act of the parties. The right to use the lot or tomb as a place of burial of the dead of the family of the owner and his descendants shall descend from generation to generation unless the act of conveyance in trust provides that interments in the lot or tomb shall be confined to the bodies of specified persons, in which case the lot or tomb shall be forever preserved as the burial place of the persons specified in the act and shall never be used for any other purpose.

17At that time, LSA-R.S. 8:1 (West 1950) governed the form requirements for acts of conveyance of cemetery spaces and provided:

Religious denominations, congregations, and other associations which own land destined as a place for the interment of the dead may convey parts or lots thereof, or tombs located therein, for interments. The acts of conveyance may be passed under the form prescribed by the by-laws or resolutions of the denomination, congregation, or association.
Acts so made are equally authentic and impart full proof as if passed before a notary and two witnesses. It is not necessary to record them in any public office.

When Mr. Hebert allegedly acquired an ownership interest in the plot in question in the 1940s, the previously quoted provisions were not in effect. The applicable governing law was found in section 387 of the Louisiana Revised Statutes (Wolff 1920), which provided in pertinent part:

All religious denominations and congregations of this State, and all other associations which now own, or may hereafter own, any portion of land destined as a place for the interment of the dead, shall have the right to sell, convey and transfer such parts, fractions or lots of the same, as may be necessary and proper for interments; the acts of sale, conveyance and transfer shall be passed under such form as may be prescribed by the by-laws or special resolutions of the religious denominations and congregations or other associations. Acts of sale so made shall be equally authentic and impart full proof as if they had been passed before a Notary Public and two witnesses. It shall not be necessary to record them in any public office, nor shall it be lawful for the Recorder of Mortgages in any city or parish of this State to record or to certify the existence of any privilege or mortgage bearing on said lots.

Additionally, relative to the conveyance, devise, use, and preservation of burial lots and tombs in cemeteries, 1908 La. Acts, No. 190, § 1, provided in pertinent part:

[A]ny burial lot or tomb in any cemetery controlled by any company or association incorporated for cemetery purposes under any general or special law of the State of Louisiana, may, by the owner or owners, be conveyed or devised back to and held by such company or association in perpetual trust for the purpose of its preservation as a place of burial, and shall thereafter remain forever inalienable by act of the parties, but the right to use the same as a place of burial of the dead of the family of the owner and his descendants shall descend from generation to generation unless the deed of conveyance in trust shall provide that interments in such lot or tomb shall be confined to the bodies of specified persons, in which case such lot or tomb shall be forever preserved as the burial place of the persons specified in the deed and shall never be used for any other purpose whatever ....

The municipal governing authority was vested with the power and authority to establish by ordinance or resolution all rules and regulations deemed necessary in its discretion | Rfor a public cemetery not inconsistent with the law. 1936 La. Acts, No. 49, § 4. Section 7 of Act 49 authorized such governing authorities to establish lots, plots, or burial spaces within such public cemeteries and to issue permits for interment therein of deceased persons, or to sell any such lot, plot, or burial space to the public at terms to be fixed by such governing authority, the same, however, to be used and maintained exclusively for burial purposes and subject to present and future laws of this state and ordinances of said municipality governing public cemetery and burial grounds.

Thus, whether transferred by Poncha-toula in the 1940s to Mr. Hebert or in the 1950s to Mrs. Hebert, the governing law would have been virtually the same, that is, form requirements for an act of sale were governed by the by-laws or special resolutions or ordinances of Ponchatoula, rather than those pertaining to the transfer of immovable property found in the Louisiana Civil Code, as suggested by Althea. See Petit v. Depass, 5 La.App. 40 (La.App.Orl.1926). Compliance with such form requirements rendered the act authentic.

The record does not contain any evidence as to the by-laws or any applicable resolutions or ordinances that may have been adopted by Ponchatoula. Assuming for the sake of argument that the September 3, 1952 bill of sale satisfied any such form requirements, we recognize that Pon-chatoula, as the owning body, would be bound by the authentic character of the title it issued. Furthermore, if the bill of sale conclusively showed ownership in a particular person, parol evidence should not be allowed to prevail against the title as issued. See Farelly v. Metairie Cemetery, 44 La. Ann. 28, 10 So. 386, 387 (1891).

The document in question purports to be an act of sale. At all pertinent times, a contract of sale was defined as an agreement by which one gives a thing for a price in |9current money, and the other gives the price in order to have the thing itself. Three circumstances concur to the perfection of the contract, to wit: the thing sold, the price, and the consent. LSA-C.C. art. 2439 (1870). Louisiana Civil Code article 2464 (1870) sets forth the essential elements of price as follows:

The price of the sale must be certain, that is to say, fixed and determined by the parties.
It ought to consist of a sum of money, otherwise it would be considered an exchange.
It ought to be serious, that is to say, there should have been a serious and true agreement that it should be paid.
It ought not to be out of proportion with the value of the thing; for instance the sale of a plantation for a dollar could not be considered as a fair sale; it would be considered as a donation disguised.

The intent of all the parties is to be determined by the words of the contract when these are clear and explicit and lead to no absurd consequences. LSA-C.C. art.1945 (1870). Whether the terms of a contract are ambiguous is a question of law. Appellate review of questions of law is simply to discern whether the trial court’s interpretive decision is legally correct. Busby v. Cappaert Manufactured Housing, Inc., 01-496 (La.App. 3rd Cir.10/3/01), 799 So.2d 608, 610. If legal error is found, an appellate court is to make a de novo review. See Gonzales v. Xerox Corp., 320 So.2d 163, 165-166 (La.1975).

The document in this case does not provide for the payment of any sum of money, but states the sale was made for the “consideration of the sum of No charge | mDolIars.” The associated notation indicates no sum would be required because of an error by the owning body, indicating that the transaction was something other than what it purported to be, probably an exchange. An exchange is a contract, by which the parties to the contract give to one another, one thing for another, whatever it be, except money; for in that case it would be a sale. LSA-C.C. art. 2660 (1870).

The purported parties to the 1952 contract were the “Town of PONCHATOU-LA” and “Mrs. T.H. Hebert.” Under the terms of the agreement, Ponchatoula transferred to Mrs. Hebert the lot of ground in the Ponchatoula Cemetery in Field 2 immediately west of the Sullivant Plot. There was no indication that Mrs. Hebert gave anything to Ponchatoula in return. The notation suggests that a third party, Rottman, had previously provided the consideration for the underlying transaction. Thus, we disagree with the trial court’s conclusion that the “Bill of Sale” is clear and unambiguous. In light of the ambiguity presented by the act of transfer, we conclude that the trial court’s ruling to the contrary constituted legal error.

In making our de novo review as a consequence of this legal error, we find it appropriate to consider the parol evidence offered to show the nature of Mrs. Hebert’s ownership interest in the burial plot in question (the replacement plot). As.the mover, Althea had the burden of proving her claim by a preponderance of the evidence. See Leleux v. Viator, 55 So.2d 662, 667 (La.App. 1st Cir.1951). In addition to her own testimony, Althea offered the testimony of the following in support of her claim that the replacement plot was community property: Julian Dufreche (Dufreche), Ponchatoula’s Mayor; Mrs. Rottman; Rosemary LeBourgeois (Le-Bourgeois), former city clerk for Poncha-toula; Lerlean Rottman Gilner (Gilner), Mrs. Rottman’s daughter; and Mrs. Yo-chim.

Dufreche testified that his duties as mayor of Ponchatoula included the management of the Ponchatoula Cemetery, which was acquired by the city in 1935. He explained that the replacement plot was located in the portion of the cemetery owned by the city and not the section owned by the Catholic church. According to Dufreche, the “Bill of Sale” to Mrs. Hebert is the only title relative to this plot in the cemetery records. The former city clerk for Ponchatoula, LeBourgeois, testified that the cemetery Inrecords were scarce, primitive, and disorganized when she took office in 1964. She was charged with sorting and organizing the paperwork that was in the city’s possession in connection with the upcoming move into a new city hall building. LeBourgeois was not aware of the existence of a plot map or book of deeds for the cemetery. She recounted that the city did not have any record of deeds that were issued prior to 1964. However, she explained that such information may have been in the possession of the person who had contracted with the city concerning the operation of the cemetery. Pursuant to the contract, that person was responsible for selling plots, preparing the necessary paperwork, and disbursing the deeds.

