STATE OF LOUISIANA COURT OF APPEAL, THIRD CIRCUIT
CA 13-1043 consolidated with CA 13-1446
WESTON P. MILLER, III
VERSUS
CATHY BROUSSARD MILLER
**********
APPEAL FROM THE FIFTEENTH JUDICIAL DISTRICT COURT PARISH OF VERMILION, NO. 95131A HONORABLE JOHN DAMIAN TRAHAN, DISTRICT JUDGE
ELIZABETH A. PICKETT JUDGE
Court composed of Elizabeth A. Pickett, James T. Genovese, and Shannon J. Gremillion, Judges.
AFFIRMED AS AMENDED.
Diane Sorola Attorney at Law 402 W. Convent St. Lafayette, LA 70501 (337) 234-2355 COUNSEL FOR PLAINTIFF/APPELLANT: Weston P. Miller, III Gabe A. Duhon James S. Broussard Attorney at Law P. O. Box 478 Abbeville, LA 70511-0478 (337) 893-3423 COUNSEL FOR DEFENDANT/APPELLEE: Catherine Broussard Miller PICKETT, Judge.
Weston P. Miller, III appeals the trial court’s finding of fault and subsequent
award of final spousal support to his former wife, Catherine Broussard Miller,
alleging error with the trial court’s finding that Cathy was not at fault in the failure
of the marriage and awarding her $5,350 per month in support. We affirm the trial
court’s finding that Cathy was not at fault in the failure of the marriage, amend the
award of final spousal support to $3,350 per month, and affirm as amended.
FACTS
Weston and Cathy had been married approximately sixteen years when they
sought marriage counseling. In 2009, Cathy became suspicious that Weston was
involved romantically with other women after she saw texts of a romantic nature
on his phone and her son reported having seen a text, stating, ―I love you‖ on
Wes’s phone from a number he did not recognize. To verify her suspicions, Cathy
texted a number on Weston’s phone, asking ―are you alone?‖ The recipient
responded, ―I wish I could come and run into your arms right now.‖ At that point,
Cathy left home and went to her sister’s home. After a few days and coaxing by
Weston, she returned home.
In September or October 2010, after she and Weston reconciled, Cathy again
became suspicious that he was involved with another woman. She testified that
one morning, while on a golf trip with friends, Weston mistakenly sent her a text at
6:00 a.m. that read, ―Good morning, Sunshine.‖ The text referenced names that
Cathy believed were the intended recipient’s children’s names because they were
not the names of her or Weston’s children. Cathy responded to the text, ―You must
have texted the wrong person.‖ According to Cathy, Weston immediately called
her, and she answered the call, stating: ―I can’t believe you’re doing this again.‖
Cathy further testified that Weston responded by apologizing, stating, ―No, I’m sorry. No, this is nothing. She’s nobody.‖ Weston claimed all the texts were
business-related, but his greeting of ―Sunshine‖ in one of the texts and the large
number of texts to that number, over 3,000 in one month, caused Cathy to suspect
that he was romantically involved with a woman.
After seeing another suspicious text that she believed was also from a
woman and Weston refusing to tell her who sent the text, Cathy suggested
counseling. Weston agreed, and they began counseling in November 2010. Cathy
testified that initially after they began counseling, the texts stopped and their
relationship greatly improved—for a while. She admitted, however, she had
trouble accepting the fact that Weston had been texting three women for a period
of time.
Cathy next related that her concerns of Weston being involved with another
woman increased in February 2011 when she received a letter from a jewelry store
in Baton Rouge concerning jewelry Weston had purchased. Cathy testified that
when she questioned him about the jewelry, Weston explained that he bought the
jewelry for her as a Christmas gift but put it aside to give to her for her birthday
because she had suggested that they not exchange gifts for Christmas. He then
retrieved the jewelry from his desk and gave it to her. Cathy testified that as
Weston handed the jewelry to her, he stated, ―maybe [it doesn’t] look like you‖
and suggested that she exchange it. Cathy believed Weston bought the jewelry for
someone else and gave it to her only because she found out about it.
