Appealed from the Third Judicial District Court for the
Parish of Lincoln, Louisiana Trial Court No. 58120, Honorable
Thomas W. Rogers, Judge
STEPHEN LOUIS TARBUTTON Plaintiff-Appellee
BREANNA DANIELLE TARBUTTON Defendant-Appellant
WILLIAMS, PITMAN, and STEPHENS, JJ.
Tarbutton appeals a judgment awarding her $63.40 per month in
interim and final spousal support until the homeschooling of
the children ends or the oldest child's 18th birthday.
The trial court denied Breanna's ex parte motion for a
continuance and found that Stephen Tarbutton should continue
paying the amount of the monthly premium of Breanna's
auto insurance as spousal support. For the following reasons,
we amend the judgment and affirm as amended.
the parties were divorced in April 2016, a hearing was
scheduled on Breanna's request that Stephen's
visitation with their two children be supervised and that she
receive spousal support. At the hearing, Breanna sought a
continuance to allow her time to obtain a new attorney. At
the rescheduled hearing in September 2016, Breanna again
appeared without counsel and sought another continuance,
which was denied by the district court. After testimony by
Breanna and Stephen, the court denied her requests for
spousal support and supervised visitation. The district court
awarded the parties joint custody with daily visitation by
Stephen to participate in the homeschooling of the children,
alternating weeks in the summer and holidays. Breanna
appealed the denial of spousal support and the award of joint
custody. On appeal, this court reversed that part of the
judgment denying spousal support and remanded the matter.
Tarbutton v. Tarbutton, 51, 486 (La.App. 2 Cir.
5/2/17), 217 So.3d 1281.
remand, the parties were ordered to file affidavits of income
and expenses. At the hearing, Breanna appeared and sought a
continuance, which was granted. The trial court reset the
hearing for September 21, 2017, without any objection by
Breanna. On September 20, 2017, Breanna filed an ex parte
motion for continuance alleging that September 21 was Rosh
Hashanah, a day of religious observance for her. The district
court staff contacted Breanna and told her that she would
need to appear at the hearing unless Stephen agreed to a
continuance. The next day, Breanna failed to appear at the
hearing and did not send any further communication to the
court. Stephen's attorney informed the court that her
office had been contacted by Breanna seeking consent to the
continuance, but she was informed that Stephen would not
agree. The trial court proceeded with the hearing, denying
the motion to continue.
affidavit of income and expenses was admitted into evidence
and he testified about his knowledge of the mobile home
situation. Stephen stated that Breanna was living with their
children in a mobile home that had been purchased for her use
and located on land that he had inherited from his father. He
explained that she was living in the home without paying rent
and he supplied water, but she paid the other utilities.
Stephen testified that he had agreed that Breanna could keep
the mobile home as her property, but she would need to remove
the home from the land after the youngest child turned 18
years old or pay rent. Stephen stated that he was not aware
that Breanna observed Rosh Hashanah.
written reasons for judgment, the trial court stated that
because Breanna did not appear and could not be questioned
about her financial affidavit, the document had not been
introduced into evidence and was not considered in the
determination of spousal support. Instead, the trial court
considered Breanna's testimony about her income and
expenses admitted into evidence at the prior hearing in
September 2016. The court noted that
Stephen had been paying Breanna's monthly auto insurance
premium of $63.40 and found that her earning capacity would
be sufficient to meet her expenses if she were not
homeschooling the children. The trial court rendered judgment
awarding Breanna the amount of $63.40 per month as interim
and final spousal support until the homeschooling of the two
children ends or the oldest child turns 18 years of age,
whichever occurred first. Breanna appeals the judgment.
contends the trial court erred in denying her motion for
continuance. She argues that the court's denial of the
continuance violated her constitutional rights to the free
exercise of religion because the hearing was scheduled for