Philip Joseph Triche, Jr. Versus Danielle Demarco Triche

PHILIP JOSEPH TRICHE, JR. NO. 24-CA-369

VERSUS FIFTH CIRCUIT

DANIELLE DEMARCO TRICHE COURT OF APPEAL

STATE OF LOUISIANA

ON APPEAL FROM THE TWENTY-NINTH JUDICIAL DISTRICT COURT
PARISH OF ST. CHARLES, STATE OF LOUISIANA
NO. 91,947, DIVISION "E"
HONORABLE LAUREN D. ROGERS, JUDGE PRESIDING

February 26, 2025

MARC E. JOHNSON
JUDGE

Panel composed of Judges Susan M. Chehardy,
Fredericka Homberg Wicker, and Marc E. Johnson

AFFIRMED
MEJ
SMC
FHW

COUNSEL FOR PLAINTIFF/APPELLANT,
PHILIP JOSEPH TRICHE, JR.
Mark A. Marino

COUNSEL FOR DEFENDANT/APPELLEE,
DANIELLE TRICHE
Renee L. Swanson

JOHNSON, J.

Plaintiff/Appellant, Philip Joseph Triche, Jr., appeals the trial court’s

judgment that granted a La. C.C. art. 103(4) divorce against him and in favor of

Defendant/Appellee, Danielle DeMarco Triche, which was rendered in the 29th

Judicial District Court, Division “D”. The judgment also ordered Philip to pay

Danielle’s attorney’s fees and costs pursuant to La. R.S. 9:314. For the following

reasons, we affirm the trial court’s judgment and assess Philip with Danielle’s

costs and attorney’s fees associated with this appeal.

FACTS AND PROCEDURAL HISTORY

The facts of this appeal are brief. On March 21, 2023, Philip filed a petition

for divorce under La. C.C. art. 102 against Danielle. In his petition, he stated that

he and Danielle were married on April 10, 2005, and two minor children were born

of the marriage. Philip alleged that he physically separated from Danielle on

March 12, 2023 and had lived separate and apart, continuously and without

reconciliation. He stated that he intended to live apart from Danielle for the

requisite time to obtain a divorce.1 On April 7, 2023, Danielle filed a

reconventional demand, alleging she was entitled to a divorce from Philip,

pursuant to La. C.C. art. 103(4) and (5), arising from an incident of physical abuse

that occurred on March 12, 2023. In the alternative, she prayed for a divorce

pursuant to La. C.C. art. 102.

A divorce trial was held on November 6, 2023. At trial, the judge stated she

would take judicial notice of a previous factual determination concerning an

incident of abuse by Philip. In a written judgment rendered on the same date, the

trial court granted Danielle a divorce from Philip, pursuant to La. C.C. art. 103(4).

The judgment also ordered Philip to pay all of Danielle’s attorney’s fees and costs

1
La. C.C. art. 103.1 provides that the requisite period of time for a La. C.C. art. 102 divorce
when there are minor children of the marriage at the time the rule to show cause is filed is 365 days.

24-CA-369 1

associated with the proceeding, pursuant to La. R.S. 9:314. Philip’s instant appeal

followed.

ASSIGNMENTS OF ERROR

On appeal, Philip alleges that the trial court abused its discretion by: 1)

granting a divorce based upon La. C.C. art. 103(4) by taking judicial notice of

unspecified actions and/or pleadings in a separate judicial proceeding, and 2)

awarding attorney’s fees under La. R.S. 9:314 without a proper finding of fault or

setting a hearing to determine the amount of those fees.

LAW AND ANALYSIS

La. C.C. art. 103(4) Divorce

Philip alleges the trial court abused its discretion in granting a La. C.C. art.

103(4) divorce by taking judicial notice of certain unspecified actions and/or

pleadings in a separate judicial proceeding. He argues that the sole issue at trial

was his petition for a La. C.C. art. 102 divorce. Philip contends that, instead of

considering the La. C.C. art. 102 divorce before it, the trial court took judicial

notice “of everything” from a separate proceeding. He avers that the trial court

was unsure if the divorce on the La. C.C. art. 103(4) fault grounds was based upon

the judicial notice of a temporary restraining order, a criminal order of protection, a

“stay away” order, or a protective order. Philip further argues that, even assuming

the trial court properly took judicial notice of some adjudicative fact, the court

failed to determine questions of fact and law that supported a finding that a single

act of violence arose to the level of a divorce in accordance with La. C.C. art.

103(4).

Danielle avers the trial court properly granted the La. C.C. art. 103(4)

divorce against Philip based upon the trial court’s previous May 5, 2023 factual

determination that Philip had physically abused her. She maintains that Philip’s

act of strangulation upon her, which was proven at the May 5th hearing, entitled her

24-CA-369 2

to an immediate, fault-based divorce. She contends the court simply took judicial

notice of the evidence presented at the May 5th hearing and its previous finding of

Philip’s physical abuse against her.

