STATE OF LOUISIANA COURT OF APPEAL, THIRD CIRCUIT
16-540
TIFFANY M. VOISELLE
VERSUS
JOHN T. VOISELLE
**********
APPEAL FROM THE TWELFTH JUDICIAL DISTRICT COURT PARISH OF AVOYELLES, NO. 2015-1288-B HONORABLE WILLIAM J. BENNETT, DISTRICT JUDGE
MARC T. AMY JUDGE
Court composed of Marc T. Amy, Elizabeth A. Pickett, and James T. Genovese, Judges.
REVERSED IN PART; RENDERED IN PART; AFFIRMED IN PART.
Benjamin D. James Roy & Scott, Attorneys at Law 107 North Washington Street Marksville, LA 71351 (318) 240-7800 COUNSEL FOR DEFENDANT/APPELLEE: John T. Voiselle
Alissa Piazza Tassin Attorney at Law Post Office Box 429 Marksville, LA 71351 (318) 253-6423 COUNSEL FOR PLAINTIFF/APPELLANT: Tiffany M. Voiselle AMY, Judge.
Following the parties’ divorce, and after receiving interim periodic support,
the former wife sought final periodic support. The trial court denied the request,
finding that the former wife failed to prove that she was free from fault in the
dissolution of the marriage, although the trial court did note that the husband’s
extramarital relationships were the primary cause for the divorce. The former wife
appeals. For the following reasons, we reverse the trial court’s determination that
the former wife failed to demonstrate freedom from fault and further render a
determination that she was free from fault in the dissolution of the marriage.
However, we otherwise affirm the denial of final periodic support.
Factual and Procedural Background
The parties, Tiffany and John Voiselle, were married in September 1996.
Two children were born of the marriage, an elder son in 2013 and a younger son in
2014. The record establishes that Mr. Voiselle informed Ms. Voiselle by text
message on December 30, 2014, that he was leaving the marital home after having
an extramarital relationship that resulted in the conception of a child outside of the
marriage. Although Mr. Voiselle explained in that text message that he would be
filing for divorce, Ms. Voiselle did so the following month. Thereafter, the parties
entered into a consent judgment which addressed child custody issues, matters
pertaining to child support, and interim periodic support to Ms. Voiselle. The
consent judgment awarded Ms. Voiselle interim periodic support in the amount of
$3,400.00 per month and made that award retroactive to the filing of divorce.
A judgment of divorce was entered on February 8, 2016. Prior to that
judgment, however, Ms. Voiselle filed a Rule for Final Spousal Support, asserting
that she “is in need of final spousal support for support and maintenance and that she is free from fault for the dissolution of the marriage and that it is necessary to
establish an amount of final spousal support to be paid to [sic] her behalf[.]”
Following a hearing, the trial court denied Ms. Voiselle’s request, finding that she
failed to demonstrate that she was free from fault in the dissolution of the marriage.
In her resulting appeal, Ms. Voiselle assigns the following as error:
[1.] The trial court erred as a matter of law by applying the incorrect standard of fault as it relates to plaintiff-appellant, Tiffany Voiselle.
[2.] The trial court improperly denied plaintiff appellant’s claim for permanent periodic spousal support, and thus improperly cast her with costs of same, when under the applicable law the facts support that she would be entitled to permanent periodic spousal support.
Discussion
Louisiana Civil Code Article 111 – Fault
By her first assignment, Ms. Voiselle challenges the trial court’s
determination that she was at “fault” in the dissolution of the marriage. In addition
to advancing the evidence in support of her case in chief, Ms. Voiselle asserts that
even Mr. Voiselle’s testimony concerning their relationship and her actions does
not constitute fault on her part. Namely, she contends that evidence of their
marriage difficulties do not constitute conduct of a serious nature that was a cause
of the dissolution of the marriage, independent of Mr. Voiselle’s extramarital
relationships and his departure from the marital home.
Louisiana Civil Code Article 111 provides for the availability of spousal
support as follows:
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.
