Weston P. Miller v. Cathy Broussard Miller

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

CA 13-1043 consolidated with CA 13-1446

WESTON P. MILLER, III

VERSUS

CATHY BROUSSARD MILLER

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APPEAL FROM THE
FIFTEENTH JUDICIAL DISTRICT COURT
PARISH OF VERMILION, NO. 95131A
HONORABLE JOHN DAMIAN TRAHAN, DISTRICT JUDGE

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ELIZABETH A. PICKETT
JUDGE

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Court composed of Elizabeth A. Pickett, James T. Genovese, and Shannon J.
Gremillion, Judges.

AFFIRMED AS AMENDED.

Diane Sorola
Attorney at Law
402 W. Convent St.
Lafayette, LA 70501
(337) 234-2355
COUNSEL FOR PLAINTIFF/APPELLANT:
Weston P. Miller, III

Gabe A. Duhon
James S. Broussard
Attorney at Law
P. O. Box 478
Abbeville, LA 70511-0478
(337) 893-3423
COUNSEL FOR DEFENDANT/APPELLEE:
Catherine Broussard Miller

PICKETT, Judge.

Weston P. Miller, III appeals the trial court’s finding of fault and subsequent

award of final spousal support to his former wife, Catherine Broussard Miller,

alleging error with the trial court’s finding that Cathy was not at fault in the failure

of the marriage and awarding her $5,350 per month in support. We affirm the trial

court’s finding that Cathy was not at fault in the failure of the marriage, amend the

award of final spousal support to $3,350 per month, and affirm as amended.

FACTS

Weston and Cathy had been married approximately sixteen years when they

sought marriage counseling. In 2009, Cathy became suspicious that Weston was

involved romantically with other women after she saw texts of a romantic nature

on his phone and her son reported having seen a text, stating, ―I love you‖ on

Wes’s phone from a number he did not recognize. To verify her suspicions, Cathy

texted a number on Weston’s phone, asking ―are you alone?‖ The recipient

responded, ―I wish I could come and run into your arms right now.‖ At that point,

Cathy left home and went to her sister’s home. After a few days and coaxing by

Weston, she returned home.

In September or October 2010, after she and Weston reconciled, Cathy again

became suspicious that he was involved with another woman. She testified that

one morning, while on a golf trip with friends, Weston mistakenly sent her a text at

6:00 a.m. that read, ―Good morning, Sunshine.‖ The text referenced names that

Cathy believed were the intended recipient’s children’s names because they were

not the names of her or Weston’s children. Cathy responded to the text, ―You must

have texted the wrong person.‖ According to Cathy, Weston immediately called

her, and she answered the call, stating: ―I can’t believe you’re doing this again.‖

Cathy further testified that Weston responded by apologizing, stating, ―No, I’m

sorry. No, this is nothing. She’s nobody.‖ Weston claimed all the texts were

business-related, but his greeting of ―Sunshine‖ in one of the texts and the large

number of texts to that number, over 3,000 in one month, caused Cathy to suspect

that he was romantically involved with a woman.

After seeing another suspicious text that she believed was also from a

woman and Weston refusing to tell her who sent the text, Cathy suggested

counseling. Weston agreed, and they began counseling in November 2010. Cathy

testified that initially after they began counseling, the texts stopped and their

relationship greatly improved—for a while. She admitted, however, she had

trouble accepting the fact that Weston had been texting three women for a period

of time.

Cathy next related that her concerns of Weston being involved with another

woman increased in February 2011 when she received a letter from a jewelry store

in Baton Rouge concerning jewelry Weston had purchased. Cathy testified that

when she questioned him about the jewelry, Weston explained that he bought the

jewelry for her as a Christmas gift but put it aside to give to her for her birthday

because she had suggested that they not exchange gifts for Christmas. He then

retrieved the jewelry from his desk and gave it to her. Cathy testified that as

Weston handed the jewelry to her, he stated, ―maybe [it doesn’t] look like you‖

and suggested that she exchange it. Cathy believed Weston bought the jewelry for

someone else and gave it to her only because she found out about it.