According to Dufreche, the “no charge” notation indicated that a person mistakenly buried someone in a plot belonging to another. By this notation, the Town of Ponchatoula conceded that a plot owned by “Rottman” had been sold by it to someone else, prompting the replacement or exchange of that plot with the plot at issue in this case. In further explanation of the notation, Mrs. Rottman, Mr. Hebert’s daughter from his prior marriage, testified that subsequent to the death and burial of her half-sister, Delores, in 1925, she and her father discovered that a non-family member had been mistakenly buried in the plot previously purchased by Mr. Hebert. She and Mr. Hebert visited the cemetery in the 1940s and discussed the improper burial with Ponchatoula’s then mayor, Smythe Guthrie, and Harry McKneely of the funeral home, who was in charge of cemetery operations at that time. Mrs. Rottman explained that, rather than disturbing the graves of Delores and the other family members who had been buried in that plot, Mr. Hebert opted to obtain a replacement plot, for which no money was given. According to Mrs. Rottman, she, Mr. Hebert, Mr. I^Guthrie, and Mr. McKneely walked around the cemetery grounds, and Mr. Hebert selected the spot where he was later buried. Mrs. Rottman recalled that she witnessed only a handshake and never saw a deed to the replacement plot.

Furthermore, Mrs. Rottman stated that she and her deceased husband had acquired a 20 foot by 40 foot plot in the Catholic section of the cemetery, in which her newborn son had been buried, that also involved an improper burial. On account of this error in burial, the Rottmans obtained another plot over which they placed the family name, “Rottman,” and transferred the remains of their infant son into that plot. Mrs. Rottman could not recall the plot number or the year in which her replacement plot had been acquired; however, she testified that she held a deed for it, which she believed to be stored at a bank. Mrs. Rottman denied that the plot given in exchange to Mrs. Hebert for the replacement plot belonged to the Rott-man Family; to the contrary, the essence of her testimony was that the plot transferred to Mrs. Hebert was the same plot selected by Mr. Hebert in the 1940s in exchange for the original plot acquired to bury Delores in 1925.

Dufreche explained that there is no record that Mr. Hebert ever owned a plot in the cemetery. However, the cemetery records also do not reflect any plot ownership by “Rottman,” yet the notation on the “Bill of Sale” reveals just the opposite. We discern from the testimony of LeBour-geols and Rottman that such records quite possibly were lost or were never incorporated into the cemetery records kept by the city. After thoroughly considering the entire record, we find that Althea has shown by a preponderance of the evidence that the notation’s reference to a plot purchased by “Rottman” was erroneous, and that such reference should have instead been to “Hebert.” Therefore, since no price was given, we conclude that the “Bill of Sale” executed in 1952 actually evidenced an exchange.

In determining if the property acquired by Mrs. Hebert in 1952 was her separate property, we must examine the nature of the property given as consideration for the exchange. The record established by a preponderance of the evidence that the | ^property given was the plot acquired by Mr. Hebert in 1925, at a time when Mr. and Mrs. Hebert were shown by the evidence to have been married, in which Delores and three other family members had been buried. The evidence reasonably supports that Ponchatoula Cemetery’s subsequent mistaken burial of a non-family member in the plot acquired in 1925 prompted the exchange in question.

Having been purchased by Mr. Hebert and possessed by Mr. and Mrs. Hebert during the existence of a regime of the community of acquets and gains, the plot that was purchased in 1925 is presumed to be community. See LSA-C.C. art. 2340. As the representative of Mrs. Hebert’s succession, Jeanne produced no evidence to prove that Mrs. Hebert had exchanged her separate property for the replacement plot. Property received in an exchange partakes of the same character as that given. Kittredge v. Grau, 158 La. 154, 103 So. 723, 725 (1922). Thus, the replacement plot received by Mrs. Hebert in the exchange would partake the community character of the property given. The 1952 transfer to Mrs. Hebert provided documentation of the exchange of the 1925 plot for the plot selected by Mr. Hebert in the 1940s.

Having determined that the plot in question was acquired as a result of an exchange of property belonging to the former community of Mr. and Mrs. Hebert, we conclude that Althea successfully traversed the detailed descriptive list filed in Mrs. Hebert’s succession proceeding by showing that the plot in question was community property. Based on the evidence offered at the hearing on the motion to traverse, we find that Mr. Hebert’s succession owns an undivided one-half interest in the plot in question. Therefore, we And the trial court erred in dismissing Althea’s motion to traverse and ordering her to pay costs. For the same reason, we find error in the subsequent judgments in the consolidated proceedings relative to the detailed descriptive list filed in Mr. Hebert’s succession proceeding.

Motion for Remand

Althea has filed a motion for remand, seeking to have this court remand this matter to the trial court for an evidentiary hearing and a determination as to the date on which Mr. and Mrs. Hebert were married. The motion is based on her alleged subsequent discovery that the marriage of her parents occurred on January 7, 1926, 114rather than on January 7, 1920, as she previously believed based on an allegedly. altered marriage certificate possessed by her family. She urges that after considering this new evidence, the trial court would find that the marriage occurred in 1926, rather than in 1920, thereby supporting the classification of the replace-merit plot as Mr. Hebert’s separate property. This theory is based on the concept that property received in an exchange partakes of the same character as that given. Kittredge, 103 So. at 725. If indeed the marriage occurred after Mr. Hebert purchased the original plot in which Delores was buried in 1925, the original and replacement plots would have been Mr. Hebert’s separate property. However, at the heart of the dispute between the Hebert heirs is whether Mr. Hebert held an ownership interest in the replacement plot so as to establish interment rights with respect to all of his descendants. Whether he owned the plot as his separate property or as a co-owner of community property, the right of his descendants to be buried there would not be affected by the date on which he married Mrs. Hebert. Because Althea has failed to show what practical effect the particular classification of Mr. Hebert’s ownership interest in the replacement plot would have on the determination of the interment rights of Althea and her blood siblings, we find no good ground to exercise our discretion to grant her motion for a remand for the purpose of a new trial; thus, her motion for a remand is denied.

Decree

For the foregoing reasons, the October 9, 2002 judgment is reversed. Judgment is rendered granting the motion to traverse filed by Althea and declaring that the 10 foot by 40 foot burial plot belonged to the community of acquets and gains of Mr. and Mrs. Hebert. Accordingly, the detailed descriptive list that was filed in Mrs. Hebert’s succession proceeding is amended to reflect an undivided one-half ownership interest in and to a 10 foot by 40 foot burial plot in the Ponchatoula Cemetery in Field 2 | ^immediately west of the Sullivant Plot. The costs of the trial court proceeding relative to the traversal are assessed to Mrs. Hebert’s succession.

The portion of the November 21, 2002 judgment that declared Mr. Hebert’s estate had no interest in the 10 foot by 40 foot burial plot is reversed, and judgment is rendered declaring that the succession of Mr. Hebert has an undivided one-half ownership interest in and to a 10 foot by 40 foot burial plot in the Ponchatoula Cemetery in Field 2 immediately west of the Sullivant Plot. The November 25, 2002 judgment is vacated.

All costs of this appeal are assessed to Mrs. Hebert’s succession. Furthermore, the motion for a remand filed by Althea Whitfield is denied, and the related costs are assessed to Mr. Hebert’s succession.

OCTOBER 9, 2002 JUDGMENT REVERSED AND JUDGMENT RENDERED; NOVEMBER 21, 2002 JUDGMENT REVERSED IN PART AND JUDGMENT RENDERED; NOVEMBER 25, 2002 JUDGMENT VACATED; MOTION TO REMAND DENIED.

      . At the time of these filings, Althea was the only living child born of the marriage of Mr. and Mrs. Hebert.

      . Subsequently, John was buried in this plot next to his mother,

      . Mrs. Yochim joined with Althea in the filing of the traversal.

      . The motion for a suspensive appeal was combined with a motion to stay both succession proceedings during the pendency of the appeal. Although a contradictoiy hearing was scheduled for the request for a stay, there is no evidence in the record of any ruling on this motion.

      . Once the November 21, 2002 judgment was signed consolidating the two proceedings, the trial court was divested of jurisdiction of the issues resolved in Mr. Hebert’s proceeding because of the appeal that was filed on November 6, 2002, in Mrs. Hebert’s proceeding. See LSA-C.C.P. art.2088. Accordingly, the trial court was without jurisdiction to render the judgment signed on November 25, 2002, even though the handwritten language merely clarified that the written reasons for judgment were in Mrs. Hebert’s succession proceeding.

      .As to the notation inserted at the top of the document, the trial court orally noted the lack of any supporting written documentation. Because the notation referred to a sale to Rottman, not Mr. Hebert, the trial court declined to find that Mr. Hebert owned an interest in the plot in question.

      . Cemetery space use rights are now addressed in LSA-R.S. 8:805.

      . Such formalities are now governed by LSA-R.S. 8:812.

