FROM THE NINTH JUDICIAL DISTRICT COURT PARISH OF RAPIDES, NO.
254, 040 HONORABLE GREG BEARD, DISTRICT JUDGE
Gregory N. Wampler Law Offices of Gregory N. Wampler COUNSEL
FOR DEFENDANT/APPELLANT: Harry L. Vermaelen, Jr.
Bradford H. Felder G. Andrew Veazey Veazey, Felder &
Renegar, L.L.C. COUNSEL FOR PLAINTIFF/APPELLEE: Tyffany
composed of Sylvia R. Cooks, Billy Howard Ezell, and D. Kent
R. COOKS JUDGE.
AND PROCEDURAL HISTORY
McKay Vermaelen and Harry Vermaelen, Jr. were married on
August 13, 2011. They resided in Alexandria, Louisiana during
the marriage. No children were born of the marriage. They
separated on September 19, 2015. Tyffany filed for divorce on
October 5, 2015.
separating, Tyffany moved to Lafayette, Louisiana and became
employed as a nurse. Harry remained in Alexandria. On July
14, 2016, the trial court awarded Tyffany interim spousal
support in the amount of $1, 000.00 per month. On August 4,
2016, Harry filed a Rule to Determine Pre-Separation Fault
and Right to Final Spousal Support. On October 24, 2016,
Tyffany filed a Rule for Contempt, Sanctions and
Attorneys' Fees, To Make Arrearages Executory, and for
Order Compelling Immediate Return of Wedding and Engagement
parties entered into a Stipulated Judgment on December 7,
2016, which held Harry in contempt of court for his willful
violation for nonpayment of interim spousal support. Harry
was allowed to avoid the thirty days imprisonment by
tendering the support payment due to Tyffany.
January 19, 2017, Tyffany filed a final Rule for Contempt, to
Deem Tyffany McKay Vermaelen Free from Fault, and for
Attorneys' Fees. Those matters came before the court on
January 26, 2017. After a hearing on the matter, the trial
court issued written reasons for judgment on March 2, 2017,
finding Tyffany to be free from fault under Louisiana law.
The trial court also found Tyffany proved she was entitled to
permanent spousal support and Harry was able to pay said
support. The trial court determined Tyffany was entitled to
$350.00 per month in permanent spousal support. A judgment in
accordance with the written reasons was signed by the trial
court on May 15, 2017.
has timely appealed the trial court's judgment, asserting
the trial court erred in finding that Tyffany "was free
from fault in accord within that meaning of that term at
Louisiana law, " and in finding that Tyffany "was
in need of support and that [Harry] is able to pay."
Tyffany answered the appeal and asserts the trial court erred
in not awarding $1, 000.00 per month in permanent spousal
Civil Code Article 112 provides that the court may award
final periodic support to a spouse who has not been at fault
and is in need of support.
first assignment of error, Harry contends the trial court
erred in finding Tyffany was free from fault in the
dissolution of the marriage. In seeking final periodic
support, Tyffany bore the burden of proving that she was free
from fault in the dissolution of the marriage. Terry v.
Terry, 06-1406 (La.App. 3 Cir. 3/28/07), 954 So.2d 790.
"It is well settled that a trial court's factual
findings regarding fault in the area of domestic relations
are given great deference on review. If the trial court's
findings are reasonable, i.e. not manifestly erroneous or
clearly wrong, then they will not be disturbed."
Id. at 793 (citing Coleman v. Coleman, 541
So.2d 1003 (La.App. 3 Cir.1989)).
spouse to be free from fault, that spouse must not have had
any misconduct of a serious nature that is an independent,
contributory or proximate cause of the failure of the
marriage. Kendrick v. Kendrick, 106 So.2d 707 (La.
1958). "Such acts are synonymous with the fault grounds
that previously entitled a spouse to a separation or divorce,
i.e., adultery, conviction of a felony, habitual intemperance
or excesses, cruel treatment or outrages, public defamation,
abandonment, an attempt on the other's life, status as a
fugitive, and intentional non-support." Mayes v.
Mayes, 98-2228, p. 3 (La.App. 1 Cir. 11/5/99), 743 So.2d
argues, as he did below, that Tyffany was guilty of
abandonment of the marriage by leaving the matrimonial
domicile. We find this argument lacks merit.
"Abandonment can serve as grounds for fault only if one
of the parties withdrew from the matrimonial domicile without
lawful cause and constantly refused to return."
Ashworth v. Ashworth, 11-1270, p. 3 (La.App. 3 Cir.
3/7/12), 86 So.3d 134, 137. It is undisputed that Tyffany was
the one to leave the couple's domicile in September 2015.
Therefore, the first criterion for abandonment is present.
under the second criterion, if she had justification or
lawful cause to leave, Tyffany is without fault for
abandonment. Tyffany testified Harry demanded a divorce from
her and she "begged and pleaded" to no avail to get
Harry to change his mind. She also testified a counseling
session was set up, but cancelled because Harry told her
"nothing is going to change." Thus, Tyffany had
lawful cause to leave the matrimonial dwelling because Harry
owned the marital home as his separate property and told her
explicitly he wanted her to leave and he wanted a divorce.
there was no evidence that Harry made any request for Tyffany
to return to the matrimonial domicile. We find the trial
court did not manifestly err in finding ...