Eugene John Terry v. Wilma Jane Terry, Born Jones

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

CA 06-1406

EUGENE JOHN TERRY

VERSUS

WILMA JANE TERRY, BORN JONES

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APPEAL FROM THE
THIRTY-FIRST JUDICIAL DISTRICT COURT
PARISH OF JEFFERSON DAVIS, NO. C-461-04
HONORABLE WENDELL R. MILLER, DISTRICT JUDGE

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JOHN D. SAUNDERS
JUDGE

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Court composed of John D. Saunders, Glenn B. Gremillion, and J. David Painter,
Judges.

REVERSED, AFFIRMED, AND REMANDED.

Kathleen Kay
Attorney at Law
P. O. Box 2042
Lake Charles, LA 70602-2042
(337) 439-7616
Counsel for Plaintiff/Appellee:
Eugene John Terry

Anne Elizabeth Watson
Dupre & Watson, L.L.C.
232 North Liberty Street
Opelousas, LA 70570
(337) 942-9790
Counsel for Defendant/Appellant:
Wilma Jane Terry, Born Jones

SAUNDERS, Judge.

This is a domestic case where a wife brought an action for final periodic

support against her husband. The trial court found that the wife failed to carry her

burden of proof that she was free from fault and that the husband’s fault is irrelevant

in the proceedings.

The wife appealed these findings and we are requested to reverse the trial

court’s decision that she did not carry her burden of proof, reverse that her husband’s

fault is irrelevant to the proceedings, and render that she is entitled to final periodic

support.

We reverse the trial court’s finding that the wife did not carry her burden of

proof that she was free from fault. We affirm the trial court’s finding that the

husband’s fault is irrelevant in these proceedings. We remand this case for a

determination by the trial court of the wife’s need and the husband’s ability to pay.

Reversed, affirmed and remanded.

FACTS AND PROCEDURAL HISTORY:

Ms. Wilma Terry (hereinafter “Wilma”) was married to Mr. Eugene Terry

(hereinafter “Eugene”) on April 2, 1987, in Jennings, Louisiana. Eugene worked as

a serviceman for Entergy for the duration of the marriage. Just after the marriage

began, Wilma was in an automobile accident after which she suffered migraine

headaches of such a nature and degree that she could not work and relied on Eugene

to care for her through administering shots and pain medication daily.

Wilma’s medical condition remained the same until October 2000. At that time

she went through a sinus surgery that cured her of her condition. Once she no longer

suffered from the migraine headaches, Wilma began to work for Southside

Development Corporation (hereinafter “Southside”), a nonprofit company co-founded

by Eugene.

The parties both testified that they had a wonderful marriage until around

November of 2003. At that time, Eugene had begun to suspect that Wilma was having

an affair with her coworker, Pastor Carl Fontenot (hereinafter “Pastor Fontenot”).

Eugene’s suspicions were based upon talk in the community, a lack of intimacy and

communication between he and Wilma, and long working hours that Wilma and

Pastor Fontenot spent together. These working hours included business trips they

took together with other people that worked at Southside.

Eugene expressed his concerns to Wilma and confronted both she and Pastor

Fontenot. At a meeting of the three, called by Eugene to discuss his concerns, both

denied that any affair was taking place. Wilma offered Eugene the option to

accompany her and Pastor Fontenot to any business trips they took, but on all but one

occasion, Eugene declined.

Eugene continually claimed that Wilma was having an affair with Pastor

Fontenot. On one business trip to New Orleans, where Wilma did not invite Eugene

to attend, Wilma lied to Eugene about where she was staying. When testifying

regarding this lie, Wilma stated that she had taken the trip alone to get away from

Eugene’s constant accusations that she was having an affair.

The parties physically separated on June 24, 2004, after Wilma left the family

home. Wilma testified that Eugene had threatened to kill her if she did not leave the

home. Wilma’s testimony was corroborated by various witnesses’ testimony that this

event took place. Eugene filed a Petition for Divorce on July 24, 2004. A Judgment

of Divorce was rendered on March 22, 2005.

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On May 17, 2005, Wilma filed a rule for final periodic spousal support.

