Opinion
2016 CA 0423
05-08-2017
LORENZO ENNIS v. FELICA WILLIAMS ENNIS
Theon A. Wilson New Orleans, LA Attorney for Plaintiff/Appellant Lorenzo Ennis Deborah P. Gibbs Baton Rouge, LA Attorney for Defendant/Appellee Felica Williams Ennis
NOT DESIGNATED FOR PUBLICATION On Appeal from the Twenty-Third Judicial District Court In and for the Parish of Ascension State of Louisiana
No. 111451 The Honorable Jason Verdigets, Judge Presiding Theon A. Wilson
New Orleans, LA Attorney for Plaintiff/Appellant
Lorenzo Ennis Deborah P. Gibbs
Baton Rouge, LA Attorney for Defendant/Appellee
Felica Williams Ennis BEFORE: WELCH, CRAIN, AND HOLDRIDGE, JJ. HOLDRIDGE, J.
The plaintiff, Lorenzo Ennis, appeals a trial court judgment granted in favor of the defendant, Felicia Ennis, which awarded her final periodic spousal support after the parties' divorce on October 7, 2015. For the following reasons, we amend the judgment and affirm as amended.
FACTUAL AND PROCEDURAL HISTORY
On August 5, 2014, the plaintiff and the defendant engaged in a domestic dispute sparked by the plaintiff lending his car to a family friend, Sherelle Richards. The defendant believed that the plaintiff and Ms. Richards had become romantically involved. The defendant confronted Ms. Richards at her home about her suspicions whereupon Ms. Richards' response was "whatever, Felicia" and she walked away. Immediately after visiting Ms. Richards and seeing the plaintiff's car in Ms. Richards' driveway, the defendant returned home to confront the plaintiff. At the family home, the parties argued, resulting in the defendant throwing a chair that missed the plaintiff but struck a wall near him. The defendant retreated into her bedroom where she kept a gun while the plaintiff left the home. The defendant maintained that she was going to the bedroom to cool off and not to retrieve her firearm. The plaintiff testified that he left the home and obtained a hotel room at the La Quinta Inn & Suites to prevent himself from retaliating against the defendant for throwing the chair at him.
The plaintiff subsequently moved into an apartment. In early November of 2014, the defendant visited the plaintiff at his new apartment and saw Ms. Richards inside the apartment. Another quarrel occurred during which the defendant struck the plaintiff. The plaintiff filed for divorce on November 10, 2014. The trial court rendered a judgment of divorce on October 7, 2015.
On January 20, 2015, the defendant filed a reconventional demand, requesting child custody, child support, and spousal support. The parties entered into a stipulated judgment on September 8, 2015, which awarded the defendant interim spousal support. The judgment also awarded the parties joint and shared custody of the two minor children, Joshua and Dorien Ennis.
A hearing was held on the defendant's request for final periodic spousal support in December of 2015. At the time of the hearing, the plaintiff was living in an apartment with Ms. Richards and the two were caring for their two-month old daughter. On December 21, 2015, a judgment was rendered in favor of the defendant awarding her monthly final periodic spousal support of $1,200.00. It is from this judgment that the plaintiff appeals.
The judgment also awarded the defendant child support in the amount of $877.18 per month.
The plaintiff asserts four assignments of error: (1) that the trial court failed to find the defendant at fault for the dissolution of the marriage between the parties, (2) that the trial court erroneously awarded final periodic spousal support to the defendant despite her fault, (3) that the trial court erroneously awarded final periodic spousal support to the defendant despite her substantial income; and (4) that the trial court awarded an excessively high amount of final periodic spousal support to the defendant.