      . Interments in lots in cemeteries were governed by the rules and regulations of the owning body. See Farelly v. Metairie Cemetery, 44 La. Ann. 28, 10 So. 386 (1891).

      . LSA-C.C. art. 2439 was amended and reenacted by 1993 La. Acts, No. 841, § 1, effective January 1, 1995, to provide: "Sale is a contract whereby a person transfers ownership of a thing to another for a price in money. The thing, the price, and the consent of the parties are requirements for the perfection of a sale.”

      . LSA-C.C. art. 2464 was amended and reenacted by 1993 La. Acts, No. 841, § 1, effective January 1, 1995, to provide:
      The price must be fixed by the parties in a sum either certain or determinable through a method agreed by them. There is no sale unless the parties intended that a price be paid.
      The price must not be out of all proportion with the value of the thing sold. Thus, the sale of a plantation for a dollar is not a sale, though it may be a donation in disguise.

      .By virtue of 1984 La. Acts, No. 331, § 1, effective Januaiy 1, 1985, the substance of former LSA-C.C. art. 1945(3) was reproduced in LSA-C.C. art.2046, which provides: "When the words of a contract are clear and explicit and lead to no absurd consequences, no further interpretation may be made in search of the parties’ intent.”

      . LeBourgeois’ testimony corroborates the possibility of such a happening.

      . Gilner described this plot as being located in the northeast section of the Ponchatoula Cemetery a distance from where Mr. Hebert was buried.

      . Although Althea was not present at the time of the dealings in the 1940s, she testified that she learned from her parents that Mrs. Rottman was present when the transaction occurred.

      . According to Mrs. Rottman, four family members were buried in the plot acquired by Mr. Hebert in 1925:(1) Delores; (2) Mrs. Rott-man’s niece, Rita; (3) Mrs. Rottman's brother, Patrick Hebert (Patrick); and (4) Patrick's son, Charles. The burial of these family members in the original plot was corroborated by Althea’s testimony. Mrs. Rottman reported that Delores and Rita are still buried in the original plot; however, the remains of Patrick and Charles were removed from the original plot by Patrick’s wife.

      .According to Althea, the following family members are buried in the replacement plot: Mr. Hebert; Mrs. Hebert; her brother, John; and Mr. Yochim.

      . We conclude that the official marriage record, relied on by Althea as grounds for a remand for a new trial, could have been discovered by due diligence before the hearing on the traversal, and thus that record does not constitute new evidence warranting a new trial. Nor do we find that any of the other peremptory grounds in LSA-C.C.P. art. 1972 mandating the grant of a new trial are applicable in this case.

      . In so ruling, we note that Mrs. Hebert’s son from her prior marriage is already deceased and is buried in a different cemetery.


source: Caselaw Access Project

author: | .PARRO, J.

license: Public Domain

text:
    SUCCESSION OF Katherine Scherer Mahoney HALLIGAN
    No. 2003 CA 1168.
    Court of Appeal of Louisiana, First Circuit.
    Sept. 17, 2004.
    Thomas Scherer Halligan, Baton Rouge, for Plaintiff-Appellant in Proper Person.
    David M. Hansen, Baton Rouge, for Defendant-Appellee Louisiana Department of Revenue.
    Before: CARTER, C.J., PARRO, and GUIDRY, JJ.
   | .PARRO, J.

This appeal questions whether the entire death benefit of a non-qualified, tax-deferred, single-premium annuity, which is paid directly to a beneficiary named in the annuity following the death of the annuitant, falls within the estate of the decedent/annuitant and is subject to inheritance tax. Thomas Halligan (Halligan) is the sole heir of his deceased mother, Katherine Scherer Mahoney Halligan, and is also the named beneficiary of the death benefit in a non-qualified, tax-deferred, single-premium annuity purchased by her during her lifetime. He appeals a judgment in her succession finding the entire death benefit — the purchase price plus the earnings portion — of the annuity was included in his mother’s estate and was subject to inheritance tax in the amount of $1,890.16, plus legal interest. The judgment further declared, in response to Hal-ligan’s challenge, that the inheritance tax laws, as applied in this case, are not unconstitutional. After reviewing the legal issues presented in this appeal, all of which appear to be res nova, we affirm.

FACTUAL AND PROCEDURAL BACKGROUND

On February 28, 2001, Halligan filed a petition for possession in an intestate succession without administration or, alternatively, for possible probate of a purported olographic testament without administration and for sending the legatee into possession of his mother’s estate. In April 2002, he filed a detailed descriptive list, in which he enumerated and valued the assets and liabilities of the estate. The list did not include the annuity. In a separate paragraph, Halligan stated the following:

In addition, deceased, during her lifetime, had an annuity from which she collected nothing, but upon the condition of her death, it paid a death benefit to the named beneficiary, who happened to be Thomas Scherer Halligan, her only son. Thomas Scherer Halligan does not believe that this annuity should be included in the estate of the deceased, but it is | ^mentioned here to allow the court to adjudicate same, since the Collector of Revenue may likely claim that inheritance tax is due and owning [sic] on the death benefit. The total amount of the death benefit was $23,199.70. It represents the purchase price of the annuity, which was $16,183.04, and the amount of the earnings or yield on the deceased’s payment, which was the difference between the two, or $7,016.66.

In August 2002, Halligan filed a rule to determine the amount of inheritance tax due, if any, attaching a sample of the annuity contract purchased by his mother from Great Northern Insured Annuity Corporation (GNA). He stated the Collector of Revenue was claiming inheritance tax on the entire death benefit, which included the purchase price and all the interest that had accrued before the death benefit was paid. Halligan claimed this was incorrect and suggested that one of several alternative tax treatments was the correct method of computing the tax.

Halligan’s first contention was that this annuity was the same as a life insurance policy; therefore, the payment of the death benefit directly to the named beneficiary was tantamount to a payment of life insurance proceeds and was not subject to inheritance tax. Second, he argued in the alternative that under the current statutory scheme, the payment of the earnings portion of the death benefit had to be simultaneously classified as “income” earnings to the beneficiary, taxable at his income tax rate to track federal tax law, and also classified as “inheritance” and subject to the inheritance tax. He claimed these were mutually exclusive positions, because if the earnings portion fell into his mother’s estate and was subject to inheritance tax, the earnings portion should be classified as income of the decedent and taxed at her income tax rate; if the earnings portion did not fall within the estate and was taxable to him as income at his income tax rate, it was not subject to the inheritance tax. Third, he contended application of this statutory scheme, resulting in double taxation of the earnings portion of the death benefit, was unconstitutional.

The Collector of Revenue countered that the annuity was a gift made in | contemplation of death, and therefore fell within the estate and was subject to inheritance tax under LSA-R.S. 47:2401 and 2404. Concerning the double taxation issue, the Collector of Revenue’s brief to the trial court “disposed of this issue” by stating, “[t]he value of this annuity in question is subject to the state inheritance tax but not the state income tax.” The Collector of Revenue further argued that Halligan bore the burden of proof concerning any exemption to the inheritance tax, and that he had failed to cite any law exempting the money paid under the annuity from the inheritance tax.

After, considering the briefs, the evidence, and the arguments of both parties at a hearing, the district court determined “that the whole of the contested annuity was to be included within the succession and be subject to the inheritance tax” and that the statutory scheme did not violate the federal or state constitutions. Recognizing that the parties still had disagreements concerning the issues and that they reserved the right to appeal those issues, the court fixed the inheritance tax due in the amount of $1,890.16, plus legal interest, which was based on the inclusion of the entire death benefit as property of the estate. The court rendered a judgment accordingly, and this appeal followed.

DISCUSSION

Annuity/Life Insurance

An annuity contract is defined in LSA-R.S. 22:647(B)(2) as follows:

The term “annuity contract” shall include any contract which:
(a) Is issued by a life insurance company licensed to provide the contract in the state in which it was issued at the time of issue.
(b) States on its face or anywhere within the terms of the contract that it is an “annuity” including but not limited to an immediate, deferred, fixed, equity indexed, or variable annuity, irrespective of current pay status or any other definition of “annuity” in Louisiana law.
(c) Provides the contract owner the ability to defer United States income taxes on any interest earned and not distributed to the owner.
(d) Transfers some risk of financial loss to the insurance company for financial consideration.
Is(e) Was approved as an annuity contract by the Department of Insurance of the state in which it was issued prior to issue.

The parties agree that the contract at issue in this case qualifies as an annuity under the above provisions.

Inheritance tax is mandated by LSA-R.S. 47:2401(A), which states:

There is hereby levied a tax upon all inheritances, legacies, and donations and gifts made in contemplation of death, except such as are hereinafter specifically exempted.

