Ashlee S. Morgan v. Robert J. Morgan, Jr.

ASHLEE S. MORGAN * NO. 2022-CA-0472

VERSUS * COURT OF APPEAL

ROBERT J. MORGAN, JR. * FOURTH CIRCUIT

* STATE OF LOUISIANA

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APPEAL FROM
25TH JDC, PARISH OF PLAQUEMINES
NO. 66-959, DIVISION “B”
Honorable Michael D. Clement,
******
Judge Paula A. Brown
******
(Court composed of Judge Rosemary Ledet, Judge Paula A. Brown, Judge Pro
Tempore James F. McKay, III)

Timothy Thriffiley
PIVACH, PIVACH, HUFFT, THRIFFILEY & DUNBAR, L.L.C.
8311 Highway 23
Suite 104
Belle Chasse, LA 70037

COUNSEL FOR PLAINTIFF/APPELLANT

Marc D. Winsberg
Anne S. Lemoine
WINSBERG HEIDINGSFELDER & GAMBLE, LLC
650 Poydras Street
Suite 2050
New Orleans, LA 70130

COUNSEL FOR DEFENDANT/APPELLEE

MOTION TO DISMISS DENIED;
JUDGMENT AFFIRMED

DECEMBER 13, 2022

PAB
RML
JFM

This is a domestic action. Appellant, Ashlee S. Morgan (“Mrs. Morgan”),

seeks a devolutive appeal of that portion of the district court’s April 19, 2022

judgment, which found her to be mutually at fault for the dissolution of her

marriage from Appellee, Robert J. Morgan (“Mr. Morgan”) pursuant to La. C.C.

art. 103(2) for adultery. Also before this Court is a motion to dismiss untimely

appeal filed by Mr. Morgan. For the reasons that follow, we deny the motion to

dismiss and affirm the district court’s judgment finding Mrs. Morgan at fault for

adultery.

FACTUAL AND PROCEDURAL BACKGROUND

Mr. Morgan and Mrs. Morgan were married in the State of Georgia on

August 11, 2010. The couple did not contract to enter into a covenant marriage as

contemplated under La. R.S. 9:272 et seq., nor did they later convert their marriage

into a covenant marriage. Following, Mr. Morgan and Mrs. Morgan established

their domicile in Plaquemines Parish, Louisiana. Three children were born during

the marriage in 2012, 2014 and 2017. On September 15, 2021, Mrs. Morgan filed

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a petition for divorce pursuant to La. C.C. art. 102. Mr. Morgan and Mrs. Morgan

began living separate and apart shortly before Mrs. Morgan filed her petition for

divorce.

Mr. Morgan filed his answer and reconventional demand to Mrs. Morgan’s

petition for divorce on November 10, 2021.1 In his reconventional demand, Mr.

Morgan averred that he was entitled to an immediate divorce from Mrs. Morgan

based upon adultery pursuant to La. C.C. art. 103(2).2

Mrs. Morgan filed a petition for protection from abuse and motion for

contempt3 against Mr. Morgan, which came for hearing on January 4, 2022.4 At the

conclusion of the hearing, the district court granted a twelve-month protective

order in favor of Mrs. Morgan. On February 22, 2022, Mrs. Morgan filed a

supplemental petition for divorce in which she requested that the district court

1 In his answer and reconventional demand, Mr. Morgan alleged the couple began to live
separate and apart on September 11, 2021, while in his testimony at the April 5, 2022 hearing,
Mr. Morgan testified that the date of separation was September 14, 2021. Mrs. Morgan’s
petition, pleadings and testimony were all silent as to the date of physical separation.
2 At issue in this case is La. C.C. art. 103, subparts 2 and 5, which provide that:

Except in the case of a covenant marriage, a divorce shall be granted on the
petition of a spouse upon proof that:

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(2) The other spouse has committed adultery.

