STATE OF LOUISIANA
COURT OF APPEAL
FIRST CIRCUIT
NO. 2019 CA 0689
STEVEN L. PIERCE
VERSUS
PATRICIA DAVIS PIERCE
Judgment Rendered: FEB 2 12020
On Appeal from the 21 st Judicial District Court In and for the Parish of Livingston State of Louisiana Trial Court No. 150168
Honorable Jeffery T. Oglesbee, Judge Presiding
Jenel Guidry Secrease Attorneys for Plaintiff A - ppellee, Jay Michael Futrell Steven L. Pierce Ponchatoula, LA
Jeffrey S. Wittenbrink Attorneys for Defendant -Appellant, Carmen T. Hebert Patricia Davis Pierce Stephen C. Carleton Baton Rouge, LA
BEFORE: HIGGINBOTHAM, PENZATO, AND LANIER, JJ. HIGGINBOTHAM, J.
In this domestic matter, the former wife appeals a judgment of the trial court
denying her request for a permanent protective order, denying her request for final
periodic support, and partitioning the parties' former community property.
FACTUAL AND PROCEDURAL HISTORY
On January 10, 1994, Steven Pierce and Patricia Davis Pierce were married in
Key West, Florida. Thereafter, they established their matrimonial domicile at 8920
Eagle Drive in Denham Springs, Louisiana, a home Patricia owned prior to their
marriage. In 2002, Patricia donated to Steven I/ 2 of her interest in the Eagle Drive
home. During their marriage, they owned and operated together Superior Equipment
Services, Inc., a forklift repair business. On September 28, 2015, after twenty-one
years of marriage, Steven moved out of the matrimonial domicile and resided
primarily on a boat' purchased by the parties during the marriage.
On October 15, 2015, Steven filed a petition for divorce seeking among other
things, an injunction against alienating community property, spousal support, and an
injunction against harassment. Patricia answered the petition and filed a
reconventional demand. In her reconventional demand, she alleged that Steven was
abusive to her during the marriage, and she sought an injunction against harassment.
She also requested spousal support and use of the matrimonial domicile. On
December 2, 2015, the parties signed an interim stipulated judgment that ordered
Patricia to pay interim spousal support to Steven, gave Patricia exclusive authority
to run Superior Equipment, and ordered both parties to refrain from harassing or
abusing the other party or from alienating, encumbering, or disposing of any
community property. On January 26, 2016, the parties entered into a second
stipulated judgment modifying Patricia' s interim spousal support obligation.
Thereafter, on April 20, 2016, Patricia filed a first amended reconventional
demand requesting final periodic support and an assessment of fees and costs for
The boat was a 1983 42' Present Sundeck Motor Yacht that had accommodations for up to six persons. 2 filing the divorce pursuant to the Louisiana Post -Separation Family Violence Relief
Act, La. R.S. 9: 361 et seq. The parties were divorced by a judgment signed on
August 3, 2016. On November 14, 2016, Steven filed a petition to partition the
former community property, and both parties filed sworn detailed descriptive lists
of the community property and obligations.
On July 10, 2018, Patricia filed a rule for final periodic support and a
permanent protective order pursuant to Domestic Abuse Assistance Act, La. R.S.
46: 2131 et. seq. In her rule, Patricia pointed out that a protective order was issued
against Steven in a criminal proceeding arising out of an incident that occurred the
day Steven left, and the protective order expired when the criminal matter was
disposed of by Steven' s plea of nolo contendre. Patricia sought final periodic
support, a permanent injunction, and all court costs, attorney fees, and counseling
costs that may be awarded pursuant to the Post -Separation Family Violence Relief
Act.
Patricia' s request for a permanent protective order, for final periodic support,
and for the partition of the parties' former community property came before the court
for a three- day trial on July 1, 2018, September 28, 2018, and October 4, 2018. On
the morning of the last day of trial, Patricia filed a second reconventional demand
seeking to revoke all donations given by her to Steven on the grounds of ingratitude
under the provisions of La. Civ. Code arts. 1556 and 1557, et. seq.
After the three- day trial and review of post -trial memorandums, the trial court
signed a lengthy judgment addressing all of the issues presented by Steven and
Patricia.' Relevant to this appeal, the judgment denied Patricia' s request for final
periodic support, as well as her request for a permanent protective order.
