Randall H. Broussard v. Linda Waggoner Broussard

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

18-635

RANDALL H. BROUSSARD

VERSUS

LINDA WAGGONER BROUSSARD

**********

APPEAL FROM THE
FIFTEENTH JUDICIAL DISTRICT COURT
PARISH OF VERMILION, NO. 99380
HONORABLE EDWARD D. RUBIN, DISTRICT JUDGE

**********

JOHN D. SAUNDERS
JUDGE

**********

Court composed of John D. Saunders, Phyllis M. Keaty, and John E. Conery, Judges.

REVERSED AND REMANDED.

Anthony J. Fontana, Jr.
A Professional Law Corporation
210 N. Washington Street
Abbeville, LA 70510
(337) 898-8332
COUNSEL FOR PLAINTIFF/APPELLEE:
Randall H. Broussard

Gabe A. Duhon
James S. Broussard
Wyman E. Bankston
Duhon & Broussard, L.L.C.
P. O. Box 478
105 Tivoli Street
Abbeville, LA 70511
(337) 893-3423
COUNSEL FOR DEFENDANT/APPELLANT:
Linda Waggoner Broussard

SAUNDERS, Judge.

The issue presented in this case is whether a judgment of involuntary dismissal

that rejected Defendant-in-Reconvention’s claim for final spousal support was

manifestly erroneous.

FACTUAL AND PROCEDURAL HISTORY:

Plaintiff, Randall H. Broussard (“Randall”) and Defendant, Linda Waggoner

Broussard (“Linda”), were married on August 8, 2008. No children were born of

the marriage.

On October 13, 2014, Randall filed a Petition for Divorce under La.Civ.Code

art. 103, requesting a divorce on the basis that the parties had lived separate and apart

continuously for more than six (6) months, and specifically alleging that the parties

separated on November 20, 2013.

On November 5, 2014, Linda filed an Answer and Reconventional Demand

for Divorce under La.Civ.Code art. 102, denying, inter alia, that the parties separated

on November 20, 2013, and asserting instead that the parties separated on July 9,

2014. Linda’s reconventional demand alleged, inter alia, that she was free from

fault in the breakup of the marriage, that at all times relevant she had been a loving,

abiding, and dutiful wife to Randall, that Randall’s conduct alone was the proximate

cause of the separation of the parties, and that Randall was solely responsible for the

breakup of the marriage.

A consent judgment adopting certain hearing officer recommendations as

modified therein was signed on April 13, 2015, dispensing with the issues of interim

spousal support, use of community property, and mutual injunctions regarding

community property.

On July 27, 2015 Linda filed a Petition for Final Spousal Support reiterating

all of the allegations contained in her Answer and Reconventional Demand and again

averring that she was free from fault in the breakup of the marriage. By order signed

July 29, 2015, Linda’s Petition for Final Spousal Support was set for a merit trial on

the issue of “Legal Fault” to be heard on February 1, 2016.

A Judgment of Divorce was rendered on September 1, 2015, having come

before the trial court in the nature of an uncontested matter. Thereafter, on

November 12, 2015, Randall filed a Petition for Partition of Community Property

and certain discovery was conducted.

The minute entries indicate that the “Fault Hearing for Spousal Support” was

continued three times: once on February 1, 2016, again on March 1, 2017, and finally

on December 4, 2017, at which time said hearing was reset for February 20, 2018,

with all witnesses being ordered to appear without the necessity of being

subpoenaed by counsel.

The matter of fault for final spousal support was tried before the trial court on

February 20, 2018. After the close of Linda’s case, Randall moved for a directed

verdict/involuntary dismissal1 pursuant to La.Code Civ.P. art. 1672(B), contending

that Linda failed to show any right to relief under the evidence presented. After

hearing oral argument from the parties, the trial court granted the motion for directed

verdict/involuntary dismissal. In its written reasons for ruling, the trial court stated:

