Tyfanny Vermaelen v. Harry Vermaelen, Jr.

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

17-665
TYFFANY VERMAELEN

VERSUS

HARRY VERMAELEN, JR.

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APPEAL FROM THE
NINTH JUDICIAL DISTRICT COURT
PARISH OF RAPIDES, NO. 254,040
HONORABLE GREG BEARD, DISTRICT JUDGE

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SYLVIA R. COOKS
JUDGE
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Court composed of Sylvia R. Cooks, Billy Howard Ezell, and D. Kent Savoie,
Judges.

AFFIRMED.

Gregory N. Wampler
Law Offices of Gregory N. Wampler
607 Main Street
Pineville, LA 71360
(318) 473-4220
COUNSEL FOR DEFENDANT/APPELLANT:
Harry L. Vermaelen, Jr.

Bradford H. Felder
G. Andrew Veazey
Veazey, Felder & Renegar, L.L.C.
2 Flagg Place
Lafayette, LA 70508
(337) 234-5350
COUNSEL FOR PLAINTIFF/APPELLEE:
Tyffany Vermaelen

COOKS, Judge.

FACTS AND PROCEDURAL HISTORY

Tyffany McKay Vermaelen and Harry Vermaelen, Jr. were married on

August 13, 2011. They resided in Alexandria, Louisiana during the marriage. No

children were born of the marriage. They separated on September 19, 2015.

Tyffany filed for divorce on October 5, 2015.

After separating, Tyffany moved to Lafayette, Louisiana and became

employed as a nurse. Harry remained in Alexandria. On July 14, 2016, the trial

court awarded Tyffany interim spousal support in the amount of $1,000.00 per

month. On August 4, 2016, Harry filed a Rule to Determine Pre-Separation Fault

and Right to Final Spousal Support. On October 24, 2016, Tyffany filed a Rule for

Contempt, Sanctions and Attorneys’ Fees, To Make Arrearages Executory, and for

Order Compelling Immediate Return of Wedding and Engagement Rings.

The parties entered into a Stipulated Judgment on December 7, 2016, which

held Harry in contempt of court for his willful violation for nonpayment of interim

spousal support. Harry was allowed to avoid the thirty days imprisonment by

tendering the support payment due to Tyffany.

On January 19, 2017, Tyffany filed a final Rule for Contempt, to Deem

Tyffany McKay Vermaelen Free from Fault, and for Attorneys’ Fees. Those

matters came before the court on January 26, 2017. After a hearing on the matter,

the trial court issued written reasons for judgment on March 2, 2017, finding

Tyffany to be free from fault under Louisiana law. The trial court also found

Tyffany proved she was entitled to permanent spousal support and Harry was able

to pay said support. The trial court determined Tyffany was entitled to $350.00 per

month in permanent spousal support. A judgment in accordance with the written

reasons was signed by the trial court on May 15, 2017.

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Harry has timely appealed the trial court’s judgment, asserting the trial court

erred in finding that Tyffany “was free from fault in accord within that meaning of

that term at Louisiana law,” and in finding that Tyffany “was in need of support

and that [Harry] is able to pay.” Tyffany answered the appeal and asserts the trial

court erred in not awarding $1,000.00 per month in permanent spousal support.

ANALYSIS

Louisiana Civil Code Article 112 provides that the court may award final

periodic support to a spouse who has not been at fault and is in need of support.

I. Fault Determination.

In his first assignment of error, Harry contends the trial court erred in

finding Tyffany was free from fault in the dissolution of the marriage. In seeking

final periodic support, Tyffany bore the burden of proving that she was free from

fault in the dissolution of the marriage. Terry v. Terry, 06-1406 (La.App. 3 Cir.

3/28/07), 954 So.2d 790. “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.” Id. at 793 (citing Coleman v.

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

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, 106 So.2d 707 (La.