Following trial held on three different days, a judgment denying final periodic

spousal support was issued in the case. The trial court found that Wilma did not carry

her burden of proof that she was free from fault in the destruction of the marriage.

The trial court reached this decision based on a finding that Wilma did not do enough

to alleviate Eugene’s suspicions that she and Pastor Fontenot were having an affair.

In its reasons for ruling, the trial court stated that Wilma could have rearranged her

or Pastor Fontenot’s work schedule or arranged for them to not travel on business

trips together. The trial court also determined that Eugene’s fault was irrelevant to the

proceedings.

Wilma appealed this judgment alleging three assignment of errors. Wilma

alleges that the trial court erred in finding that she did not carry her burden of proof

that she was free from fault in the destruction of the marriage, that the trial court erred

in failing to determine that Eugene’s fault was the sole cause of the breakup of the

marriage, and that the trial court should have awarded Wilma final periodic support

of $2,500 per month.

We reverse the trial court’s finding that Wilma did not carry her burden of

proof that she was free from fault in the destruction of the marriage. We affirm the

trial court’s finding that Eugene’s fault is irrelevant in the proceedings. We remand

the case to the trial court to determine Wilma’s need and Eugene’s ability to pay so

as to determine what final periodic support, if any, is warranted in this case.

Reversed, affirmed and remanded.

ASSIGNMENTS OF ERROR:

1. Did the trial court err in finding that Wilma was at fault in the break up of the
marriage by not taking steps to alleviate Eugene’s suspicions that she was

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having an adulterous affair and thereby denying her claim for final periodic
spousal support?

2. Did the trial court err in failing to determine whether the break up of the
marriage was due solely to Eugene’s actions in accusing Wilma of adultery and
threatening to kill her?

3. Did the trial court err in failing to award Wilma final periodic support in the
amount of $2,500 per month, retroactive to May 17, 2005, when Wilma filed
for final periodic spousal support?

ASSIGNMENT OF ERROR #1:

Wilma argues that the trial court erred in denying her claim for final periodic

spousal support. Wilma contends that this denial was in error because it was based

on an erroneous finding that she was at fault in the breakup of the marriage by not

taking steps to alleviate Eugene’s suspicions that she was having an adulterous affair.

We agree.

It is well settled that a trial court’s factual findings regarding fault in the area

of domestic relations are given great deference on review. If the trial court’s findings

are reasonable, i.e. not manifestly erroneous or clearly wrong, then they will not be

disturbed. Coleman v. Coleman, 541 So.2d 1003 (La.App. 3 Cir. 1989).

Louisiana Civil Code Article 111, in pertinent part, states, “[T]he court . . . may

award final periodic support to a party free from fault prior to the filing of a

proceeding to terminate the marriage.[...]”(emphasis added). The burden of proof

regarding freedom from fault is on the party that is seeking support. Fault, in a

permanent support context, is synonymous with conduct that would entitled a spouse

to a separation of divorce under former La.Civ.Code arts. 138 and 139. Harrington

v. Monet, 93-984 (La.App. 3 Cir. 3/2/94), 634 So.2d 1302.

Prior to its repeal, former Article 138 provided the grounds for separation of

bed and board. Those grounds included the following: (1) adultery, (2) conviction

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of a felony if sentenced to death or imprisonment at hard labor, (3) habitual

intemperance, excesses, cruel treatment or outrages of one of the spouses toward the

other, if these intemperances make living together unsupportable, (4) public

defamation, (5) an attempt on the other spouse’s life, (6) abandonment, (7) one

spouse fleeing from justice when charged with a felony that one can prove the fleeing

spouse was indeed guilty of committing, (8) intentional non-support of a spouse of

the other spouse that is in destitute or necessitous circumstances, (9) when the

spouses have lived separate and apart for six months with no reconciliation, and (10)

when the spouses have lived separate and apart for six months and one spouse signs

an affidavit indicating that the spouses have irreconcilable differences as to render

their living together unsupportable and impossible.

Prior to repeal, former Article 139 provided grounds for immediate divorce.

Those grounds included adultery and the other spouse’s conviction of a felony for

which sentence given was death or imprisonment at hard labor.