Weston and Cathy were counseled by Carol Mouton, a licensed addiction

counselor, who also counseled married couples. Cathy testified that not only was

she concerned about Weston being unfaithful to her but also about his use of

alcohol and that she hoped counseling would address both issues. On November 8,

2011, after one year of counseling, Cathy left a joint counseling session and moved

out of the marital home.

On January 19, 2012, Cathy and her daughter went to look in an apartment

over Weston’s office for furniture that Cathy could possibly use. Cathy and her

daughter testified that the bedroom was neatly arranged, and the bed was made.

Cathy’s daughter presented photographs she had taken that evening showing the

state of the apartment. A private investigator hired by Cathy to surveil Weston

testified that on the evening of January 22, 2012, he observed Weston and a female

enter the apartment and remain in the apartment for more than two hours.

Weston and Shontel Cleveland testified they were at the apartment the

evening of January 22, 2012, to straighten it and make it livable because Weston

was moving out of the family home a few days to allow Cathy to return and

remove her things from the home. They both described the bed as being

unassembled that evening.

Weston filed for divorce on January 25, 2012. Cathy was awarded interim

spousal support in the amount of $9,000 per month. In August 2012, Weston filed

a rule to show cause why their divorce should not be granted. Shortly thereafter,

Cathy filed a petition for final spousal support, asserting that she was free from

fault in the failure of the marriage and in need of support. Weston answered the

petition, alleging Cathy was not entitled to final spousal support because she had

abandoned the marriage; engaged in cruel treatment during the marriage; and

refused to engage in sexual relations with him.

Initially, after a hearing on the issue, the trial court determined that Cathy

was free from fault. The parties proceeded to a Hearing Officer Conference to

establish an amount of final spousal support. The Hearing Officer recommended

that Weston be ordered to pay final spousal support in the amount of $3,931 per

month. Cathy appealed the recommendation, and after a hearing, the trial court

awarded her $5,350 per month.

Weston appealed the trial court’s judgment on fault shortly after it was

rendered. He then appealed the trial court’s judgment awarding Cathy final

support. Because the trial court’s judgment on fault was not a final appealable

judgment, the appeal as to that judgment was held in abeyance until the appeal on

the judgment awarding Cathy final spousal support, which Weston also appealed,

was ready to be docketed. See Ashworth v. Ashworth, 10-215 (La.App. 3 Cir.

10/6/10), 46 So.3d 1291. We now consolidate these appeals on our own motion.

ASSIGNMENTS OF ERRORS

Weston assigns two errors with the trial court’s finding that Cathy is free

from fault in the failure of the marriage:

(1) The trial court erred in failing to consider the marriage
counselor’s testimony on the issue of fault.

(2) The trial court erred in holding that Cathy was free from fault.

Weston assigns four errors with the trial court’s award of $5,350 to Cathy in

final spousal support:

(1) The trial court applied the wrong legal standard for determining
final spousal support.
(2) The trial court was manifestly erroneous in applying the facts
and evidence for determination of final spousal support and
abused its discretion in awarding a final spousal award in the
monthly amount of $5,350.
(a) The trial court was manifestly erroneous in its refusal to
consider Cathy’s earning capacity and imputing income
to Cathy for the purposes of calculating spousal support.
(b) The trial court erroneously calculated the expenses of
Cathy Miller for the purposes of determining final
spousal support.
(c) The trial court abused its discretion in awarding final
spousal support in the amount of $5,350 based on the

allowable and proven expenses and potential income that
should have been imputed to Cathy Miller.

DISCUSSION

Determination of Fault

Refusal to Allow Counselor to Testify

Weston first asserts that the trial court erred in refusing to allow Ms. Mouton

to testify regarding statements made by the parties during joint counseling

sessions. Specifically, he argues Cathy failed to prove that Ms. Mouton is a health

care provider as defined in La.R.S. 13:3734; therefore, she did not prove the

privilege protecting confidential information shared by a patient with a health care

provider applies to statements she made to Ms. Mouton. Weston also asserts that

Cathy waived her privilege to maintain the confidentiality of statements she made

during joint counseling sessions when she testified regarding such statements at

trial. He urges that this gave her an unfair advantage over him because the ruling

allowed Cathy to misstate what occurred during those joint counseling sessions

without him being able to impeach her testimony.