1958). “Such acts are synonymous with the fault grounds that previously entitled a

spouse to a separation or divorce, i.e., adultery, conviction of a felony, habitual

intemperance or excesses, cruel treatment or outrages, public defamation,

abandonment, an attempt on the other’s life, status as a fugitive, and intentional

non-support.” Mayes v. Mayes, 98-2228, p. 3 (La.App. 1 Cir. 11/5/99), 743 So.2d

1257, 1259-60.
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Harry argues, as he did below, that Tyffany was guilty of abandonment of

the marriage by leaving the matrimonial domicile. We find this argument lacks

merit. “Abandonment can serve as grounds for fault only if one of the parties

withdrew from the matrimonial domicile without lawful cause and constantly

refused to return.” Ashworth v. Ashworth, 11-1270, p. 3 (La.App. 3 Cir. 3/7/12),

86 So.3d 134, 137. It is undisputed that Tyffany was the one to leave the couple’s

domicile in September 2015. Therefore, the first criterion for abandonment is

present.

However, under the second criterion, if she had justification or lawful cause

to leave, Tyffany is without fault for abandonment. Tyffany testified Harry

demanded a divorce from her and she “begged and pleaded” to no avail to get

Harry to change his mind. She also testified a counseling session was set up, but

cancelled because Harry told her “nothing is going to change.” Thus, Tyffany had

lawful cause to leave the matrimonial dwelling because Harry owned the marital

home as his separate property and told her explicitly he wanted her to leave and he

wanted a divorce.

Moreover, there was no evidence that Harry made any request for Tyffany to

return to the matrimonial domicile. We find the trial court did not manifestly err in

finding Harry failed to establish the elements for abandonment.

Harry also alleges Tyffany was at fault for refusing his reasonable requests

for sex. In brief, Harry cites a snippet of Tyffany’s testimony, wherein she

acknowledges on occasion denying request for sex, to support his assertion.

However, Tyffany’s full testimony does not support Harry’s contention that she

refused his reasonable requests for sex:

Q. Were there any reasonable requests for sex that you denied?

A. I’m sure there were. I mean, I don’t know a number but I’m sure
every time you’re asked it doesn’t happen. But on most occasions,
yes.
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Q. Most occasions you agreed?

A. Agreed. Yes, sir.

Likewise, Harry’s own testimony belies his assertion that Tyffany refused his

repeated requests for sex:

Q. You heard her testify that she thought any reasonable request for
sex was granted. Did you ask for sexual intercourse or intimacy that
was refused?

A. If it was, I don’t really recall it. I don’t really remember having
any type of a conflict or issues with our sex life.

Q. And to your knowledge, in fact, you didn’t have really a problem
for that, is that right?

A. No, sir. Not really. I mean, you know, sometimes she’d want to
go to sleep, and sometimes I’d want to go to sleep.

We find no merit to Harry’s contention that Tyffany was at fault in the dissolution

of the marriage because she refused repeated requests for sex.

Harry also accused Tyffany of engaging in certain financial acts that were

not authorized, or done without the knowledge of Harry. For a portion of the

marriage, Tyffany worked at Harry’s company, Southern Shooters, and conducted

managerial roles such as purchasing and selling items through the company’s

PayPal account. The trial court heard conflicting testimony from the parties, and

determined no legal fault arose from these allegations. Specifically, the trial court

found “Harry’s own testimony reflects these [alleged] instances were not known

until after the filing for divorce and ‘digging around.’” Thus, the trial court

concluded these allegations were not an “independent or proximate cause for the

failure of the marriage.”

After a thorough review of the record, we find the trial court did not

manifestly err in concluding Tyffany was free from legal fault in the dissolution of

the marriage.

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II. Spousal Support.

At the hearing to determine final periodic spousal support, the parties

stipulated that the financial condition of the parties had not changed since the prior

hearing on interim spousal support. At the interim hearing, the trial court found

Tyffany was in need of support and Harry was able to pay. The parties stipulated

at the final support hearing as follows:

MR. FELDER [counsel for Tyffany]: Your Honor, I guess we’ll start
with our stipulation. The parties have agreed to stipulate that the
financial condition of the part[ies] is the ability to pay and the need
that were established at the hearing in May in this matter have not
substantially changed. And therefore, with regard to spousal support,
the issues that we’re going to be addressing today are fault.

MR. WAMPLER [counsel for Harry]: That’s correct, Judge.

MR. FELDER: That’s one issue.

MR. WAMPLER: Right. Yes, sir.

THE COURT: So in regards to that, whatever the numbers were at
the time of the last hearing are going to be the numbers today?

