Teresa Foster, Born McDonald v. Craig Foster

NOT DESIGNATED FOR PUBLICATION

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

06-1555

TERESA FOSTER, BORN MCDONALD

VERSUS

CRAIG FOSTER

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APPEAL FROM THE
THIRTY-SIXTH JUDICIAL DISTRICT COURT,
PARISH OF BEAUREGARD, NO. 2005-1036,
HONORABLE HERMAN I. STEWART, DISTRICT JUDGE

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MICHAEL G. SULLIVAN
JUDGE

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Court composed of Sylvia R. Cooks, John D. Saunders, and Michael G. Sullivan,
Judges.

AFFIRMED.

Martha Ann O’Neal
O’Neal & Leavoy
Post Office Box 1055
DeRidder, Louisiana 70634
(337) 462-6051
Counsel for Plaintiff/Appellee:
Teresa McDonald Foster

David L. Wallace
Attorney at Law
Post Office Box 489
DeRidder, Louisiana 70634
(337) 462-0473
Counsel for Defendant/Appellant:
Craig Foster

SULLIVAN, Judge.

Craig Foster appeals a judgment declaring his spouse, Teresa McDonald

Foster, to be free from fault in the breakup of their marriage, thereby allowing her to

pursue her claim for permanent spousal support in their divorce proceedings. For the

following reasons, we affirm.

Discussion of the Record

Craig and Teresa were married on July 3, 1981 in Beauregard Parish,

Louisiana. Two children were born of the marriage, and Teresa had one child from

a previous relationship before they were married. Because Craig was on active duty

in the military, the family lived in many different places, but they returned to

Beauregard Parish after Craig retired from the military in 1999. On November 8,

2005, while Craig was working as a private contractor in Afghanistan, Teresa filed

for divorce, alleging that the parties had separated on October 19, 2005. In her

petition, Teresa sought interim support, permanent support, and joint custody of their

one child who was still a minor, with Teresa to be named as domiciliary parent.

On March 13, 2006, at a hearing to determine fault, Teresa testified that, early

in their marriage, rumors surfaced that Craig had fathered a child with another woman

as the result of a one-time sexual encounter that occurred while he and Teresa were

engaged. According to Teresa, Craig continually denied the rumors over the years,

and they had both undergone counseling to deal with the problems that those

allegations had caused. Teresa explained that the mother of the child had filed

proceedings with social services in which she named Craig and four other men as the

possible father of the child and that the woman often contacted her mother, seeking

information about how to get in touch with Craig. Teresa testified that, in February

of 2005, she asked that Craig submit to DNA testing, hoping that it would put an end

to the controversy and would get the child’s mother to stop contacting her family.

The results of the DNA test, however, indicated a 99.99996% probability that Craig

was the father of the child, who was twenty-five years old at that time. Teresa

testified that she could no longer trust him after he had lied to her for so many years,

so she asked for a divorce in October of 2005.

Craig testified that he did not learn about this child until 1995, when he

received a telephone call from social services about child support. He testified that

he never believed he was the child’s father because he did not have an independent

recollection of the alleged encounter with the child’s mother. He stated that he only

remembered drinking with his friends and then waking up the next morning in the

army barracks. He also testified that the child’s mother’s allegations did not come up

on a regular basis in his marriage and that, although he went to counseling with his

wife, he did not recall if this occurred before 1995, when he first found out about the

child.

Lyness Lacy, Teresa’s mother, testified that, for over twenty years, she was

aware of rumors that Craig had fathered this child and that she hoped the DNA test

would finally put an end to the matter. After the test came back positive, Ms. Lacy

recalled Teresa stating that she did not know if she could still live with Craig after he

had been lying to her all those years. Ms. Lacy testified that many times since 1981

she discussed the matter with Craig in the presence of other family members. She

also recounted an incident that occurred in 1981, at a going-away party for Craig and

Teresa at their church shortly before they left for Germany, when Craig referred to the

child as “my boy” after his mother placed him in Craig’s arms while he was also

holding Teresa’s daughter. Testifying on rebuttal, Craig stated that he recalled

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picking up the child at the going-away party, but that he that he did not refer to the

child as his son.

