STEPHANIE WOODSIDE * NO. 2021-CA-0386 JENNINGS * VERSUS COURT OF APPEAL * QUINCY MAURICE FOURTH CIRCUIT JENNINGS * STATE OF LOUISIANA *******
APPEAL FROM CIVIL DISTRICT COURT, ORLEANS PARISH NO. 2020-07432, DIVISION “I-14” Honorable Lori Jupiter, Judge ****** Judge Regina Bartholomew-Woods ****** (Court composed of Judge Rosemary Ledet, Judge Sandra Cabrina Jenkins, Judge Regina Bartholomew-Woods)
Michael J. Hall Jonique Martin Hall Law Office of Michael J. Hall, L.L.C. 2401 Westbend Pkwy., Suite 2102 New Orleans, LA 70114
Cherrell S. Taplin LISKOW & LEWIS, APLC 701 Poydras Street, Suite 5000 New Orleans, LA 70139
COUNSEL FOR PLAINTIFF/APPELLEE
Edwin Mark Shorty, Jr. Nathan M. Chiantella EDWIN M. SHORTY, JR. & ASSOCIATES, APLC 650 Poydras Street, Suite 2515 New Orleans, LA 70130
COUNSEL FOR DEFENDANT/APPELLANT
AFFIRMED DECEMBER 1, 2021 RBW
RML
SCJ
This matter stems from a divorce petition where one spouse sought a fault-
based divorce, and the other spouse reconvened seeking a divorce based on living
separate and apart. This Court is tasked with determining whether the trial court is
obligated to forgo considering a fault-based divorce when a divorce based on
living separate and apart is also prayed for in a reconventional demand, as well as
what is the necessary the burden of proof for a fault based divorce pursuant to
adultery, physical abuse, and the existence of a protective order.
For the reasons that follow, we affirm the trial court.
FACTUAL AND PROCEDURAL BACKGROUND
On February 14, 2009, Defendant-Appellant, Quincy Jennings (“Mr.
Jennings”), and Plaintiff-Appellee, Stephanie Woodside-Jennings (“Ms.
1 Woodside”1) married. Both parties considered a divorce near the end of 2009, but
they ultimately sought counseling and reconciled.
On June 26, 2020, the parties began living separate and apart.
On September 3, 2020, Ms. Woodside filed a petition for divorce
(hereinafter “Woodside Petition”) pursuant to La. Civ. Code arts. 103(2)
(adultery), 103(4) (physical abuse), and 103(5) (existence of a protective order).
On October 19, 2020, Mr. Jennings filed an answer denying the allegations
in the Woodside Petition.
On January 8, 2021, Ms. Woodside filed a motion to fix a rule to show cause
why an art. 103 divorce should not be granted. A hearing in the matter was set for
March 16, 2021.
On January 19, 2021, Mr. Jennings filed a reconventional demand seeking a
full and final divorce in his favor pursuant to La. Civ. Code art. 103(1), asserting
the parties have voluntarily lived separate and apart, without reconciliation, for a
period in excess of 180 days.
On February 18, 2021, Ms. Woodside filed an answer to the reconventional
demand reiterating her demand for divorce under arts. 103(2, 4-5).
On April 7, 2021, Mr. Jennings’s reconventional demand for a no-fault
divorce, as well as Ms. Woodside’s fault-based divorce, came for hearing before
the trial court.
1 Ms. Woodside has returned to using her maiden name and refers to herself by this name in the court records.
2 The trial court rendered a judgment of divorce in favor of Ms. Woodside
granting the divorce pursuant to arts. 103(2, 4-5); and denied Mr. Jennings’s
reconventional demand for divorce pursuant to art. 103(1).
On April 30, 2021, Mr. Jennings timely filed, and was granted, a motion and
order for a devolutive appeal.
This appeal timely followed.
DISCUSSION
Assignment of Error and Issues for Review
Mr. Jennings asserts the trial court erred as a matter of law when it denied
his reconventional demand for an art. 103(1) divorce and instead granted Ms.
Woodside’s petition for divorce under La. Civ. Code arts. 103(2), 103(4), and
103(5).
Mr. Jennings presents the following issues for review:
Whether the trial court erred in granting an article 103(2, 4, 5) divorce when a 103(1) divorce had been prayed for and was pending prior to the filing of the 103 divorce;
Whether the trial court erred in finding that adultery was a cause in the breakup of the marriage;
Whether the trial court erred in finding that there had been domestic abuse in the relationship; and
Whether the trial court erred in allowing hearsay testimony at the trial of the matter.