Weston and Cathy were counseled by Carol Mouton, a licensed addiction
counselor, who also counseled married couples. Cathy testified that not only was
she concerned about Weston being unfaithful to her but also about his use of
alcohol and that she hoped counseling would address both issues. On November 8, 2011, after one year of counseling, Cathy left a joint counseling session and moved
out of the marital home.
On January 19, 2012, Cathy and her daughter went to look in an apartment
over Weston’s office for furniture that Cathy could possibly use. Cathy and her
daughter testified that the bedroom was neatly arranged, and the bed was made.
Cathy’s daughter presented photographs she had taken that evening showing the
state of the apartment. A private investigator hired by Cathy to surveil Weston
testified that on the evening of January 22, 2012, he observed Weston and a female
enter the apartment and remain in the apartment for more than two hours.
Weston and Shontel Cleveland testified they were at the apartment the
evening of January 22, 2012, to straighten it and make it livable because Weston
was moving out of the family home a few days to allow Cathy to return and
remove her things from the home. They both described the bed as being
unassembled that evening.
Weston filed for divorce on January 25, 2012. Cathy was awarded interim
spousal support in the amount of $9,000 per month. In August 2012, Weston filed
a rule to show cause why their divorce should not be granted. Shortly thereafter,
Cathy filed a petition for final spousal support, asserting that she was free from
fault in the failure of the marriage and in need of support. Weston answered the
petition, alleging Cathy was not entitled to final spousal support because she had
abandoned the marriage; engaged in cruel treatment during the marriage; and
refused to engage in sexual relations with him.
Initially, after a hearing on the issue, the trial court determined that Cathy
was free from fault. The parties proceeded to a Hearing Officer Conference to
establish an amount of final spousal support. The Hearing Officer recommended
that Weston be ordered to pay final spousal support in the amount of $3,931 per month. Cathy appealed the recommendation, and after a hearing, the trial court
awarded her $5,350 per month.
Weston appealed the trial court’s judgment on fault shortly after it was
rendered. He then appealed the trial court’s judgment awarding Cathy final
support. Because the trial court’s judgment on fault was not a final appealable
judgment, the appeal as to that judgment was held in abeyance until the appeal on
the judgment awarding Cathy final spousal support, which Weston also appealed,
was ready to be docketed. See Ashworth v. Ashworth, 10-215 (La.App. 3 Cir.
10/6/10), 46 So.3d 1291. We now consolidate these appeals on our own motion.
ASSIGNMENTS OF ERRORS
Weston assigns two errors with the trial court’s finding that Cathy is free
from fault in the failure of the marriage:
(1) The trial court erred in failing to consider the marriage counselor’s testimony on the issue of fault.
(2) The trial court erred in holding that Cathy was free from fault.
Weston assigns four errors with the trial court’s award of $5,350 to Cathy in
final spousal support:
(1) The trial court applied the wrong legal standard for determining final spousal support. (2) The trial court was manifestly erroneous in applying the facts and evidence for determination of final spousal support and abused its discretion in awarding a final spousal award in the monthly amount of $5,350. (a) The trial court was manifestly erroneous in its refusal to consider Cathy’s earning capacity and imputing income to Cathy for the purposes of calculating spousal support. (b) The trial court erroneously calculated the expenses of Cathy Miller for the purposes of determining final spousal support. (c) The trial court abused its discretion in awarding final spousal support in the amount of $5,350 based on the allowable and proven expenses and potential income that should have been imputed to Cathy Miller.