Additionally, the judgment ordered Patricia to reimburse Steven for 1/ 2 of boat slip
2 This court issued a rule to show cause why the appeal should not be dismissed because the trial court' s written reasons and judgment were set out in one document contrary to the requirements of La. Code Civ. P. art. 1918. However, after review of the trial court' s judgment, we have concluded that the judgment contains sufficient decretal language to constitute a final judgment and is not invalid simply because it includes written reasons in the body of the document. See Conley v. Plantation Management Co., LLC, 2012- 1510 ( La. App. 1st Cir. 5/ 6/ 13), 117 So. 3d 542, 547, writ denied, 2013- 1300 ( La. 9/ 20/ 13), 123 So. 3d 178. 3 fees, 1/ 2 of the cost to replace the boat' s air conditioner, and 1/ 2 of the payments made
on the boat note. The trial court also found that Patricia' s request to revoke the
donation of the Eagle Drive home to Steven was not properly pled. It is from this
judgment that Patricia appeals assigning six assignments of error.
I. Domestic Violence
In Patricia' s first and fifth assignments of error, she contends that the trial
court erred in failing to find family violence was perpetrated against her and refusing
to grant a permanent protective order. In her fourth assignment of error, she argues
that the trial court erred in not ordering Steven to pay court costs, attorney fees, costs
of appeal, evaluation fees, expert witness fees, and costs of medical and
psychological care incurred by Patricia as a victim of domestic violence.
Protective orders are issued in domestic violence matters pursuant to the La.
R.S. 46: 2131, et seq. The purpose of the law is to provide relief to victims of
domestic violence by establishing a civil remedy for domestic violence that affords
the victim( s) immediate and easily accessible protection. See Thomas v. Hyatt,
2012- 1891 ( La. App. 1st Cir. 8/ 6/ 13), 2013 WL 4007777, at * 2 ( unpublished).
Louisiana Revised Statutes 46: 2135 and 46: 2136 require that there be " good cause
shown" for the issuance of a protective order. " Good cause shown" is defined in La.
R.S. 46: 2135 as a showing of "immediate and present danger of abuse." Pursuant
to La. R.S. 46: 2136( A), the court may grant a protective order to bring about a
cessation of abuse of a party. Additionally, the definition of domestic abuse
includes, but is not limited to, physical or sexual abuse or any offense against the
person, physical or non-physical, as defined in the Louisiana Criminal Code, except
negligent injury and defamation, committed by one family or household member
against another. La. R. S. 46: 2132( 3). Family violence includes, but is not limited
to, physical or sexual abuse and any offense against the person as defined in the
Criminal Code of Louisiana, except negligent injuring and defamation, committed
by one parent against the other parent or against any of the children. Family violence 0 does not include reasonable acts of self-defense utilized by one parent to protect
himself or herself or a child in the family from the family violence of the other
parent. La. R.S. 9: 362( 4).
Louisiana courts have held that the definition of domestic abuse in La. R.S.
46: 2132( 3) does not include nonphysical acts, such as general harassment and family
arguments, if those acts do not rise to the level of physical or sexual abuse in
violation of the criminal code, or an offense against a person. Rouyea v. Rouyea,
2000- 2613 ( La. App. 1st Cir. 3/ 28/ 01), 808 So. 2d 558, 561.
An appellate court reviews domestic protective orders for abuse of discretion.
Munger v. Sirenko, 2016- 0778 ( La. App. 4th Cir. 7/ 12/ 17), 224 So. 3d 445, 449.
Moreover, the standard of review applicable to fact findings of the trial court has
been clearly enunciated by our Supreme Court in Rabalais v. Nash, 2006- 0999 ( La.
3/ 9/ 07), 952 So. 2d 653, 657, as follows:
It is well- settled that a court of appeal may not set aside a trial court' s or a jury' s finding of fact in the absence of manifest error or unless it is clearly wrong. To reverse a fact -finder' s determination, the appellate court must find from the record a reasonable factual basis does not exist for the finding of the trial court, and that the record establishes that the finding is clearly wrong. Where the [ fact -finder' s] findings are reasonable, in light of the record reviewed in its entirety, the court of appeal may not reverse. Even where the court of appeal is convinced that it would have weighed the evidence differently to reach a different result, reversal of the trial court is improper unless the trial court' s ruling is manifestly erroneous, or clearly wrong. ( Citations omitted.)