The Court has authority in a proceeding for divorce or thereafter,
to award final periodic support to a party who is in need of support and
who is free from fault in the filing of a proceeding to terminate the
marriage. Civil Code Article 111, et seq. The burden of proof is on the
claimant. The mover, Mrs. Broussard has simply not met her burden
of showing that she is not [sic] free from fault in the breakup of the
marriage. Evidence at the hearing was not sufficient to establish that

1
Though “Directed Verdict” is a term of art applicable only to jury trials, a similar
mechanism exists applicable to bench trials; namely, the motion for involuntary dismissal pursuant
to La.Code Civ.P. art. 1672(B). Courts of Appeal have generally agreed that misdesignation of a
motion for involuntary dismissal as a motion for directed verdict is an error of form over substance
such that the Court of Appeal considers them both the same motion. See Andersen v. Succession
of Bergeron, 16-0922 (La.App. 1 Cir. 4/12/17), 217 So.3d 1248, writ denied, 17-0760 (La. 9/22/17),
227 So.3d 825.
2

Mrs. Broussard is entitled to relief (that is, permanent spousal support
based upon being free from fault).

Judgment was rendered on March 26, 2018, granting Randall’s motion for

involuntary dismissal and dismissing Linda’s claims. It is from this judgment that

Linda appeals, alleging six assignments of error.

ASSIGNMENTS OF ERROR:

1. The trial court committed manifest error in granting Appellee’s motion for
involuntary dismissal.

2. The trial court committed manifest error in finding that Appellant failed to
show that she was free from fault in the breakup of the marriage.

3. The trial court committed manifest error in finding that the timespan of
Appellant’s relationship with another man was unclear.

4. The trial court committed legal error by misapplication of the burden of proof
applicable to a claimant spouse in a fault hearing relative to final spousal
support.

5. The trial court committed legal error by misapplication of the legal standards
governing fault sufficient to bar a claimant spouse from final spousal support.

6. The trial court committed legal error by misapplication of the legal standards
governing involuntary dismissal under [La.Code Civ.P. art.] 1672.

ASSIGNMENT OF ERROR NUMBER ONE:

In her first assignment of error, Linda contends that the trial court committed

manifest error in granting Appellee’s motion for involuntary dismissal. We agree.

In Fontenot v. Safeway Insurance Co. of Louisiana, 17-780, pp. 3-4 (La.App.

3 Cir. 6/13/18), 249 So.3d 900, 902-03, writ denied, 18-1223 (La. 10/29/18), 254

So.3d 1214, (citations omitted), this court stated:

A motion for involuntary dismissal is the proper procedural vehicle in
cases where the action is not tried before a jury. The procedure
governing motions for involuntary dismissal is found in La.Code Civ.P.
art. 1672(B), which provides as follows:

B. In an action tried by the court without a jury, after the
plaintiff has completed the presentation of his evidence,
any party, without waiving his right to offer evidence in
the event the motion is not granted, may move for a
3

dismissal of the action as to him on the ground that upon
the facts and law, the plaintiff has shown no right to relief.
The court may then determine the facts and render
judgment against the plaintiff and in favor of the moving
party or may decline to render any judgment until the close
of all the evidence.

Pursuant to Article 1672, the trial court must consider and weigh
the Plaintiffs' evidence and dismiss the matter if it determines they have
not met their burden of proof. The trial court's grant of an involuntary
dismissal is subject to the well-settled manifest error standard of review.
Accordingly, in order to reverse the trial court's grant of involuntary
dismissal, we must find, after reviewing the record, that there is no
factual basis for its finding or that the finding is clearly wrong or
manifestly erroneous. The issue is not whether the trial court was right
or wrong, but whether its conclusion was reasonable.

In a motion for involuntary dismissal, “[a] plaintiff is entitled to no special

inferences in his favor, but ‘uncontroverted testimony should be taken as true to

establish a fact for which it is offered absent circumstances in the record casting

suspicion on the reliability of the testimony and a sound reason for its rejection.’”

Bartley v. Fondren, 43,779, p. 6 (La.App. 2 Cir. 12/3/08), 999 So.2d 146, 149. The

court has the authority to award final periodic support 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.” La.Civ.Code art. 111.