The exemptions are set out in LSA-R.S. 47:2402; none of them apply to this annuity, and Halligan does not contend that they do. Louisiana Revised Statute 47:2404(A) reiterates that, subject to the exemptions in LSA-R.S. 47:2402, the property to be used to measure the inheritance tax is “all property of every nature and kind” included in any inheritance, legacy, or donation or gift made in contemplation of death.

Halligan contends that he does not have to establish any exemption or exclusion, because the imposition of the inheritance tax starts with the detailed descriptive list, and there is no statute stating that annuity proceeds are to be included on the detailed descriptive list as property of the decedent’s estate. However, the statutory scheme does not have to specify every conceivable type of property to put on the detailed descriptive list in order to have that property included. Rather, LSA-R.S. 47:2404(A) speaks in broader terms of “all property of every nature and kind” and “donation or gift made in contemplation of death.” On this point, we agree with the Collector of Revenue that the designation of Halligan as the beneficiary to receive the annuity proceeds upon the death of the decedent/annuitant falls within that category and is a gift to him — not made during his mother’s lifetime, but made in contemplation of and to take effect upon the event of her death. Therefore, the annuity falls within the broad categories of property upon which the inheritance tax is to be computed, unless Halligan can demonstrate that some exemption or exclusion applies to the annuity proceeds.

A specific exclusion for life insurance proceeds is found in LSA-R.S. 47:2404(C), which states that it excludes from the inheritance tax:

any proceeds receivable by any beneficiary, other than the estate of the decedent, under any life insurance policy, or any retirement or pension |fiplan, trust, system, or policy. Retirement or pension plan, trust, system, or policy, as used in this Subsection, means and includes any contract, agreement, or arrangement qualified under Sections 401 and 408 of the Internal Revenue Code under which an annuity or other payment was payable to the decedent or which the decedent possessed the right to receive, either alone or in conjunction with another, for his life, (emphasis added).

Halligan recognizes that, because the annuity involved in this case is not “qualified” under the named sections of the Internal Revenue Code, it does not fall within the second sentence of this exclusion. Nevertheless, Halligan assigns as error the trial court’s failure to recognize that the death benefit from this type of annuity should be treated the same as life insurance proceeds, which are excluded from the imposition of inheritance tax.

It is well-settled in Louisiana that the proceeds of life insurance, if payable to a named beneficiary other than the estate of the insured, are not considered to be a part of the estate of the insured. They do not come into existence during his life, never belong to him, and pass to the beneficiary by virtue of the contractual agreement between the insured and the insurer. T.L. James & Co. v. Montgomery, 332 So.2d 834, 847 (La.1975). Our supreme court has clearly stated that life insurance is sui generis, distinctive both in its confection and in its effect, and has declined to extend its principles to any other types of dispositions. Id. at 845-46; Fowler v. Fowler, 03-0590 (La.12/12/03), 861 So.2d 181, 183-84.

In this regard, the supreme court has also noted that an examination of the authorities does not warrant the conclusion that an annuity contract is an insurance contract, because an annuity comprehends few of the elements of an insurance contract. Succession of Rabouin, 201 La. 227, 234-35, 9 So.2d 529, 531 (1942). Life insurance is desirable from an economic and social standpoint as a device to shift and distribute risk of loss from premature death. These elements of risk-shifting and risk-distributing are essential to a life insurance contract. Helvering v. Le Gierse, 312 U.S. 531, 539, 61 S.Ct. 646, 649, 85 L.Ed. 996 (1941). In contrast, annuity contracts are generally recognized as investments, rather than as insurance. T.L. James, 332 So.2d at 846; Helvering, 312 U.S. at 540, 61 S.Ct. at 650. In Rabouin, the distinction was further clarified as follows:

[7The reason why life insurance, if made payable to a beneficiary other than the estate of the insured or his heirs, executors or administrators, is not considered as a part of the estate of the insured ... is that the proceeds or avails of life insurance do not come into existence during the lifetime of the insured, and do not belong at any time to him, but pass by virtue of the contract directly from the insurer to the beneficiary named in the policy. That is not true of an annuity contract. In such a contract the payment to the beneficiary, if he or she survives the annuitant, is a payment of a fund which belonged to the annuitant during his lifetime.

Rabouin, 9 So.2d at 530.

The distinction between annuities and life insurance policies was reiterated by the Louisiana Supreme Court in Succession of Pedrick, 207 La. 640, 21 So.2d 859 (1945), in which the issue was whether inheritance tax was owed on the balance of an annuity contract after a portion of its value had been paid to the annuitant before death. The court reviewed its decision in Rabouin, concluding “it was specifically held that the funds formed a part of the estate of the annuitant.” Pedrick, 21 So.2d at 860.

We pointed out in the Rabouin case the difference between an insurance contract and an annuity contract. We cited authorities from other jurisdictions holding that an annuity was subject to an estate tax and not exempt as insurance.
A contract of the nature involved in this suit is an investment pure and simple. The fact that it is termed an annuity contract does not in any way change the character of the contract.
From our examination of the holdings of other jurisdictions, we find that the prevailing opinion is to the effect that the refund of a contract of this nature is considered a portion of the estate and subject to inheritance and estate tax. (Citations omitted).

Id. at 860. Finally, the court summarized:

We have therefore concluded that the refund involved herein is a part of the decedent’s estate and therefore subject to the inheritance tax.

Id. at 861.

In Jochum v. Estate of Favre, 313 So.2d 870 (La.App. 4th Cir.1975), the court disagreed with the position of the executrix, who wanted the proceeds of a pension or annuity treated the same as proceeds received by the named beneficiary of a life | «insurance policy, i.e., not included in the estate of the decedent. The court cited Rabouin, noting its distinction that the funds invested in an annuity constitute a thing owned by the decedent during his lifetime, rather than coming into being upon death, as do life insurance proceeds. Reversing the lower court, the court ordered that the annuity proceeds be listed on the detailed descriptive list as an asset of the succession. Jochum, 313 So.2d at 871.

None of these cases precisely addresses the issue before us, as they do not interpret current statutes in the context of determining whether inheritance tax is due. Yet, the key factor distinguishing annuities from life insurance policies in these cases is that the funds invested in an annuity were owned by the annuitant when the contract was purchased and those funds earned interest before the annuitant’s death, thus forming a part of the estate, whereas life insurance proceeds come into existence at the moment of death and were never owned by the decedent. Despite other differences in the law and facts of the cited cases, this key factor runs throughout the jurisprudence and remains true in the situation before us. Those instances in which the courts have drawn the distinction between annuities and life insurance policies support the trial court’s decision in this case that the death benefits from an annuity are not the same as life insurance proceeds and, therefore, are not excluded from the decedent’s estate. We note also, as did the trial court, that if the legislature had intended to exclude all annuity proceeds from the imposition of inheritance tax, it would not have designated those particular annuities that are “qualified under Sections 401 and 408 of the Internal Revenue Code.” See LSA-R.S. 47:2404(C). By making this designation, it appears the legislative intent was to limit the exclusion to those annuity proceeds only.

Halligan contends, however, that the legislative history of other applicable statutes demonstrates the legislature’s intent to treat annuity death benefits the same as life insurance proceeds. In 1944, the legislature enacted Act 221, which stated that all proceeds of all policies of annuity insurance were to have and enjoy the same legal | flstatus as was accorded to the proceeds of life insurance policies under the existing laws. 1944 La. Acts, No. 221, § l. The enactment of Act 221 changed the law, eliminating the distinction drawn by the supreme court in the Rabouin case. Since then, as now, life insurance proceeds were not considered property of the estate and were not subject to inheritance tax, Halligan contends that Act 221 mandated that annuity proceeds were likewise not to be considered property of the estate and were not to be subject to inheritance tax. We believe Halligan is correct on this point; had this case, like the Lantz case, involved a decedent whose death occurred before the repeal of Act 221, we would have had to agree with Halligan’s position. As previously mentioned, the Lantz court recognized that Act 221 had changed the law and, applying its provisions, determined that the death benefit of the annuity in that case did not fall into the estate of the annuitant, but was to be paid to the beneficiary named in the annuity contract. Lantz, 176 So.2d at 225.