Jurisprudence has broadened fault to include other activity that can be

construed as fault for the purpose of denying periodic spousal support. For 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. Kendrick v. Kendrick, 236 La. 34, 106 So.2d 707 (1958).

The trial court found that Wilma failed to carry her burden of proof that she

was free from fault in the breakup of her marriage with Eugene. The trial court based

this finding on its belief that Eugene had reasonable, growing suspicions regarding

Wilma’s relationship with Pastor Fontenot. These suspicions led to Eugene’s lack of

trust of Wilma and the eventual destruction of their marriage.

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The trial court found that Wilma could have rearranged the work schedules of

Pastor Fontenot and herself. Further, the trial court stated that Wilma could have

made other arrangements regarding business trips that she, Pastor Fontenot, and

others took. Because the trial court made these findings, it ruled that Wilma could

have done more to alleviate Eugene’s suspicions. Therefore, the trial court found that

she had some fault in the eventual divorce and denied her request for final periodic

spousal support. We disagree.

There is no evidence in the record that Wilma had the power to rearrange either

her or Pastor Fontenot’s work schedule. Further, there is no evidence that Wilma

could decide who went on business trips for Southside. The only evidence in the

record regarding business trips was testimony from both Wilma and Pastor Fontenot

that their attendance on these business trips was mandatory as part of their

employment.

There is, however, evidence in the record that Wilma took some steps to

attempt to alleviate Eugene’s suspicions. All testimony in the record indicates that

Wilma vehemently denied ever having an affair with Pastor Fontenot. Also, at the

request of Eugene, Pastor Fontenot met with Eugene and Wilma to discuss his

suspicions. Both Wilma and Pastor Fontenot denied any affair had ever transpired

between them. Further, the testimony of Wilma and Eugene indicated that Wilma had

invited Eugene to attend the work related trips and there is at least one occasion

where Eugene actually did attend a business trip with Wilma to Puerto Rico.

Moreover, there is no evidence that Eugene ever took steps to alleviate his

concerns. If Eugene was concerned about any potential affair, he could have attended

those trips that Wilma invited him to attend, but he choose not to do so. Further,

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Eugene is a man with the financial means to hire a private investigator to ascertain

if there was an affair between Pastor Fontenot and Wilma, but again, he chose not to

do so.

Eugene argues that there is enough evidence in the record to indicate that

Wilma did something to promote Eugene’s suspicions and thereby preclude her from

recovering final periodic spousal support. This evidence consists of a lie Wilma told

Eugene about where she was staying when she took a trip to New Orleans. However,

there is no evidence that Pastor Fontenot, nor anyone else, was on this trip with

Wilma, nor is there any evidence that Wilma was not alone on this trip. In her

testimony, Wilma stated that she lied to Eugene in order to relieve herself of his

constant badgering regarding his suspicions.

The trial court did not comment on this situation in its reasons for ruling and

focused more on Wilma’s lack of rearrangement of schedules and business trips in

finding that Wilma was not free from fault. We find that Eugene’s argument that this

isolated incident is enough to constitute fault is without merit. One lie told to a spouse

that is not proven to lead to any faults listed in repealed Articles 138 and 139 and

does not rise to a level of misconduct so serious in nature that it is an independent,

contributory, or proximate cause of the failure of the marriage is not substantial

enough evidence to find that Wilma is at fault in the case at bar.

Further, we find that the trial court’s ruling that Wilma could have done more

to alleviate Eugene’s suspicions based on its findings is not supported by the record.

Eugene has not argued, nor is there any evidence that Wilma committed any of the

listed activities in repealed Articles 138 and 139. Moreover, there is also no

indication that Wilma did any actions that would rise to a level of misconduct so

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serious in nature that it is an independent, contributory or proximate cause of the

failure of the marriage as stated in Kendrick .

Therefore, we reverse the trial court’s judgment that Wilma failed to carry her

burden of proof. We find that Wilma proved that she was free from fault and find that

she is not precluded from receiving final periodic spousal support as a result of any

misconduct presented in the record.

ASSIGNMENT OF ERROR #2:

Wilma contends that the trial court erred in failing to determine whether the

break up of the marriage was due solely to Eugene’s actions in accusing Wilma of

adultery and threatening to kill her. We disagree.

