VAN MARTIN v. Martin

32 So. 3d 319, 2010 La. App. LEXIS 520, 2010 WL 715481
CourtLouisiana Court of Appeal
DecidedApril 9, 2010
Docket45,007-CA
StatusPublished
Cited by3 cases

This text of 32 So. 3d 319 (VAN MARTIN v. Martin) 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
VAN MARTIN v. Martin, 32 So. 3d 319, 2010 La. App. LEXIS 520, 2010 WL 715481 (La. Ct. App. 2010).

Opinions

WILLIAMS, J.

|,The defendant, Anna Martin, appeals a judgment in favor of the plaintiff, Derek Martin. The trial court denied Anna Martin’s petition for final periodic support, finding her at fault in the breakup of the marriage. For the following reasons, we affirm in part, reverse in part and render.

FACTS

Derek and Anna Martin were married in February 2004 and established their marital domicile in Winn Parish. One child was born of the marriage. Derek filed a petition for divorce on February 21, 2008. However, he did not inform his wife of the petition and they continued living together until February 25, 2008, when he left the marital home and she was served with notice. After a hearing, the trial court ordered Derek to pay child support of $450 and interim spousal support of $850 per month.

Subsequently, Anna filed a petition seeking final periodic support and Derek responded with a rule for final divorce, termination of interim spousal support and a determination of fault. After a hearing, the trial court issued written reasons for judgment finding that Anna verbally abused her step-daughter and was at fault in the termination of the marriage. The court rendered judgment granting a divorce between the parties and denying final periodic support. Anna Martin appeals the judgment.

DISCUSSION

In several assignments of error, Anna Martin contends the trial court erred in finding that she was at fault in the breakup of the marriage. She argues that her treatment and discipline of the husband’s daughter from a former marriage did not constitute sufficient fault so as to preclude an award [pof final periodic support.

In a proceeding for divorce, the court may award final periodic support to a party who is need of support and who is free from fault prior to the filing of an action to terminate the marriage. LSA-C.C. art. 111. A spouse seeking final periodic support must be without fault and the burden of proof is upon the claimant. Jones v. Jones, 35,502 (La.App.2d Cir.12/5/01), 804 So.2d 161. Legal fault consists of serious misconduct that rises to [321]*321the level of one of the previously existing fault grounds for legal separation or divorce. Legal fault includes adultery, conviction of a felony, habitual intemperance, cruel treatment or abandonment. Jenkins v. Jenkins, 38,873 (La.App.2d Cir.9/22/04), 882 So.2d 705; Lyons v. Lyons, 33,237 (La.App.2d Cir.10/10/00), 768 So.2d 853.

A spouse who petitions for permanent support need not be totally blameless in the marital discord. Only misconduct of a serious nature, providing an independent contributory cause of the breakup, equates to legal fault. Jenkins, supra; Jones, supra. While mere bickering and fussing cannot constitute cruel treatment for purposes of denying final periodic support, a continued pattern of mental harassment, nagging and griping by one spouse directed at the other can constitute cruel treatment. Jones, supra; Lyons, supra. The trial court’s finding of fact on the issue of fault will not be disturbed unless manifestly erroneous. Jones, supra.

In the present case, Derek Martin testified that after filing a petition for divorce he continued to live with his wife for a number of days and did not inform her of his action before he left the marital home and she was ^served with notice. Derek stated that Anna did not abandon the marriage, commit adultery or remain habitually intoxicated. He acknowledged that Anna was not verbally or physically abusive toward him.

Derek testified that he filed for divorce because Anna was mean and abusive to C.M., his minor daughter from a prior marriage. As an example of poor treatment, he stated that Anna once refused to say something positive about C.M. despite his request. Derek testified that he decided to move C.M. into his parents’ home because of Anna’s treatment of his daughter. However, Derek stated that he likely would not have remained in the marriage even if Anna and C.M. had a better relationship. Derek testified that as a means of discipline he had sometimes whipped C.M. with a belt and had also whipped Anna’s children with a belt or switch. Derek stated that he and Anna had discussed attending family counseling, but he made the decision not to go because he did not think it would work.

Anna Martin testified that she worked as a teacher and was the primary caregiver for her five children from a previous marriage, C.M. and the parties’ son. Anna stated that C.M. seemed to have emotional problems and that it was very hard to communicate with her. Anna testified that she argued with C.M. when the child did not take a bath for more than a week or did not place her clothes in the laundry room. Anna stated that she told Derek she needed help in interacting with C.M. and suggested they go to family counseling, but he never agreed to attend. Anna testified that she did not agree with Derek’s decision to send C.M. to his mother’s house and told him several times that the girl needed to return home so they could address |4the situation themselves. Anna stated that she was the person who responded to the phone calls concerning C.M.’s behavioral problems at school. Anna acknowledged that her discipline included spanking C.M. and her own children with her hand and several times with a belt. Anna testified that she suggested counseling to Derek numerous times because she wanted the marriage to work and she was concerned about C.M.’s welfare.

Dr. Nicole Landos, a psychologist, testified that she had seen C.M. for mental health counseling beginning in July 2008. Dr. Landos stated that all of her information was obtained from conversations with C.M. and Derek and that she had not [322]*322spoken with Anna. Dr. Landos testified that she was not qualified to comment on whether Anna was at fault in the termination of the marriage. Dr. Landos stated that C.M. said she felt ignored in the house.

In order to meet her burden of proof, Anna testified that she cared about C.M. and wanted the marriage to work. Anna stated that she told Derek she needed help in caring for C.M. and suggested that they all participate in family counseling. Anna acknowledged that she criticized C.M.’s behavior and had difficulty communicating with her, but she did not agree with Derek’s decision to send the child to his parents’ house.

Although the trial court found Derek credible, his testimony did not support the court’s finding that Anna’s treatment of C.M. constituted fault sufficient to preclude an award of final periodic support. Derek acknowledged that Anna did not verbally or physically abuse him and she did not abandon the marriage. At trial, Derek asserted that Anna was mean Land abusive to C.M. However, he gave few specifics, stating vaguely that Anna physically abused C.M. in December 2007 and January 2008. Derek stated that he was concerned about Anna’s treatment of C.M. because on one occasion he asked Anna to say something positive about C.M., but Anna told him that she did not like the way C.M was acting and would not make a positive comment to the child. We note that Derek admitted he would have sought a divorce even if there had been no conflict between C.M. and Anna. Thus, the record does not support a finding that Anna’s treatment of the child was an independent cause of the breakup.

In addition, the trial court erred in stating that the applicable standard of fault was “defined” in LSA-C.C. art. 112.

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Related

Brown v. Brown
200 So. 3d 887 (Louisiana Court of Appeal, 2016)
King v. King
136 So. 3d 941 (Louisiana Court of Appeal, 2014)
VAN MARTIN v. Martin
32 So. 3d 319 (Louisiana Court of Appeal, 2010)

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32 So. 3d 319, 2010 La. App. LEXIS 520, 2010 WL 715481, Counsel Stack Legal Research, https://law.counselstack.com/opinion/van-martin-v-martin-lactapp-2010.