DISCUSSION
Fault
The plaintiff's first and second assignments of error assert that the defendant was at fault for the dissolution of the parties' marriage and that she should therefore be denied an award of final periodic spousal support. Louisiana Civil Code 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 spousal support. The party alleging a right to permanent spousal support carries the burden of proving that he or she is free from fault. Cauthron v. Cauthron, 2012-0913 (La. App. 1 Cir. 2/15/13), 113 So. 3d 232, 233. A spouse who petitions for permanent spousal support need not be totally blameless. See Schmitt v. Schmitt, 2009-0415 (La. App. 4 Cir. 12/16/09), 28 So.3d 537, 540. To constitute fault sufficient to deprive a spouse of final periodic spousal support, the spouse's misconduct must not only be of a serious nature, but it must also be an independent, contributory, or proximate cause of the separation. Id. Fault consists of those same actions that would have previously resulted in a for-cause divorce or marital separation: adultery, conviction of a felony, habitual intemperance or excesses, cruel treatment or outrages, public defamation, abandonment, an attempt on the other's life, status as a fugitive, and intentional non-support. Cauthron, 113 So.3d at 233-34.
However, it is well established that conduct which might ordinarily constitute fault will not deprive that spouse of final periodic spousal support when that conduct is a reasonable reaction to the perceived fault of the other spouse. Bourg v. Bourg, 96-2422 (La. App. 1 Cir. 11/7/97), 701 So. 2d 1378, 1381. This is particularly true when a spouse has reason to suspect adultery; in such cases, it is reasonable for a spouse to become hostile and quarrelsome. Goodnight v. Goodnight, 98-1892 (La. App. 3 Cir. 5/5/99), 735 So. 2d 809, 813; Brewer v. Brewer, 573 So.2d 467, 469 (La. 1991). Indeed, when one spouse reacts with reasonable hostility to a reasonable suspicion of adultery, it is the suspected infidelity and not the reaction which causes the subsequent divorce. See Allen v. Allen, 94-1090 (La. 12/12/94), 648 So.2d 359, 362.
The trial court's determination of fault is entitled to great weight and will not be disturbed except in the case of manifest error. Almon v. Almon, 97-2004 (La. App. 1 Cir. 9/25/98), 718 So.2d 1073, 1077. Therefore, we will examine the facts of this case with great deference to the trial court's interpretations and conclusions.
The record provides that the plaintiff first left the family home after the fight in which the defendant threw a chair at him. It is undisputed that this altercation arose out of the defendant's suspicion that the plaintiff was having an affair with Ms. Richards to whom the plaintiff had recently loaned his car. Prior to the fight, the defendant saw the plaintiff's car in Ms. Richards' driveway. The defendant testified that she confronted Ms. Richards regarding the suspected affair and that Ms. Richards did not deny it.
After confronting Ms. Richards, the defendant returned home to confront the plaintiff, which resulted in the defendant throwing a chair at the plaintiff. The plaintiff dodged the chair and left the home after the defendant retreated into her bedroom. It is undisputed that the defendant kept a firearm in her bedroom. However, the plaintiff testified that he left the home to ensure that he did not respond to the defendant's violence with more violence, not because he feared that the defendant would shoot him. It is clear that this initial fight, the violent aspect of which peaked at the tossing of a chair, was precipitated by the defendant's grief and anger after discovering a possible affair between the plaintiff and Ms. Richards.
After the plaintiff's initial departure from the family home, there was another fight between the parties, which prompted the plaintiff to file his petition for divorce. The testimony indicates that the defendant visited the plaintiff at the apartment in which he was residing after leaving the family home. Upon her arrival, she and the plaintiff began discussing the whereabouts of their child's book sack. The defendant noticed Ms. Richards sitting on the couch inside of the plaintiff's apartment. At the sight of Ms. Richards, the defendant became very angry and attempted to enter the apartment. The plaintiff prevented the defendant from entering the apartment, and during the struggle the defendant struck him and broke his neck-chain. Once again, it is apparent that the encounter between the parties was precipitated by the defendant's suspicion that the plaintiff was engaged in a relationship with Ms. Richards.