DISCUSSION
Determination of Fault
Refusal to Allow Counselor to Testify
Weston first asserts that the trial court erred in refusing to allow Ms. Mouton
to testify regarding statements made by the parties during joint counseling
sessions. Specifically, he argues Cathy failed to prove that Ms. Mouton is a health
care provider as defined in La.R.S. 13:3734; therefore, she did not prove the
privilege protecting confidential information shared by a patient with a health care
provider applies to statements she made to Ms. Mouton. Weston also asserts that
Cathy waived her privilege to maintain the confidentiality of statements she made
during joint counseling sessions when she testified regarding such statements at
trial. He urges that this gave her an unfair advantage over him because the ruling
allowed Cathy to misstate what occurred during those joint counseling sessions
without him being able to impeach her testimony.
The health care provider-patient privilege, codified in La.Code Evid. art.
510(B)(1), provides:
General rule of privilege in civil proceedings. In a non-criminal proceeding, a patient has a privilege to refuse to disclose and to prevent another person from disclosing a confidential communication made for the purpose of advice, diagnosis or treatment of his health condition between or among himself or his representative, his health care provider, or their representatives.
The primary purpose of the privilege is to encourage patients to fully
disclose their problems, symptoms, concerns, and reasons for seeking treatment to
allow the health care provider to make accurate diagnoses and provide proper
treatment. Moss v. State, 05-1963 (La. 4/4/06), 925 So.2d 1185. Health care
provider is defined to include ―a person . . . licensed by the state . . . as a . . . licensed professional counselor.‖ La.R.S. 13:3734(A)(1). Ms. Mouton testified
that she is a licensed addiction counselor, and Weston did not show that she is not.
Accordingly, the trial court did not err in determining that statements Cathy made
to Ms. Mouton in the joint counseling sessions are privileged.
Weston argues that Cathy waived the privilege that protects statements she
made to Ms. Mouton during counseling. In Succession of Smith v. Kavanaugh,
Pierson & Talley, 513 So.2d 1138 (La.1987), the supreme court addressed what
constitutes a waiver of the attorney-client privilege. With regard to unfairness that
can result to a client when the privilege is found to have been waived, the court
determined:
The unfairness justifying a waiver of the privilege . . . must flow from the act on which the waiver is premised, not from a vague sense that the existence of the privilege itself is inequitable. Wigmore, who supports the privilege, acknowledges, that, ―Its benefits are all indirect and speculative; its obstruction is plain and concrete.‖ 8 Wigmore, supra, § 2291, at 554. Nevertheless, the legislature in recognizing the privilege has decided that the detriment to justice from a power to shut off inquiry into pertinent facts in court will be outweighed by the benefits to the system of justice (not to the client) from a franker disclosure in the lawyer’s office. McCormick, supra, § 87, at 205. See Upjohn Co., 449 U.S. at 389, 101 S.Ct. at 682, 66 L.Ed.2d at 591 (1981). Consequently, a waiver must be founded on an affirmative act by the privilege-holder that creates some further detriment to the truth-seeking process in addition to that already taken into account in the creation of the privilege itself. Marcus, The Perils of Privilege: Waiver and the Litigator, 84 Mich.L.Rev. 1605, 1607 (1986).
Id. at 1143 (footnote omitted). Three situations have been determined to warrant
the unfairness that justifies waiver. One is the abuse that results from a ―partial
disclosure‖ or ―strategic introduction into evidence of only part of a larger class of
privileged material.‖ Id. ―Disclosure at trial of only part of a larger body of
privileged communications is deemed to be a waiver of privilege with respect to
any withheld information about communications on the same subject matter.‖ Id.
at 1144. Therefore, ―a privilege-holder who testifies . . . at trial about his privileged communications with his attorney or physician, waives his right to
invoke the privilege as to cross-examination or testimony of others with regard to
communications on the same subject.‖ Id. The court explained:
The rationale of a waiver based on partial disclosure is that permitting a party to make such an incomplete disclosure, without losing his privilege with respect to the remainder of the communication or communications on that subject, would be unfair to the adversary because it would give the privilege-holder unchecked editorial control over the available evidence to a degree that would practically ensure a distorted presentation of the communication or communications.
Id.