The health care provider-patient privilege, codified in La.Code Evid. art.

510(B)(1), provides:

General rule of privilege in civil proceedings. In a non-criminal
proceeding, a patient has a privilege to refuse to disclose and to
prevent another person from disclosing a confidential communication
made for the purpose of advice, diagnosis or treatment of his health
condition between or among himself or his representative, his health
care provider, or their representatives.

The primary purpose of the privilege is to encourage patients to fully

disclose their problems, symptoms, concerns, and reasons for seeking treatment to

allow the health care provider to make accurate diagnoses and provide proper

treatment. Moss v. State, 05-1963 (La. 4/4/06), 925 So.2d 1185. Health care

provider is defined to include ―a person . . . licensed by the state . . . as a . . .

licensed professional counselor.‖ La.R.S. 13:3734(A)(1). Ms. Mouton testified

that she is a licensed addiction counselor, and Weston did not show that she is not.

Accordingly, the trial court did not err in determining that statements Cathy made

to Ms. Mouton in the joint counseling sessions are privileged.

Weston argues that Cathy waived the privilege that protects statements she

made to Ms. Mouton during counseling. In Succession of Smith v. Kavanaugh,

Pierson & Talley, 513 So.2d 1138 (La.1987), the supreme court addressed what

constitutes a waiver of the attorney-client privilege. With regard to unfairness that

can result to a client when the privilege is found to have been waived, the court

determined:

The unfairness justifying a waiver of the privilege . . . must
flow from the act on which the waiver is premised, not from a vague
sense that the existence of the privilege itself is inequitable.
Wigmore, who supports the privilege, acknowledges, that, ―Its
benefits are all indirect and speculative; its obstruction is plain and
concrete.‖ 8 Wigmore, supra, § 2291, at 554. Nevertheless, the
legislature in recognizing the privilege has decided that the detriment
to justice from a power to shut off inquiry into pertinent facts in court
will be outweighed by the benefits to the system of justice (not to the
client) from a franker disclosure in the lawyer’s office. McCormick,
supra, § 87, at 205. See Upjohn Co., 449 U.S. at 389, 101 S.Ct. at
682, 66 L.Ed.2d at 591 (1981). Consequently, a waiver must be
founded on an affirmative act by the privilege-holder that creates
some further detriment to the truth-seeking process in addition to that
already taken into account in the creation of the privilege itself.
Marcus, The Perils of Privilege: Waiver and the Litigator, 84
Mich.L.Rev. 1605, 1607 (1986).

Id. at 1143 (footnote omitted). Three situations have been determined to warrant

the unfairness that justifies waiver. One is the abuse that results from a ―partial

disclosure‖ or ―strategic introduction into evidence of only part of a larger class of

privileged material.‖ Id. ―Disclosure at trial of only part of a larger body of

privileged communications is deemed to be a waiver of privilege with respect to

any withheld information about communications on the same subject matter.‖ Id.

at 1144. Therefore, ―a privilege-holder who testifies . . . at trial about his

privileged communications with his attorney or physician, waives his right to

invoke the privilege as to cross-examination or testimony of others with regard to

communications on the same subject.‖ Id. The court explained:

The rationale of a waiver based on partial disclosure is that
permitting a party to make such an incomplete disclosure, without
losing his privilege with respect to the remainder of the
communication or communications on that subject, would be unfair to
the adversary because it would give the privilege-holder unchecked
editorial control over the available evidence to a degree that would
practically ensure a distorted presentation of the communication or
communications.

Id.

Cathy testified that Weston stated in the November 8, 2011 joint counseling

session that he did not love her, did not like her, and wanted a divorce. She denied

stating that she did not love Weston, did not like him, and wanted a divorce. This

is the very situation that waiver by partial disclosure is meant to avoid. Cathy’s

testimony regarding statements she made in the November 8, 2011 counseling

session constituted a waiver of the patient health care-provider privilege, and the

trial court erred in not allowing Ms. Mouton to testify.