However, Act 221 was repealed in 1948 and was not re-enacted in the same terms in the new, comprehensive Insurance Code.1948 La. Acts, No. 195, § 32.01. Yet Halligan contends that Section 14.37 of the new code continued to treat annuities like life insurance proceeds, stating, in pertinent part:

The lawful beneficiary, assignee, or payee, including the insured’s estate, of a life insurance policy, or endowment policy or annuity contract, heretofore or hereafter effected shall be entitled to the proceeds and avails of the policy or contract against the creditors and representatives of the insured and of the person effecting the policy or the contract or of the estate of either, and against the heirs and legatees of either such person saving the rights of forced heirs, and such proceeds and avails shall also be exempt from all liability for any debt of such beneficiary, payee, or assignee or estate, existing at the time the proceeds or avails are made available for his own use.

1948 La. Acts, No. 195, § 14.37. Halligan points out that this provision lives on — in substantially the same form and with the same effect for annuities — in current LSA-R.S. 22:647(B)(1), which states:

| inThe lawful beneficiary, assignee, or payee, including the annuitant’s estate, of an annuity contract, heretofore or hereafter effected, shall be entitled to the proceeds and avails of the contract against the creditors and representatives of the annuitant or the person effecting the contract, or the estate of either, and against the heirs and legatees of either such person, saving the rights of forced heirs, and such proceeds and avails shall also be exempt from all liability for any debt of such beneficiary, payee, or assignee or estate, existing at the time the proceeds or avails are made available for his own use.

We disagree with Halligan’s contentions on this point. Although he is correct that the 1948 provision of the Insurance Code is very similar to the current provisions of LSA-R.S. 22:647(A)(1) and (B)(1), when we compare these provisions to Act 221, it is obvious that the language of the Insurance Code was and is considerably narrower in scope and more detailed than the broadly worded and all-inclusive text of Act 221. Act 221 said that, for all purposes under the law, annuity proceeds were to be treated the same as life insurance proceeds. Louisiana Revised Statute 22:647 is much more particularized, as evidenced by its title, “Exemption of proceeds; life, endowment, annuity” (emphasis added). This is an exemption statute, the purpose of which is to shield proceeds of certain contracts from the claims of creditors of the decedent or the estate, other than forced heirs. Paragraph A provides an exemption for life insurance proceeds; Paragraph B provides the same exemption for annuity proceeds. But the fact that the exemption is the same for both life insurance and annuity proceeds does not mean that life insurance and annuity proceeds shall in every respect and for all purposes have and enjoy the same legal status, as was stated in Act 221. Had the legislature intended to continue the same legal status and treatment for life insurance and annuities beyond the repeal of Act 221, it knew how to do so and could have done so. The fact that it instead legislated a set of more narrow exemptions indicates that a change in the law was intended.

Furthermore, the “sui generis” treatment of life insurance proceeds, whereby they are paid directly to a named beneficiary and do not fall into the decedent’s estate, is a jurisprudential exception that is not bestowed or codified by LSA-R.S. 22:647. |nRather, that exception has been codified in LSA-R.S. 47:2404(0), which does not except this non-qualified annuity from the general rule that all property receivable by a beneficiary is subject to inheritance tax. As the supreme court reiterated in the recent Fowler case, “life insurance proceeds enjoy a status not accorded to other property in Louisiana.” Fowler, 861 So.2d at 183.

Additionally, as the trial court correctly determined, the Collector of Revenue does not stand as a creditor of the decedent/annuitant or the estate when imposing an inheritance tax. See LSA-R.S. 22:647(B)(1). The inheritance tax is a tax on the devolution of property at death; it is not a property tax on the property of the decedent, but is an excise or privilege tax imposed on the transfer of property of a decedent, made effective by his or her death. It is generally imposed on the exercise of the legal power to transmit property or on the right to receive the property under a will or intestacy laws, or by any deed, grant, or gift to become operative at or after death. 85 C.J.S. Taxation § 1783 (2001). In Louisiana, the tax is imposed on the right to take and receive the property, rather than on the right to give or bequeath it. Succession of Cotton, 172 La. 819, 826, 135 So. 368, 371 (1931). In State v. Succession of Brewer, 190 La. 810, 813, 182 So. 820, 820-21 (1938), the Louisiana Supreme Court reiterated this definition of the inheritance tax, and further stated:

This doctrine [from Succession of Cotton ] is equally applicable in the instant case for the reason that the tax is upon the right to take and receive the inheritance. In other words, it is a tax on the privilege to inherit.

See also Succession of Lindsey, 179 So.2d 669, 671 (La.App. 2nd Cir.1965). Although measured by the value of the property transferred, the tax is not a property tax, but is imposed on “all inheritances, legacies, and donations and gifts made in contemplation of death.” LSA-R.S. 47:2401 and 2404; see Succession of Henderson, 211 La. 707, 717, 30 So.2d 809, 812 (1947). Comparing these descriptions of the inheritance tax to the exemptions provided in LSA-R.S. 22:647(B), it is clear that the Collector of Revenue does not function as a creditor of the decedent/annuitant or the estate. Furthermore, l^the inheritance tax is not a debt of the beneficiary that is already existing when the annuity proceeds become available to him. Therefore, even if the Collector of Revenue is a creditor of the beneficiary vis-a-vis the inheritance tax itself, the debt or liability that is imposed by the Collector of Revenue for that purpose is not one exempted by the statute.

Accordingly, although LSA-R.S. 22:647(B)(1) provides certain exemptions for annuity proceeds that are similar to those provided for life insurance benefits under LSA-R.S. 22:647(A)(1), we do not find that these similarities mandate the conclusion that annuity contracts are to be treated the same as life insurance policies for all purposes. Nor do we find that any of the exemptions established by LSA-R.S. 22:647(B)(1) shield the proceeds of the annuity in this case from the inheritance tax. Neither our research nor Halligan’s arguments have directed us to any other provisions that would exempt or exclude the annuity proceeds from the inheritance tax. Therefore, we agree with the trial court that the annuity proceeds in this case are not to be treated the same as life insurance proceeds and are subject to the inheritance tax.

Income Tax/Double Taxation/Constitutionality

In the event this court agreed that the annuity proceeds were properly included in the estate and were subject to the inheritance tax, Halligan’s alternative argument is that under the taxing scheme, the earnings portion of the annuity is classified as “income” earnings to the beneficiary and taxed at his income tax rate, and is also classified as “inheritance” to the beneficiary by virtue of being included in the estate before it passed to him and is taxed to him again as inheritance. He contests the computation of the income tax at his rate, rather than at the decedent’s rate, and claims the statutory scheme results in double taxation and is unconstitutional.

In dealing with these issues, the trial court noted:

hsThe State pointed out that double taxation is impossible pursuant to Revised Statute 47:45, which provides that an inheritance is not subject to income tax.
% * *
With regard to the double taxation argument, this argument is not ripe because the State has not imposed income tax on the annuity. Therefore, the Court finds in favor of the State and against Mr. Halligan.

Halligan argues that the district court was misled by the Collector of Revenue’s representations in briefs and oral arguments, in that the Collector of Revenue has, in fact, imposed and collected income tax from him at his income tax rate on the earnings portion of the annuity. In this regard, Halligan has filed a separate suit against the Collector, seeking a refund of income taxes attributable to the earnings portion of the annuity that were paid by him under protest. While we recognize that there may be an attempted or actual collection of income tax from Halligan, that is a separate matter, distinct from the issue in this case. The matter before the district court in this succession proceeding was a “Rule to Determine Amount of Inheritance Tax Due.” Although Halligan made the same arguments concerning double taxation in that proceeding, the issue of income tax was not properly before the district court in that proceeding and is not before this court in this appeal. This is a succession proceeding, and the issue was and is the imposition of a tax on the inheritance of the annuity purchased by the decedent. There is nothing in the statutory scheme or jurisprudence concerning the inheritance tax to suggest that the earnings portion of the annuity that was earned prior to the decedent’s death should not be included as inheritance when it passes to the beneficiary or should be treated any differently than' the purchase price. Regardless of the outcome of Halligan’s arguments concerning the imposition of income tax on the earnings portion, that outcome will have no effect on the imposition or amount of inheritance tax. The issues concerning the computation and collection of income tax on the earnings portion of that annuity are issues to be handled in the other lawsuit. For this reason, we conclude the trial court was correct in denying Halligan the relief sought with respect to the income tax and double taxation issues. Also, since Halligan’s challenge to the constitutionality of the statutory scheme is based entirely on | ^“double taxation” due to the imposition and collection of income tax, we decline to address that issue.

CONCLUSION

For the foregoing reasons, the judgment of the district court setting the inheritance tax due at $1,890.16, plus legal interest, is affirmed. All costs of this appeal are assessed to Halligan.

AFFIRMED.

