Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Martin v. Trushyna

Court of Appeals of Louisiana, Fifth Circuit

November 13, 2019

KERRY G. MARTIN
v.
SVITLANA TRUSHYNA

          ON APPEAL FROM THE TWENTY-FOURTH JUDICIAL DISTRICT COURT PARISH OF JEFFERSON, STATE OF LOUISIANA NO. 755-947, DIVISION "F" HONORABLE MICHAEL P. MENTZ, JUDGE PRESIDING

          COUNSEL FOR PLAINTIFF/APPELLEE, KERRY G. MARTIN Lila M. Samuel

          COUNSEL FOR DEFENDANT/APPELLANT, SVITLANA TRUSHYNA Eric E. Malveau

          Panel composed of Judges Fredericka Homberg Wicker, Jude G. Gravois, and Marc E. Johnson

          FREDERICKA HOMBERG WICKER JUDGE

         In this divorce action, appellant, Svitlana Trushyna, contests the trial court's judgment granting the parties a divorce pursuant to La. C.C. art. 102 and denying appellant's motion for a new trial. For the reasons fully discussed herein, we affirm the trial court's judgment.

         FACTUAL AND PROCEDURAL HISTORY

         Svitlana Trushyna and Kerry Martin ("Mr. Martin") were married on April 2, 2015. Mr. Martin filed the first of several petitions for divorce on December 3, 2015. The first petition was eventually dismissed, but subsequent petitions filed by either party were assigned the same case number. Ms. Trushyna filed a "Petition for Divorce and Petition for Partition of Community Acquets and Gains and Rules to Show Cause Regarding Incidental Matters" on September 25, 2017, seeking a divorce pursuant to La. C.C. art. 102. According to Ms. Trushyna's September, 2017 petition for divorce, the parties had separated on September 2, 2017. At the time she filed the September, 2017 petition for divorce, Ms. Trushyna was unrepresented by counsel.[1] On December 19, 2017, Jackie Epstein enrolled as counsel for Ms. Trushyna and filed a "Petition for Divorce Pursuant to La. C.C. art. 103(4) and/or in the Alternative, La. C.C. art. 103(5)"-seeking a fault-based divorce wherein she alleged domestic abuse at the hands of appellee, Mr. Martin.

         Thereafter, on February 15, 2018, Mr. Martin filed an answer and reconventional demand for divorce pursuant to La. C.C. art. 103(1). A show cause hearing before the Administrative Hearing Officer was set for March 21, 2018, and later continued until April 24, 2018. The April 2018 Hearing Officer Conference resulted in a judgment awarding interim spousal support to Ms. Trushyna in the amount of $550.00 per week with Mr. Martin paying all of Ms. Trushyna's expenses directly, including the house note, car note and insurance, phone bill, medical insurance, utilities, internet and cable, and pool and lawn maintenance.[2]Ms. Trushyna was also given interim use and occupancy of the marital residence, as well as her 2015 Nissan Rogue. Ms. Trushyna refused to sign the "Stipulations and/or Recommendations of Hearing Officer" form and, on May 1, 2018, filed an objection to the hearing officer's recommendation(s) and interim order alleging that the award of interim spousal support was insufficient and that Mr. Martin was capable of paying more. Ms. Trushyna's objection was filed by her new counsel of record, Mr. Arthur Schott.[3]

         On June 21, 2018, Mr. Martin filed an affidavit of living separate and apart and a motion for preliminary default relating to his February, 2018 reconventional demand for divorce pursuant to La. C.C.P. art. 103(1). Another affidavit declaring the same facts was filed by Mr. Martin on June 26, 2018. Thereafter, on July 13, 2018, Mr. Martin sought confirmation of the preliminary default, granting an Article 103(1) divorce. The judge dismissed Mr. Martin's reconventional demand because an Article 103(1) divorce requires that the parties have been living separate and apart for the statutory period at the time of filing the petition. When Mr. Martin's reconventional demand was filed on February 15, 2018, the parties had not been separated for over 180 days, although the requisite period of separation had passed by the time Mr. Martin filed his affidavits and motion for preliminary default.