Fault Pursuant to Louisiana Civil Code Article 111

Cathy argues that even if the trial court erred in refusing to allow the

testimony, Ms. Mouton’s testimony does not affect the trial court’s finding that she

was not at fault in the failure of the marriage. We agree.

Louisiana Civil Code Article 111 grants a court authority to award final

periodic support in a divorce proceeding or thereafter ―to a party who is in need of

support and who is free from fault prior to the filing of a proceeding to terminate

the marriage[.]‖ The burden of proof is on the claimant to prove that she is free

from fault. Diggs v. Diggs, 08-1271 (La.App. 3 Cir. 4/1/09), 6 So.3d 1030. Thus,

Cathy had to prove she did not engage in misconduct that was ― an independent,

contributory or proximate cause of the failure of the marriage.‖ Terry v. Terry, 06-

1406, p. 5 (La.App. 3 Cir. 3/28/07), 954 So.2d 790, 794. A trial court’s finding of

fault is subject to the manifest error standard of review. Rusk v. Rusk, 12-176

(La.App. 3 Cir. 6/6/12), 102 So.3d 193.

Weston argues the trial court erred in finding that Cathy was not at fault in

the failure of their marriage. He first claims that Cathy abandoned the marriage.

Abandonment occurs when a spouse left ―the matrimonial domicile without lawful

cause and constantly refused to return.‖ Ashworth v. Ashworth, 11-1270 (La.App.

3 Cir. 3/7/12), 86 So.3d 134, 137. Cathy testified, and Weston admitted, that after

she left their home on November 8, 2011, Weston never asked her to return. Thus,

the second prong of a claim for abandonment is not present here, and the trial court

did not err in finding that Cathy did not abandoned Weston and their marriage.

Next, Weston argues that Cathy engaged in cruel treatment that defeats her

claim for final spousal support. He asserts that her statements in the November 8,

2011 session that she did not love him or like him constitute cruel treatment. Cruel

treatment that defeats a claim for final spousal support is ―a continued pattern of

mental harassment, nagging, and griping by one spouse directed at the other, so as

to make the marriage insupportable.‖ Rusk, 102 So.3d at 199 (quoting Noto v.

Noto, 09-1100, p. 7 (La.App. 5 Cir. 5/11/10), 41 So.3d 1175, 1180). ―[M]ere

bickering and fussing do not constitute cruel treatment‖ sufficient to deny a claim

for final spousal support. Id. Moreover, cruel treatment that is ―a reasonable

justifiable response to the other spouse’s initial acts‖ does not constitute legal fault.

Diggs, 6 So.3d at 1032 (quoting Adkins v. Adkins, 42,076, p. 4 (La.App. 2 Cir.

4/11/07), 954 So.2d 920, 923). Thus, a woman who reasonably believes that her

husband has been unfaithful will not be deprived of alimony if she engages in cruel

treatment because it is natural for a spouse in that situation to become quarrelsome

or hostile. Id. ―Such a reasonable reaction does not constitute legal fault. The

suspicion of adultery causes the breakup and not the reaction.‖ Id. at 1032-33.

After Weston and Cathy reconciled, Weston again engaged in the same type

of behavior that caused Cathy to leave the matrimonial domicile in 2009–2010.

Reconciliation extinguishes a cause of action for divorce, La.Civ.Code art. 104,

and behavior that occurred before a separation and reconciliation cannot be used as

the basis to obtain a divorce. Rivette v. Rivette, 04-1630 (La.App. 3 Cir. 4/6/05),

899 So.2d 873. Pre-separation/reconciliation behavior can be used, however, to

corroborate the continuation or recurrence of similar behavior after the

reconciliation. Barnett v. Barnett, 477 So.2d 1289 (La.App. 3 Cir. 1985).

