Kenneth R. Dunn v. Peggy Burnice Ezell Dunn

Judgment rendered January 13, 2021.
Application for rehearing may be filed
within the delay allowed by Art. 2166,
La. C.C.P.

No. 53,665-CA

COURT OF APPEAL
SECOND CIRCUIT
STATE OF LOUISIANA

*****

KENNETH R. DUNN Plaintiff-Appellee

versus

PEGGY BURNICE EZELL DUNN Defendant-Appellant

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Appealed from the
Thirty-Seventh Judicial District Court for the
Parish of Caldwell, Louisiana
Trial Court No. 29556

Honorable Ashley P. Thomas, Judge

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MARSHALL LEON SANSON Counsel for Appellant

THOMAS WESLEY BURNS Counsel for Appellee

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Before MOORE, PITMAN, STONE, JJ.

PITMAN, J., concurs in the result.

STONE, J.

The Appellant, Peggy Burnice Ezell Dunn (“Mrs. Dunn”), filed an

exception of no right of action. Mrs. Dunn sought to challenge Appellee,

Kenneth Dunn’s (“Mr. Dunn”), petition for divorce pursuant to La. C.C. art.

103(1), arguing that the date of separation was incorrect. After a hearing,

the trial court denied the exception and granted the petition for divorce.

Mrs. Dunn filed a motion for a new trial, which was denied. Mrs. Dunn now

appeals the trial court’s granting of the petition for divorce and denial of the

exception of no right of action.

FACTUAL BACKGROUND AND PROCEDURAL HISTORY

On July 19, 2006, the parties were married in Hamburg, Arkansas.

The parties resided as husband and wife in Kelly, Caldwell Parish,

Louisiana. No children were born nor were any adopted of the marriage.

On December 17, 2018, Mrs. Dunn was taken to Citizens Medical

Center by Mr. Dunn and subsequently transported by ambulance to

Glenwood Regional Hospital. While at the hospital, doctors informed Mrs.

Dunn of the need for her to stay in Monroe, near the hospital, due to the

seriousness of her medical condition. Mrs. Dunn then informed her husband

that she would not be returning to the marital domicile, and that she would

be living with her sister in, Monroe, Ouachita Parish, Louisiana. Mrs. Dunn

asked Mr. Dunn to bring her van and her personal items to the hospital,

which he did on January 13, 2019, the date Mrs. Dunn was discharged from

the hospital.

On June 26, 2019, in Caldwell Parish, Mr. Dunn filed a petition for

divorce pursuant to La. C.C. art. 103(1). Mrs. Dunn filed an exception of no

right of action in response. On December 4, 2019, a hearing on the

exception of no right of action and a trial on the petition for divorce were

simultaneously held.

Mrs. Dunn and her sister testified in support of the exception and

against the petition for divorce. Mrs. Dunn testified that on December 22,

2018, she had an emergency quadruple bypass and was in the hospital for

three weeks. Mrs. Dunn further testified that Mr. Dunn would visit her

every day while she was in the hospital and it was not until January 13,

2019, that they physically separated. Mrs. Dunn testified that this was the

day she was discharged from the hospital and went to her sister’s home for

continued convalescence. Mrs. Dunn acknowledged, however, that she had

been using her sister’s address since May of 2018, but further maintains that

it was not until the doctor advised her that she did not need to leave the

Monroe area, that she actually intended to physically separate from Mr.

Dunn.

Mrs. Dunn’s sister, Brenda M. Wood, testified that Mr. and Mrs.

Dunn could not have separated on December 23, 2018, as stated in Mr.

Dunn’s petition, because her sister was at the hospital in the I.C.U. Ms.

Wood further testified that Mr. Dunn was there with Mrs. Dunn and at no

time was there any discussion about separation or ending the marriage.

Mr. Dunn testified in support of his petition for divorce and against

Mrs. Dunn’s exception of no right of action. Mr. Dunn testified that he

knew once Mrs. Dunn left for the hospital that she was not coming home,

and that she was going to stay with her sister. Mr. Dunn testified that Mrs.

Dunn asked for her van and personal items before he brought them to the

hospital on January 13, 2019. However, Mr. Dunn was unable to give the

exact date Mrs. Dunn told him that she was going to her sister’s home, but
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stated it occurred while she was in the hospital in Monroe before her

surgery.

The trial court determined that the physical separation occurred on

December 22, 2018, when Mrs. Dunn went to the E.R. and never returned to

the marital domicile. Additionally, the trial court determined that the intent

to terminate the marriage also occurred in December of 2018, before Mrs.

Dunn had her surgery, when she told Mr. Dunn that she was not returning to

the marital domicile. The trial court ultimately overruled the exception of no

right of action and granted the petition for divorce. Mrs. Dunn now seeks

review of both rulings.

DISCUSSION

Mrs. Dunn has filed an appeal asking this Court to review the trial

court’s ruling which overruled the exception of no right of action and

granted the petition for divorce.