Cathy testified that Weston stated in the November 8, 2011 joint counseling
session that he did not love her, did not like her, and wanted a divorce. She denied
stating that she did not love Weston, did not like him, and wanted a divorce. This
is the very situation that waiver by partial disclosure is meant to avoid. Cathy’s
testimony regarding statements she made in the November 8, 2011 counseling
session constituted a waiver of the patient health care-provider privilege, and the
trial court erred in not allowing Ms. Mouton to testify.
Fault Pursuant to Louisiana Civil Code Article 111
Cathy argues that even if the trial court erred in refusing to allow the
testimony, Ms. Mouton’s testimony does not affect the trial court’s finding that she
was not at fault in the failure of the marriage. We agree.
Louisiana Civil Code Article 111 grants a court authority to award final
periodic support in a divorce proceeding or thereafter ―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[.]‖ The burden of proof is on the claimant to prove that she is free
from fault. Diggs v. Diggs, 08-1271 (La.App. 3 Cir. 4/1/09), 6 So.3d 1030. Thus,
Cathy had to prove she did not engage in misconduct that was ― an independent, contributory or proximate cause of the failure of the marriage.‖ Terry v. Terry, 06-
1406, p. 5 (La.App. 3 Cir. 3/28/07), 954 So.2d 790, 794. A trial court’s finding of
fault is subject to the manifest error standard of review. Rusk v. Rusk, 12-176
(La.App. 3 Cir. 6/6/12), 102 So.3d 193.
Weston argues the trial court erred in finding that Cathy was not at fault in
the failure of their marriage. He first claims that Cathy abandoned the marriage.
Abandonment occurs when a spouse left ―the matrimonial domicile without lawful
cause and constantly refused to return.‖ Ashworth v. Ashworth, 11-1270 (La.App.
3 Cir. 3/7/12), 86 So.3d 134, 137. Cathy testified, and Weston admitted, that after
she left their home on November 8, 2011, Weston never asked her to return. Thus,
the second prong of a claim for abandonment is not present here, and the trial court
did not err in finding that Cathy did not abandoned Weston and their marriage.
Next, Weston argues that Cathy engaged in cruel treatment that defeats her
claim for final spousal support. He asserts that her statements in the November 8,
2011 session that she did not love him or like him constitute cruel treatment. Cruel
treatment that defeats a claim for final spousal support is ―a continued pattern of
mental harassment, nagging, and griping by one spouse directed at the other, so as
to make the marriage insupportable.‖ 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). ―[M]ere
bickering and fussing do not constitute cruel treatment‖ sufficient to deny a claim
for final spousal support. Id. Moreover, cruel treatment that is ―a reasonable
justifiable response to the other spouse’s initial acts‖ does not constitute legal fault.
Diggs, 6 So.3d at 1032 (quoting Adkins v. Adkins, 42,076, p. 4 (La.App. 2 Cir.
4/11/07), 954 So.2d 920, 923). Thus, 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. Id. ―Such a reasonable reaction does not constitute legal fault. The
suspicion of adultery causes the breakup and not the reaction.‖ Id. at 1032-33.
After Weston and Cathy reconciled, Weston again engaged in the same type
of behavior that caused Cathy to leave the matrimonial domicile in 2009–2010.
Reconciliation extinguishes a cause of action for divorce, La.Civ.Code art. 104,
and behavior that occurred before a separation and reconciliation cannot be used as
the basis to obtain a divorce. Rivette v. Rivette, 04-1630 (La.App. 3 Cir. 4/6/05),
899 So.2d 873. Pre-separation/reconciliation behavior can be used, however, to
corroborate the continuation or recurrence of similar behavior after the
reconciliation. Barnett v. Barnett, 477 So.2d 1289 (La.App. 3 Cir. 1985).