La. C.C. art. 103(4) provides, except in the case of a covenant marriage, a

divorce shall be granted on the petition of a spouse upon proof that, during the

marriage, the other spouse physically or sexually abused the spouse seeking

divorce or a child of one of the spouses, regardless of whether the other spouse was

prosecuted for the act of abuse. The petitioning spouse bears the burden of proving

the claims of physical abuse by a preponderance of the evidence. Norton v.

Norton, 21-212 (La. App. 5 Cir. 12/22/21), 335 So.3d 371, 382. A finding of fault

is an issue that turns largely on evaluations of witness credibility. Id. A trial

court’s finding of fault in a domestic dispute is a factual determination subject to

the manifest error standard of review. Id. The trial court’s factual determination

regarding physical abuse by one spouse upon the other is entitled to great weight

on appeal and will not be disturbed, unless manifest error is shown. Id.

La. C.C. art. 103(4) neither defines “physical abuse,” nor do the laws or

jurisprudence addressing family violence or domestic abuse provide a concrete

definition of what actions would constitute “physical abuse” for purposes of

obtaining an immediate divorce. Norton, supra. The question of whether a single

physical altercation between spouses arises to the level of physical abuse, which

would warrant a fault-based judgment of divorce under La. C.C. art. 103(4),

presents a mixed question of fact and law that is to be determined by the trier of

fact. Id. Mixed questions of fact and law should be accorded great deference by

appellate courts under the manifest error standard of review. Id. As a mixed

question of fact and law, a trial court’s finding that a physical injury inflicted by

one spouse upon the other arises to the level of physical abuse sufficient to warrant

a fault-based divorce should be afforded great deference by a reviewing court. Id.

24-CA-369 3

In this matter, at a May 5, 2023 custody hearing2 in the same district court

case number, Danielle presented her testimony and the testimony of Sgt. Scott

Huff of the St. Charles Parish Sheriff’s Office to support a claim of physical abuse

that occurred on March 12, 2023. During his testimony, Sgt. Huff described his

interactions with Philip and Danielle on the day of the incident. He stated that he

was dispatched to an address where Danielle was located. Upon his arrival, Sgt.

Huff observed that Danielle was disheveled, upset, and crying, and she had scratch

and strangulation marks on both sides of her neck. Danielle advised him that

Philip had struck and strangled her in their home after having an argument on the

ride home from a St. Patrick’s Day parade. Based upon his investigation, Sgt. Huff

completed a report and arrested Philip for domestic abuse violence with

strangulation.

In her testimony, Danielle detailed her version of the altercation between her

and Philip on March 12, 2023, and she described a few earlier instances. She

testified that, on the day of the incident, Philip struck her in the face while she was

in the bathroom, and there was some scuffling between them that made her fall into

the bathtub. She stated that, afterwards, Philip restrained her on the bedroom floor

by holding down her neck.

After considering the evidence presented, particularly the pictures of

Danielle after the incident, the trial court found that the single incident of

strangulation of Danielle by Philip was proven by a preponderance of the evidence.

Nevertheless, the court did not find a history of perpetuating violence. Philip was

ordered to complete a domestic violence intervention program (Duluth model) and

attend treatment with a separate therapist, Sean Anderson. The court then orally

granted a La. C.C. art. 103(4) divorce, reasoning that it “heard testimony that

2
According to a reading of the transcript, this hearing occurred over the course of two days.
However, only the May 5, 2023 transcript was supplemented to the appellate record.

24-CA-369 4

during the marriage the spouse physically abused the spouse seeking the divorce

regardless of whether the other spouse was prosecuted for the act of abuse.”

However, the court immediately retracted the divorce decree because the divorce

trial was not set for May 5, 2023.

Subsequently, at the November 6, 2023 divorce trial, Danielle’s petition for

divorce pursuant to La. C.C. arts. 103(4) and 103(5) was before the court for

consideration.3 Rather than retrying the issue of domestic violence between the

parties, the trial court decided it would take judicial notice of the previous

testimony and finding on the issue from the May 5th proceeding. A court may take

judicial notice of its own proceedings. Olavarrieta v. Robeson, 22-158 (La. App. 5

Cir. 7/6/22), 345 So.3d 1103, 1107. As such, we find the trial court did not err in

taking the May 5, 2023 hearing and its factual determination that Philip strangled

Danielle in a single incident under judicial notice in the divorce trial.

After reviewing the particular facts of this case, we find the trial court did

not err in granting a La. C.C. art. 103(4) divorce in favor Danielle. The evidence

presented to the trial court in support of Danielle’s allegation of Philip’s abuse

showed that the incident occurred by a preponderance of the evidence. Because

the evidence supports the trial court’s determination that the strangulation incident

was a fault ground for the parties’ immediate divorce, we will not disturb the trial

court’s great deference on the issue.

Attorney’s Fees

Philip alleges the trial court abused its discretion in awarding attorney’s fees

pursuant to La. R.S. 9:314 because there was no proper finding of fault and no

hearing held to determine the amount of the fees. He argues that, although La.

