Miller v. Miller

161 So. 3d 690, 13 La.App. 3 Cir. 1043, 2014 La. App. LEXIS 862, 2014 WL 1305021
CourtLouisiana Court of Appeal
DecidedApril 2, 2014
DocketNos. 13-1043
StatusPublished
Cited by7 cases

This text of 161 So. 3d 690 (Miller v. Miller) is published on Counsel Stack Legal Research, covering Louisiana Court of Appeal primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Miller v. Miller, 161 So. 3d 690, 13 La.App. 3 Cir. 1043, 2014 La. App. LEXIS 862, 2014 WL 1305021 (La. Ct. App. 2014).

Opinion

PICKETT, Judge.

|,Weston P. Miller, III appeals the trial court’s finding of fault and subsequent award of final spousal support to his former wife, Catherine Broussard Miller, alleging error with the trial court’s finding that Cathy was not at fault in the failure of the marriage and awarding her $5,350 per month in support. We affirm the trial court’s finding that Cathy was not at fault in the failure of the marriage, amend the award of final spousal support to $3,350 per month, and affirm as amended.

FACTS

Weston and Cathy had been married approximately sixteen years when they sought marriage counseling. In 2009, Cathy became suspicious that Weston was involved romantically with other women after she saw texts of a romantic nature on his phone and her son reported having seen a text, stating, “I love you” on Wes’s phone from a number he did not recognize. To verify her suspicions, Cathy texted a number on Weston’s phone, asking “are you alone?” The recipient responded, “I wish I could come and run into your arms right now.” At that point, Cathy left home and went to her sister’s home. After a few days and coaxing by Weston, she returned home.

In September or October 2010, after she and Weston reconciled, Cathy again became suspicious that he was involved with another woman. She testified that one morning, while on a golf trip with friends, Weston mistakenly sent her a text at 6:00 a.m. that read, “Good morning, Sunshine.” The text referenced names that Cathy believed were the intended recipient’s' children’s names because they were not the names of her or Weston’s children. Cathy responded to the text, “You must have texted the wrong person.” According to Cathy, Weston immediately called her, and she answered the call, stating: “I can’t believe you’re doing this again.” Cathy further testified that Weston responded by apologizing, stating, “No, I’m 12sorry. No, this is nothing. She’s nobody.” Weston claimed all the texts were business-related, but his greeting of “Sunshine” in one of the texts and the large number of texts to that number, over 3,000 in one month, caused Cathy to suspect that he was romantically involved with a woman.

After seeing another suspicious text that she believed was also from a woman and Weston refusing to tell her who sent the text, Cathy suggested counseling. Weston agreed, and they began counseling in November 2010. Cathy testified that initially after they began counseling, the texts stopped and their relationship greatly improved — for a while. She admitted, however, she had trouble accepting the fact that Weston had been texting three women for a period of time.

Cathy next related that her concerns of Weston being involved with another woman increased in February 2011 when she received a letter from a jewelry store in Baton Rouge concerning jewelry Weston had purchased. Cathy testified that when she questioned him about the jewelry, Weston explained that he bought the jewelry for her as a Christmas gift but put it aside to give to her for her birthday because she had suggested that they not exchange gifts for Christmas. He then retrieved the jewelry from his desk and gave it to her. Cathy testified that as Weston handed the jewelry to her, he stated, [693]*693“maybe [it doesn’t] look like you” and suggested that she exchange it. Cathy believed Weston bought the jewelry for someone else and gave it to her only because she found out about it.

Weston and Cathy were counseled by Carol Mouton, a licensed addiction counselor, who also counseled married couples. Cathy testified that not only was she concerned about Weston being unfaithful to her but also about his use of alcohol and that she hoped counseling would address both issues. On November 8, |s2011, after one year of counseling, Cathy left a joint counseling session and moved out of the marital home.

On January 19, 2012, Cathy and her daughter went to look in an apartment over Weston’s office for furniture that Cathy could possibly use. Cathy and her daughter testified that the bedroom was neatly arranged, and the bed was made. Cathy’s daughter presented photographs she had taken that evening showing the state of the apartment. A private investigator hired by Cathy to surveil Weston testified that on the evening of January 22, 2012, he observed Weston and a female enter the apartment and remain in the apartment for more than two hours.

Weston and Shontel Cleveland testified they were at the apartment the evening of January 22, 2012, to straighten it and make it livable because Weston was moving out of the family home a few days to allow Cathy to return and remove her things from the home. They both described the bed as being unassembled that evening.

Weston filed for divorce on January 25, 2012. Cathy was awarded interim spousal support in the amount of $9,000 per month. In August 2012, Weston filed a rule to show cause why their divorce should not be granted. Shortly thereafter, Cathy filed a petition for final spousal support, asserting that she was free from fault in the failure of the marriage and in need of support. Weston answered the petition, alleging Cathy was not entitled to final spousal support because she had abandoned the marriage; engaged in cruel treatment during the marriage; and refused to engage in sexual relations with him.

Initially, after a hearing on the issue, the trial court determined that Cathy was free from fault. The parties proceeded to a Hearing Officer Conference to establish an amount of final spousal support. The Hearing Officer recommended that Weston be ordered to pay final spousal support in the amount of $3,931 per |4month. Cathy appealed the recommendation, and after a hearing, the trial court awarded her $5,350 per month.

Weston appealed the trial court’s judgment on fault shortly after it was rendered. He then appealed the trial court’s judgment awarding Cathy final support. Because the trial court’s judgment on fault was not a final appealable judgment, the appeal as to that judgment was held in abeyance until the appeal on the judgment awarding Cathy final spousal support, which Weston also appealed, was ready to be docketed. See Ashworth v. Ashworth, 10-215 (La.App. 3 Cir. 10/6/10), 46 So.3d 1291. We now consolidate these appeals on our own motion.

ASSIGNMENTS OF ERRORS

Weston assigns two errors with the trial court’s finding that Cathy is free from fault in the failure of the marriage:

(1) The trial court erred in failing to consider the marriage counselor’s testimony on the issue of fault.
(2) The trial court erred in holding that Cathy was free from fault.

[694]*694Weston assigns four errors with the trial court’s award of $5,350 to Cathy in final spousal support:

(1) The trial court applied the wrong legal standard for determining final spousal support.
(2) The trial court was manifestly erroneous in applying the facts and evidence for determination of final spousal support and abpsed its discretion in awarding a final spousal award in the monthly amount of $5,350.
(a) The trial court was manifestly erroneous in its refusal to consider Cathy’s earning capacity and imputing income to Cathy for the purposes of calculating spousal support.
(b) The trial court erroneously calculated the expenses of Cathy Miller for the purposes of determining final spousal support.

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Cite This Page — Counsel Stack

Bluebook (online)
161 So. 3d 690, 13 La.App. 3 Cir. 1043, 2014 La. App. LEXIS 862, 2014 WL 1305021, Counsel Stack Legal Research, https://law.counselstack.com/opinion/miller-v-miller-lactapp-2014.