In Neff v. Neff, 14-1320, p. 4 (La.App. 3 Cir. 4/1/15), 162 So.3d 732, 736, writ

denied, 15-1195 (La. 9/25/15), 178 So.3d 566, (citations omitted), this court noted:

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.

In Hutson v. Hutson, 39,901, pp. 7-8 (La.App. 2 Cir. 8/9/05), 908 So.2d

1231, 1235-36, (citations omitted), the Louisiana Second Circuit Court of

Appeal, in a well-reasoned opinion, addressed how a claimant spouse might

satisfy the burden of proof to show freedom of fault:
4

The jurisprudence provides little guidance on how a claimant
spouse is to perform the task of proving freedom from fault. While the
case law indicates that the burden can be shifted to the non-claimant
spouse when the divorce is obtained on the basis of adultery of the non-
claimant spouse, there is no indication of how one shifts the burden
when a divorce is obtained on the basis of living separate and apart for
the requisite period of time.

Ms. Hutson presented evidence in the form of her own testimony
and that of her niece, sister and neighbors. She affirmatively stated that
she did nothing to break up the marriage. Her niece, sister and
neighbors, who had been exposed to the couple at various times
throughout the marriage, testified that Ms. Hutson had been a good wife
who performed her fair share of the household duties. They testified
that the parties rarely argued, and they denied witnessing any of the
nagging which Mr. Hutson alleges plagued their marriage.

We find that this evidence is sufficient to establish freedom from
fault in instances where the divorce is not obtained on the fault grounds
delineated in La. C.C. art. 103. Ms. Hutson made a prima facie showing
that she was not at fault in the break up of the marriage by presenting
testimony to support her version of the events leading to the break up
of the marriage. Such a prima facie showing was sufficient to meet her
initial burden of proof. Once that burden was met, the burden shifted to
Mr. Hutson to prove conduct on the part of the claimant spouse which
rises to the level of fault.

Thus, a claimant spouse must make a prima facie showing that she was not at

fault; once she has satisfied that requirement, the burden shifts to the opposing

spouse to prove conduct on the part of the claimant spouse sufficient to constitute

legal fault and defeat the claim for final spousal support.

In the instant matter, our review of the record reveals Linda’s testimony meets

the burden of proof necessary to withstand a motion for involuntary dismissal

because it shows by a preponderance of the evidence that she did not commit

adultery, habitual intemperance or excess, cruel treatment or outrages, public

defamation, or abandonment; that she was not convicted of a felony, did not make

an attempt on Randall’s life, is not a fugitive, and did not intentionally refuse

financial support to Randall when he was in necessitous conditions. Neff, 162 So.3d

at 732. Moreover, Linda’s testimony was corroborated by two witnesses, one of

5

whom the court referred to as “impressive.” Linda’s verified petition avers that she

was free from fault in the breakup of the marriage, that at all times relevant she had

been a loving, abiding, and dutiful wife to Randall, and that Randall’s conduct alone

was the proximate cause of the separation of the parties and that Randall was solely

responsible for the breakup of the marriage. Linda testified that:

1. During her marriage to Randall she purchased a second home,
renovated it herself, used it for family gatherings, and
occasionally rented it out.

2. Her work on a farm with all males, with the exception of one
female, resulted in friendships with several men.

3. During her marriage to Randall she bore a significant portion of
the community expenses and was not a financial burden on
Randall.

4. She did not have an extramarital relationship during her marriage
to Randall.

5. When she and Randall were having marital discord, she
attempted to seek counseling, but Randall refused.

6. She and Randall separated on July 9, 2014, after he packed up
her belongings and told her to move on.

7. After she and Randall separated, she attempted to reconcile to no
avail.

8. She was stunned by her breakup from Randall and upset and
spent most of her time crying.

At this point, the burden shifted to Randall to prove conduct on the part of

Linda sufficient to constitute legal fault and defeat the claim for final spousal support.

Randall’s testimony, contrary to Linda’s, failed to carry this burden. Notably, no

pleadings filed by Randall alleged fault on Linda’s part. Moreover, in his testimony,

Randall asserted only two fault grounds to which he attributed causation:

abandonment and adultery, neither of which are supported by the record.