It is clear that these fights were sparked by the defendant's suspicions of infidelity, which were at least partly grounded in observations that the plaintiff was secretly lending out his vehicle to Ms. Richards and that she was staying at the plaintiff's apartment after he left the family home. The plaintiff testified that he was not afraid of the defendant during their marriage, that his initial departure from the family home was to allow himself to cool off rather than to escape, and that the second encounter with the defendant was more about preventing her from confronting Ms. Richards than protecting himself. It seems that these encounters, though violent, were never of the caliber that would pose any real threat to the plaintiff. Ultimately, these conflicts did not represent any pattern of violent abuse, but instead were emotionally charged outbursts from a spouse with a reasonable belief of the infidelity of her husband. Under the circumstances, the defendant's reactions could be deemed reasonable, and we are not willing to disturb the trial court's determination that the defendant was not at fault. Therefore, we find no manifest error in the trial court's determination of fault and these assignments of error have no merit. Final Periodic Spousal Support
The plaintiff asserts in his third and fourth assignments of error that the trial court erroneously awarded final periodic spousal support to the defendant because it failed to consider the defendant's earning capacity and that $1,200.00 awarded per month in final periodic spousal support was excessive. For the following reasons, we agree that the trial court awarded an excessively high amount of final periodic spousal support to the defendant for an indefinite period of time.
As with the determination of fault, the trial court's award of final periodic spousal support is given great weight, and an appellate court should only disturb a trial court's award of final periodic spousal support when there has been a clear abuse of that discretion or when the amount exceeds the statutory limit of one third of the net income of the payor's income. See La. C.C. art. 112(D); McClanahan v. McClanahan, 2014-670 (La. App. 5 Cir. 3/25/15), 169 So.3d 587, 596.
Louisiana Civil Code article 112(C) gives the trial court a nonexclusive list of factors to be considered when determining the amount and duration of final periodic spousal support:
Louisiana Civil Code article 112(A) states 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 need of that party and the ability of the other party to pay, that spouse may be awarded final periodic spousal support in accordance with La. C.C. art. 112(C).
(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, regardless of whether the other spouse was prosecuted for the act of domestic violence.
The goal of a final periodic spousal support award is limited to the amount sufficient for maintenance as opposed to continuing an accustomed style of living. See La. C.C. art. 111; Anderson v. Anderson, 48,027 (La. App. 2 Cir. 5/15/13), 117 So.3d 208, 213. In an action for final periodic spousal support, the claimant spouse has the burden of proving insufficient means of support. See McClanahan, 169 So.3d at 596. Until need has been demonstrated, the other spouse's financial means are irrelevant. Support "means a sum sufficient for the claimant spouse's maintenance, which includes the allowable expenses for food, shelter, clothing, transportation expenses, medical and drug expenses, utilities, household maintenance, and the income tax liability generated by alimony payments." Prestenback v. Prestenback, 2008-0457 (La. App. 1 Cir. 11/18/08), 9 So.3d 172, 178. Generally, expenditures for newspapers, gifts, recreation, vacation, and church tithes are not to be considered in awarding final spousal support. Similarly, expenses attributable to entertainment are not necessary for a spouse's maintenance and should not be considered in fixing final spousal support. Id.
We acknowledge language to the contrary in Brett v. Brett, 2000-0436 (La. App. 1 Cir. 5/30/01) 794 So.2d 912, 913, writ denied, 802 So.2d 611 (La. 2001), which is cited by the defendant's brief. We note that La. C.C. art. 112 was amended in 2006 to provide that final periodic spousal support is only available when a spouse has not been at fault and is in need of support, and that support is limited to an amount sufficient for maintenance, rather than the continuation of an accustomed lifestyle. See McClanahan, 169 So.3d at 597.
In setting the amount of final periodic spousal support in the instant matter, the trial court considered the factors set forth in La. C.C. art. 112(C). The trial court heard testimony from the parties and reviewed an amended affidavit of income and expenses submitted by the defendant. The amended affidavit indicated that the defendant receives a monthly net income of $5,254.21 from all sources and her monthly necessary expenses total $5,859.96. The trial court determined the expenses of the defendant, and this calculation properly excluded expenses for birthday and Christmas gifts, church donations, vacations, entertainment, and such other expenses unnecessary for "support."