In matters of credibility, an appellate court must give great deference to the
findings of the trier -of f-act, as the trial court is in the best position to view the
demeanor and mannerisms of the witnesses. Munger, 224 So. 3d at 449 ( citing
Rosell v. ESCO, 549 So. 2d 840 ( La. 1989)). When conflicting testimony exists,
reasonable evaluations of credibility and reasonable inferences of fact made by the
trial court are not to be disturbed. Stobart v. State through Dept. of Transp. and
Development, 617 So. 2d 880, 882- 83 ( La. 1993).
During trial, Patricia testified about five separate incidents of physical abuse
that she said happened during her twenty-one year marriage to Steven. Patricia
5 testified that around 1998 when their son was about two years old, Steven grabbed
and squeezed her arm as she begged him to stop. Patricia testified about an incident
around 2002, where Steven knocked her over a barstool and pulled her hair, and the
police were called. Deputy Jeff Fowler, who was dispatched to their home on the
day of the incident, testified during the trial. He acknowledged that he did not
remember the incident, but his report was introduced into the record, which stated
that Steven admitted that he grabbed and slapped Patricia. Patricia also testified that
around the Fourth of July in 2014, Steven threw a cell phone at her, and sometime
in 2015, he shoved her in a closet while they were on a cruise. Patricia introduced
into evidence photographs of the laceration she contends was caused by Steven
throwing the cell phone, and bruises she contends were caused by Steven shoving
her during the cruise.
Finally, Patricia testified about an incident that occurred on September 28,
2015, the day Steven left. Patricia said that Steven struck her in the face the day he
left. She introduced into evidence a photograph of her with a black eye. Also,
employees of Superior Equipment as well as her friend Kathleen McCullough
testified that they saw redness or a bruise on her face after the incident, and that she
was emotional and upset. The police were called that day, Steven was arrested after
turning himself in, and a criminal no contact order was issued. Steven eventually
pled no contest to the criminal domestic violence charges, and the no contact order
expired the day of the criminal trial. In addition to the incidents of abuse, Patricia
said that Steven was controlling, called her names, and, at times, would not speak to
her.
Patricia acknowledged that since the day Steven left, there has been no
communication or contact between her and Steven. Other than in court, she said she
has only seen Steven on one occasion when he came to her home to retrieve personal
belongings. Patricia said Steven was not allowed to come to her home to get his
belongings, and that she has seen suspicious people drive by their home. Her
R neighbor, Mr. Jesse Mathis also testified that he saw Steven' s sister taking
photographs of the parties' home through the fence.
Conversely, Steven testified denying that he ever pushed, slapped, punched,
or hit Patricia, and stated that he had never struck Patricia with any object. Steven
did not recall any incident from their cruise, and said that on the Fourth of July she
hit herself with the cell phone when she grabbed it from him. Steven said there was
never a physical altercation on the day he left. In addition, Steven said that there
had been a miscommunication between the attorneys on the day he came to the home
to retrieve his belongings.
At the conclusion of the hearing, the trial court determined that Patricia did
not present " sufficient evidence in support of her request for a permanent
injunction." After thorough review of the record, we find no abuse of the trial court' s
vast discretion in concluding that Patricia did not show good cause for the issuance
of a permanent protective order, especially considering that at the time of trial in
2018, Steven had not been in contact with Patricia since 2015. Further, we find no
manifest error in the trial court' s conclusion that Patricia was not a victim of family
violence. The trial court was in the best position to view the demeanor and
mannerisms of Patricia and Steven, and their witnesses, and as herein, when
conflicting testimony exists, we are not to disturb the trial court' s reasonable
evaluations of credibility and reasonable inferences of fact. While we find Patricia' s
testimony and the report ofDeputy Fowler inconsistent with the testimony of Steven,
we may not reverse even if we are convinced that we may have weighed the evidence
differently to reach a different result. Therefore, we find no merit to Patricia' s first,
fourth, or fifth assignment of error.
II. Final Periodic Support
In Patricia' s second assignment of error, she contends that the trial court erred
in denying her request for final periodic support. A request for final periodic support
is governed by La. Civ. Code arts. 111 and 112, which provide as follows: 7 Article 111. Spousal support; authority of the court
In a proceeding for divorce or thereafter, the court may award interim periodic support to a party or may award final periodic support to a party who is in need of support and who is free from fault prior to the filing of a proceeding to terminate the marriage in accordance with the following Articles.
Article 112. Determination of final periodic support
A. When a spouse has not been at fault prior to the filing of a petition for divorce and is in need of support, based on the needs of that party and the ability of the other party to pay, that spouse may be awarded final periodic support in accordance with Paragraph B of this Article.