“Abandonment occurs when a spouse left ‘the matrimonial domicile without

lawful cause and constantly refused to return.’” Miller v. Miller, 13-1043, p. 8
6

(La.App. 3 Cir. 4/2/14), 161 So.3d 690, 696, writ denied, 14-1607 (La. 10/31/14),

152 So.3d 154 (quoting Ashworth v. Ashworth, 11-1270 (La.App. 3 Cir. 3/7/12), 86

So.3d 134, 137.

Randall testified that Linda abandoned the matrimonial domicile as follows:

Q Are you claiming that Linda abandoned you or the matrimonial
domicile?

A Yes.

Q All right. So did you ever ask her to return after y’all separated?

A There was times that we tried to work things out, but it just – it
wasn’t going to happen.

Q That wasn’t my question. Did you ever ask her to move back in?

A No, I didn’t.

Contrary to Randall’s testimony that Linda abandoned the matrimonial

domicile, Linda testified that Randall moved her out. Linda testified:

Q -- the incident that lead [sic] to the separation?

A Yes, sir. I was coming back from the farm. I was working. And
it had started raining and when I passed by the house, he had a
trailer backed up under the carport putting my stuff in it.

Q And “he” meaning Mr. Broussard?

A Yes.

Linda further testified that she attempted to reconcile and to seek counseling,

but that Randall refused both. Linda testified:

Q Did ya’ll discuss getting back together?

A He told me to move on. When I asked him about it, he told me I
needed to move on.
....

Q Did you ever suggest to your husband that ya’ll should attend
counseling?

A Yes, I did.

7

Q And what was his response?

A He didn’t have a problem.

Q I’m sorry?

A He didn’t have a problem.

Q He didn’t have a problem with counseling?

A No. He didn’t need to go.

In order to prove abandonment, Randall must show not only that Linda left

the matrimonial domicile, but also that she “constantly refused to return.” His own

testimony shows that this is not the case. Accordingly, the record does not support

a finding of abandonment.

With regard to adultery, Randall’s testimony that Linda “pretty much moved

out” on October 20, 2013, after he “caught” her boss, Danny Richard, “running

through her house in his underwear” contradicts his verified petition which lists the

date of separation as November 20, 2013. The “house” that Randall refers to in the

October 20, 2013 incident is the one that Linda purchased during their marriage to

lease on the weekends, which she did. It was within “eye distance” of the home he

and Linda shared at the time. Randall testified that on the night of October 20, 2013,

Linda, who was renovating the house herself, was “supposedly going paint in the

house,” but instead, went and picked up her boss, Danny Richard, and brought him

to the “house”; that Danny Richard was “supposedly taking a shower”; that upon

seeing “a man” running through the house he called Deputy Adrian Conner to report

an “intruder,” but that by the time Deputy Conner arrived Danny Richard was no

longer there. Significantly, Randall did not testify that he observed anything

untoward occur between Linda and Danny Richard on that evening, or any other.

More significantly, it was not the reason the parties separated as Randall did not file

for divorce until a year later.
8

Linda testified that her work for Val Miller at the farm consists of arranging

“duck hunts, alligator hunts”; that on the evening of October 20, 2013, there were

seven guests staying at Miller’s camp when the hot water heater went out; that Danny

Richard called her at the “house” where she was painting to ask if he could split the

men up between her “house” and another camp on the island so that the men could

take showers; that she informed Randall that they were going to be there; that shortly

thereafter Randall showed up at the house and “went off on her” – that he had “seen

a man running around naked, this and that”; that Danny Richard was the last one to

take a shower, but that she never “saw anyone naked.” Linda further testified that

when Deputy Conner arrived at the “house” she allowed him inside to look at

“anything” at which time he observed her “full of paint” with the “darn paintbrush.”

