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Tarbutton v. Tarbutton

Court of Appeals of Louisiana, Second Circuit

May 2, 2017

STEPHEN LOUIS TARBUTTON Plaintiff-Appellee
v.
BREANNA DANIELLE TARBUTTON Defendant-Appellant

         Appealed from the Third Judicial District Court for the Parish of Lincoln, Louisiana Lower Court Case No. 58120 Honorable Thomas Wynn Rogers, Judge

          BREANNA DANIELLE TARBUTTON In Proper Person

          GOFF & GOFF Shelley A. Goff Counsel for Appellee

          Before WILLIAMS, MOORE, and LOLLEY, JJ.

          LOLLEY, J.

         This appeal arises from the Third Judicial District, Parish of Lincoln, State of Louisiana, wherein the trial court granted a judgment of divorce to Stephen Louis Tarbutton and Breanna Danielle Tarbutton. Subsequently, the trial court awarded joint custody of the two minor children of the marriage. The trial court denied Breanna's request for sole custody and spousal support, and she now appeals that ruling. For the following reasons, we affirm the trial court's custody judgment and remand this matter for a determination of spousal support.

         FACTS

         Breanna and Stephen Tarbutton have been twice married and twice divorced. Two children were born during their first marriage, a son, born June 15, 2002, and another son, born July 21, 2003. Their second marriage took place on September 25, 2004, after which the parties lived with Stephen's father in Ruston, Louisiana. In 2011, Breanna and the two boys moved out of the house owned by Stephen's father and into a mobile home located on the same property. Stephen remained in his father's home in order to care for him.

         On February 22, 2016, Stephen filed a petition for divorce in accordance with La. C.C. art. 103.1 based on the parties living separate and apart since June 15, 2011. Breanna filed a handwritten answer on March 11, 2016, which agreed that the parties had been living separate without reconciliation for almost five years. Breanna requested sole custody of the children. A trial date was set for April 21, 2016.

         At some point, Breanna retained an attorney through Legal Services of North Louisiana. On April 5, 2016, she filed an in forma pauperis affidavit and an amended answer and reconventional demand. Again, her answer stated the parties had been separated for more than 365 days, had not reconciled, and prayed for a divorce. The demand included allegations of abuse, requested spousal support, and requested sole custody of the children with supervised visitation on the basis of Stephen's alleged rage disorder diagnosis.

         At the divorce hearing, Stephen and one other witness testified. Breanna, although present in court, did not testify. No agreement could be reached between the parties on custody and spousal support, and those issues were continued to a later date. The judgment of divorce, which was prepared by Stephen's attorney, was signed on April 21, 2016, by the trial court and both attorneys. The divorce judgment was not timely appealed.

         On July 18, 2016, the parties returned to court. At this time, Breanna dismissed her attorney and requested a continuance in order to retain new counsel. The trial court informed Breanna that the hearing would be continued to September 19, 2016, at which time the matter would move forward whether or not she retained representation. At the September hearing, Breanna appeared pro se. She repeatedly stated that she wanted legal counsel and that she did not understand the trial court's directive concerning alienation of community property. Stephen did not answer Breanna's reconventional demand, because it was filed more than 10 days after her original answer without consent of the parties or leave of court. The trial court noted the objections, but informed the parties that the matter would proceed that day and include the issues contained within Stephen's petition and Breanna's reconventional demand. The trial court noted that the divorce had already been granted, child support had not been requested, and the only issues to be discussed at this hearing would be custody and spousal support.

         Breanna was allowed the opportunity to present evidence to prove her allegations of abuse and violence but offered only her unsupported testimony. At the conclusion of the hearing, the trial court awarded joint custody of their two sons and designated Breanna as primary custodial parent. On the issue of spousal support, the trial court asked Breanna several questions about her finances but ultimately declined to grant interim or final spousal support. After the hearing, the trial court issued a consolidated judgment with written reasons, and although the reasons stated it found Breanna is not entitled to interim or final support, no order to that effect is contained within the judgment. Breanna's pro se appeal followed.

         DISCUSSION

         In her appeal, Breanna lists nine assignments of error. In her first three assignments, she argues the trial court erred in granting the judgment of divorce without proper proof of living separate and apart and the judgment is null. The other assignments concern custody, spousal support, and community property. Breanna also argues the trial ...


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