Dunia Lorena Carcamo Nieves v. Pedro Nieves

NOT DESIGNATED FOR PUBLICATION

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

12-902

DUNIA LORENA CARCAMO NIEVES

VERSUS

PEDRO NIEVES

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APPEAL FROM THE
FIFTEENTH JUDICIAL DISTRICT COURT
PARISH OF LAFAYETTE, NO. C-20090086
HONORABLE SUSAN LORNA THEALL, DISTRICT JUDGE

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BILLY HOWARD EZELL
JUDGE

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Court composed of Ulysses Gene Thibodeaux, Chief Judge, Billy Howard Ezell, and
James T. Genovese, Judges.

AFFIRMED.

Frank Edward Barber
116 Field St.
New Iberia, LA 70560-4487
(337) 256-8370
COUNSEL FOR DEFENDANT/APPELLANT:
Pedro Nieves

Dunia Lorena Carcamo Nieves
In Proper Person
406 Peartree Circle
Broussard, LA 70518

EZELL, Judge.

Pedro Nieves appeals the decision of the trial court below finding Dunia Nieves

free from fault in their divorce. For the following reasons, we hereby affirm the

decision of the trial court.

Mr. and Mrs. Nieves met and were married in Honduras in 1995 when Mr.

Nieves was stationed there as a member of the Air Force. The couple moved to the

United States after the marriage, eventually settling in Louisiana when Mr. Nieves

was hired as an air traffic controller in Lafayette. One child was born of the marriage.

The marriage was often tumultuous, sometimes resulting in physical violence and Mrs.

Nieves sleeping alone in the couple’s bedroom. After one fight in which police were

called to intervene, Mrs. Nieves filed for divorce.

Divorce was granted January 11, 2010. As part of those proceedings, she

sought both interim and final spousal support. Trial was held on the lone issue of

whether or not Mr. Nieves was free from fault in the breakup of the marriage. After a

hearing on the matter, the trial court found that Mrs. Nieves was free from fault and

was entitled to final periodic spousal support. From that decision, Mr. Nieves appeals.

On appeal, Mr. Nieves asserts one assignment of error: that the trial court erred in

finding Mrs. Nieves free from fault in the divorce. We disagree.

This court discussed determinations of fault pertaining to spousal support, as

well as the standard of review applied to those findings, in Rusk v. Rusk, 12-176, pp.6-

8 (La.App. 3 Cir. 6/6/12), 102 So.3d 193, 198-199 as follows (footnote

omitted)(alteration in original):

The fifth circuit discussed fault in the context of divorce
proceedings in McKenna v. McKenna, 09–295, p. 5 (La.App. 5 Cir.
10/27/09), 27 So.3d 923, 925, stating:

“Petty quarrels between husband and wife do not rise
to the level of legal fault. . . . Legal fault consists of serious
misconduct, which is a cause of the marriage’s dissolution.”
(Citations omitted). Hamsa v. Hamsa, 95–736, p. 4 (La.App.
5 Cir. 1/17/96), 668 So.2d 1209, 1211.

In this context, the word “fault” contemplates
“conduct or substantial acts of commission or omission by
the wife violative of her marital duties and responsibilities.
A wife is not deprived of alimony after divorce simply
because she was not totally blameless in the marital
discord.” Pearce v. Pearce, 348 So.2d 75, 77 (La.1977). To
constitute fault, a wife’s misconduct must not only be of a
serious nature but must also be an independent contributory
or proximate cause of the separation. Id.

Our courts have previously found that fault for the purposes of
spousal support is synonymous with the fault grounds previously
entitling a spouse to separation or divorce, including adultery, habitual
intemperance or excess, conviction of a felony, cruel treatment or
outrages, public defamation, abandonment, an attempt on the other’s life,
fugitive status, and intentional non-support. Bourg v. Bourg, 96–2422
(La.App. 1 Cir. 11/7/97), 701 So.2d 1378; Guillory v. Guillory, 626
So.2d 826 (La.App. 2 Cir.1993). “To prove cruel treatment, a party needs
to show a continued pattern of mental harassment, nagging, and griping
by one spouse directed at the other, so as to make the marriage
insupportable as mere bickering and fussing do not constitute cruel
treatment for purposes of denying alimony.” Noto v. Noto, 09–1100, p. 7
(La.App. 5 Cir. 5/11/10), 41 So.3d 1175, 1180.

The trial court’s finding of fault is a factual determination subject
to the manifest error standard of review. Terry v. Terry, 954 So.2d 790.
Under this standard, the issue is whether the fact finder’s determinations
are reasonable. Hebert v. Rapides Parish Police Jury, 06–2001
(La.4/11/07), 974 So.2d 635. Even if the appellate court feels it would
have weighed the evidence differently, the appellate court may not
reverse if the fact finder’s determinations are reasonable in light of the
record in its entirety. Id. This standard demands great deference to the
fact finder’s credibility determinations. Id. However, “[i]f documents or
objective evidence so contradicts the witness’s story or if the story itself
is so internally inconsistent or implausible on its face that a reasonable
fact finder would not credit the witness’s story, the court of appeal may
find manifest error or clear wrongness even in a finding purportedly
based upon a credibility determination.” Brown v. American Cent. Cas.
Co., 10–135, p. 5 (La.App. 3 Cir. 6/2/10), 40 So.3d 452, 456 citing
Rosell v. ESCO, 549 So.2d 840 (La.1989)). However, absent those
circumstances, a fact finder’s determination to credit the testimony of one
of two or more witnesses can virtually never be manifestly erroneous. Id.

2

Given the record before this court, we can find no error in the trial court’s

determination that Ms. Nieves was free from fault in the breakup of the marriage.

While there was evidence of arguments and tension between the couple, nothing in the

record indicated that Mrs. Nieves’ behavior rose to the level of being “an independent

contributory or proximate cause of the separation,” even if she was not blameless in

the dissolution of the marriage. Id. at 198. To the contrary, the record showed that

Mr. Nieves would sometimes become physical during these arguments. In fact, the

couple separated after one of these altercations resulted in his arrest for domestic

violence. Moreover, in making its ruling as to Ms. Nieves’ freedom from fault, the

trial court made a credibility determination, finding that Ms. Nieves was “extremely

credible.” That finding is entitled to great deference. It was well within the trial

court’s purview to make that credibility judgment, and this court should not disturb

reasonable assessments of credibility and reasonable inferences of fact on appeal.

Hebert, 974 So.2d 635. Because nothing in the record indicated the trial court’s

determination was manifestly erroneous, this assignment of error is without merit.

For the above reasons, the decision of the trial court is hereby affirmed. Costs

of this appeal are assessed against Mr. Nieves.

AFFIRMED.

This opinion is NOT DESIGNATED FOR PUBLICATION. Uniform
RulesCCourts of Appeal. Rule 2n16.3.

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