The only two allegations of fault that Randall made were abandonment and

adultery. As discussed above, abandonment does not apply. Thus, if the parties

physically separated on October 20, 2013, the alleged incident of the same date

involving Linda’s boss might be an independent contributory factor to the physical

separation, but for Randall’s verified petition alleging a different date of separation;

Randall’s admission that he waited a year after the separation to file for divorce

during which time he thought they could “work it out”; Linda’s contradictory

testimony alleging a different date of separation; Deputy Conner’s contradictory

testimony that upon investigation he found no one inside the home, other than Linda,

who was painting at the time. The record on this point clearly does not support a

finding of adultery.

The other basis for the filing of the petition for divorce based on adultery was

Randall’s belief that Linda had moved another man into her home. Yet, Randall was

both unable to recall when that event occurred, or to provide any details in support

9

of his contention. Instead, Randall’s testimony merely indicates that someone told

him she had moved someone into her home. Randall’s testimony was as follows:

Q Are you, in fact, claiming that Ms. Linda committed adultery on
or before October 13, 2014?

A I didn’t say that I saw it, but it’s – everything pointed in that
direction.

Q You at least suspected something, right?

A Sir?

Q You suspected adultery?

A Yeah.

Q But you don’t know for sure?

A I’m pretty sure, but, no. Definitely? No.

Therefore, at the close of Randall’s testimony, the only legal fault asserted as

the cause of the breakup of the marriage is Randall’s suspicion of adultery based on

hearsay that Linda had moved another man into her home. “To refute [Linda’s]

assertion that she is free from fault by proving she was guilty of having an

extramarital relationship, thereby causing the dissolution of the marriage, [Randall]

must have evidence, not conjecture and innuendo.” Barlow v. Barlow, 11-1286, p.

13 (La.App. 3 Cir. 4/11/12), 87 So.3d 386, 394.

Judy Broussard, Linda’s neighbor, corroborates Linda’s testimony that she

did not engage in an extramarital relationship while married to Randall, by moving

another man in with her. Judy, who lived within “spitting distance” of Linda and

“saw her all the time,” testified:

1. Linda started dating David “[t]wo to three years ago. They’ve
been split up, I don’t know, maybe six or eight months. And
she’s been seeing him about two years.”

2. If someone had been living with Linda, she would be in a
position to know.

10

3. That no one was living with Linda.

The divorce action was instituted on October 13, 2014. The fault hearing was

held February 20, 2018, nearly three and a half years later. Even taking Judy’s

longest evidence of “three years ago,” Linda would not have started dating David

until February 2015, months after Randall filed the petition for divorce.

Thus, at the close of Linda’s case, when Randall moved for involuntary

dismissal, the trial court had (1) Randall’s testimony that he suspects but does not

know that Linda committed adultery prior to his filing for divorce in October 2014;

(2) Linda’s testimony that she did not commit adultery; (3) testimony from Deputy

Conner impeaching Randall’s account of the events of October 20, 2013; and (4)

Judy’s testimony that Linda started dating as early as 2015, but never moved her

boyfriend into her home. Much as in Barlow, 87 So.3d at 386 the fact that Linda

was in a romantic relationship that might have begun as early as 2015, does not mean

that said relationship existed prior to the dissolution of the marriage. In fact, all

other testimony aside from Randall’s uncorroborated suspicions makes it more

likely than not that no such romantic relationship existed prior to the dissolution of

the marriage. The record clearly does not support a finding of fault and we are

compelled to find that the trial court’s ruling was manifestly erroneous. Accordingly,

we reverse the trial court’s ruling involuntarily dismissing Linda’s claim for final

spousal support and remand for further proceedings not inconsistent with this ruling.

CONCLUSION:

Linda Waggoner Broussard raised six assignments of error as to why the trial

court erred in involuntarily dismissing her claim for final spousal support. Finding

merit to Ms. Broussard’s first assignment of error, that the trial court committed

manifest error in granting Appellee’s motion for involuntary dismissal, we reverse

the trial court’s ruling on this issue and remand for further proceedings not
11

inconsistent with this ruling. Our finding in assignment of error number one

pretermits a finding in assignments of error two through six.

Costs of these proceedings are assessed to Randall Broussard.

REVERSED AND REMANDED.

12