2 Within the context of final periodic support, a spouse is not deprived of spousal
support merely because he or she “was not totally blameless in the marital
discord.” Pearce v. Pearce, 348 So.2d 75, 77 (La.1977). Rather, “fault” for
purposes of claiming support “consists of serious misconduct, which is a cause of
the marriage’s dissolution.” Rusk v. Rusk, 12-176, p. 6 (La.App. 3 Cir. 6/6/12),
102 So.3d 193, 198 (quoting McKenna v. McKenna, 09-295, p. 5 (La.App. 5 Cir.
10/27/09), 27 So.3d 923, 925). The conduct must not only be of a serious nature,
but it must further be an independent, contributory, or a proximate cause of the
divorce. Pearce, 348 So.2d 75. See also Miller v. Miller, 13-1043 (La.App. 3 Cir.
4/2/14), 161 So.3d 690, writ denied, 14-1607 (La. 10/31/14), 152 So.3d 154.
In consideration of a claim for support, fault has been equated to the former
codal grounds for separation or divorce contained within the now vacated
La.Civ.Code art. 138. See Rusk, 102 So.3d 193. See also La.Civ.Code art. 111,
comment (c) providing that: “Fault continues to mean misconduct the [sic] rises to
the level of one of the previously existing fault grounds for legal separation or
divorce.” For example, conduct such as “adultery, habitual intemperance or
excess, conviction of a felony, cruel treatment or outrages, public defamation,
abandonment, an attempt on the other’s life, fugitive status, and intentional non-
support” constitute fault. Rusk, 102 So.3d at 199 (citing Bourg v. Bourg, 96-2422
(La.App. 1 Cir. 11/7/97), 701 So.2d 1378; Guillory v. Guillory, 626 So.2d 826
(La.App. 2 Cir. 1993). Furthermore, petty quarrels, bickering, and fussing do not
constitute cruel treatment within the context of a spousal support claim. Miller,
161 So.3d 690. Instead, a spouse’s mental harassment of the other spouse must be
of such a continued pattern so as to make the marriage unsupportable. Id.
3 Additionally, even a spouse’s “cruel treatment” does not constitute fault if it
is a reasonable, justifiable response to a spouse’s preceding conduct. Miller, 161
So.3d 690, 696 (explaining for example that “a woman who reasonably believes
that her husband has been unfaithful will not be deprived of alimony if she engages
in cruel treatment because it is natural for a spouse in that situation to become
quarrelsome or hostile” and that “[t]he suspicion of adultery causes the breakup
and not the reaction.”) (quoting in part Diggs v. Diggs, 08-1271, p. 3 (La.App. 3
Cir. 4/1/09), 6 So.3d 1030, 1032-33).
Certainly, it is the claimant seeking final periodic support who bears the
burden of proving freedom from fault. Diggs, 6 So.3d 1030. In this instance, the
trial court found that Ms. Voiselle failed to do so. While the trial court
acknowledged that Mr. Voiselle admitted to having multiple extramarital
relationships during the course of the marriage and to having fathered two children
outside of the marriage, the trial court expressed in reasons for ruling that “there
are clearly several reasons why this marriage did not succeed[.]” The trial court
went on to explain in oral reasons for ruling that:
It is long been said that adultery is not the cause of the break up of a marriage; it is a symptom that something is wrong. The simple fact that John chose to have multiple affairs clearly shows that something was wrong. . . .
....
In applying applicable law to the facts in the case at bar, it is quite clear that Tiffany has not met her burden to prove that she is totally free from fault in the break-up of her marriage to John. It is quite evident to this Court that this marriage was doomed from the beginning due to the problems that occurred at the time of the wedding and the tension and problems that remain between Tiffany and the Voiselle family thereafter. These problems were exacerbated by the fact that John and Tiffany spent so little time together due to John’s work schedule, and when together, John was prevented from spending quality time with his family.