Accordingly, we find that Weston’s resumption of texting and engaging in

suspicious behavior as to certain texts and his questionable jewelry purchase after

reconciling with Cathy justified Cathy’s belief that he continued or resumed a

―relationship‖ with a woman after the reconciliation. Importantly, the trial court

found Cathy to be more credible than Weston. Though Cathy’s testimony that

Weston stated he did not love her and wanted a divorce in the November 8, 2011

counseling session was impeached by Weston and Ms. Mouton, the record

supports the trial court’s credibility assessment. For these reasons, we conclude

that any cruel treatment by Cathy toward Weston after the reconciliation, including

her statements that she did not love him or like him, was a reasonable reaction to

his questionable behavior that caused her to suspect he was involved with another

woman.

Weston also contends that Cathy refused his requests for sex. Cathy

admitted that she refused to have sex with Weston but testified that she did so only

when he was drunk. We find that the denial to engage in sex under such

circumstances does not constitute cruel treatment. Additionally, to the extent that

Cathy may have refused Weston sex after she became suspicious he was involved

with another woman, her refusals were justified. Diggs, 6 So.3d 1030.

Final Spousal Support

After the trial court held that Cathy was not at fault in the failure of the

marriage, the parties proceeded to trial to determine whether she was entitled to

final spousal support. At the conclusion of that trial, the trial court awarded Cathy

$5,350 final spousal support for an indefinite period of time. Weston asserts that

the trial court applied the wrong legal standard when determining whether Cathy is

entitled to final spousal support. He further asserts that the trial court erred in

applying the facts and evidence in calculating the award and also abused its

discretion in calculating the award.

Appellate review of an award of final spousal support is a three-tiered

process. Baggett v. Baggett, 96-453 (La.App. 3 Cir. 4/23/97), 693 So.2d 264. The

first step of the process requires us to ―determine whether the trial judge correctly

applied the proper legal standard or standards.‖ Id. at 266 (quoting Davy v. Davy,

469 So.2d 481, 482 (La.App. 3 Cir. 1985). Because this involves issues of law, we

consider only whether the trial court applied the correct standards with no

deference being given the trial court’s determination. Id. Next, we review the trial

court’s findings of fact. Id. Findings of fact will not be reversed unless they are

found to be manifestly erroneous in light of the entire record. Id. Lastly, we

consider the propriety of the final spousal support award. ―If it is within legal

limits and based on facts supported by the record, we will not alter the amount of

the award in the absence of an abuse of the trial judge’s great discretion to set such

awards.‖ Id. at 266-67.

A spouse who was not at fault and is in need of support may be awarded

final periodic support based on the needs of that party and the ability of the other

party to pay. La.Civ.Code arts. 111, 112. In making an award of final periodic

support, ―[t]he trial court shall consider all relevant factors in determining the

amount and duration of final spousal support.‖ La.Civ.Code art. 112(B). The

factors considered may include:

(1) The income and means of the parties, including the liquidity of
such means.

(2) The financial obligations of the parties.
(3) The earning capacity of the parties.
(4) The effect of custody of children upon a party’s earning
capacity.
(5) The time necessary for the claimant to acquire appropriate
education, training, or employment.
(6) The health and age of the parties.
(7) The duration of the marriage.
(8) The tax consequences to either or both parties.
The award cannot exceed one-third of the payor spouse’s net income. La.Civ.Code

art. 112(C).

Weston urges that the trial court erred in not using ―need‖ as the basis for

considering Cathy’s claim for final spousal support. Pointing to the trial court’s

statement that the ―needs‖ of the former wife of a surgeon, like Cathy, may be

different than those of the former wife of a school teacher, Weston asserts the trial

court erroneously based Cathy’s final spousal support award on the standard of

living she enjoyed during their marriage.

An award for final spousal support must be ―based on the needs of that party

and the ability of the other party to pay.‖ La.Civ.Code art. 112. Article 112

mandates that courts ―shall consider all relevant factors‖ and enumerates more than

eleven factors courts ―may‖ consider in establishing an award. In view of the

purpose of final spousal support and the factors that may be considered in

awarding such support, we cannot say that a party’s needs for purposes of final

spousal support cannot be influenced by or be relative to the way he or she lived

during the marriage. In fact, Article 112 appears to contemplate this as it requires

consideration of the parties’ ―needs‖ and ―ability to pay‖ and also includes ―the

income and means of the parties‖ as factors courts may consider when awarding

final spousal support. Consideration of these factors does not equate with finding

that a party entitled to a final spousal support award is entitled to an award that

would allow her to maintain the lifestyle she enjoyed while married. For these

reasons, we cannot say the trial court failed to correctly apply the proper legal

standard to Cathy’s claim. Moreover, as Cathy noted, the trial court’s award of

$5,350 in final spousal support, when compared her $9,000 interim support award,

shows the trial court recognized and took into consideration the distinction

between and the purpose of these two different types of support.