B. The court shall consider all relevant factors in determining the amount and duration of final support, including: 1) The income and means of the parties, including the liquidity of such means.
2) The financial obligations of the parties, including any interim allowance or final child support obligation.
3) The earning capacity of the parties. 4) The effect of custody of children upon a party' s earning capacity. 5) The time necessary for the claimant to acquire appropriate education, training, or employment. 6) The health and age of the parties. 7) The duration of the marriage. 8) The tax consequences to either or both parties.
9) The existence, effect, and duration of any act of domestic abuse committed by the other spouse upon the claimant or a child of one of the spouses, regardless of whether the other
spouse was prosecuted for the act of domestic violence.
In an action for final periodic support, the claimant spouse has the burden of proving
insufficient means of support. Until need has been demonstrated, the other spouse' s
financial means are irrelevant. Wascom v. Wascom, 97- 0547 ( La. App. 1 st Cir.
6/ 29/ 98) 713 So. 2d 1271, 1273, writ denied, 98- 2028 ( La. 11/ 6/ 98), 728 So. 2d 391.
A trial court' s determination regarding final periodic support is subject to the abuse
of discretion standard of review. Bond v. Bond, 2013- 1733 ( La. App. 1st Cir.
6/ 24/ 14) ( Unpublished) 2014 WL 1203134, at * 3, writ denied, 2014- 1054 ( La.
9/ 12/ 14), 148 So. 3d 932. Louisiana Revised Statute 9: 326A provides:
Each party shall provide to the court a verified income statement showing gross income and adjusted gross income, together with documentation of current and past earnings. Suitable documentation of current earnings shall include but not be limited to pay stubs or employer statements. The documentation shall include a copy of the party' s most recent federal tax return. A copy of the statement and documentation shall be provided to the other party. When an obligor has an ownership interest in a business, suitable documentation shall include but is not limited to the last three personal and business state and federal income tax returns, including all attachments and all schedules, specifically Schedule K- 1 and W-2 forms, 1099 forms, and amendments, the most recent profit and loss statements, balance sheets, financial statements, quarterly sales tax reports, personal and business bank account statements, receipts, and expenses. A copy of all statements and documentation shall be provided to the other party.
During the trial, on direct examination, Patricia testified that she closed
Superior Equipment because it was no longer profitable, and she did not currently
have a job. She also testified that she was unable to pay the house or pool note and
had only $ 700. 00 in her checking account. Patricia said that she was a teacher prior
to working at Superior Equipment, and she was planning to finish classes to regain
her teacher' s certification.
On direct examination, Patricia did not offer a verified income statement or
introduce any documentary evidence to prove her current financial situation.
Additionally, Patricia did not give specific testimony about her assets, liabilities, or
monthly expenses. After cross- examination and while on rebuttal, Patricia
attempted to introduce an income and expense affidavit. Steven' s attorney objected
and the trial court sustained the objection, pointing out that the information was
outside the scope of rebuttal. Steven introduced an income and expense affidavit
that indicated that his expenses exceeded his income. In addition, employees of
Superior Equipment and Steven and Patricia testified about the business. Steven and
Patricia disputed the reason for the downturn in the success of the business, as well
as the value of the business and its assets.
In the judgment, the trial court found that Patricia failed to establish her
specific need for final periodic support or Steven' s ability to pay final periodic
support. After thorough review of the evidence, we find no abuse of discretion by
the trial court in denying Patricia' s request for final periodic support. 9 III. Revocation for Ingratitude
In Patricia' s third assignment of error, she contends that the trial court erred
in failing to revoke her donation of 1/ 2 of her interest in the Eagle Drive home to
Steven for ingratitude under La. Civ. Code art. 1557. Article 1557 provides
revocation on account of ingratitude may take place only if he has been guilty
towards her of cruel treatment, crimes, or grievous injuries. An action of revocation
for ingratitude shall be brought within one year from the day the donor knew or
should have known of the act of ingratitude. La. Civ. Code art. 1558. Patricia did
not request revocation of the donation given by her to Steven until filing the second
amended reconventional demand by fax on October 4, 2018, and served on Steven
in open court on the final day of trial.
The trial court determined that that issue was not properly before the court.