4 This Court readily recognizes that this is somewhat of a harsh ruling considering John’s behavior during the marriage. His behavior certainly was not admirable nor justified. However, instead of terminating the marriage when a second woman became pregnant with his child, John could have terminated the marriage on prior occasions based on the impact of issues between Tiffany and the Voiselle family. Simply looking at this case from the outside, one would automatically imagine that the break up of the marriage is 100% John’s fault, however, the evidence confirms otherwise. The adultery was wrong and certainly John is at fault. However, for purposes of final spousal support the claiming spouse must be entirely [ ] free from fault and Tiffany failed to prove more probable than not this legal requirement. Evidence presented by Tiffany in her case in chief confirmed otherwise much less the evidence presented by John in defense.
On review, we are mindful that a trial court’s finding of fault is factual in nature
and is therefore considered pursuant to the manifest error standard of review.
Terry v. Terry, 06-1406 (La.App. 3 Cir. 3/28/07), 954 So.2d 790. However,
having reviewed the evidence, we conclude that the trial court was manifestly
erroneous in its determination that Ms. Voiselle failed to demonstrate freedom
from fault. Simply, the record does not reveal conduct on her part that constitutes
serious misconduct, nor does it reveal that tensions within the marriage were an
independent, contributory, or a proximate cause of the divorce. See Pearce, 348
So.2d 75.
First, it is clear that the marriage dissolved upon Mr. Voisselle’s leaving the
family home as evidenced by both the text message entered into evidence and by
the parties’ testimony.1 No one disputes that occurrence as the precipitous event.
1 The text message, entered into evidence explains that:
Tiffany I am filing for divorce. The same thing as last time has happened again. I cannot keep hiding. I am very sorry for ruining your life but you deserve the truth. I have another baby on the way in 6 months. Please do not make [the minor children of the marriage] hate me. I need to talk to [the eldest son] but I don’t know how and when. I know your family will hate me for this but like I said I can’t do it anymore. I know you know something because you have been asking. I didn’t want to ruin Christmas but I
5 The parties dispute, however, whether Ms. Voisselle was also at fault in the
dissolution of the marriage due to her actions and temperament over the course of
the marriage. Namely, Mr. Voisselle suggested at trial, as he does before this
court, that Ms. Voisselle was not affectionate toward him, sought to distance him
and their children from his family, and that the two had limited sexual relations
during the last two years of the marriage. However, such conduct, even as
described by Mr. Voisselle does not suggest that Ms. Voisselle was at “fault” in the
sense of “conduct or substantial acts of commission or omission by the wife
violative of her marital duties and responsibilities.” Pearce, 348 So.2d at 77.
Mr. Voisselle and his witnesses instead described what is more appropriately
viewed as points of disagreement and periods of distance during the eighteen-year
marriage. Even collectively, the instances complained of by Mr. Voiselle are not
objectively misconduct, let alone serious misconduct, on the part of Ms. Voiselle.
Notably, Mr. Voisselle was frequently absent from the home due to his work
schedule, whether in or out of state. He suggested that Ms. Voiselle should have
made more of an effort to travel to visit with him during his absences, especially
when he was located within driving distance of the family home. However, within
the context of legal fault, it is difficult to see how such an inference is any more
negative toward Ms. Voiselle’s conduct than toward his lack of willingness to
travel to and from work rather than be separated from his family. As described,
her decision not to travel with the children to visit with him was something that
Mr. Voiselle disagreed with. It did not constitute misconduct.
know I still have. I can’t call. I can’t talk to you right now. I am sorry. I will take care of the kids. I will not let them be without.
6 Additionally, and although Mr. Voiselle asserted that he would have liked
for his wife to be more affectionate toward him, it is again difficult to find “fault”
on the part of a spouse who explained that she did not feel comfortable with public
displays of affection. Ms. Voiselle testified, instead, that she physically expressed
affection while in private. While the two may have differed in their preferences in
this regard, such a difference in temperament does not constitute fault. Similarly,
and while Mr. Voiselle suggested that the two had limited sexual relations during
the last two years of marriage, there is no evidence that the marriage dissolved due,
in part, to this lesser interaction. Further, and in addition to Ms. Voiselle’s denial
of that claim, the evidence undermines Mr. Voiselle’s assertion. Rather, the
couple’s youngest son was nine months of age at the time the petition for divorce
was filed. Additionally, Ms. Voiselle explained that, although she was not
medically able to have sexual relations for a period after the birth of the child due
to complications in the pregnancy, she became “suspicious” when Mr. Voiselle
refused to engage in sexual relations several times after she was medically released
to continue that activity. Again, while Mr. Voiselle testified to his desire for more
frequent contact, assignment of “fault” to one party for a chill in that relationship is
not established in the record.