Weston also complains that the trial court erred when calculating its award

of final spousal support because it did not consider Cathy’s earning capacity. We

agree. In May 2009, Cathy and Weston opened a business, Cathy Miller Interiors,

L.L.C., in Abbeville. The business is a retail shop that sells interior decorating

accessories and decorating services provided by Cathy. Cathy closed the store in

Abbeville in March 2012 and reopened the store the following September near the

upscale River Ranch Subdivision in Lafayette. She offers the same merchandise

and services at the new location. Rent for the new location is $4,600 per month.

To make the transition, Cathy used $10,000 of her own money and borrowed

$100,000 from her father.

As of trial in early May 2013, the business had never made a profit. From

September 2012 until trial, the business had a gross income of $43,000. Cathy

does not draw a salary from the store. She has one part-time employee who

operates the store when Cathy has appointments with clients away from the store.

Cathy paid the rent for the Lafayette location from the store’s revenue only two

months. Since its inception, more than $350,000 has been invested in the business.

Weston presented expert testimony that Cathy could work as an interior

decorator and earn an income of $24,000 to $50,000 per year. Specifically, the

expert testified that he knew of positions Cathy was qualified to fill in Lafayette

where she would earn $24,000 to $36,000 per year.

Cathy testified that she prefers to remain self-employed and operate her own

design store; she is not interested in working for someone else. The trial court

determined that Cathy should be given more opportunity to allow her business to

succeed. While we understand that Cathy does not care to work for someone else

and that the store might eventually succeed on its own, we find the trial court

committed manifest error in not imputing an earning capacity to Cathy. Though

financially supported by the community and Weston for more than four years,

Cathy has not been successful in her business endeavor. Therefore, the evidence

does not reasonably support the trial court’s finding that with more time, Cathy

will be able to generate sufficient income to support her business and herself.

Accordingly, we impute an earning capacity of $2,000 per month to her.

Weston next argues that Cathy’s alleged expenses are excessive for purposes

of final spousal support. He points to this court’s determination in Launey v.

Launey, 98-849 (La.App. 3 Cir. 12/9/98), 722 So.2d 406, 408 (quoting Widman v.

Widman, 93-613 (La.App. 3 Cir. 2/2/94), 631 So.2d 689, 691), that the only

allowable expenses for purposes of permanent alimony are: ―food, clothing,

shelter, reasonable and necessary transportation expenses, utility expenses, medical

and drug expenses, household expenses, professional dues, home and health

insurance policies, telephone expenses, personal items, and income tax liability

generated by alimony payments.‖ He also notes that this court has acknowledged

that final spousal support is not meant to allow the receiving party to continue the

lifestyle they had during the marriage. Hindelang v. Hindelang, 10-397 (La.App. 3

Cir. 11/3/10), 49 So.3d 1065, writ denied in part and granted in part on other

grounds, 10-2701 (La. 3/4/11), 58 So.3d 464.

Weston has a monthly income of $45,000 which is used to pay only his

house note, income and property taxes, and spousal support; his professional

corporation pays all of his other expenses. In light of Weston’s income and

Cathy’s itemized expenses, we decline to further reduce the trial court’s award of

final spousal support to Cathy for the reasons previously discussed concerning the

requirements of Article 112.

DISPOSITION

For the reasons discussed above, we affirm the trial court’s finding that

Cathy Broussard Miller was not at fault in the failure of the marriage, amend the

trial court’s award of final spousal support to Cathy Broussard Miller from $5,350

per month to $3,350 per month, and affirm the trial court’s judgment as amended.

Costs are assessed to Weston P. Miller, III.

AFFIRMED AS AMENDED.