Cheryl Matthews Diggs v. Jeffrey Allen Diggs

• Court: Louisiana Court of Appeal
• Decided: April 1, 2009
• Docket: CA-0008-1271
• Status: Unknown

Opinion

STATE OF LOUISIANA COURT OF APPEAL, THIRD CIRCUIT

08-1271

CHERYL MATTHEWS DIGGS

VERSUS

JEFFREY ALLEN DIGGS

************

APPEAL FROM THE FIFTEENTH JUDICIAL DISTRICT COURT PARISH OF LAFAYETTE , NO. 2006-4181 HONORABLE PHYLLIS M. KEATY, DISTRICT JUDGE

MICHAEL G. SULLIVAN JUDGE

Court composed of John D. Saunders, Michael G. Sullivan, and James T. Genovese, Judges.

AFFIRMED.

William C. Vidrine Vidrine & Vidrine 711 W. Pinhook Lafayette, Louisiana 70503 (337) 233-5195 Counsel for Defendant/Appellant: Jeffrey Allen Diggs

Ronald S. Haley, Jr. Haley & Associates 5353 Florida Boulevard Baton Rouge, Louisiana 70806 (225) 928-2620 Counsel for Plaintiff/Appellee: Cheryl Matthews Diggs SULLIVAN, Judge.

Ex-husband appeals the trial court’s determination that his ex-wife proved she

is entitled to final periodic support. For the following reasons, we affirm the

judgment of the trial court.

Facts

Jeffrey and Cheryl Diggs were married June 3, 1995. One daughter was born

of their marriage. On August 8, 2006, Cheryl filed for divorce as provided in

La.Civ.Code art. 102. A judgment of divorce was granted on April 12, 2007.

Ancillary to the divorce, Cheryl sought final periodic support, claiming she was

disabled and free from fault prior to filing for divorce. In his answer, Jeffrey admitted

Cheryl was disabled but denied she was free from fault in causing the divorce. At

trial, Cheryl testified that she suspected for a long time during the marriage that

Jeffrey was having an affair. In 2005, she hired a private investigator whose

investigation confirmed her suspicions. Cheryl’s attorney cross-examined Jeffrey

about emails written to him in 20021 to establish that the affair was ongoing at that

time. The emails were suggestive of an intimate relationship between Jeffrey and the

author.

Cheryl further testified that she was concerned about possibly contracting

sexually-transmitted diseases from the beginning of the marriage and that she

continuously asked Jeffrey if he was having an affair. According to Cheryl, Jeffrey

always denied having an affair until he was faced with the evidence obtained by the

private investigator. Cheryl also testified that she and Jeffrey went to counseling

1 The trial court stated the emails produced by Cheryl were written in 2004; however, when Cheryl’s attorney questioned Jeffrey about the emails, she referenced the emails as having been written in 2002.

1 because of her suspicions and that while Jeffrey’s behavior improved during

counseling, it reverted to what it had been prior to the counseling when the

counseling ended.

Jeffrey admitted that the author of the suggestive emails was a woman he and

Cheryl knew and that he had an affair with her, but he claimed the affair did not begin

until December 2005. He testified that in 2002 he and the author were just friends

and that the emails were the author’s way of “joking.” Jeffrey also testified that

throughout their marriage, Cheryl was mean and controlling of him, their daughter,

and his daughter who lived with them. He complained that she was verbally abusive,

was not affectionate, and would push him away when he tried to show her affection.

He testified that she told him in 2001 she did not love him and that she did not

support him in his work or personal endeavors. Jeffrey described Cheryl as being

cold and distant to his family, friends, and guests, including his boss. He further

testified that after she was home full time due to her disability, she essentially did

nothing in their home for him or the children, although her disability did not prevent

her from doing so.

According to Jeffrey, he initiated counseling in 2001 to address his concerns,

but it did not help. He claimed that he did not divorce Cheryl because he did not

want his children to grow up in a home without both parents like he did. Jeffrey also

claimed that Cheryl put him out of their home by having the door locks changed and

changing the alarm system code.

Cheryl denied that she locked Jeffrey out of their home, but she did not deny

his descriptions of her behavior toward him, the children, and others during the

course of the marriage.

2 The trial court determined that Cheryl proved she is entitled to final periodic

support. It found her suspicions of an affair were warranted in light of the suggestive

emails and that her mean behavior was excusable under the circumstances. Jeffrey

appeals, claiming that he and Cheryl were at fault in causing the breakup of their

marriage.

Discussion

Jeffrey urges that the trial court improperly found his adultery to be the sole,

independent, and proximate cause of the failure of the marriage without considering

Cheryl’s habitually cruel behavior as an independent and proximate cause of the

dissolution of marriage.

A spouse seeking final periodic support must “affirmatively prove” she is free

from causing the failure of the marriage. Floyd v. Floyd, 03-1126, p. 4 (La.App. 3

Cir. 12/10/03), 861 So.2d 837, 839; La.Civ.Code arts. 111, 112. To meet this burden,

she must prove she did not commit misconduct that is an “independent, contributory

or proximate cause of the failure of the marriage.” Terry v. Terry, 06-1406, p. 5

(La.App. 3 Cir. 3/28/07), 954 So.2d 790, 794. Habitual intemperance or excesses and

cruel treatment or outrages are examples of fault that can defeat a claim for final

periodic support. Floyd, 861 So.2d 837. However:

A party is not deprived of alimony due to a reasonable justifiable response to the other spouse’s initial acts. A spouse who perceives infidelity may become quarrelsome or hostile. Such a reasonable reaction does not constitute legal fault. The suspicion of adultery causes the breakup and not the reaction. A spouse who reacts should not be precluded from receiving alimony solely because of his or her own response.

Adkins v. Adkins, 42,076, pp. 4-5 (La.App. 2 Cir. 4/11/07), 954 So.2d 920, 923.

3 The trial court observed that Jeffrey’s description of Cheryl’s behavior equated

to habitual intemperance and cruel treatment and that if he had left the marriage

before entering into an affair, its opinion would have been different. However, the

trial court also determined that while Cheryl did not have proof of Jeffrey’s affair

until 2005, the emails were of a “serious and intimate nature” that warranted her

suspicions of adultery and justified the habitual intemperance and meanness described

by Jeffrey.

We agree with the trial court’s determination that Cheryl’s behavior constituted

cruel treatment and fault as contained in La.Civ.Code arts. 111 and 112, but we

cannot reverse the trial court’s determination that Cheryl established this behavior

was a response to Jeffrey’s affair unless the record establishes that the determination

was an abuse of discretion. January v. January, 03-1578 (La.App. 3 Cir. 4/7/04), 876

So.2d 98.

The trial court was faced with a credibility determination. It accepted Cheryl’s

testimony that she was suspicious of Jeffrey having an affair from the beginning of

the marriage and found her testimony credible. Without documents or objective

evidence that contradicts Cheryl’s testimony, we cannot reverse the trial court’s

credibility determination unless it is “so internally inconsistent or implausible on its

face, that a reasonable fact-finder would not credit the witness’s story.” Sportsman

Store of Lake Charles, Inc. v. Sonitrol Sec. Sys. of Calcasieu, Inc., 99-201, p. 7 (La.

10/19/99), 748 So.2d 417, 421. The record does not contain such evidence; therefore,

we cannot reverse the trial court’s determination.

4 Conclusion

The judgment of the trial court is affirmed, and all costs are assessed to Jeffrey

Diggs.