Finally, both Mr. Voiselle and the trial court found import in an “alienation”
of Mr. Voiselle’s relationship from his family. However, the record does not
reflect such an alienation, let alone due to the fault of Ms. Voiselle. All parties
testified that Ms. Voiselle did not have a close relationship with Mr. Voiselle’s
family following some difficulties at the time of their wedding (eighteen years
prior to the divorce). Notwithstanding those difficulties, Ms. Voiselle did maintain
relations with the family, with Mr. and Ms. Voiselle making periodic holiday visits
7 to the Voiselle family home, approximately fifty minutes away. Perhaps the
contacts were neither as frequent nor as warm as Mr. Voiselle reported to have
wanted at the time of trial, however, there is nothing to indicate that the tensions
constituted serious misconduct on the part of Ms. Voiselle. Instead, Ruth Reed,
Mr. Voiselle’s mother, indicated that she was able to visit the couple’s children in
the family home, 2 although she felt that she was required to telephone before
visiting and that the elder son had been allowed to spend a couple of nights with
her. Ms. Reed further admitted that she did not sense tension between her and the
elder son and that she had been included in the family’s life events. Again, this
evidence, at most, demonstrates tensions within the marriage that, at times, led to
argument and bickering. Yet, such behavior does “not constitute cruel treatment
for purposes of denying alimony.” Rusk, 102 So.3d at 199 (quoting Noto v. Noto,
09-1100, p. 7 (La.App. 5 Cir. 5/11/10), 41 So.3d 1175, 1180). Recall, even upon
the trial court’s assumption that Ms. Voiselle could have nurtured a better
relationship with her husband’s family, a spouse is not denied support merely
because he or she “was not totally blameless in the marital discord.” Pearce, 348
So.2d at 77. As described, there is no evidence that the type of tension or strained
relationships within the Voiselle family was the result of serious misconduct on the
part of Ms. Voiselle. Neither does there appear to be indication that the marriage
dissolved due to that tension. In fact, Ms. Reed explained that the relationship with
Ms. Voiselle had improved over the years.
In sum, the trial court manifestly erred in finding that Ms. Voiselle failed to
prove freedom from fault in the dissolution of the marriage. Rather, she
2 Additionally, she explained that Ms. Voiselle asked her to stay with the elder son “a couple of months” while the younger son was hospitalized following his birth.
8 demonstrated that the dissolution of the marriage was due to Mr. Voiselle’s
departure from the family home following the final extramarital relationship that
resulted in a pregnancy outside of marriage. Otherwise, Ms. Voiselle explained
that she tried to make the marriage a happy one, that she attended marriage
counseling following an earlier extramarital relationship that resulted in a child
being born to another woman, and that she tried to provide a pleasant home for the
family. Although she admitted periods of tension and strain in her relationship
with Mr. Voiselle’s family, she adequately demonstrated that any such strain did
not result from fault within the sense of La.Civ.Code art. 111. Accordingly, we
reverse the trial court’s factual finding as to Ms. Voiselle’s freedom from fault in
the dissolution of the marriage. We turn to consideration of the remainder of her
claim for final periodic spousal support.