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(5) After a contradictory hearing or consent decree, a protective order or an
injunction was issued during the marriage against the other spouse to protect the
spouse seeking the divorce or a child of one of the spouses from abuse.
3 Neither the petition for protection from abuse nor the motion for contempt are contained within

the record before us. This information was obtained from the district court’s minutes.
4 Mrs. Morgan also filed a request for interim spousal support, which was heard on the same

date.

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grant her an immediate divorce from Mr. Morgan based upon the protective order

that court granted at the January 4, 2022 hearing and in accordance with La. C.C.

art 103(5).5

On April 5, 2022, the divorce matter came for hearing. After hearing the

testimony of the witnesses and reviewing the evidence, on April 19, 2022, the

district court granted a divorce to Mr. Morgan and Mrs. Morgan, finding the

parties to be mutually at fault: Mrs. Morgan was found to be at fault based upon

adultery pursuant to La. C.C. art. 103(2) and Mr. Morgan was found to be at fault

under La. C.C. art. 103(5) by virtue of a protective order issued against him.

Thereafter, on June 20, 2022, Mrs. Morgan filed a motion for devolutive appeal.

Before considering the merits of Mrs. Morgan’s appeal, this Court must first

address Mr. Morgan’s motion to dismiss the instant appeal as untimely.

MOTION TO DISMISS UNTIMELY APPEAL

Mr. Morgan contends that Mrs. Morgan’s motion for devolutive appeal is

untimely because it was filed over thirty days after the time delay for applying for

a new trial on the judgment of divorce. In support, Mr. Morgan relies on La. C.C.P

art. 3942, which provides:

Appeal from judgment granting or refusing annulment or divorce

A. An appeal from a judgment granting or refusing an annulment of
marriage or a divorce can be taken only within thirty days from the
applicable date provided in Article 2087(A).

B. Such an appeal shall suspend the execution of the judgment
insofar as the judgment relates to the annulment, divorce, or any
partition of community property or settlement of claims arising from
the matrimonial regime.

5 See fn. 2 supra.

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La. C.C.P. art. 2087(A) sets forth the time delay for taking a devolutive appeal:

A. Except as otherwise provided in this Article or by other law, an
appeal which does not suspend the effect or the execution of an
appealable order or judgment may be taken within sixty days of any of
the following:

(1) The expiration of the delay for applying for a new trial or
judgment notwithstanding the verdict, as provided by Article 1974
and Article 1811, if no application has been filed timely.6

(2) The date of the mailing of notice of the court's refusal to grant a
timely application for a new trial or judgment notwithstanding the
verdict, as provided under Article 1914.

Mr. Morgan argues that when La. C.C.P. art 3942 is read in combination with La.

C.C.P. art 2087(A), the thirty-day time delay provided for in La. C.C.P. art. 3942 is

controlling because Mrs. Morgan is appealing a judgment of divorce.

In opposition, Mrs. Morgan contends that because she is not appealing the

divorce itself, but merely the finding of fault by the district court, her devolutive

appeal is subject to the sixty-day time delay provided for in La. C.P. art. 2087(A).

To support her position, Mrs. Morgan relies on the case of Jarman v. Jarman, 532

So.2d 484 (La. App. 1st Cir. 1988). In Jarman, the plaintiff, Mr. Jarman, filed a

petition for divorce on the grounds that the parties had been living separate and

apart for one year. Similarly to the case sub judice, the defendant, Mrs. Jarman,

then filed an answer and reconventional demand requesting a divorce based on the

grounds that Mr. Jarman had committed adultery. The district court rendered

judgment granting each party the relief they sought. Mr. Jarman filed a motion for

a limited devolutive appeal from that portion of the judgment which granted the

6 La. C.C.P. art. 1974 provides: “A party may file a motion for a new trial not later than seven

days, exclusive of legal holidays, after the clerk has mailed or the sheriff has served the notice of
judgment as required by Article 1913.” La. C.C.P. art. 1811 pertains to judgments
notwithstanding the verdict and is, therefore, inapplicable in this instance.