Accordingly, we find that Weston’s resumption of texting and engaging in
suspicious behavior as to certain texts and his questionable jewelry purchase after
reconciling with Cathy justified Cathy’s belief that he continued or resumed a
―relationship‖ with a woman after the reconciliation. Importantly, the trial court
found Cathy to be more credible than Weston. Though Cathy’s testimony that
Weston stated he did not love her and wanted a divorce in the November 8, 2011
counseling session was impeached by Weston and Ms. Mouton, the record
supports the trial court’s credibility assessment. For these reasons, we conclude
that any cruel treatment by Cathy toward Weston after the reconciliation, including
her statements that she did not love him or like him, was a reasonable reaction to
his questionable behavior that caused her to suspect he was involved with another
woman.
Weston also contends that Cathy refused his requests for sex. Cathy
admitted that she refused to have sex with Weston but testified that she did so only
when he was drunk. We find that the denial to engage in sex under such
circumstances does not constitute cruel treatment. Additionally, to the extent that Cathy may have refused Weston sex after she became suspicious he was involved
with another woman, her refusals were justified. Diggs, 6 So.3d 1030.
Final Spousal Support
After the trial court held that Cathy was not at fault in the failure of the
marriage, the parties proceeded to trial to determine whether she was entitled to
final spousal support. At the conclusion of that trial, the trial court awarded Cathy
$5,350 final spousal support for an indefinite period of time. Weston asserts that
the trial court applied the wrong legal standard when determining whether Cathy is
entitled to final spousal support. He further asserts that the trial court erred in
applying the facts and evidence in calculating the award and also abused its
discretion in calculating the award.
Appellate review of an award of final spousal support is a three-tiered
process. Baggett v. Baggett, 96-453 (La.App. 3 Cir. 4/23/97), 693 So.2d 264. The
first step of the process requires us to ―determine whether the trial judge correctly
applied the proper legal standard or standards.‖ Id. at 266 (quoting Davy v. Davy,
469 So.2d 481, 482 (La.App. 3 Cir. 1985). Because this involves issues of law, we
consider only whether the trial court applied the correct standards with no
deference being given the trial court’s determination. Id. Next, we review the trial
court’s findings of fact. Id. Findings of fact will not be reversed unless they are
found to be manifestly erroneous in light of the entire record. Id. Lastly, we
consider the propriety of the final spousal support award. ―If it is within legal
limits and based on facts supported by the record, we will not alter the amount of
the award in the absence of an abuse of the trial judge’s great discretion to set such
awards.‖ Id. at 266-67.
A spouse who was not at fault and is in need of support may be awarded
final periodic support based on the needs of that party and the ability of the other party to pay. La.Civ.Code arts. 111, 112. In making an award of final periodic
support, ―[t]he trial court shall consider all relevant factors in determining the
amount and duration of final spousal support.‖ La.Civ.Code art. 112(B). The
factors considered may include:
(1) The income and means of the parties, including the liquidity of such means.
(2) The financial obligations of the parties. (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. The award cannot exceed one-third of the payor spouse’s net income. La.Civ.Code
art. 112(C).
Weston urges that the trial court erred in not using ―need‖ as the basis for
considering Cathy’s claim for final spousal support. Pointing to the trial court’s
statement that the ―needs‖ of the former wife of a surgeon, like Cathy, may be
different than those of the former wife of a school teacher, Weston asserts the trial
court erroneously based Cathy’s final spousal support award on the standard of
living she enjoyed during their marriage.
An award for final spousal support must be ―based on the needs of that party
and the ability of the other party to pay.‖ La.Civ.Code art. 112. Article 112
mandates that courts ―shall consider all relevant factors‖ and enumerates more than
eleven factors courts ―may‖ consider in establishing an award. In view of the
purpose of final spousal support and the factors that may be considered in
awarding such support, we cannot say that a party’s needs for purposes of final spousal support cannot be influenced by or be relative to the way he or she lived
during the marriage. In fact, Article 112 appears to contemplate this as it requires
consideration of the parties’ ―needs‖ and ―ability to pay‖ and also includes ―the
income and means of the parties‖ as factors courts may consider when awarding
final spousal support. Consideration of these factors does not equate with finding
that a party entitled to a final spousal support award is entitled to an award that
would allow her to maintain the lifestyle she enjoyed while married. For these
reasons, we cannot say the trial court failed to correctly apply the proper legal
standard to Cathy’s claim. Moreover, as Cathy noted, the trial court’s award of
$5,350 in final spousal support, when compared her $9,000 interim support award,
shows the trial court recognized and took into consideration the distinction
between and the purpose of these two different types of support.