         Thereafter, on August 7, 2018, Mr. Martin's attorney filed a "Rule to Show Cause Why Civil Code Art. 102 Divorce Should not be Granted." No objections to the rule were filed by Ms. Trushyna's attorney. Both parties, each represented by counsel, attended the ensuing August 23, 2018 hearing on Mr. Martin's Rule to Show Cause why an Article 102 divorce should not be granted. At the hearing on August 23, 2018, Mr. Martin testified that the couple had been living separate and apart for 180 days without reconciliation prior to August 7, 2018, and that there were no minor children of the marriage as required by La. C.C. art. 102 and La. C.C. art. 103.1. No evidence or testimony was offered by Ms. Trushyna's attorney. The Judgment of Divorce was granted on August 23, 2018, pursuant to La. C.C. art. 102. Ms. Trushyna again sought new counsel, and a Motion for New Trial was filed by Attorney Eric Malveau on August 29, 2018. The motion was denied at a hearing on December 11, 2018.

         DISCUSSION AND ANALYSIS

         On appeal, Ms. Trushyna claims that, although not titled as an amendment, her December 19, 2017 petition for fault-based divorce pursuant to La. C.C. art. 103(4) or La. C.C. art. 103(5) was an amended petition replacing the September 2017 petition filed by Ms. Trushyna while she was a pro se litigant. Therefore, Ms. Trushyna argues, the trial court erred when it granted the parties an Article 102 divorce because Ms. Trushyna desired to proceed under the petition she had filed seeking a fault-based divorce pursuant to La. C.C. art. 103(4) or La. C.C. art. 103(5) on domestic abuse grounds.

         Ms. Trushyna also claims that attorney Schott was negligent in his representation of her by failing to object to Mr. Martin's rule seeking an Article 102 divorce; failing to file a rule to proceed under Article 103(4) or Article 103(5) as Ms. Trushyna intended; and failing to present any evidence of domestic violence or raise any other objections at the hearing on Mr. Martin's rule to show cause. Therefore, Ms. Trushyna further argues, the District Court's denial of the Motion for New Trial amounts to an abuse of discretion under La. C.C.P. art. 1973 because Ms. Trushyna will suffer a miscarriage of justice if not allowed to present her evidence of domestic violence in a proceeding for a fault-based divorce judgment.

         On the other hand, Mr. Martin avers that the pro se petition for divorce filed by Ms. Trushyna in September 2017 was never amended or dismissed. He contends that the petition for fault-based divorce was a separate proceeding, which was still pending when Mr. Martin filed his Rule to Show Cause why the Article 102 Divorce Should not be Granted. According to Mr. Martin, the only evidence that is relevant at the hearing on the Article 102 divorce is whether the couple has lived separate and apart for the time period required by Article 103.1 prior to the filing of the rule. Mr. Martin contends that a party who has satisfied Article 102 is entitled to a divorce as a matter of law despite pending fault-based proceedings. Mr. Martin also claims that Ms. Trushyna has not suffered a miscarriage of justice and that the Court did not err in denying the motion for new trial because any fault-based claims she may have remain viable, despite the granting of divorce.

         Standard of Review

         On appeal, we review the trial court's findings of fact under the manifest error standard. Thomas v. Thomas, 17-0760 (La.App. 4 Cir. 2/21/18), 238 So.3d 515, 518. The trial judge is vested with great discretion in weighing evidence and credibility. Id. A trial court's findings of fact cannot be reversed unless a reasonable factual basis for the verdict does not exist and the record establishes that the verdict is manifestly erroneous. Id. The manifest error standard also applies to mixed questions of law and fact. Id. (quoting Gordon v. Gordon, 16-0008 (La.App. 4 Cir. 6/18/16), 195 So.3d 687, 689). When an issue is a strictly legal question, the de novo standard of review is used. Id.

         I. Whether the District Court erred in granting a divorce pursuant to La. C.C. art. 102.

         Ms. Trushyna claims that the trial court erred in granting a divorce to Mr. Martin pursuant to La. C.C. art. 102 when Ms. Trushyna filed a petition under La. C.C. art 103(4) or La. C.C. art 103(5) and wished to obtain a fault-based divorce. Although the record evidences some confusion as to whether the trial court granted the divorce under Article 102 or Article 103, the August 23, 2018 hearing that resulted in a judgment of divorce was the product of Mr. Martin's "Rule to Show Cause why La. C.C. art. 102 ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.