Louisiana Civil Code Article 112 – Determination of final periodic support
In light of the trial court’s finding as to fault, it did not alternatively address
La.Civ.Code art. 112 for the determination of final periodic support in its reasons
for ruling.3 Ms. Voiselle, therefore, seeks such a determination in this court and
addresses both her need of support and Mr. Voiselle’s alleged ability to continue to
provide spousal support. We address that claim below, first noting that “[a]n
appellate court will generally not adjudicate issues not ruled upon by the trial
court[.]” Terry, 954 So.2d at 796. However, in the event an “appellate court has
all of the facts and testimony and is able to pronounce with certainty in the case,
3 However, the trial court explained that it found that Mr. Voiselle had the ability to pay at the time it denied Mr. Voiselle’s motion for involuntary dismissal due to lack of evidence regarding Mr. Voiselle’s earnings. The trial court remarked that it was the ability to pay, rather than earnings, that was before the court. The trial court explained that Mr. Voiselle had been able to pay $5,500.00 per month in combined child and spousal support.
9 that appellate court should render such judgment on appeal as the trial court should
have rendered at trial.” Id. The appellate court’s review is de novo. Id.
“However, when an appellate court finds that the interests of justice dictate
that further evidence is required for the proper adjudication of the case, then the
appellate court should remand the case to the trial court.” Terry, 954 So.2d at 796.
In this case, the parties presented their full cases as to both fault per La.Civ.Code
art. 111 and for determination of final periodic support per La.Civ.Code art. 112.
In this instance, we find that the record presents such facts and testimony sufficient
to render judgment on Ms. Voiselle’s claim. Therefore, we turn to de novo
consideration of the determination as to the appropriateness of an award of final
periodic support.
In this regard, Article 112(A) provides that: “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[.]” The award is thereafter made in accordance
with Paragraph C, which lists various factors for consideration “in determining the
amount and duration of final support[.]”4
4 Louisiana Civil Code Article 112(C) provides that “[t]he 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.
10 In support of her assertion that she is need of support, Ms. Voiselle testified
that both she and Mr. Voiselle agreed at the time their eldest son was a baby that
she would not work. She further contends that, without a continuation of spousal
support, she would have to sell the family home, where she and the children have
continued to live, and that she would have to buy a less expensive vehicle. She
further suggests that she could possibly have to move into her parent’s home with
the children for assistance. However, this evidence of need is based upon her
desire not to return to work and to stay at home with the younger child until he
reaches school age. At trial, she sought continuation of spousal support so that she
might retrain as a teacher in order to work at a schedule that would be consistent
with the children’s school schedule.
On review, however, we conclude that Ms. Voiselle has not demonstrated
“need” within the context of La.Civ.Code art. 112. Simply, her evidence is
insufficient in this regard. Rather than presenting evidence as to her ability to earn,
her past earnings, and the costs associated with the necessities of life, Ms. Voiselle
seemingly sought a continuation of her existing lifestyle upon an assumption of no
earnings.5 The position is evidenced by her testimony regarding her desire not to
(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, regardless of whether the other spouse was prosecuted for the act of domestic violence. 5 However, La.R.S. 9:326(A), entitled “Determination of income for spousal support; evidence[,]” anticipates that evidence will be introduced regarding the parties income and provides as follows:
Each party shall provide to the court a verified income statement showing gross income and adjusted gross income, together with documentation of current and
11 return to work and her testimony regarding having to sell the marital home and her
vehicle of choice. Yet, La.Civ.Code art. 112 addresses “need” within the context
of spousal support, which has been held to be limited “to an amount sufficient for
maintenance, rather than the continuation of an accustomed lifestyle.”
McClanahan v. McClanahan, 14-670, p. 15 (La.App. 5 Cir. 3/25/15), 169 So.3d
587, 597.
Furthermore, Ms. Voiselle merely assumed an inability to earn, preferring to
stay at home. However, Ms. Voiselle testified that she holds a college degree in
business and worked for a large part of the eighteen years of the marriage. 6 When
asked about her ability to work in that field, she only generally stated that she
obtained a degree while the couple lived in Baton Rouge, but that there was “not
very much opportunity for that” in Avoyelles Parish. Ms. Voiselle did not
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.
