Thomas v. Thomas

238 So. 3d 515
CourtLouisiana Court of Appeal
DecidedFebruary 21, 2018
DocketNO. 2017–CA–0760
StatusPublished
Cited by5 cases

This text of 238 So. 3d 515 (Thomas v. Thomas) 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
Thomas v. Thomas, 238 So. 3d 515 (La. Ct. App. 2018).

Opinion

" 'The manifest error standard of review also applies to mixed questions of law and fact.' "

Gordon v. Gordon , 16-0008, p. 3 (La. App. 4 Cir. 6/8/16), 195 So.d 687, 689 (quoting A.S. v. D.S. , 14-1098, p. 10 (La. App. 4 Cir. 4/8/15), 165 So.3d 247, 254 ).

The de novo standard of review applies to legal issues. Id.

FAULT

Mr. Thomas contends that the trial court erred by finding that Ms. Thomas was free from fault in the divorce. He asserts that Ms. Thomas abandoned the family home.

Trial courts have the authority to award final periodic support to parties free from fault in a divorce. La. C.C. art. 111. Specifically, in regards to divorcing parties who are also the victims of domestic abuse,

[w]hen a spouse has not been at fault prior to the filing of a petition for divorce and the court determines that party was the victim of domestic abuse committed during the marriage by the other party, that spouse shall be awarded final periodic support or a lump sum award, at the discretion of the court, in accordance with Paragraph C of this Article.

La. C.C. art. 112(B). "Freedom from fault is thus a prerequisite to a former spouse's claim for final periodic spousal support." Schmitt v. Schmitt , 09-0415, p. 3 (La. App. 4 Cir. 12/16/09), 28 So.3d 537, 540. "The claimant spouse has the burden to 'affirmatively prove' his or her freedom from fault." Id. (quoting Wolff v. Wolff , 07-0332, p. 4 (La. App. 3 Cir. 10/3/07), 966 So.2d 1202, 1205 ). "To constitute 'legal fault' which would preclude permanent alimony at divorce, the misconduct must not only be of a serious nature, but must also be an independent contributory or proximate cause of the separation ...." Bowes v. Bowes , 00-1062, p. 4 (La. App. 4 Cir. 8/15/01), 798 So.2d 996, 999 (quoting Mayes v. Mayes , 98-2228 (La. App. 1 Cir. 11/5/99), 743 So.2d 1257, 1259 ).

This Court held that "habitual intemperance or excesses, cruel treatment or outrages, and abandonment" could constitute fault. Schmitt , 09-0415, p. 3, 28 So.3d at 540. "A spouse who petitions for final periodic support need not be totally blameless in the marital discord." Id. "[F]urther, permanent alimony will not be denied to a party if their actions were considered reasonable or a justifiable response to the other spouse's provocative acts." Bowes , 00-1062, p. 4, 798 So.2d at 999.

Ms. Thomas testified that she filed a petition for protection from physical abuse from Mr. Thomas in 2013. She stated that *519abuse caused the end of the marriage. Ms. Thomas described the night she decided to leave the family home:

And what happened was after a long, long time of financial abuse or emotional abuse, it was just that that night, I tried to go home. And I couldn't even enter our home because he had locked a lock, which he usually never-It has several locks, and one lock, I don't-I haven't had a key to, which he was quite aware of. So I couldn't-That was the reason why I couldn't enter, and so I was locked out.
So I went to my husband's family house because I didn't know where else to go, which is like a block away, and tried several times to get in contact with him. And he did not respond at all for hours.
At one point-And he had our son with him. And so at one point, it was then about 10 o'clock or 10:30. It's such a long time ago, and I'm not quite sure what time it was. I just decided, because it got so late, to just return home. My sister-in-law was there. She also tried to get in contact with him. I constantly tried to get in contact with him just to find out when I can come home.
And so when I finally come home, he was already home. The door-So I was able to enter. Our son was sleeping in our bed. And so I just went in my son's bedroom 'cause I didn't wanted [sic] to sleep in our bed just to get away, out of the confrontation, 'cause before I came home, I had to study.
I'm a licensed tour guide here in New Orleans, and I was studying for that license. And he had already called me several times: why I was with a friend of mine. She is my-She was my tutor, and she tried to prepare me for this license. And he was calling several times, and my sister-in-law was calling several times because he didn't want me to be there.
And he had threatened me already that he wouldn't take care our [sic] son anymore and all kinds of other threats. And so he was mad already. So I tried to get away, out of the confrontation and just went in our bedroom. And then he came in there when I was already laying down, and he tried to-He said-He tried to get my phone, and he tried to snatch my purse, which was standing in one corner, 'cause I always kept my purse already with me out of previous experience that he tried to take things away from me.
And I said-I-First I struggled, 'cause I didn't wanted [sic] him to take my phone away, and he was just-He was pushing me, and then he was holding me at my throat and holded [sic] me back like that. And it caused me to fall back on the bed. And he has-He stepped on my foot, and I was just-I let go then because I figured I would get just hurt more if I wouldn't.
So he took my phone. And I didn't really quite know what to do. I was just in shock. And then he came back, and he wanted to get the car keys as well. And that would completely disable me to do whatever. So I just tried to hold on to my car keys, and I was basically laying on my car keys so he cannot snatch them away from me as well.
And he was struggling against and hurting me again by doing that because he was just trying to get to what he wanted. And, and then he let go. And instead of, of taking the car keys from me, then I was-I was still in the bedroom, and he left and he was doing whatever. I don't know. I went in the bathroom just to check, 'cause it started to hurt when I was swallowing, and I was just looking at myself to find out-*520And he had the nerve to come there and say: Oh, are you hurt? Oh, is Swenja hurt?
And I just felt it was just, on top of everything, so disgusting, however.

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Cite This Page — Counsel Stack

Bluebook (online)
238 So. 3d 515, Counsel Stack Legal Research, https://law.counselstack.com/opinion/thomas-v-thomas-lactapp-2018.