Specifically, during trial, the trial court pointed out that because the second amended
reconventional demand was not served until the third day of trial, Steven did not
have an opportunity to respond to the pleading. Additionally, the pleading was filed
more than one year after Patricia' s final allegation of abuse or grievous injury on
September 28, 2015. Patricia contends that the allegations in her original answer
and reconventional demand filed on November 30, 2015, qualified as cruel treatment
and were sufficient to put Steven on notice of the allegations that support her claim
to revoke the donation for ingratitude.
In the judgment, the trial court determined that Patricia' s claim was not
adequately pled nor was there sufficient proof provided that the donation should be
revoked. Our review of the record reveals that Patricia' s allegations of abuse in
previous pleadings were not sufficient to put Steven on notice that on the third day
of trial that Patricia was attempting to revoke a donation for cruel treatment.
Therefore, we find no abuse of the trial court' s discretion in not considering that
argument during trial.
IV. Reimbursement related to the Boat
10 In her final assignment of error, Patricia contends that the trial court erred in
awarding reimbursement claims to Steven related to expenses for a boat the parties
purchased during the marriage and where Steven resided after they separated. The
judgment ordered Patricia to reimburse Steven for %2 of boat slip fees, '/ 2 the cost to
replace the boat' s air conditioner, and 1/ 2 of the payments of the boat note. Patricia
argued that because Steven had exclusive control of the boat, the reimbursement
award should be reduced by his use, and because Steven lived on the boat, the boat
slip fees are analogous to rent.
A trial court has broad discretion in adjudicating issues raised by divorce and
partition of the community proceedings. Benoit v. Benoit, 2011- 0376 ( La. App. 1 st
Cir. 3/ 8/ 12), 91 So. 3d 1015, 1019, writ denied, 2012- 1265 ( La. 9/ 28/ 12), 98 So. 3d
838. Reimbursements are factual determinations and absent an abuse of discretion,
the trial court' s decision should be not be disturbed on appeal. Norman v. Norman,
99- 2750 ( La. App. 4th Cir. 7/ 12/ 00), 775 So. 2d 18, 25.
Louisiana Civil Code article 2365 provides in pertinent part:
If separate property of a spouse has been used either during the existence of the community property regime or thereafter to satisfy a community obligation, that spouse is entitled to reimbursement for one- half of the amount or value that the property had at the time it was used.
If the community obligation was incurred to acquire ownership or use of a community corporeal movable required by law to be registered, and separate property of a spouse has been used after termination to satisfy that obligation, the reimbursement claim shall be reduced in proportion to the value of the claimant' s use after termination of the
community property regime. The value of that use and the amount of the claim for reimbursement accrued during the use are presumed to be equal.
Steven testified that he lived primarily on the boat since the parties separated and
there is no dispute that Steven had exclusive use of the boat since the parties
separated. As stated in Article 2365, a reduction or elimination of Steven' s
reimbursement claim will occur if the obligation for which a spouse expends
separate property relates to a community corporeal movable required by law to be 11 registered. See Darden v. Darden, 48, 971 ( La. App. 2d Cir. 5/ 14/ 14), 139 So. 3d
33, 37; see also La. Civ. Code art. 2365, 2009 Revision Comments ( c). This includes
automobiles and many watercrafts, including the boat described herein. See La. R.S.
34: 851. 19. Therefore, Steven' s reimbursement claim shall be reduced in proportion
to the value of his use after termination of the community property regime. Because
the value of that use and the amount of the claim for reimbursement accrued during
the use are presumed to be equal, Patricia owes no reimbursement to Steven for the
boat note. See La. Civ. Code art. 2365.
However, we find no abuse of discretion by the trial court in ordering Patricia
to reimburse Steven for the replacement of the boat' s air conditioner because it was
necessary to preserve the boat and increased the boat' s value. See Braud v. Braud,
2005- 758 ( La. App. 4th Cir. 4/ 25/ 06), 930 So. 2d 1023, 1027- 1028 ( allowing
reimbursement for air conditioner repairs on a home.) Further, we find no abuse of
discretion by the trial court in ordering Patricia to reimburse Steven for 1/ 2 of the boat
slip fees as Steven presented evidence that the fees were necessary for the storage of
the boat.
CONCLUSION
For the foregoing reasons, the portion of the trial court judgment ordering
Patricia to reimburse Steven for 1/ 2 of the payments on the boat note in the amount
of $4, 904. 62 is reversed. In all other respects, the judgment of the trial court is
affirmed. Costs of the appeal are to be divided between Steven Pierce and Patricia
Davis Pierce.
REVERSED IN PART; AFFIRMED IN PART.