      . In Succession of Fakier, 509 So.2d 33, 35 (La.App. 1st Cir.1987), aff'd in part and rev’d in part, 541 So.2d 1372 (La.1988), this court stated that the annuities at issue "constituted death benefits and as such had the same practical effect as life insurance.” However, while the supreme court affirmed this court’s disposition concerning the annuities, it criticized this court’s "analysis of the ... purported similarity of the annuities to life insurance” as unnecessary to that decision. Fakier, 541 So.2d at 1383. In concurring in the denial of a rehearing, Justice Calogero stated the supreme court specifically did not decide whether the annuities were succession assets that should have been included on the descriptive list, because the issue of whether annuity proceeds should be treated differently than life insurance proceeds was not properly before the court. Fakier, 541 So.2d at 1383-84. As the commentators observed, "Only a future decision can clarify this issue left unanswered by the Fakier court.” Frederick William Swaim, Jr. and Kathryn Ventu-ratos Lorio, Successions and Donations § 9.9, at 220, in 10 Louisiana Civil Law Treatise (1995). Apparently this opinion will be that "future decision,” as our research has not revealed any more recent case addressing this issue in the inheritance tax context.

      . In that contract, the death benefit was defined as the annuity value at the date of death plus interest until the date of payment. The annuity value was computed as the premium, plus interest, less withdrawals and applicable taxes. The contract further provided that if the owner died before the annuity date, the death benefit would be paid to the named beneficiary. The owner had the right to make withdrawals or to surrender, assign, or cancel the contract before the annuity date, could change the owner or beneficiary, and could make payment options for herself and for the beneficiary.

      . In connection with this issue, Halligan had a copy of his rule served on the Louisiana Attorney General. See LSA-C.C.P. art. 1880; Vallo v. Gayle Oil Co., Inc., 94-1238 (La.11/30/94), 646 So.2d 859, 864.

      . However, in briefs and oral arguments to this court, the Collector of Revenue took the position that both inheritance tax and income tax were due on the earnings portion of the death benefit.

      . The Pedrick court noted, however, that the law had been changed by Act 221 of 1944, but Pedrick had died in 1942, and the legislation could not be given retroactive effect. The Second Circuit Court of Appeal distinguished Pedrick on this basis in Succession of Lantz, 176 So.2d 224 (La.App. 2nd Cir.), writ refused, 248 La. 372, 178 So.2d 659 (1965), a case in which the decedent died in 1948, while Act 221 of 1944 was still in effect. Applying its provisions, the court concluded that the proceeds of a life insurance policy that had been converted into an annuity by the decedent should go to the beneficiary and did not fall into the annuitant’s succession. Noting that Act 221 had been repealed and replaced by provisions that eventually became the present Insurance Code, the court stated, "However, we are not called upon to decide what the law is today under the pertinent sections of that Code." Lantz, 176 So.2d at 225.

      . We note, however, that the Jochum. case did not involve the issue of inheritance tax, but only which assets were to be included in the decedent’s estate for the purpose of ascertaining the disposable portion and the forced portion under the then-existing laws concerning forced heirship.

      . The full text of Section 1 of Act 221 was:
      Be it enacted by the Legislature of Louisiana, That all proceeds, avails and dividends of all policies of health and accident insurance, annuity insurance and endowment insurance, shall in every respect and for all purposes have and enjoy the same legal status as is now accorded to all proceeds, avails and dividends of policies of life (including fraternal and cooperative) insurance under the existing laws of this State.

      . LSA-R.S. 22:647(A) has virtually the same language concerning the proceeds of life insurance policies.

      . See also LSA-C.C. art. 1505(C), excluding proceeds of life insurance from the succession property in the calculation of the disposable portion.

      . The applicable statutes concerning Louisiana income tax are in LSA-R.S. 47:21, et seq., particularly §§ 32, 42, 43, 44, and 45. Section 43(A)(1) provides the general rule that gross income does not include amounts received under a life insurance contract, whether in a single sum or otherwise, if such amounts are paid by reason of the death of the insured. In contrast, Section 44(A) states the general rule for annuities, which is that gross income does include any amount received as an annuity. Section 45 states that the value of property acquired by gift, bequest, devise, or inheritance shall not be included in gross income, but the income from such property shall be included in gross income.

      . Halligan v. Bridges, Collector of Revenue and Sec’y, Louisiana Dep't of Revenue & Taxation, Docket No. 502,517, 19th Judicial District Court, Parish of East Baton Rouge.


author: I «SUSAN M. CHEHARDY, Judge.

text:
    STATE of Louisiana v. Oscar MYLES.
    No. 04-KA-434.
    Court of Appeal of Louisiana, Fifth Circuit.
    Oct. 12, 2004.

      Bruce G. Whittaker, New Orleans, Louisiana, for Appellant, Oscar Myles, III.
    Oscar Myles, III, Allen Correctional Center, Kinder, Louisiana, in Proper Person.
    Paul D. Connick, Jr., District Attorney, Terry M. Boudreaux, Thomas J. Butler, Appellate Counsel, Ralph C. Cox, III, Trial Counsel, Assistant District Attorneys, Gretna, Louisiana, for Appellee, State of Louisiana.
    Panel composed of Judges SOL GOTHARD, THOMAS F. DALEY and SUSAN M. CHEHARDY.
   I «SUSAN M. CHEHARDY, Judge.

On January 15, 2003, the Jefferson Parish District Attorney’s Office filed a bill of information charging the defendant, Oscar Myles, with molestation of a juvenile, a violation of La. R.S. 14:81.2. The defendant was arraigned on January 16, 2003, and pled not guilty.

On May 15, 2003, the six-member jury returned a verdict of guilty as charged. On June 4, 2003, the trial court denied the defendant’s Motion for New Trial and sentenced the defendant to four years at hard labor with credit for time served. On the same day, the State filed a multiple offender bill of information alleging that defendant was a fourth-felony offender and defendant denied the allegations. The trial court also granted defendant’s motion for appeal.

On August 20, 2003, after the hearing on the multiple-offender bill of information, the trial court found defendant to be a fourth offender. The trial judge then imposed an enhanced sentence on defendant of twenty years at hard labor “without benefits.” On the same day, the defendant filed a Motion to Reconsider Sentence. The defendant then filed another Motion for Appeal to in-elude the multiple-offender finding and sentence.

| ¿FACTS

On November 11, 2002, Officer Corey Newby of the Gretna Police Department responded to a domestic disturbance at 710 Cook Street in Gretna. When Officer Newby arrived, he learned that a woman had stabbed her boyfriend. Officer New-by testified that, after the woman, J.W., was arrested, she told Officer Newby that she wanted to leave her three children with her neighbor, Oscar Myles. Officer Newby testified that he went to the woman’s apartment, found Myles in the apartment with two boys and a girl, alerted Oscar Myles of the woman’s request, and documented Myles’ information for his police report. Officer Newby also testified that, before he left the complex’s parking lot, he saw the two boys that had been in the woman’s apartment run down the breezeway to another apartment in the complex.

At trial, B.W., the eleven-year-old victim, testified that on the night her mother was arrested, the defendant waited about ten minutes after the policeman left her apartment then sent B.W.’s brothers to his apartment to watch television. After her brothers left, defendant locked the front door to the apartment then went into the bathroom. When he returned, he knelt in front of her as she was watching television and started kissing her on the lips. Next, he picked her legs up, laid her on her back on the couch, pulled down her pajama pants and underwear, then laid on top of her with his pants at his knees. He continued to kiss her mouth. He then touched and kissed her chest. He also touched her with his fingers on the outside and inside of her “private part area,” which hurt badly. When defendant asked her if she wanted him to stop, she responded “yes.” He kissed her again then got up and pulled up his pants. She testified that she quickly pulled up her underwear and pants. When defendant unlocked and opened the front door, she heard “Kristi” ask ^defendant why he was in the apartment “alone with a female.” Her brothers arrived back at their apartment and “Kristi” stayed with them.

Kristi Kordys, the assistant manager of the apartment complex, testified that she knew the children’s mother had been arrested so she went to their apartment to check on them. As she arrived, she saw the boys walking toward their apartment and saw Oscar Myles at the front door of the victim’s apartment. Kordys also saw the victim standing inside the apartment near the doorway. Kordys remembered that the victim was wearing very loose pants, which she was clutching at the waist. She could tell that the drawstring on the pants was not tied.

Kordys stated that she confronted Myles about the propriety of being alone in the apartment with B.W. and he informed her that J.W. had left him in charge of her children. He then told Kordys that he was helping B.W. look for “paperwork” to help get J.W. out of jail. Kordys, on the apartment manager’s instruction, stayed with the children at that point, got them ready for bed, and locked them into their apartment.