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reconventional demand and found him at fault for adultery. Id. at 485. On appeal,

the reviewing court found that the issue of fault vis-à-vis adultery was a justiciable

controversy separate and distinct from the actual divorce. The appellate court

reasoned:

[I]t is clear Mr. Jarman does not wish to appeal from the execution of
the judgment insofar as it relates to granting the divorce. He merely
wishes appellate review of the trial court's finding of adultery on his
part. [La.] C.C.P. art. 3942 B does not prohibit Mr. Jarman from
appealing devolutively from that portion of the judgment which finds
him guilty of adultery. See Conner v. Conner, 499 So.2d 312 (La.
App. 1st Cir. 1986), writ not considered, 503 So.2d 8 (La. 1987).

Id. at 486. We find this reasoning to be persuasive. Applying this rationale to the

instant matter, we find that Mrs. Morgan’s devolutive appeal is subject to the sixty-

day time delay for devolutive appeals as provided for in La. C.C.P. art. 2087(A).

Bearing in mind the applicable codal provisions outlining the delays and

computation of time, Mrs. Morgan had until June 27, 2022 to file her motion for

devolutive appeal; therefore, Mrs. Morgan’s June 20, 2022 motion for devolutive

appeal was timely. Accordingly, we deny Mr. Morgan’s motion to dismiss

untimely appeal.

STANDARD OF REVIEW

As this Court has previously noted, “[a] trial court’s finding of fault in a

divorce is a factual determination subject to the manifest error standard of review.”

Jennings v. Jennings, 21-0386, p. 3 (La. App. 4th Cir. 12/1/21), 332 So.3d 179,

183 (citing Thomas v. Thomas, 17-0760, p. 2 (La. App. 4th Cir. 2/21/18), 238 So.

3d 515, 518). “The manifest error standard of review is based, in part, ‘on the trial

court’s ability to better evaluate the testimony of live witnesses, compared with an

appellate court’s sole reliance upon a written record.’” Martin v. Martin, 16-0324

p. 6 (La. App. 4th Cir. 11/16/16), 204 So.3d 717, 721 (quoting A.S. v. D.S., 14-

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1098, p. 8 (La. App. 4th Cir. 4/8/15), 165 So.3d 247, 253). “To reverse a trial

court’s factual findings under the manifest error standard, an appellate court must

find that ‘a reasonable factual basis does not exist for the finding of the trial court’

and that the record establishes that the finding is clearly wrong.” Matthews v. Big

Easy Janitorial, L.L.C., 22-0164, p. 5 (La. App. 4th Cir. 8/10/22), 346 So.3d 325,

331 (quoting Stobart v. State through Dept. of Transp. and Dev., 617 So. 2d 880,

882 (La. 1993)).

DISCUSSION

In her sole assignment of error, Mrs. Morgan asserts that the district court

erred in finding that she committed adultery pursuant to La. C.C. Article 103(2).

Mrs. Morgan’s argument is bifurcated. First, she contends that Mr. Morgan failed

to prove by a preponderance of the evidence that Mrs. Morgan committed adultery.

Second, Mrs. Morgan posits that any sexual relations that occurred after the filing

of a petition for divorce do not constitute adultery for the purposes of La. C.C. art.

103(2). We will address each of Mrs. Morgan’s arguments in turn.

Proof of Adultery

It is well settled that “[t]he petitioner claiming adultery bears the burden of

proof by preponderance of the evidence.” Jennings, 21-0386, p. 6, 332 So.3d at

184 (citing Tidwell v. Tidwell, 49,512, p. 2 (La. App. 2d Cir. 11/19/14), 152 So. 3d

1045, 1047). Further, “[a]dultery may be established by direct, indirect, or

circumstantial evidence.” Id. “If circumstantial evidence alone is relied upon, then

the proof must be so convincing as to exclude any other reasonable hypothesis but

that of guilt of adultery.” Id. While “[a]n admission of adultery, without other

evidence, is generally insufficient proof upon which to dissolve a marriage . . . . [a]

trial court’s credibility evaluation in an adultery case is entitled to substantial

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weight on review.” Tidwell, 49,512, pp. 3-4, 152 So. 3d at 1048 (citing Bonura v.