At oral argument, the defendant's counsel argued for the first time on appeal that the trial court committed legal error in concluding that the defendant's net income is $5,254.21. As a general rule, courts of appeal will not consider issues raised for the first time on appeal, and certainly not for the first time at oral argument. See Judson v. Davis, 2004-1699 (La. App. 1 Cir. 6/29/05), 916 So.2d 1106, 1121, writ denied, 2005-1998 (La. 2/10/06), 924 So.2d 167. We are not persuaded that the trial court committed legal error, as there is no proof that the trial court came to these conclusions using incorrect figures. Because this alleged error would not change the result of this opinion, we decline to address this issue.
This Court notes that the defendant's affidavit of income and expenses list $5,769.96 as the total for her net monthly expenses. However, it appears that this was error and $5,859.96 is the correct total. This total includes expenses for the defendant as well as her two children, one of whom has reached the age of majority. Because this error does not affect the outcome of the matter, we decline to address the issue.
The trial court found that the defendant had monthly expenses of $5,213.30. The defendant's expenses are just at the edge of her means, but she is not running a deficit when only necessary expenses are taken into consideration. Moreover, the defendant is neither unskilled nor even temporarily unemployed; the defendant is gainfully employed at Our Lady of the Lake and has recently received a salary increase. A spouse who is working full-time for a respectable salary and has no unusual expenses or obligations is not in necessitous circumstances so as to justify an award of final periodic spousal support. See Anderson, 117 So.3d at 213. However, a party may require a period of time to adjust their expenses so as to be able to live within their means and obligations immediately after their divorce and the duration of their final periodic spousal support may be terminated once a spouse is able to live without support from their former spouse.
Official Revision Comment (c) to La. C.C. art. 112 states that "[t]he sixth factor listed in this Article, coupled with the word "duration" in the first sentence of the Article, permits the court to award rehabilitative support and other forms of support that terminate after a set period of time."
Considering all relevant factors set forth in La. C.C. art. 112(C), we find that the trial court did not abuse its discretion in initially awarding final periodic spousal support to the defendant. However, the continuation of an award of $1,200.00 per month indefinitely for final periodic spousal support is excessive and inconsistent with the mandates of the Civil Code requiring consideration of earning capacity and needs of the spouse. See La. C.C. art. 112(C). The evidence produced at the hearing clearly shows that the defendant has the capacity to earn sufficient income in the future to meet her basic needs, making the need for indefinite spousal support abate. While recognizing the vast discretion of the trial court to set final periodic spousal support, we find that the trial court abused its discretion in failing to set the defendant's final periodic spousal support for a specific duration.
The defendant is also receiving child support from the plaintiff in the amount of $877.18 each month to provide for the needs of her two minor children. --------
Accordingly, we amend the judgment of the trial court to order that the defendant's final periodic spousal support shall terminate one year from the date of the judgment signed on December 21, 2015. This will result in an amount of support for the defendant to be able to adjust her expenses in order to pay for her needs from her income at the time of the termination of her final periodic spousal support.
CONCLUSION
Because we find that the defendant's actions do not constitute fault but were instead reasonable reactions to perceived infidelity, we affirm the judgment of the trial court that the defendant is not barred from receiving final periodic spousal support under La. C.C. art. 112. However, because the trial court's indefinite award of $1,200.00 a month was excessive in light of the defendant's employment and expenses, we amend the judgment of the trial court for reasons consistent with this opinion. As amended, the trial court judgment is affirmed. Costs are assessed equally between the parties.
AMENDED AND AFFIRMED AS AMENDED.
NO. 2016 CA 0423
FIRST CIRCUIT COURT OF APPEAL STATE OF LOUISIANA
WELCH, J., concurs.