In the early morning hours of November 12, 2002, A.W., the children’s maternal aunt, picked them up and brought them to her house. She testified that the children immediately went to bed after they arrived at her house. A.W. learned that, while she was at work the next day, B.W. just stayed in bed with the covers over her head. She did not eat that day. Later that evening, B.W. would not leave her room to watch videos with the family.

When B.W.’s great-uncle, I.T., called that evening, he told A.W. to find out if the children had been separated after their mother was arrested. As soon as her brothers admitted that they were separated, B.W. hung her head and got quiet. B.W.’s aunt asked the boys to leave and questioned B.W. alone. Initially, B.W. did not respond to any of her questions, except to say that she was separated from |sher brothers. B.W. testified that she felt ashamed and did not tell her aunt what happened until later, seven or eight that night.

Eventually, B.W. told her aunt that the defendant pulled her pants down, touched her breast, and put his fingers inside of her. A.W. immediately took B.W. to Lakeland Medical Center. Officer Newby of the Gretna Police Department, who had earlier arrested B.W.’s mother, came to Lakeland to Interview B.W., and then escorted them to Children’s Hospital. At Children’s Hospital, Dr. Albert Baker, an emergency room physician, performed a forensic examination on B.W. to test for sexual abuse. During the forensic examination, Dr. Baker performed a general physical exam and pelvic exam. He also collected fluid and blood samples. According to Dr. Baker, the results of the exams and tests were unremarkable. Dr. Baker opined that it was not unusual that an eleven-year-old female who was digitally penetrated by an adult male would not have significant findings during a physical exam.

Omalee Gordon, a forensic interviewer with the Jefferson Parish Children’s Advocacy Center, testified that she interviewed B.W. about the incident. Their interview, which was videotaped, was played for the jury.

Dr. Scott Benton, who is Director of the Pediatric Emergency Medicine Program at the Children At Risk Evaluation Center of Children’s Hospital, was accepted as an expert in the field of pediatric forensic medicine. He testified that it was not surprising that nothing remarkable was found in B.W.’s examination because at her age the hymen is “stretchy” so there would be minimal residual trauma unless there was undue force or a unique situation. In addition, her lack of resistance further lessened the probability of trauma.

He testified that, in his experience, it is very rare that a child comes forward immediately after a sexual abuse incident. Children in the age range of B.W., less than twelve, delay reporting the rape for three major reasons: lack of | ¿understanding, shame, and implicit or explicit threatened consequences for reporting. Dr. Benton also testified that it is not unusual for children to have sequential/delayed disclosures, adding different or newer things over time creating a cumulative victim experience. In addition, Dr. Benton testified that the demeanor of a child is not an accurate predictor of her veracity or what she has experienced. Dr. Benton testified that there was no way to tell based on physical science whether B.W. was molested. He stated that the question of whether it was more or less likely to have happened was a question he was reluctant to answer; rather it was one for the jury.

The defendant, Oscar Myles, testified that he knew the victim’s family because they went to the same church and lived in the same apartment complex. He testified that, on the night that J.W. was arrested, he saw J.W. and her boyfriend fighting when he arrived home from work. He stayed in the apartment’s courtyard to help J.W. in the event her boyfriend became violent. He testified that he had not eaten his dinner yet and, because he did not yet have electricity in his apartment, he asked B.W. to warm his dinner in their microwave while he waited in the courtyard.

After J.W. was arrested, defendant agreed to keep the children. He testified that he took B.W.’s brothers to his apartment to watch a football game. He requested that B.W. stay in her family’s apartment to look for information to contact her relatives. He testified that, when he returned to B.W.’s apartment, he was going to eat his dinner while B.W. searched for “papers” to contact her relatives so he went into the restroom and washed his hands. He stated that, when B.W. could not find the information, he opened the apartment’s front door to go find Kristi Kordys to help the children. The defendant testified that Kordys walked up and immediately asked him why he was in the apartment alone with B.W., and he replied that they were looking for information on a relative to contact.

|70n cross examination, when the prosecutor asked the defendant how the boys could watch television in his apartment if he had no electricity, he stated that he had run an extension cord from his neighbor’s apartment for his television. He also testified that he had at least three felony convictions, including armed robbery, attempted possession of cocaine, and conspiracy to possess a fraudulent document. After hearing the testimony, the six-person jury unanimously found defendant guilty as charged.

DISCUSSION

In his first pro se assignment of error, defendant challenges the sufficiency of the evidence presented to convict him of molestation of a juvenile. He argues that the evidence was insufficient and circumstantial because State failed to introduce physical findings of sexual abuse.

The standard for appellate review of the sufficiency of the evidence is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 2789, 61 L.Ed.2d 560 (1979). A determination of the weight of evidence is a question of fact, resting solely with the trier of fact who may accept or reject, in whole or in part, the testimony of any witnesses. State v. Silman, 95-0154 (La.11/27/95), 663 So.2d 27, 35.

A reviewing court may impinge on the fact-finding function of the jury only to the extent necessary to assure the Jackson standard of review. State v. Bordenave, 95-2328 (La.4/26/96), 678 So.2d 19, 20 (quoting Jackson, 443 U.S. at 319, 99 S.Ct. at 2789). It is not the function of an appellate court to assess credibility or reweigh the evidence. Appellate review for minimal constitutional sufficiency of evidence is a limited one restricted by the standard developed in | ¡Jackson. State v. Rosiere, 488 So.2d 965, 968 (La.1986) and the cases cited therein.

In the absence of internal contradiction or irreconcilable conflict with physical evidence, one witness’s testimony, if believed by the trier of fact, is sufficient support for a requisite factual finding. State v. Stec, 99-633 (La.App. 5 Cir. 11/30/99), 749 So.2d 784, 787. In the case of sexual offenses, the testimony of the victim alone can be sufficient to establish the elements of a sexual offense, even where the State does not introduce medical, scientific or physical evidence to prove the commission of the offense. State v. Hotoph, 99-243, p. 17 (La.App. 5 Cir. 11/10/99), 750 So.2d 1036, 1045, writ denied, 99-3477 (La.6/30/00), 765 So.2d 1062 and 765 So.2d 1066.

In the present case, defendant was convicted of molestation of a juvenile, a violation of La. R.S. 14:81.2, which provides, in pertinent part:

Molestation of a juvenile is the commission by anyone over the age of seventeen of any lewd or lascivious act upon the person or in the presence of any child under the age of seventeen, where there is an age difference of greater than two years between the two persons, with the intention of arousing or gratifying the sexual desires of either person, by the use of force, violence, duress, menace, psychological intimidation, threat of great bodily harm, or by the use of influence by virtue of a position of control or supervision over the juvenile. Lack of knowledge of the juvenile’s age shall not be a defense.

In this case, B.W. testified that, on the night her mother was arrested, defendant kissed her on her mouth, kissed her chest, touched her chest with his hands, removed her underwear and pants, and inserted his finger into her vagina. The record reflects that she was eleven years old and that defendant was 52 years old at the time of trial. While defendant asserts there was no medical evidence to support that B.W. was sexually assaulted, Dr. Benton testified he would not expect any physical signs of abuse where an adult male digitally penetrated an eleven-year-old girl. Accordingly, viewing the evidence in a light most favorable to the prosecution, we find that a rational trier of fact could have concluded beyond a 19reasonable doubt that defendant was guilty of molestation of a juvenile. See State v. Roca, 03-1076 (La.App. 5 Cir. 1/13/04), 866 So.2d 867, 874-876.

In his second pro se claim, defendant contends that “constitutional factors not considered increased defendant’s punishment where the essential element was not proved beyond a reasonable doubt of the charged offense.” Defendant cites Blakely v. Washington, — U.S. -, 124 S.Ct. 2531, 159 L.Ed.2d 403 in support of his argument that, “[bjecause the State’s sentencing procedure did not comply with the Sixth Amendment, petitioner[sie] sentence is invalid.” (Emphasis in original.)

First, the general rule established by this Court is that issues not submitted to the trial court for decision will not be considered by the appellate court on appeal. Constitutional issues are no exception. Vallo v. Gayle Oil Co., 94-1238 (La.11/30/94), 646 So.2d 859. In an abundance of caution, we will consider the merits of this argument.

In Blakely, the United States Supreme Court applied the rule expressed in Apprendi v. New Jersey, 530 U.S. 466, 490, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000): “Other than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt.” Blakely, 124 S.Ct. at 2536. Here, defendant challenges his enhanced sentence. We read the Apprendi exception to apply to sentencing enhancements, such as the enhancement defendant challenges.