Analysis
Standard of Review
A trial court’s finding of fault in a divorce is a factual determination subject
to the manifest error standard of review. Thomas v. Thomas, 2017-0760, p. 2 (La.
3 App. 4 Cir. 2/21/18), 238 So. 3d 515, 518; Noto v. Noto, 09-1100, p. 6 (La. App. 5
Cir. 5/11/10), 41 So. 3d 1175, 1179. When findings are determined based on
witness credibility, the trier of fact is granted “great deference.” Thomas, 2017-
0760, p. 2, 238 So. 3d at 518. To reverse the trial court’s finding of fact, the
appellate court must find that a reasonable factual basis does not exist for the
verdict, and that the record establishes the verdict as manifestly wrong. Id.
I. Whether the Trial Court Erred in Granting an Article 103(2, 4, 5) Divorce When a 103(1) Divorce Had Been Prayed For and Was Pending Prior to the Filing of the 103 Divorce
Mr. Jennings first asserts his reconventional demand seeking a divorce based
on La. Civ. Code art. 103(1) should have taken precedence over Ms. Woodside’s
petition seeking a fault-based divorce. In support of his position, Mr. Jennings
relies on Watters v. Watters: wherein this Court reasoned that when a divorce is
based on living separate and apart there is no reason to address issues of fault in a
divorce. 607 So. 2d 948, 949 (La. App. 4th Cir. 1992). In Watters, the plaintiff-
husband initially filed for a La. Civ. Code art. 102 divorce pursuant to living
separate and apart. Id. The defendant-wife filed a reconventional demand
requesting a fault based divorce because of adultery. Id. This Court reasoned the
legislature intended for art. 102 to provide “an expeditious method of granting a
divorce” and litigating fault added delays to what was intended as a streamlined
process. Id. at 950. This Court further stated the defendant-wife would still have
the opportunity to litigate fault after the divorce was granted. Id.
4 The current case is distinguishable from Watters because both parties are
seeking an art. 103 divorce which allows for the possibility of fault. The primary
demand seeks a fault-based divorce. When both parties are seeking a divorce
through art. 103, the trial court should allow for both assertions to be tried. Yates v.
Yates, 355 So. 2d 573, 574–75 (La. App. 3d Cir. 1978) (Wherein the court
reasoned that because the primary cause of action, adultery, was pending when the
reconventional demand based on living separate and apart was filed, the trial court
should have considered both the principal and reconventional demands); Ogea v.
Ogea, 378 So. 2d 984, 991 (La. App. 3d Cir. 1979) (wherein the court reasoned the
trial court properly considered both the main and the reconventional demand where
both parties sought a divorce based on art. 103). After hearing both demands, the
trial court would have discretion to grant the divorce on either ground “depending
upon the evidence adduced.” Yates, 355 So. 2d at 575. Mr. Jennings’s reliance on
Watters is misplaced because both divorce demands are based on art. 103. Thus we
find that the trial court did not err in hearing both art. 103 petitions before deciding
upon which grounds to grant the divorce.
II. Whether the Trial Court Erred in Finding That Adultery Was a Cause in the Breakup of the Marriage and Whether the Trial Court Erred In Allowing Hearsay Testimony at the Trial of the Matter
Because Mr. Jennings’s second and fourth assignments of error are related,
this Court shall examine them together. Mr. Jennings asserts the trial court erred in
finding that adultery had occurred during the marriage and, in allowing hearsay
testimony to prove the adultery. Mr. Jennings contends the adultery complained of
5 occurred early in the marriage, and the couple reconciled; therefore, adultery can
no longer be used as a basis for divorce. Ms. Woodside counters that there were
further acts of adultery after the couple’s reconciliation which were a cause of the
divorce.
The petitioner claiming adultery bears the burden of proof by preponderance
of the evidence. Tidwell v. Tidwell, 49,512, p. 2 (La. App. 2 Cir. 11/19/14), 152 So.
3d 1045, 1047. Adultery may be established by direct, indirect, or circumstantial
evidence. Id. “If circumstantial evidence alone is relied upon, then the proof must
be so convincing as to exclude any other reasonable hypothesis but that of guilt of
adultery.” Id. Reconciliation can be used to extinguish a cause of action for a
divorce. La. Civ. C. art. 104; Miller v. Miller, 2013-1043, p. 9 (La. App. 3 Cir.
4/2/14), 161 So. 3d 690, 696. Ms. Woodside, as the party claiming adultery, has
the burden of proof. In the present case, the evidence supporting the adultery claim
came solely from testimony and is therefore circumstantial.