I respectfully concur with the result reached by the opinion—i.e. the termination of Mrs. Ennis's spousal support award. However, I would have terminated her spousal support based on a finding that she failed to meet her burden of proving that she was free from fault prior to the filing of the petition for divorce; hence, she was not entitled to final spousal support. The record in this case establishes that there were two separate incidents wherein Mrs. Ennis perpetrated an act of violence against Mr. Ennis—first an assault and then a battery—prior to the date that Mr. Ennis filed a petition for divorce, both of which constitute legal fault precluding an award of final spousal support. The opinion determined that these two incidents of violence did not constitute legal fault so as to preclude Mrs. Ennis from receiving spousal support because Mrs. Ennis's actions "could be deemed reasonable" reactions to her reasonable belief about Mr. Ennis's infidelity. However, I do not believe that this Court should condone any act of violence against a spouse, even if it is in response to the reasonable suspicion of the other spouse's adultery, and to do so sets a dangerous precedent that is not in conformity with the current legislative efforts to curb family violence and domestic abuse.
The record in this matter establishes the following undisputed facts: Mr. and Mrs. Ennis were married for approximately nineteen years and had two children. On or about August 5, 2014, Mrs. Ennis became suspicious that her husband was having an affair with a mutual female family friend, Sherelle, after Mrs. Ennis discovered that Mr. Ennis had purchased and loaned a vehicle to Sherelle. After going to Sherelle's residence to confront her about the suspected affair, Mrs. Ennis went home to confront Mr. Ennis. During a heated argument, Mrs. Ennis threw a chair at Mr. Ennis with the intent to strike him; however, Mr. Ennis was able to move from its path. At all times during the chair incident, the Ennis children were present in the home. Mr. Ennis retreated outside to avoid retaliation against Mrs. Ennis, while Mrs. Ennis retreated to their bedroom, where Mrs. Ennis kept a gun. Mr. Ennis asked his children to pass him some clothes through the doorway. He then left the home, and never returned; he subsequently rented an apartment.
On or about November 2, 2014, Mrs. Ennis went to Mr. Ennis's apartment and when Mr. Ennis answered the door, Mrs. Ennis observed Sherelle sitting on the couch. Mrs. Ennis became enraged and attempted to push her way into the apartment. She physically struck Mr. Ennis in the chest and tore a necklace from around his neck. As a result of Mrs. Ennis's violent acts, Mr. Ennis filed for divorce on November 10, 2014. He also obtained a temporary restraining order (and ultimately an injunction) prohibiting Mrs. Ennis from abusing, threatening, harassing, stalking, or annoying Mr. Ennis based on her prior two acts.
Based on these undisputed facts, I find that Mrs. Ennis's act of throwing the chair at Mr. Ennis was an assault, as defined by La. R.S. 14:36. See also La. R.S. 14:37 (providing for aggravated assault) and 14:37 (providing for domestic abuse aggravated assault). In addition, her act of striking Mr. Ennis and tearing the necklace from his neck was a battery as defined by La. R.S. 14:33. See also La. R.S. 14:35.3 (providing for domestic abuse battery). Furthermore, as a result of Mrs. Ennis's act of throwing the chair at Mr. Ennis, he moved out of the family home and never returned. And, after Mrs. Ennis struck Mr. Ennis and tore the chain from his neck, Mr. Ennis filed for divorced and obtained a temporary restraining order. From this evidence, the only reasonable conclusion is that the parties separated (i.e., Mr. Ennis moved out) and the marriage was terminated (i.e., Mr. Ennis filed a petition for divorce and obtained a restraining order to protect himself) because of Mrs. Ennis's acts of violence against Mr. Ennis. As such, Mrs. Ennis's two acts of violence against Mr. Ennis were a contributory or proximate cause of the separation and dissolution of the marriage, and thus, constituted legal fault precluding her from an award of final spousal support. See Cauthron v. Cauthron, 2012-0913 (La. App. 1st Cir. 2/15/13), 113 So.3d 232, 232-234 (providing that "[t]o constitute fault sufficient to deprive a spouse of final spousal support, the spouse's misconduct must not only be of a serious nature, but it must also be an independent, contributory, or proximate cause of the separation" and that such acts include "cruel treatment or outrages.") Accordingly, the trial court's determination that Mrs. Ennis was free from fault in the dissolution of the marriage was manifestly erroneous and the award of spousal support should be terminated.