In his first counseled assignment of error, defendant argues, “It was error to permit an expert witness to totally usurp the role of the jury in judging the guilt or innocence of appellant.” He specifically asserts that the trial court erred in permitting an expert to give opinions on the physical findings of the victim’s medical examination and the victim’s credibility regarding her delay in reporting the incident, the changes and discrepancies in her story, and her demeanor. | inDefendant claims that the expert was allowed to im-permissibly bolster the victim’s testimony, and usurp the credibility determination of the child’s testimony that is the province of the jury.

The purpose of an expert witness in a criminal case is to provide the jurors with a basis of knowledge and background information on a subject. The jury as the ultimate fact finder should relate background knowledge received from the expert to the facts established by the evidence at trial, and make a determination of the defendant’s guilt. State v. Soler, 93-1042, p. 11 (La.App. 5 Cir. 4/26/94), 636 So.2d 1069, 1080, writ denied, 94-1361 (La.11/4/94), 644 So.2d 1055.

La. C.E. art. 702 provides that a witness qualified as an expert by knowledge, skill, experience, training, or education, may testify in the form of an opinion or otherwise, if the scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue. La. C.E. art. 704 provides:

Testimony in the form of an opinion or inference other-wise admissible is not to be excluded solely because it embraces an ultimate issue to be decided by the trier of fact. However, in a criminal case, an expert witness shall not express an opinion as to the guilt or innocence of the accused.

Expert testimony can assist a jury in understanding the significance of a child-witness’s demeanor, inconsistent reports, delayed disclosure, reluctance to testify, and recantation. State v. Chauvin, 02-1188 (La.5/20/03), 846 So.2d 697. See also, State v. Foret, 628 So.2d 1116 (La.1993). An expert witness can explain to the jury that a child-witness’s seemingly abnormal behavior such as delayed reporting, inconsistent statements, and recantation is normal for children who have been sexually abused and can also dispel jurors inaccurate perceptions allowing them to better assess a child-witness’s testimony. State v. Chauvin, 846 So.2d at 702-703.

InThe proper presentation of the expert testimony must focus on explaining to a jury why “superficially bizarre” reactions such as delayed reporting, and the like take place in such cases. State v. Foret, 628 So.2d at 1130. See also, State v. Chauvin, supra; State v. Ste. Marie, 97-0168 (La.App. 3 Cir. 4/18/01), 801 So.2d 424, 428, appeal after remand on other grounds, 01-1253 (La.App. 3 Cir. 4/10/02), 824 So.2d 358, writ denied, 02-1117 (La.12/19/02), 835 So.2d 1288. The expert’s opinion testimony must explain in general the behavioral characteristics of child abuse victims in disclosing alleged incidents without giving an opinion directly concerning the particular victim’s credibility. State v. Foret, 628 So.2d at 1130; State v. Ste. Marie, 801 So.2d at 429.

If the expert’s testimony is properly limited in this fashion, then it is of assistance to the jury in evaluating the psychological dynamics and resulting behavior patterns of alleged victims of child sexual abuse. State v. Foret, 628 So.2d at 1130. The expert’s testimony concerning why victims might recant or delay reporting offered to rebut attacks on the victim’s credibility is proper, so long as the expert limits his testimony to the general characteristics that explain delays in reporting, recantations, and omission of details. Id. The expert cannot substitute his estimation of the child’s credibility for that of the jury. The expert testimony can only provide a scientific perspective for the jury to evaluate the child’s testimony for itself. Id.

Expert testimony becomes problematic when it is unduly prejudicial causing the jury to give too much weight to the expert’s opinion stating medical conclusions drawn from diagnostic methods having limited merit as fact-finding devices, in order to determine the credibility of the victim and whether the sexual abuse has in fact occurred, since it bolsters a child-witness’s testimony because of the reliability and trustworthiness associated with scientific or medical evidence. State v. Chauvin, 846 So.2d at 707. In short, the expert testimony on the victim’s h acredibility is prejudicial when it puts an expert’s stamp of truthfulness on the witness’s testimony bolstering it artificially to increase its probative strength with the jury. State v. Foret, 628 So.2d at 1129.

In the present case, the defense objected to Dr. Benton giving an expert opinion about a victim that he had not examined and about “how a child who has been sexually assaulted should react either at the hospital upon exam” or when they testify in court. Defense counsel claimed that the State was trying to qualify Dr. Benton “as an expert to tell the jury that they’re suppose to believe what this young lady testified to, and the manner she testified to,” instead of leaving the credibility determination to the jury. The trial court found that the question was appropriate for an expert witness to allow an expert opinion that might assist the trier of fact.

At trial, Dr. Benton testified that a child’s behavior is not predictable and that it would be unwise to draw conclusions about the veracity of B.W.’s statements based solely on her demeanor. When asked if he could draw any conclusions based on B.W.’s behavior the day after the assault, Dr. Benton responded that the victim’s aunt seemed to have been an accurate describer of some behaviors that were abnormal for an eleven-year-old child. He declined to comment on whether B.W.’s behavior was abnormal or, if so, what caused it since he had not witnessed her behavior. He opined that, based upon B.W.’s history and testimony, B.W. had a multitude of potential reasons for exhibiting these behaviors, including her mother’s arrest, witnessing domestic violence, and her allegations of sexual assault. Dr. Benton was unwilling to draw any conclusions as to her behavior but felt it warranted further exploration. Dr. Benton agreed that the ultimate question of whether B.W. was molested was for the jury.

In this case, Dr. Benton’s testimony included a general opinion on the physical signs one might see in a sexual abuse examination of a victim in B.W.’s |1sage range. Dr. Benton testified that there was no way to tell purely based on physical science whether B.W. was molested. Dr. Benton refused to give an opinion on the credibility of B.W.’s allegations and testimony.

Dr. Benton gave a description of general behavioral traits in sexually abused children, and testified that delayed reporting of certain events was not atypical for any child of the defendant’s age, who had been sexually abused. Under State v. Chauvin, supra and State v. Foret, supra, this testimony is admissible. Further, his testimony was properly limited to general behavioral characteristics of child abuse victims in disclosing alleged incidents, specifically why victims might recant or delay reporting, which is proper to rebut attacks on the victim’s credibility. State v. Ste. Marie, supra. His testimony only gave assistance to the jury in evaluating the psychological dynamics and resulting behavior patterns of alleged victims of child sexual abuse. Id. This assignment of error lacks merit.

In his second counseled assignment of error, the defendant requests a review of the record for all errors patent. As is our practice under La.C.Cr.P. art. 920, we have reviewed the record for errors patent. We note the following matters, which require corrective action.

First, after the August 20, 2003 multiple offender hearing, the trial judge, who found that defendant was a fourth felony-offender, imposed an enhanced sentence of twenty years at hard labor “without benefits.” La. R.S. 15:529.1(G) requires that the defendant’s multiple offender sentence be served without benefit of probation or suspension of sentence; the statute makes no mention of parole ineligibility. Because “without benefits” is ambiguous, and could be interpreted to mean that parole eligibility is also excluded, the sentence may be illegal. La.C.Cr.P. art. 882 allows this Court to correct an illegal sentence “at any time.” Therefore, we amend defendant’s multiple offender sentence to be served without benefit of probation or suspension of sentence. See, State v. Sanders, 04-17 (La.5/14/04), 876 So.2d 42.

Second, the defendant was convicted of molestation of a juvenile, a violation of La. R.S. 14:81.2, which is defined by La. R.S. 15:541(14.1) as a sex offense. Further, because the victim was eleven years old at the time of the offense, defendant is required to register as a child predator under La. R.S. 15:542.1. See La. R.S. 15:541(9). In this case, the record does not reflect that the trial court provided the defendant with notification of sex offender registration requirements. Therefore, we remand with instructions to the trial court to send the defendant appropriate written notification of the registration requirements of La. R.S. 15:542.1 and file written proof that defendant received the notice in the record.

Third, we have reviewed defendant’s original and enhanced sentencing transcripts and found that the trial court did not properly advise the defendant of the prescriptive period for filing an application for post-conviction relief. We remand, therefore, with instructions to inform the defendant of the provisions of La. C.Cr.P. art. 930.8 by sending appropriate written notice to the defendant and to file written proof that defendant received that notice in the record. State v. Hutchinson, 02-60, p. 10 (La.App. 5 Cir. 5/15/02), 817 So.2d 500, 509.

AFFIRMED AND REMANDED.

      . See the Error Patent Discussion.

      . In accordance with La. R.S. 46:1844(3), this Court will refer to the victim and her family by their initials to protect the victim’s identity. State v. Simmons, 03-20, p. 2 (La.App. 5 Cir. 4/29/03), 845 So.2d 1249, 1251.