FROM CIVIL DISTRICT COURT, ORLEANS PARISH NO. 2013-10544,
DIVISION "D" Honorable Nakisha Ervin-Knott, JUDGE
A. Wilson LAW OFFICES OF THEON A. WILSON COUNSEL FOR
PLAINTIFF/APPELLEE, SWENZA HEINEMANN THOMAS.
D. Plaisance Attorney at Law COUNSEL FOR DEFENDANT/APPELLANT,
ROYAL THOMAS, JR.
composed of Judge Terri F. Love, Judge Joy Cossich Lobrano,
Judge Dennis R. Bagneris, Pro Tempore
F. Love, Judge.
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
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.
BACKGROUND AND PROCEDURAL HISTORY
Heinemann Thomas and Royal Thomas, Jr. were married on
December 22, 2011. 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. 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.
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."
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).
de novo standard of review applies to legal issues.
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.
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,
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.
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 - - ...