Ruling from the bench, the trial court stated that it could not find Teresa to be

at fault for ending the marriage, based upon its finding that Craig did lie to her about

not knowing of the child. The trial court specifically found that the matter had been

discussed in the family for at least fourteen years, which was well before 1995, when

Craig claimed to first hear about this. The trial court also noted that Craig’s decision

to continue working overseas after his retirement from the military was not a joint one

and that fact also contributed to the destruction of the marriage.

Opinion

In Walker v. Walker, 41,573, pp. 2-3 (La.App. 2 Cir. 11/1/06), 942 So.2d 605,

608 (citations omitted) (emphasis added), the court explained:

Fault is a threshold issue in a claim for spousal support. 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 the party and the ability of the other
party to pay. A spouse who petitions for permanent support need not be
totally blameless. Only misconduct of a serious nature, providing an
independent contributory or proximate cause of the breakup, equates to
legal fault. Legal fault includes, but is not limited to, habitual
intemperance or excesses, cruel treatment or outrages, and
abandonment.

The trial court has immense discretion in matters regarding
determination of fault for purposes of precluding final periodic support.
The trial court’s finding of fact on the issue of fault will not be disturbed
unless manifestly erroneous. Even in situations where an appellate court
feels its own evaluations are more reasonable than the factfinder’s,
reasonable evaluations of credibility should not be disturbed where
conflict exists in testimony.

The elements of abandonment are that one party has withdrawn from the

common dwelling without lawful cause and has constantly refused to return. Guillory

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v. Guillory, 626 So.2d 826 (La.App. 2 Cir. 1993). “‘Constructive abandonment’

occurs when one spouse, without lawful cause, orders the other to leave the

matrimonial domicile or prevents or bars the other from entering the domicile.” Id.

at 830. The court in Guillory, 626 So.2d 826, further explained:

Lawful cause which justifies abandonment or constructive
abandonment is the equivalent to cause giving the withdrawing spouse
grounds for a separation under former CC Art. 138. Quinn [v. Quinn,
412 So.2d 649 (La.App. 2 Cir.), writs denied, 415 So.2d 941, 945
(La.1982)] and Blake [v. Blake, 478 So.2d 617 (La.App. 2 Cir.1985)].
Mere friction or dissatisfaction in the relationship or incompatibility
between the spouses, however intense, has been said to be not enough
to constitute lawful cause. Quinn and Blake, cited supra.

Id. at 830 (emphasis added).

In his brief, Craig argues that Teresa’s decision to end the marriage was

unjustified because it was based upon conduct that occurred before the marriage.

From our reading of the trial court’s ruling, however, it is evident that the trial court

found Teresa’s actions were justified by Craig’s ongoing deception throughout the

marriage, which was finally revealed through the DNA testing, rather than the fact

that Craig fathered a child before the marriage. In reaching this conclusion, the trial

court also made a factual finding that Craig was not being truthful when he denied

knowing about the child before receiving the letter from social services.

After reviewing the record, we cannot conclude that the trial court abused its

discretion in either its factual findings or legal conclusions. As Teresa testified: “He

denied it all these years. He kept denying it. . . . I went through hell with him for the

last 25 years. Because this was brought up in our marriage many a times. There was

a lot of fights, physical abuse over this matter.” Ms. Lacy also testified that “over a

period of 20-some-odd years, we had been involved knowing that there was this

rumor going around at church and everywhere else in the community that he was the

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father of this child,” but that “[h]e has always denied it.” When asked if Teresa ever

confided her intentions after the DNA test established Craig’s paternity of the child,

Ms. Lacy stated: “It was brought up that she didn’t know that she could go ahead and

live with him like that, him lying to her all these years and then lying to the last

minute that he wasn’t the father of it and then had the DNA test. It was really, really

bad for her. She—It’s a wonder she didn’t have a nervous breakdown over it.” From

a review of the record, it seems clear that the breakup of this marriage was not caused

by mere friction or incompatibility, but rather from the exposure of an ongoing

deception that persisted throughout the marriage. Under these circumstances, we find

no error in the trial court’s decision to hold Teresa free from fault.

Decree

For the above reasons, the judgment of the trial court is affirmed. Costs of this

appeal are assessed to Appellant, Craig Foster.

AFFIRMED.

This opinion is NOT DESIGNATED FOR PUBLICATION.
Uniform Rules—Courts of Appeal. Rule 2-16.3.

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