MR. WAMPLER: Correct.

MR. FELDER: Yes, Your Honor.

THE COURT: And so today’s purposes are we’re going to litigate the
issue of fault only in regards to spousal support?

MR. WAMPLER: Correct.

MR. FELDER: Right.

Therefore, any argument by Harry that the trial court erred in finding Tyffany was

in need and Harry had the ability to pay is rendered moot by the stipulation

between the parties at the start of the final support hearing.

Tyffany answered Harry’s appeal, and asserts the trial court manifestly erred

in setting the final spousal support at $350.00 per month rather than the $1,000.00

per month awarded for interim spousal support. Noting the parties agreed the

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financial situations of the parties had not changed since the award of interim

spousal support, Tyffany maintains the trial court erred in reducing the amount.

An award of final spousal support is reviewed for an abuse of discretion.

Bhati v. Bhati, 09-1030 (La.App. 3 Cir. 3/10/10), 32 So.3d 1107. Louisiana Civil

Code Article 112 requires that, in awarding final spousal support, “[t]he court shall

consider all relevant factors ... including[:]”

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

(2) The financial obligations of the parties, including any
interim allowance or final child support obligation.

(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.

Additionally, La.Civ.Code art. 112 requires that the award of final spousal support

“shall not exceed one-third of the obligor’s net income.”

This court in Miller v. Miller, 13-1043, pp. 11-12 (La.App. 3 Cir. 4/2/14),

161 So.3d 690, 698, writ denied, 14-1607 (La. 10/31/14), 152 So.3d 154, further

stated:

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
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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.

Additionally, this court in Launey v. Launey, 98-849, p. 3 (La.App. 3 Cir.

12/9/98), 722 So.2d 406, 408, stated:

The spouse who demonstrates a need for permanent alimony is
only entitled to an amount sufficient to provide for his or her
maintenance. Ward v. Ward, 339 So.2d 839 (La.1976).
“Maintenance includes 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 the alimony payments.” Widman v.
Widman, 93-613 (La.App. 3 Cir. 2/2/94); 631 So.2d 689, 691 citing
Vernotzy v. Vernotzy, 591 So.2d 1293 (La.App. 3 Cir.1991).

According to Tyffany’s testimony and her affidavit of income and expenses

introduced at trial, her financial need was approximately $5,423.00 per month. At

the hearing on interim spousal support, the trial court limited the award to

$1,000.00 per month. Tyffany argues the trial court presumably limited the

amount awarded based on Harry’s ability to pay. With the parties stipulating that

Harry’s ability to pay and Tyffany’s need for support had not changed since the

prior hearing, Tyffany maintains it was manifestly erroneous for final spousal

support to be reduced from $1,000.00 per month to $350.00 per month.

The law is clear that there are different calculations used in determining

support due at the interim support stage and the final support stage. “Final periodic

support is awarded to a former spouse in need and is limited to an amount

sufficient for maintenance as opposed to a continuation of an accustomed style of

living.” Dufresne v. Dufresne, 10-963, p. 20 (La.App. 5 Cir. 5/10/11), 65 So.3d

749, 762, (quoting Dufresne v. Dufresne, 08-215, 08-216, p. 15 (La.App. 5 Cir.

9/16/08), 992 So.3d 579, 589). The need for interim spousal support is determined

by establishing a spouse “lacks sufficient income or the ability to earn a sufficient

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income ‘to sustain the style or standard of living that [s]he enjoyed while [s]he

resided with the other spouse.’” January v. January, 94-882, 94-883, p. 3

(La.App. 3 Cir. 2/1/95), 649 So.2d 1133, 1136.

If a support award 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.” Miller, 161 So.3d at 697 (quoting

Baggett v. Baggett, 96-453, p. 4 (La.App. 3 Cir. 4/23/97), 693 So.2d 264, 266-67).

After carefully examining the record, we find the trial court did not abuse its great

discretion in awarding $350.00 per month in final spousal support to Tyffany.

DECREE

For the foregoing reasons, the judgment appealed from is affirmed in all

respects. Costs of this appeal are assessed to appellant, Harry Varmaelen, Jr.

AFFIRMED.

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