(Emphasis added.) While Ms. Voiselle provided an “affidavit of income & expenses on a per month basis[,]” she merely reported “$ 0” for both “Total Gross Monthly Income” and “Total Net Monthly Income[.]” She included no information regarding her past earnings that could have assisted the court in assessing a reference point for her earnings.
In Short v. Short, 11-1084 (La.App. 5 Cir. 5/22/12), 96 So.3d 552, the fifth circuit concluded that the trial court did not abuse its discretion in awarding interim spousal support in a situation where a claimant failed to document her current and past earnings as required by La.R.S. 9:326(A). The present matter differs, however, as the award in Short was for interim spousal support, the purpose of which is to maintain the standard of living of the parties’ during the marriage. The present matter differs, however, insofar as Ms. Voiselle had received more than one year of interim spousal support at the time of the hearing on the final periodic support. The question of whether Ms. Voiselle is “in need” for purposes of La.Civ.Code art. 112 poses a different question insofar as it is directed at her continued need for maintenance. 6 She estimated that she worked twelve years over the course of the marriage.
12 demonstrate that she had undertaken an effort to pursue work opportunities,
whether in that or another field. She further acknowledged that she had owned her
own embroidery business for five to six years before the birth of the couple’s
younger child, but dismissed returning to that type of business as other individuals
were offering that service. Finally, and even with regard to her desire to obtain
training in order to become a teacher, Ms. Voiselle presented very little formal
evidence in that regard and offered no specific information regarding the necessary
curricula. Instead, when asked by counsel for Mr. Voiselle in what way she had
pursued schooling or another job, she denied that she had taken measures beyond
“looking into it” or “get[ing] online.”7
7 The trial court additionally questioned Ms. Voiselle in this regard, as indicated in the passage as follows:
Q. . . . .Tell me about your work and wanting to be a teacher, what kind of teacher you want to be?
A. Elementary school.
Q. And have you looked into what you need to do at all, like anything . . .
A. I haven’t.
Q. Have you looked into anything a school or contacted a school board, department of education or anything and said what do I need to do, I have a business degree I want to be a teacher.
A. You have to go through in Pineville the school I can’t think of it off the top of my head. It’s not Louisiana Tech what’s the school in Pineville? LC, Louisiana College, that’s right. Which if you have a degree you can go to Louisiana College to get a teaching degree because instead of going four years of school that’s when you can go through their program because you already have your prerequisites and everything done is the way they look at it. So going to the . . . do the education program after having a degree you get it done quicker.
Q. And how long would it take?
A. The program is like a year to two years or something like that. I’m not exactly sure.
Q. Do you know whether or not you can teach today with your degree?
A. I think you can teach but you have to do the same thing as well.
13 Undoubtedly, Ms. Voiselle presented evidence of the expenses of
maintaining her mode of pre-divorce lifestyle. However, we find that evidence
insufficient for her pursuit of final periodic spousal support which anticipates
consideration of whether she “is in need of support, based on the needs of that
party and the ability of the other party to pay[.]” See La.Civ.Code art. 112(A)
(emphasis added). The record indicates that Ms. Voiselle has a formal education,
experience as a business owner, and a significant work history. Notwithstanding
her preference to not return to the work force while the couple’s youngest child
remains at home, Ms. Voiselle has not further demonstrated that she “is need” nor
what her “needs” may be in light of at least some type of earning potential. She
instead relied only on the assumption that she would not return to work. We find
such evidence to be insufficient to have satisfied Ms. Voiselle’s burden of proof
under La.Civ.Code art. 112. Therefore, we find no error in the trial court’s denial
of the rule for final periodic support.
This assignment lacks merit.
DECREE
For the foregoing reasons, the trial court’s determination that the appellant,
Tiffany M. Voiselle, failed to prove that she was free from fault in the dissolution
of the parties’ marriage is reversed and a determination that Ms. Voiselle was free
from fault is rendered. However, the trial court’s denial of the appellant’s rule for
final periodic support is affirmed. Costs of this proceeding are assessed equally to
Ms. Voiselle and to the appellee, John T. Voiselle.