A court of appeal may not set aside a trial court’s finding of fact in the

absence of manifest error or unless it is clearly wrong. In order to reverse a

trial court’s determination, an appellate court must review the record in its

entirety and determine that (1) a reasonable factual basis does not exist for

the finding, and (2) the record establishes that the trial court is clearly wrong

or manifestly erroneous. Toston v. St. Francis Med. Ctr., Inc., 49,963 (La.

App. 2 Cir. 10/14/15), 178 So. 3d 1084.

In the area of domestic relations, much discretion is vested in the trial

judge, particularly in evaluating the weight of evidence which is to be

resolved primarily on the basis of credibility of witnesses. Gerhardt v.

Gerhardt, 46,463 (La. App. 2 Cir. 05/18/11), 70 So. 3d 863. When findings

of fact are based upon a decision regarding credibility of witnesses, respect
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should be given to those conclusions for only the factfinder can be aware of

the variations in demeanor and tone of voice that bear so heavily on

understanding and believing what is said. Rosell v. ESCO, 549 So. 2d 840,

844 (La. 1989). The trial court having observed the demeanor of the

witnesses is in the better position to rule on their credibility. Gerhardt,

supra; see Tarbutton v. Tarbutton, 51,486 (La. App. 2 Cir. 5/2/17), 217 So.

3d 1281.

The living separate and apart contemplated as a ground for divorce

under La. C.C. art. 1031 must be voluntary on the part of at least one of the

parties and continuous for the period required. Gibbs v. Gibbs, 30,367 (La.

App. 2 Cir. 4/8/98), 711 So. 2d 331. From the point in time that a party

evidences an intent to terminate the marital association, when coupled with

actual physical separation, the statutorily required separation period begins

to run. And that is so regardless of the cause of the initial physical

separation. Id. The determination of how long parties have lived separate

and apart is based upon factual issues depending upon the credibility of

witnesses. See Barnes v. Le Blanc, 207 La. 989, 22 So. 2d 404 (1945);

Nelson v. Nelson, 42,697 (La. App. 2 Cir. 12/5/07), 973 So. 2d 148; Bishop

v. Bishop, 98-59 (La. App. 5 Cir. 5/27/98), 712 So. 2d 697.

In the instant case, Mr. Dunn filed a petition for divorce on June 26,

2019, alleging that the parties separated on December 23, 2018. During the

trial both parties testified that Mrs. Dunn stated that upon her release from

the hospital she would not be returning to the marital domicile. Mr. Dunn

argues that this intent to separate was declared by Mrs. Dunn prior to her

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La. C.C. art. 103.1(1) states that the applicable time period is 180 days when there are
no minor children of the marriage.
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December 22, 2018, surgery. Mrs. Dunn argues that her intent was not to

terminate the marriage, but to comply with the advice of her doctors. Mrs.

Dunn further argues that it was not until January 13, 2019, the day she was

discharged from the hospital, that she expressed her intent to end the

marriage.

The facts of this case are unique, in that it was Mr. Dunn’s belief that

Mrs. Dunn wished to terminate the marriage thus triggering the running of

the required separation period. Though Mrs. Dunn argues that her decision

not to return to the marital domicile was out of medical necessity, and not an

expression of her intention to end the marriage, Mr. Dunn believed

otherwise. When Mrs. Dunn communicated to Mr. Dunn that she would not

be returning to the marital domicile, and would be staying with her sister,

Mr. Dunn took this to mean that Mrs. Dunn wished to terminate the

marriage. Mr. Dunn’s belief was further supported by Mrs. Dunn’s request

for her van and personal items prior to her discharge from the hospital. The

trial court found these words and actions were sufficient to evidence an

intent to terminate the marriage, and we agree.

As the trial court is in the best position to assess the demeanor and

judge the credibility of witnesses who testified and those present in court,

much deference is given to their ruling. The trial court found that in

December 2018, there was an intention expressed by Mrs. Dunn that she

desired to terminate the marriage, which Mr. Dunn believed. The trial court

also found that this belief was further evidenced by Mrs. Dunn’s request for

her vehicle and personal belongings, prior to her discharge from the hospital.

Once an intention has been expressed to terminate the marriage, there

must also be a physical separation of the parties. Here the parties were
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physically separated while Mrs. Dunn was in the hospital and remained

separated while Mrs. Dunn lived with her sister following her discharge

from the hospital. Although Mrs. Dunn was hospitalized during a portion of

the 180 days of separation, this is of no consequence. Once Mrs. Dunn

stated her desire to terminate the marriage, and the parties were physically

separated, for whatever reason, that time can be used in the calculation of

when the parties lived separate and apart. See Gibbs v. Gibbs, supra.

After reviewing the record, there is no evidence that the trial court

was clearly wrong in finding that the parties had lived separate and apart for

the requisite period of time without reconciliation. The trial court’s ruling

denying the exception and granting the judgment of divorce does not

constitute judicial error.

CONCLUSION

For the reasons set forth above, the trial court’s judgment denying the

exception of no right of action filed by Appellant and granting the petition

for divorce filed by Appellee is AFFIRMED.

Costs of this appeal are assessed to Appellant.

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