Bonura, 505 So.2d 143 (La. App. 4th Cir. 1987); see also Lachney v. Lachney, 579

So. 2d 1097 (La. App. 2d Cir. 1991)).

Both parties testified at the April 5, 2022 hearing regarding the events that

gave rise to the allegations of adultery asserted by Mr. Morgan against Mrs.

Morgan. According to Mr. Morgan, on September 27, 2021, a friend contacted

him and told him that Mrs. Morgan was at a male’s house, later identified as

Jerome Randolph (“Mr. Randolph”). Mr. Morgan testified that upon learning that

Mrs. Morgan was at Mr. Randolph’s house, he went to Mr. Randolph’s house and

took photographs.7 Mr. Morgan explained that the images portrayed Mrs.

Morgan’s and Mr. Randolph’s cars parked at Mr. Randolph’s residence as well as

an image of Mrs. Morgan later leaving that location. Mr. Morgan further testified

that after going to Mr. Randolph’s house, he waited to speak to Mr. Randolph. Mr.

Randolph then forwarded him screenshots of text messages between Mr. Randolph

and Mrs. Morgan.8

During her testimony, Mrs. Morgan was questioned directly as to the nature

of her relationship with Mr. Randolph:

Q. On September 27th of 2021, you went to the house of a
man named Jerome Randolph?

A. Yes.

Q. And you had sexual relations with him on that day?

A. Yes.

Q. And did you see the pictures that I showed your lawyer?

7 The photographs taken by Mr. Morgan were offered, filed and introduced into evidence.

8 Mr. Morgan offered into evidence several copies of screenshots of text messages between Mrs.

Morgan and Mr. Randolph as well as text messages between Mr. Morgan and Mr. Randolph.

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A. Yes.

Q. Okay. Those pictures show that your car was at his
apartment on that day?

A. Yes.

Following this line of questioning, Mrs. Morgan verified that the screenshots

offered by Mr. Morgan accurately depicted messages sent between her and Mr.

Randolph.

After weighing the testimony and evidence, the district court rendered its

judgment in favor of Mr. Morgan and determined that Mrs. Morgan was at fault for

adultery.9 We find this to be a reasonable conclusion.

Based upon our review of the record, Mrs. Morgan admitted to having

sexual relations with Mr. Randolph. Her own admission along with the testimony

of Mr. Morgan and the other circumstantial evidence, taken as a whole, supports

the district court’s conclusion that Mr. Morgan proved by a preponderance of the

evidence that Mrs. Morgan had engaged in adultery. This Court has consistently

held that “the issue to be resolved by a reviewing court is not whether the trier of

fact was right or wrong, but whether the factfinder’s conclusion was a reasonable

one.” Washington v. Gusman, 15-0177, p. 14 (La. App. 4th Cir. 10/14/15), 183

So.3d 510, 523 (quoting Stobart v. State through Dep’t of Transp. & Dev., 617

So.2d 880, 882 (La. 1993)). Moreover, “[t]he trial court, sitting as trier of fact, is in

the best position to evaluate the demeanor of the witnesses, and its credibility

determinations will not be disturbed on appeal absent manifest error.” Cockheran

o/b/o Cockheran v. Christopher, 21-0370, 21-0371, pp. 4-5 (La. App. 4th Cir.

9 As previously noted in this opinion, the district court also found Mr. Morgan at fault for the

dissolution of the marriage pursuant to La. C.C. art. 103(5).

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10/28/21), 331 So.3d 389, 393 (quoting Patterson v. Charles, 19-0333, p. 9 (La.