Because Mr. Jennings asserts the couple reconciled after his affair, this
Court must consider the timeline of the marriage. Mr. Jennings and Ms. Woodside
married on February 14, 2009. Shortly after marrying, still in 2009, Mr. Jennings
confessed to having an extra-marital relationship, and the couple separated at the
end of 2009. They received counseling through their church and reconciled in
2010. The couple remained married and lived together. Approximately nine (9)
years later, in 2019, Ms. Woodside learned Mr. Jennings was engaged in a new
extra-marital affair after speaking with the mistress and reviewing Mr. Jennings’s
6 phone records. In June 2020, the couple separated with the intent of dissolving the
marriage.
After separating, Ms. Woodside learned Mr. Jennings acknowledged being
engaged in an affair in 2018. Mr. Robin Richardson (“Mr. Richardson”) testified
that Mr. Jennings admitted to him that he was having an extra-marital affair.
According to Mr. Richardson, on June 9, 2018, he and Mr. Jennings were looking
at houses together and discussing plans for flipping houses. At some point, Mr.
Jennings changed the topic of conversation and showed Mr. Richardson pictures of
a woman to whom he was attracted. Mr. Jennings then told Mr. Richardson, “I’m
having a sexual relationship with another woman.” This testimony was used as
evidence showing Mr. Jennings engaged in a new, distinct extramarital affair after
the couple’s 2010 reconciliation.
We next turn to Mr. Jennings’s assertion that the testimony of Mr.
Richardson to prove the adultery allegation was inadmissible hearsay. Hearsay is
“a statement, other than one made by the declarant while testifying at the present
trial or hearing, offered in evidence to prove the truth of the matter asserted.” State
v. Smith, 2011-0091, p. 12-13 (La. App. 4 Cir. 7/11/12), 96 So. 3d 678, 687; La.
Code Evid. art. 801(C). Generally, hearsay is excluded. Id. An exception to the
general rule is a statement against interest. Terry v. Lagasse, 266 So. 2d 231, 233
(La. App. 4th Cir. 1972). A statement against interest is defined as:
A statement which was at the time of its making so far contrary to the declarant’s pecuniary or proprietary interest, or so far tended to subject him to civil or criminal liability, or to render invalid a claim by him
7 against another, that a reasonable man in his position would not have made the statement unless he believed it to be true. A statement tending to expose the declarant to criminal liability and offered to exculpate the accused is not admissible unless corroborating circumstances clearly indicate the trustworthiness of the statement.
La. Code Evid. Ann. art. 804B(3).
An adverse party is allowed to introduce statements which were made out of
court by a party-opponent. Terry, 266 So. 2d at 233 (quoting Pacholik v. Gray, 187
So. 2d 480, 483 (La. App. 3d Cir. 1966). Additionally, when the party against
whom the adverse statement is being used is afforded the opportunity of cross-
examination to challenge the credibility of the witness and/or provide the full
context of the statement, the statement is admissible for the trier of fact to
determine credibility. Id. Finally, failure to object at the time the testimony is
offered “constitutes a waiver of the right to object to its admissibility, and such
evidence may be considered and given probative effect.” Brown v. Chategnier,
2016-0373, p. 4 (La. App. 4 Cir. 12/14/16), 208 So. 3d 410, 414; Walley v. Vargas,
2012–0022, p. 15 (La. App. 1 Cir. 9/21/12), 104 So. 3d 93, 104.
Mr. Jennings’s statement to Mr. Richardson wherein he admitted to having
an affair amounted to statement against his pecuniary interest and triggered the art.
804B(3) hearsay exception, because it subjected Mr. Jennings to civil liability in
the divorce proceedings. Moreover, Mr. Richardson was subject to cross-
examination by Mr. Jennings, further making the statement admissible. Finally,
Mr. Jennings failed to object to Mr. Richardson’s testimony at the trial and
therefore waived his right to later object to its admissibility. Thus, based on the
8 aforementioned, we find that the trial court did not err in allowing and considering
the testimony of Mr. Richardson.
Having determined the testimony of Mr. Richardson was admissible, we
next consider the trial court’s findings regarding adultery. At trial, both parties
testified regarding the alleged adultery and were cross-examined. Ms. Woodside
testified to viewing Mr. Jennings’s phone records and speaking with an individual
she believed had first-hand knowledge of the affair—the mistress. Ms. Woodside
testified that the adultery she alleged in the petition stems from a new affair that
she had learned of in 2019 and not the 2009 affair from which, she acknowledges,
the couple reconciled. In addition to her own testimony, Ms. Woodside offered the
witness, Mr. Richardson, who provided testimony that, in 2018, Mr. Jennings
confessed to him that he was having an extra-marital affair. This statement, made
in the present tense at the time it was uttered, was an admission, by Mr. Jennings,
of a new affair distinct from the 2009 affair that was the subject of the couple’s
reconciliation.