Weston also complains that the trial court erred when calculating its award
of final spousal support because it did not consider Cathy’s earning capacity. We
agree. In May 2009, Cathy and Weston opened a business, Cathy Miller Interiors,
L.L.C., in Abbeville. The business is a retail shop that sells interior decorating
accessories and decorating services provided by Cathy. Cathy closed the store in
Abbeville in March 2012 and reopened the store the following September near the
upscale River Ranch Subdivision in Lafayette. She offers the same merchandise
and services at the new location. Rent for the new location is $4,600 per month.
To make the transition, Cathy used $10,000 of her own money and borrowed
$100,000 from her father.
As of trial in early May 2013, the business had never made a profit. From
September 2012 until trial, the business had a gross income of $43,000. Cathy
does not draw a salary from the store. She has one part-time employee who
operates the store when Cathy has appointments with clients away from the store. Cathy paid the rent for the Lafayette location from the store’s revenue only two
months. Since its inception, more than $350,000 has been invested in the business.
Weston presented expert testimony that Cathy could work as an interior
decorator and earn an income of $24,000 to $50,000 per year. Specifically, the
expert testified that he knew of positions Cathy was qualified to fill in Lafayette
where she would earn $24,000 to $36,000 per year.
Cathy testified that she prefers to remain self-employed and operate her own
design store; she is not interested in working for someone else. The trial court
determined that Cathy should be given more opportunity to allow her business to
succeed. While we understand that Cathy does not care to work for someone else
and that the store might eventually succeed on its own, we find the trial court
committed manifest error in not imputing an earning capacity to Cathy. Though
financially supported by the community and Weston for more than four years,
Cathy has not been successful in her business endeavor. Therefore, the evidence
does not reasonably support the trial court’s finding that with more time, Cathy
will be able to generate sufficient income to support her business and herself.
Accordingly, we impute an earning capacity of $2,000 per month to her.
Weston next argues that Cathy’s alleged expenses are excessive for purposes
of final spousal support. He points to this court’s determination in Launey v.
Launey, 98-849 (La.App. 3 Cir. 12/9/98), 722 So.2d 406, 408 (quoting Widman v.
Widman, 93-613 (La.App. 3 Cir. 2/2/94), 631 So.2d 689, 691), that the only
allowable expenses for purposes of permanent alimony are: ―food, clothing,
shelter, reasonable and necessary transportation expenses, utility expenses, medical
and drug expenses, household expenses, professional dues, home and health
insurance policies, telephone expenses, personal items, and income tax liability
generated by alimony payments.‖ He also notes that this court has acknowledged that final spousal support is not meant to allow the receiving party to continue the
lifestyle they had during the marriage. Hindelang v. Hindelang, 10-397 (La.App. 3
Cir. 11/3/10), 49 So.3d 1065, writ denied in part and granted in part on other
grounds, 10-2701 (La. 3/4/11), 58 So.3d 464.
Weston has a monthly income of $45,000 which is used to pay only his
house note, income and property taxes, and spousal support; his professional
corporation pays all of his other expenses. In light of Weston’s income and
Cathy’s itemized expenses, we decline to further reduce the trial court’s award of
final spousal support to Cathy for the reasons previously discussed concerning the
requirements of Article 112.
DISPOSITION
For the reasons discussed above, we affirm the trial court’s finding that
Cathy Broussard Miller was not at fault in the failure of the marriage, amend the
trial court’s award of final spousal support to Cathy Broussard Miller from $5,350
per month to $3,350 per month, and affirm the trial court’s judgment as amended.
Costs are assessed to Weston P. Miller, III.