KERRY G. MARTIN
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.
COUNSEL FOR DEFENDANT/APPELLANT, SVITLANA TRUSHYNA Eric E.
composed of Judges Fredericka Homberg Wicker, Jude G.
Gravois, and Marc E. Johnson
FREDERICKA HOMBERG WICKER JUDGE
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.
AND PROCEDURAL HISTORY
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. 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.
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.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.
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
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.
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
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
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.
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.
Whether the District Court erred in granting a divorce
pursuant to La. C.C. art. 102.
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 ...