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Vermaelen v. Vermaelen

Court of Appeals of Louisiana, Third Circuit

March 15, 2018

TYFFANY VERMAELEN
v.
HARRY VERMAELEN, JR.

         APPEAL 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 Vermaelen

          Court composed of Sylvia R. Cooks, Billy Howard Ezell, and D. Kent Savoie, Judges.

         

          SYLVIA R. COOKS JUDGE.

         FACTS AND PROCEDURAL HISTORY

         Tyffany 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.

         After 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 Rings.

         The 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.

         On 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.

         Harry 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 support.

         ANALYSIS

         Louisiana 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.

         I. Fault Determination.

         In his 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)).

         For a 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 1257, 1259-60.

         Harry 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.

         However, 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.

         Moreover, 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 ...


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