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Thomas v. Thomas

Court of Appeals of Louisiana, Fourth Circuit

February 21, 2018


         APPEAL FROM CIVIL DISTRICT COURT, ORLEANS PARISH NO. 2013-10544, DIVISION "D" Honorable Nakisha Ervin-Knott, JUDGE


          Mark D. Plaisance Attorney at Law COUNSEL FOR DEFENDANT/APPELLANT, ROYAL THOMAS, JR.

          Court composed of Judge Terri F. Love, Judge Joy Cossich Lobrano, Judge Dennis R. Bagneris, Pro Tempore

          Terri F. Love, Judge.

         This appeal arises from the trial court's judgment finding plaintiff free from fault in her divorce, as well as a victim of domestic violence, and awarding plaintiff final spousal support following a divorce from defendant. Defendant contends that the trial court erred by finding that plaintiff was free from fault and for awarding $1, 280.00 in monthly spousal support.

         We find that the trial court did not err by concluding that plaintiff was free from fault in the divorce from her husband, as the record revealed a history of domestic violence. Further, we find that the trial court did not abuse its discretion by awarding plaintiff $1, 280.00, as representative of only a portion of her monthly expenses and less than her previous interim spousal support award. Accordingly, the judgment of the trial court is affirmed.


         Swenja Heinemann Thomas[1] and Royal Thomas, Jr. were married on December 22, 2011.[2] On November 11, 2013, Ms. Thomas filed a Petition for Protection from Abuse against Mr. Thomas. A temporary restraining order was issued. Mr. Thomas then consented to a protective order.[3] Subsequently,

[o]n January 23, 2014, Mr. Thomas filed a petition for divorce. On May 6, 2014, Ms. Thomas filed a motion seeking permanent spousal support. After a hearing on August 12, 2014, the trial court signed a judgment on September 1, 2015 [sic] ordering Mr. Thomas to pay final periodic spousal support to Ms. Thomas in the sum of $1, 280.00 per month. Mr. Thomas timely appealed the judgment.

Thomas v. Thomas, 16-0570, p. 1 (La.App. 4 Cir. 3/15/17), 214 So.3d 97, 97-98. Mr. Thomas' appeal contended that Ms. Thomas was not free from fault in their divorce and that the trial court erroneously included improper expenses in the final spousal support award. On appeal, this Court found that the exhibits introduced at trial were missing from the record and were unable to be supplemented. Id., 16-0570, p. 3, 214 So.3d at 98-99. Accordingly, this Court remanded the matter to the trial court for correction of the record. Id. The corrected record is now before us on appeal.


         "[T]he standard of review to be applied by this court is whether the trial judge is manifestly erroneous in his factual determinations." Flamm v. Flamm, 442 So.2d 1271, 1273 (La.App. 4th Cir. 1983). "Where there are two permissible views of the evidence, the fact finder's choice between them cannot be manifestly erroneous or clearly wrong." Washington v. Washington, 02-2226, p. 9 (La.App. 4 Cir. 4/23/03), 846 So.2d 895, 900. "When findings are based on determinations regarding the credibility of witnesses, the manifest error-clearly wrong standard demands great deference to the trier of fact's findings." Id. "Where a fact finder's finding is based on its decision to credit the testimony of one or more witnesses, that finding can virtually never be manifestly erroneous or clearly wrong." Id. "[B]efore a fact-finder's verdict may be reversed, we must find from the record that a reasonable factual basis does not exist for the verdict, and that the record establishes the verdict is manifestly wrong." Id.

         "ʻThe manifest error standard of review also applies to mixed questions of law and fact.'" Gordon v. Gordon, 16-0008, p. 3 (La.App. 4 Cir. 6/8/16), 195 So.3d 687, 689 (quoting A.S. v. D.S., 14-1098, p. 10 (La.App. 4 Cir. 4/8/15), 165 So.3d 247, 254).

         The de novo standard of review applies to legal issues. Id.


         Mr. Thomas contends that the trial court erred by finding that Ms. Thomas was free from fault in the divorce. He asserts that Ms. Thomas abandoned the family home.