As explained supra, circumstantial evidence regarding adultery must be so
convincing as to exclude any other possible conclusion but that adultery occurred.
In domestic cases, the trial judge is vested with great discretion in evaluating the
credibility of witnesses. Hebert v. Hebert, 381 So. 2d 966, 968 (La. App. 4th Cir.
1980) (quoting Pearce v. Pearce, 348 So. 2d 75, 78 (La. 1977)). The conclusions
of the trial court are accorded substantial weight and should not be disturbed unless
there is a showing of manifest error. Id.
9 After granting the divorce in favor of Ms. Woodside, the trial court provided
written reasons for judgment.2 The trial court explained that after hearing and
considering all the testimony, it determined Ms. Woodside was more credible than
Mr. Jennings. Furthermore, the trial court reasoned Mr. Jennings alluded to an
affair even without specifically admitting that he had committed adultery. Based
on the admittedly circumstantial evidence presented at trial, the trial court found
Ms. Woodside met her burden of proving the adultery allegation.
All evidence was weighed and considered by the trial court before it made
the ruling that adultery was a cause of the divorce. Accordingly, we, therefore find
no error in the trial court’s determination that adultery occurred and was in fact a
cause of the divorce.
III. Whether the Trial Court Erred in Finding There Had Been Domestic Abuse in the Relationship
Finally, Mr. Jennings asserts the trial court erred in finding domestic abuse
on his part as a cause of the dissolution of the marriage. Mr. Jennings contends the
trial court wrongfully allowed the admission of past protective orders and abuse
prevention orders, because no testimony had been taken, there had been no formal
findings of abuse, and Ms. Woodside withdrew her allegations.
Per art. 103(5), a divorce shall be granted upon proof that a protective order
or an injunction was issued during the marriage against the other spouse to protect
2 “Reasons for judgment serve to set forth the basis for the trial court’s holding and are not binding; however, the appellate court may use the written reasons for judgment ‘to gain insight into the district court's judgment.’” Bernstein v. Bernstein, 2019-1106, p. 13 (La. App. 4 Cir. 2/10/21), 313 So. 3d 413, 423, writ denied, 2021-00390 (La. 5/4/21), 315 So. 3d 220, and writ denied, 2021-00380 (La. 5/4/21), 315 So. 3d 222 (quoting Wooley v. Lucksinger, 2009-0571, p. 78 (La. 4/1/11), 61 So. 3d 507, 572).
10 the spouse seeking the divorce if the protective order was issued “after a
contradictory hearing or consent decree.” A protective order may be granted when
either:
1. “The parties enter into a consent agreement,” or
2. The accused party was given “[r]easonable notice and opportunity to be heard … sufficient to protect that person’s right to due process.”
La. Stat. Ann. § 46:2136.
In the current case, Mr. Jennings explains the protective orders considered
by the trial court had not been issued following contradictory hearings or pursuant
to any consent decrees. Specifically, Mr. Jennings points out that no testimony was
taken and no affirmative findings were made by the trial court. This contention
lacks merit. Testimony is not necessary for a contradictory hearing to have taken
place. See Barber v. Barber, 2015-1021, p. 5 (La. App. 1 Cir. 4/15/16), 2016 WL
1535195, at *5 (Wherein the trial court found a contradictory hearing occurred
even though no testimony was taken because the Louisiana statute does not
mandate the manner in which evidence is taken or require the hearing be
“susceptible of transcription”).
On two occasions, Mr. Jennings was issued stay away orders following
instances of alleged domestic abuse. Stay away orders instituted as a condition of
release from prison or jail are considered protective orders for the purpose of
protection from domestic violence. State v. Kumar, 46,056, p. 9 (La. App. 2 Cir.
3/2/11), 58 So. 3d 544, 551. Both times, Mr. Jennings signed the stay away orders
11 after stipulating he would stay away from Ms. Woodside. Mr. Jennings’s signature
indicates a hearing occurred for each of the two orders issued because his presence
would be necessary to acquire the signature; additionally, his appearance to sign
indicates he had proper notice. Mr. Jennings, during his testimony, read into the
trial court record the wording of one of the signed stay away orders acknowledging
a hearing had taken place. The trial court did not err in allowing evidence of past
stay away orders because the orders, as signed by Mr. Jennings offered proof of
protective orders that were issued following contradictory hearings as required by
art. 103(5).