App. 4th Cir. 9/11/19), 282 So.3d 1075, 1082). Finding that the district court’s

conclusion was not an unreasonable one, this argument is not persuasive.

Post-Filing Activity

In support of her position that sexual relations that occur after the filing of a

petition for divorce cannot be used to find fault for the purposes of an immediate

divorce under La. C.C. art. 103(2), Mrs. Morgan posits that fault as contemplated

in the 2018 legislative amendment to La. C.C. art. 112 should apply. We disagree.

The 2018 revisions to La. C.C. art. 112 provide, in pertinent part, that

“[w]hen 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 in

accordance with Paragraph B of this Article.” In 1997, the Louisiana Legislature

found it necessary to overhaul the various codal and statutory provisions relating to

spousal support.10 The resultant legislation is referred to collectively as the

Spousal Support Act (the “SSA”). La. C.C. art. 111 was included in the SSA and

established the basis upon which a court may award spousal support. In its original

enactment, La. C.C. art. 111 provided:

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 free from fault prior to the filing of a proceeding to terminate the
marriage, based on the needs of that party and the ability of the other
party to pay, in accordance with the following Articles.

La. C.C. art. 112 was included in the SSA to aid in the courts in their determination

of final periodic support as awarded under La. C.C. art. 111, listing all of the

factors to be considered, but did not include any reference to fault. A 2006

10 1997 La. Acts 1078, § 1

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amendment to La. C.C. art. 112 sought to address this oversight by adding that

“[w]hen a spouse has not been at fault 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. . . .” Finally, in 2018, La. C.C. art. 112 was again amended

to mirror the language of La. C.C. art. 111 by providing that “[w]hen 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. . . .” However, contrary to

Mrs. Morgan’s assertion, we find this provision did not substantively change this

article. Rather, as noted in the 2018 revision comment (a):

The 2018 revision is intended to clarify the relevance of need, ability
to pay, and pre-filing fault to spousal support in the domestic violence
and fault-based divorce context. Victims of domestic violence and
others who obtain fault-based divorces benefit from a presumption of
entitlement to final periodic support, but that presumption may be
overcome by evidence regarding need, ability to pay, or pre-filing
fault. Likewise, the court remains obligated to consider the factors set
out in Paragraph B of this Article in determining whether support is
appropriate when the claimant has obtained a fault-based divorce or is
a victim of domestic violence.

Therefore, because we find that La. C.C. arts. 111 and 112 necessarily act in

concert, this final modification of La. C.C. art. 112 makes it clear that this was the

legislative intent of this article relating back to its initial codification in the SSA.

Furthermore, our review of the jurisprudence and scholarship regarding such

inquiries leads us to the conclusion that the finding of fault in the context of

determining final periodic spousal support, as provided for in La. C.C. art. 112, is

an exercise separate from the finding of fault giving rise to grounds for immediate

divorce contained within La. C.C. art. 103. In his review of La. C.C. art. 111 as

enacted by the SSA, Kenneth Rigby gives an excellent analysis of how this fault

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finding functions in the determination of whether a spouse is entitled to final

periodic support:

The legislature rejected the Law Institute’s recommendation that fault
of the claimant spouse not be a bar to final spousal support, but that
the comparative marital misconduct of the spouses be one of the
factors that could be considered in determining the entitlement,
amount, and duration of final support. However, it restricted the fault
which constitutes a bar to final support to “fault prior to the filing of a
proceeding to terminate the marriage.” This is a partial recognition
that fault which precludes final spousal support should be directly
related to, and a substantial cause of, the separation of the spouses that
leads to the divorce. If fault on the part of a spouse is to bar that
spouse from receiving final spousal support, that fault should be a
significant cause of the breakup of the marriage, not an after-the-fact
event. This limitation on support-barring fault to fault committed prior
to the filing of a proceeding to terminate the marriage eliminates the
troublesome and frequently unfair treatment of the claimant spouse in
the formulation and application of the fault rules to post-separation
fault when that fault occurs after one of the parties files a proceeding
to terminate the marriage.