3
Despite Philip’s assertion that only his petition for divorce was set to be tried that day, the
transcript and the minute entry reflect that Danielle’s reconventional demand for divorce was considered
by the trial court. The designated record does not contain any order indicating the November 6, 2023 trial
date was set to try only Philip’s petition.

24-CA-369 5

R.S. 9:314 clearly allows the award of attorney’s fees when there has been a

determination of abuse, the clear wording of the statute does not require a

mandatory granting of attorney’s fees. Because he contends the trial court did not

specifically find that the one incident of alleged abuse arose to the level of a

predicate for divorce under La. C.C. art. 103(4), the award of attorney’s fees is

premature.

Danielle avers the trial court properly awarded attorney’s fees and costs to

her, in accordance with La. R.S. 9:314. She maintains the trial court acted well

within its discretion in ordering the perpetrator of domestic abuse, Philip, to pay all

of her attorney’s fees and costs associated with the proceeding, especially after

considering the facts that Philip strangled her and left marks and bruises on her

neck and body. She further maintains there is no requirement that the trial court

determine the amount of attorney’s fees and costs at the time it orders the

perpetrator to pay them.

La. R.S. 9:314 states,

The court may assess against the perpetrator of domestic abuse all
court costs, attorney fees, costs of enforcement and modification
proceedings, costs of appeal, evaluation fees, and expert witness fees
in an action for divorce granted pursuant to Civil Code Article 103(4)
or (5), or in an action in which the court determines that a party to a
divorce or a child of one of the spouses was the victim of domestic
abuse committed by the perpetrator during the marriage, and in
incidental actions.

Here, the trial court ordered Philip to pay all of Danielle’s attorney’s fees

and costs associated with the proceeding, pursuant to La. R.S. 9:314. The statute

authorizes the trial court to assess those fees and costs against the perpetrator of

domestic abuse, which in this matter has been determined by the trial court to be

Philip. Accordingly, we find no error in the trial court’s award of attorney’s fees

and costs to Danielle. The amount of Danielle’s fees and costs can be determined

at a hearing held at a later date.

24-CA-369 6

Attorney’s Fees and Costs for Appeal

Danielle requests attorney’s fees and costs associated with this appeal,

pursuant to La. R.S. 9:314.4 As previously cited, La. R.S. 9:314 authorizes the

award of attorney’s fees and costs against the perpetrator of domestic abuse in an

action for divorce granted pursuant to La. C.C. art. 103(4) or (5), which also

includes the costs of an appeal. Because we are affirming the trial court’s granting

of the La. C.C. art. 103(4) divorce in this case, we also assess Philip with the

attorney’s fees and costs of the instant appeal.

DECREE

For the foregoing reasons, we affirm the judgment of the trial court that

granted a La. C.C. art. 103(4) divorce in favor of Danielle DeMarco Triche and

against Philip Joseph Triche, Jr. Additionally, we affirm the award of attorney’s

fees and costs to Danielle, and we assess the attorney’s fees and costs of this

appeal to Philip.

AFFIRMED

4
Danielle also requests attorney’s fees and costs associated with the companion case pending
before this Court, 24-CA-370, Triche v. Triche, which is a matter concerning child and interim spousal
support. 24-CA-370 is a separate matter before this Court, and fees and costs will be appropriately
determined in that matter.

24-CA-369 7

SUSAN M. CHEHARDY CURTIS B. PURSELL

CHIEF JUDGE CLERK OF COURT

SUSAN S. BUCHHOLZ
FREDERICKA H. WICKER
CHIEF DEPUTY CLERK
JUDE G. GRAVOIS
MARC E. JOHNSON
STEPHEN J. WINDHORST LINDA M. WISEMAN
JOHN J. MOLAISON, JR.
FIRST DEPUTY CLERK
SCOTT U. SCHLEGEL
TIMOTHY S. MARCEL FIFTH CIRCUIT
MELISSA C. LEDET
JUDGES 101 DERBIGNY STREET (70053)
DIRECTOR OF CENTRAL STAFF
POST OFFICE BOX 489
GRETNA, LOUISIANA 70054 (504) 376-1400

(504) 376-1498 FAX
www.fifthcircuit.org

NOTICE OF JUDGMENT AND CERTIFICATE OF DELIVERY
I CERTIFY THAT A COPY OF THE OPINION IN THE BELOW-NUMBERED MATTER HAS BEEN DELIVERED
IN ACCORDANCE WITH UNIFORM RULES - COURT OF APPEAL, RULE 2-16.4 AND 2-16.5 THIS DAY
FEBRUARY 26, 2025 TO THE TRIAL JUDGE, CLERK OF COURT, COUNSEL OF RECORD AND ALL PARTIES
NOT REPRESENTED BY COUNSEL, AS LISTED BELOW:

24-CA-369
E-NOTIFIED
29TH JUDICIAL DISTRICT COURT (CLERK)
HONORABLE LAUREN D. ROGERS (DISTRICT JUDGE)
MARK A. MARINO (APPELLANT) RENEE L. SWANSON (APPELLEE)

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