In affirming the trial court's determination that Mrs. Ennis was free from fault, the majority concludes that under the circumstances, Mrs. Ennis's violent actions "could be deemed reasonable." In doing so, the majority relies on established jurisprudence providing that conduct, which might ordinarily constitute fault, does not deprive a spouse of permanent spousal support when that conduct is a reasonable reaction to the perceived fault of the other spouse, and particularly, that when a spouse has reason to suspect adultery, it is reasonable for the other spouse to become hostile and quarrelsome. See Brewer v. Brewer, 573 So.2d 467, 469 (La. 1991); Bourg v. Bourg, 96-2422 (La. App. 1st Cir. 11/7/97), 701 So.2d 1378, 1381; and Goodnight v. Goodnight, 98-1892 (La. App. 3rd Cir. 5/5/99), 735 So.2d 809, 813. Based on this jurisprudence, the majority reasons that Mrs. Ennis's behavior during the two incidents were "sparked by [her] suspicions of [Mr. Ennis's] infidelity," and that her behavior (during both instances) was merely an "emotionally charged outburst from" a reasonable belief of infidelity and was not a pattern of violent abuse.
Certainly, the reasonably suspected or actual act of adultery, which is the ultimate breach of trust in a marriage, will often evoke an angry, emotional, or hostile response or other quarrelsome behavior, and generally, such behavior will not preclude an award of final spousal support. However, the reasonableness of such behavior or response stops at an act of physical violence directed toward the other spouse. Indeed, none of the above cases relied on by the majority involved an assault and battery or other acts of physical violence; rather, they involved quarrelling, nagging, and other verbal abuse. Therefore, Mrs. Ennis's violent behavior on two separate instances should not be excused by this Court as a reasonable response to her suspicions of Mr. Ennis's infidelity.
Furthermore, it should be noted that Mrs. Ennis's assault and battery against Mr. Ennis clearly constitutes domestic violence. In 2014 and 2015, the Louisiana Legislature recognized that domestic violence is a major problem in Louisiana. By 2014 La. Acts 2014, No. 663, the legislature created the Domestic Violence Prevention Commission. In creating the commission, "[t]he Legislature of Louisiana recognize[d] that domestic violence inflicts physical, emotional, and financial injury on its victim and exists in every segment of our population. Approximately [32.9%] of women and [28.1%] of men in the United States have experienced physical violence by an intimate partner in their lifetime ..." and "Louisiana leads the nation in domestic homicides and has done so since 1997 ..." Pursuant to these legislative recognitions, in 2014, the legislature by 2014 La. Acts, No. 316 amended La. C.C. 103, effective August 1, 2014, by adding La. C.C. 103(4) to provide grounds for an immediate divorce when "[t]he other spouse has physically or sexually abused the spouse seeking a divorce or a child of one of the spouses, regardless of whether the other spouse was prosecuted." Notably, Mr. Ennis could have filed for an immediate divorce based upon Mrs. Ennis's criminal acts. In addition, he could have also obtained a domestic violence protective order against Mrs. Ennis since her conduct constituted "[d]omestic abuse," which is defined in La. R.S. 46:2132(3) as including, but not being limited to "physical or sexual abuse and any offense against the person, physical or non-physical, as defined in the Criminal Code of Louisiana except negligent injury and defamation, by one family member, household member, or dating partner against another."
Acts of domestic abuse and criminal acts against the person of the other spouse constitute legal fault in the dissolution of a marriage. It is illogical and contrary to the recent legislative efforts aimed at curtailing domestic abuse to find that Mrs. Ennis's behavior, while constituting domestic abuse that would have entitled Mr. Ennis to an immediate divorce and a protective order, was not also fault in the dissolution of the marriage. Therefore, I would find that Mrs. Ennis was not free from fault in the termination of the marriage, and as such, was not entitled to post-divorce spousal support and that the award of spousal support should be terminated. Since the opinion herein reached the same result, I respectfully concur.