For 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. Kendrick, 106 So.2d 707. (Emphasis added).

When one spouse is seeking permanent periodic support, a determination of whether

the other spouse’s fault contributed to the destruction of the marriage is irrelevant.

Carr v. Carr, 33,724 (La.App. 2 Cir. 4/5/00), 756 So.2d 639.1

In the case before us, Eugene has not alleged any fault by Wilma that makes

Eugene’s fault or lack thereof relevant. Any determination made by the trial court into

whether Eugene was solely at fault, or at fault in any fashion would have been

unnecessary and superfluous. As such, we find no merit in the assertion that the trial

court should have determined whether Eugene was solely at fault for the breakup of

the marriage. The trial court’s finding that Eugene’s fault is irrelevant is affirmed.

1
There can be an exception to this general statement such as when one spouse is attempting
to prove freedom from fault when that spouse is being accused of abandonment as noted in footnote
1 of Gitschlag v. Gitschlag, 593 So.2d 1331, 1335 (La.App. 1 Cir. 1991). Eugene has not argued that
Wilma was at fault for abandonment.

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ASSIGNMENT OF ERROR #3:

Wilma argues that the trial court erred in failing to award her final periodic

support in the amount of $2,500 per month, retroactive to May 17, 2005, when Wilma

filed for final periodic spousal support. We find that the trial court, with further

proceedings on remand, would be better suited to make this determination.

Louisiana Civil Code Article 111, in pertinent part, states, “[T]he court . . . 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.[...]”(emphasis added).

Louisiana Code of Civil Procedure Article 2164 states in pertinent part, “[t]he

appellate court shall render any judgment which is just, legal and proper upon the

record on appeal.” An appellate court will generally not adjudicate issues not ruled

upon by the trial court, but when the appellate court has all of the facts and testimony

and is able to pronounce with certainty on the case, that appellate court should render

such judgment on appeal as the trial court should have rendered at trial. Kilbourne v.

Hosea, 19 So.2d 279 (La.App. 1 Cir. 1944). However, when an appellate court finds

that the interests of justice dictate that further evidence is required for the proper

adjudication of the case, then the appellate court should remand the case to the trial

court. Polizzi v. Thibodeaux, 35 So.2d 660 (La.App.Orleans 1948).

Because the trial court found that Wilma was not free from fault, it did not

make any determination as to Wilma’s need, or of Eugene’s ability to pay support.

Because there are no factual findings regarding these issues we either have to make

a de novo review of the record or remand the case to the trial court for proceedings

not inconsistent with this opinion. We find that there is not enough evidence in the

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record for us to make an accurate determination of Wilma’s need or Eugene’s ability

to pay.

There is evidence in the record that Wilma could be entitled to a significant

settlement once the community property is divided between the couple. Wilma’s

potential portion of Eugene’s savings plan he had through Entergy (valued at

$184,256.70 as of September 30, 2005) is a factor in making a determination as to her

need and is also a factors as to Eugene’s ability to pay. While we know from Wilma’s

testimony that Eugene began putting money into the savings plan at Entergy mainly

when he was married to Wilma, we cannot determine how much, if any, of the money

Wilma would be entitled to receive if the plan is indeed community property, another

issue we cannot determine from the record.

Further, we cannot determine from the record the status of the family residence.

While we know from testimony that Eugene purchased the home prior to marrying

Wilma, we do not know if the home was fully paid for prior to the marriage or if the

home’s equity was increased during the marriage. If it is the latter, Wilma may be

entitled to receive half of that equity.

Therefore, we find that the record is incomplete regarding Wilma’s need and

Eugene’s ability to pay and that further evidence is required for the proper

adjudication of the case. As such, we remand this case to the trial court for further

proceedings not inconsistent with this opinion.

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CONCLUSION:

Wilma raised three assignments of error. We reverse the trial court’s

determination that Wilma was unable to carry her burden that she was free from fault.

We affirm the trial court’s finding that Eugene’s fault is irrelevant in this case. We

remand this case to the trial court for a determination of Wilma’s need and Eugene’s

ability to pay. The costs of this appeal are assessed to Eugene.

REVERSED, AFFIRMED, AND REMANDED.

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