Kenneth Rigby, The 1997 Spousal Support Act, 58 La. L. Rev. 887, 889 (1998)

(footnotes omitted). As Mr. Rigby notes, post-separation fault is addressed

independently of fault determinations for purposes of awarding support. This is

exactly the issue presently before this Court.

To bolster her contention, Mrs. Morgan relies on the case of Vermaelen v.

Vermaelen, in which the appellate court reasoned that “[f]or a spouse to be free

from fault, that spouse must not have had any misconduct of a serious nature that is

an independent, contributory or proximate cause of the failure of the marriage.”

Vermaelen v. Vermaelen, 17-665, p. 3 (La. App. 3d Cir. 3/14/18), 240 So.3d 1004,

1006 (citing Kendrick v. Kendrick, 236 La. 34, 106 So.2d 707 (1958)). Mrs.

Morgan reasons that her sexual relations after the filing of the petition for divorce

could not be the proximate cause of the failure of the marriage because the filing of

the petition demonstrated that the marriage had already failed. We find both this

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reliance and reasoning to be misplaced. The rationale enunciated by the

Vermaelen court was formulated in its analysis of La. C.C. art. 112 for the specific

purpose of considering fault in a claim for spousal support. In the case sub judice,

fault was found for the purposes of granting a judgment of divorce pursuant to La.

C.C. art. 103(2), not for a determination of support; therefore, Vermaelen is

inapplicable here.

We look to the jurisprudence to illustrate these differing approaches.

In Shirley v. Shirley, 48,635, 48,636 (La. App. 2d Cir. 10/16/13), 127 So.3d

935, the appellate court was called upon to determine whether Mrs. Shirley was

barred from recovering spousal support when she had admittedly had an adulterous

relationship after the filing to terminate the marriage, but before the final judgment

of divorce. That court concluded that “Article 111 prevents consideration of [Mrs.

Shirley’s] actions in August 2010 from amounting to fault which would bar her

recovery of spousal support. We view [Mr. Shirley’s] filing to end the marriage in

June 2010 as falling within the bright-line rule of Article 111.” Id. at p. 15, 127

So.3d at 943.

In Arnoult v. Arnoult, 96-730 (La. App. 5th Cir. 2/12/97), 690 So.2d 101,

Mrs. Arnoult filed a petition for divorce on March 13, 1995, while Mr. Arnoult

filed an answer and reconventional demand on March 14, 1995. Both petitions

requested a divorce pursuant to La. C.C. art. 102. Several months later, on August

25, 1995, Mr. Arnoult amended his petition to include allegations of adultery. The

appellate court here found that the preponderance of the evidence substantiated

Mr. Arnoult’s claim of adultery, basing its findings on two post-filing incidents

that occurred on May 13 and May 21, 1995. The divorce was granted in favor of

Mr. Arnoult pursuant to La. C.C. art. 103(2).

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Finally, in Tidwell, 49,512, 152 So.3d 1045, Mrs. Tidwell admitted to

having sex with another male a number of times after the date that her petition for

divorce was filed. As in Arnoult, having found that this post-filing activity rose to

the level of adultery, Mr. Tidwell was granted a divorce based upon La. C.C. art.

103(2).

In all of these instances, we find situations factually analogous to the matter

before us now. Mrs. Morgan filed a petition for divorce. Shortly thereafter, while

still married, Mrs. Morgan engaged in sexual relations with a man other than her

husband. From our review outlined above, we find that fault as considered under

La. C.C. arts. 111 and 112 cannot be conflated with fault as contemplated under

La. C.C. art. 103(2). Accordingly, we find no error in the district court’s judgment

finding Mrs. Morgan to be at fault for adultery.

CONCLUSION

For the foregoing reasons, we deny the motion to dismiss untimely appeal

and affirm the judgment of the district court.

MOTION TO DISMISS DENIED;
JUDGMENT AFFIRMED

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