The trial court also considered orders of protection issued in the past and the
credibility of both Mr. Jennings and Ms. Woodside through their respective
testimony. Based on the testimonies, the trial court reasoned both parties may have
mutually engaged in physical altercations, and it found the altercations rose to the
level of abuse. The trial court ultimately ruled Ms. Woodside provided evidence
sufficient to prove she suffered abuse at the hands of Mr. Jennings when she
included art. 103(4) as one of the grounds for her divorce filing.
Generally, in an action for divorce “mutual, equal fault operates as a bar to
relief being given to either litigant[; therefore], the courts consider in each case the
degree of guilt, and only where there is a finding of fact that the degree of guilt has
been equal is the suit dismissed.” Eals v. Swan, 221 La. 329, 333, 59 So. 2d 409,
410 (1952) (emphasis in original); Laurent v. Laurent, 347 So. 2d 312, 313 (La.
App. 4th Cir. 1977). In the instant case, the trial court, recognized the possibility of
12 mutual fault and noted that Mr. Jennings likely also had reason to claim abuse;
however, it did not address whether there was equal fault regarding abuse because
Mr. Jennings forfeited the abuse claim when he failed to raise it in his
reconventional demand. “Procedural due process requires that a person be given a
meaningful opportunity to be heard.” Bays v. Bays, 2000-1727, p. 6 (La. 2/21/01),
779 So. 2d 754, 758 (emphasis in original). The person against whom a claim is
asserted must be given notice that sufficiently informs them of the pendency of the
action and allows for the opportunity to present their objection. Nelson v. Nelson,
42,697, p. 4 (La. App. 2 Cir. 12/5/07), 973 So. 2d 148, 151.
In Bays, the plaintiff-husband sought an order of protection from his ex-
wife. 2000-1727, p. 1, 779 So. 2d at 756. The defendant-wife did not file any
pleadings, or motions seeking a protective order on her own behalf. Id. at p. 2, 779
So. 2d at 756. After hearing testimony from both parties and their children
regarding past and current abuse allegations, the trial court concluded the parties
had a mutually abusive relationship and issued protective orders against both
parties. Id. The appellate court affirmed the trial court’s judgment, reasoning the
plaintiff had reasonable notice and an opportunity to be heard because: 1) the
plaintiff was afforded notice via the testimony presented at the hearing, and 2) the
plaintiff had an opportunity for cross-examination. Id. at p. 4, 779 So. 2d at 757.
The Louisiana Supreme Court disagreed with the appellate court’s conclusions and
reasoned that had the plaintiff known he would face allegations of abuse and the
possibility of a protective order against him, he would have prepared a different
13 cross-examination and defense; therefore, the plaintiff was not afforded a
“meaningful opportunity to be heard.” Id. at p. 7, 779 So. 2d at 758. The Louisiana
Supreme Court reversed the lower court’s granting of mutual protective orders to a
husband and wife. Id. at p. 7, 779 So. 2d at 759.
The current case is analogous to Bays. Ms. Woodside was the only party
asserting a fault divorce based on abuse and that a protective order had been
issued. Mr. Jennings’s reconventional demand only identified living separate and
apart as his cause for divorce. Presumably, had Ms. Woodside known she would
face accusations of abuse, she would have prepared her own defense and
presumably approached cross-examination of Mr. Jennings in a different manner.
Mr. Jennings’s claim of mutual physical violence amounted to a defense to the
allegation of abuse against him, rather than a fault claim against Ms. Woodside.
The trial court was not obligated to consider whether Ms. Woodside was at fault
for abuse when such allegation was not properly pled before the trial court, and
Ms. Woodside was not afforded the opportunity to prepare a meaningful defense to
such an allegation.
Thus the trial court did not err in finding that abuse had occurred and that a
protective had been issued during the marriage; thus, assigning fault solely to Mr.
Jennings.
14 CONCLUSION
The trial court did not err in granting Ms. Woodside a fault-based divorce on
the grounds of adultery, abuse and the issuance of a protective order during the
marriage, as opposed to granting Mr. Jennings’s non-fault based divorce.
Considering the foregoing, we affirm the trial court’s granting of divorce in
favor of Ms. Woodside pursuant to La. Civ. Code arts. 103(2), 103(4), and 103(5).
AFFIRMED