         Trial courts have the authority to award final periodic support to parties free from fault in a divorce. La. C.C. art. 111. Specifically, in regards to divorcing parties who are also the victims of domestic abuse,

[w]hen a spouse has not been at fault prior to the filing of a petition for divorce and the court determines that party was the victim of domestic abuse committed during the marriage by the other party, that spouse shall be awarded final periodic support or a lump sum award, at the discretion of the court, in accordance with Paragraph C of this Article.

La. C.C. art. 112(B). "Freedom from fault is thus a prerequisite to a former spouse's claim for final periodic spousal support." Schmitt v. Schmitt, 09-0415, p. 3 (La.App. 4 Cir. 12/16/09), 28 So.3d 537, 540. "The claimant spouse has the burden to 'affirmatively prove' his or her freedom from fault." Id. (quoting Wolff v. Wolff, 07-0332, p. 4 (La.App. 3 Cir. 10/3/07), 966 So.2d 1202, 1205). "To constitute 'legal fault' which would preclude permanent alimony at divorce, the misconduct must not only be of a serious nature, but must also be an independent contributory or proximate cause of the separation . . . ." Bowes v. Bowes, 00-1062, p. 4 (La.App. 4 Cir. 8/15/01), 798 So.2d 996, 999 (quoting Mayes v. Mayes, 98-2228 (La.App. 1 Cir. 11/5/99), 743 So.2d 1257, 1259).

         This Court held that "habitual intemperance or excesses, cruel treatment or outrages, and abandonment" could constitute fault. Schmitt, 09-0415, p. 3, 28 So.3d at 540. "A spouse who petitions for final periodic support need not be totally blameless in the marital discord." Id. "[F]urther, permanent alimony will not be denied to a party if their actions were considered reasonable or a justifiable response to the other spouse's provocative acts." Bowes, 00-1062, p. 4, 798 So.2d at 999.

         Ms. Thomas testified that she filed a petition for protection from physical abuse from Mr. Thomas in 2013. She stated that abuse caused the end of the marriage. Ms. Thomas described the night she decided to leave the family home:

And what happened was after a long, long time of financial abuse or emotional abuse, it was just that that night, I tried to go home. And I couldn't even enter our home because he had locked a lock, which he usually never - - It has several locks, and one lock, I don't - - I haven't had a key to, which he was quite aware of. So I couldn't - - That was the reason why I couldn't enter, and so I was locked out.
So I went to my husband's family house because I didn't know where else to go, which is like a block away, and tried several times to get in contact with him. And he did not respond at all for hours.
At one point - - And he had our son with him. And so at one point, it was then about 10 o'clock or 10:30. It's such a long time ago, and I'm not quite sure what time it was. I just decided, because it got so late, to just return home. My sister-in-law was there. She also tried to get in contact with him. I constantly tried to get in contact with him just to find out when I can come home.
And so when I finally come home, he was already home. The door - - So I was able to enter. Our son was sleeping in our bed. And so I just went in my son's bedroom 'cause I didn't wanted [sic] to sleep in our bed just to get away, out of the confrontation, 'cause before I came home, I had to study.
I'm a licensed tour guide here in New Orleans, and I was studying for that license. And he had already called me several times: why I was with a friend of mine. She is my - - She was my tutor, and she tried to prepare me for this license. And he was calling several times, and my sister-in-law was calling several times because he didn't want me to be there.
And he had threatened me already that he wouldn't take care our [sic] son anymore and all kinds of other threats. And so he was mad already. So I tried to get away, out of the confrontation and just went in our bedroom. And then he came in there when I was already laying down, and he tried to - - He said - - He tried to get my phone, and he tried to snatch my purse, which was standing in one corner, 'cause I always kept my purse already with me out of previous experience that he tried to take things away from me.
And I said - - I - - First I struggled, 'cause I didn't wanted [sic] him to take my phone away, and he was just - - He was pushing me, and then he was holding me at my throat and holded [sic] me back like that. And it caused me to fall back on the bed. And he has - - He stepped on my foot, and I was just - - ...

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