Kaitlyn Lebouef Aguillard v. Caleb K. Aguillard

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

20-64

KAITLYN LEBOUEF AGUILLARD

VERSUS

CALEB K. AGUILLARD

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APPEAL FROM THE
TWENTY-SEVENTH JUDICIAL DISTRICT COURT
PARISH OF ST. LANDRY, NO. 18-C-5082-A
HONORABLE JAMES PAUL DOHERTY, JR., DISTRICT JUDGE

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ULYSSES GENE THIBODEAUX
CHIEF JUDGE

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Court composed of Ulysses Gene Thibodeaux, Chief Judge, Candyce G. Perret, and
Jonathan W. Perry, Judges.

EXCEPTION OF RES JUDICATA DENIED;
JUDGMENT AFFIRMED.

Dyan Schnaars
3639 Ambassador Caffery
The Petroleum Tower – Suite # 333
Lafayette, LA 70503
Telephone: (337) 534-4326
COUNSEL FOR:
Plaintiff/Appellee – Kaitlyn LeBouef Aguillard

Geralyn Siefker
210 West Main StreetA
Lafayette, LA 70501
Telephone: (337) 210-5986
COUNSEL FOR:
Plaintiff/Appellee – Kaitlyn LeBouef Aguillard

Caleb K. Aguillard
141 South Sixth Street
Eunice, LA 70535
Telephone: (337) 457-9331
COUNSEL FOR:
Defendant/Appellant – Caleb K. Aguillard

THIBODEAUX, Chief Judge.

This case arises from Kaitlyn LeBouef’s1 (LeBouef) First Amended and

Supplemental Petition for Divorce pursuant to Louisiana Civil Code Article 103(5)

with Minor Child seeking incidental relief pursuant to La.R.S. 9:372. Caleb K.

Aguillard2 (Aguillard) appeals the trial court’s judgment granting a protective order

to his former spouse, LeBouef, and asserts a Peremptory Exception of Res Judicata

pursuant to La.Code Civ.P. art. 2163 and La.R.S. 13:4231. For the following

reasons, we deny Aguillard’s Peremptory Exception of Res Judicata and affirm the

trial court’s judgment.

I.

ISSUES

We must decide:

(1) whether LeBouef’s action is barred by res
judicata;

(2) whether the trial court abused its discretion by
granting a permanent injunction in favor of
LeBouef;

(3) whether the trial court committed an error by
failing to apply an adverse inference against
LeBouef;

(4) whether the trial court committed a legal error by
considering evidence not in the record of an
October 22, 2019 hearing;

(5) whether the trial court committed legal error by
granting relief that was not procedurally
available to LeBouef; and

1
Formerly Kaitlyn LeBouef Aguillard.
2
Aguillard, an attorney, has represented himself throughout these proceedings.

(6) whether the trial court’s order is
unconstitutional.

II.

FACTS AND PROCEDURAL HISTORY

LeBouef and Aguillard were married in February 2017 and had one

child, J.F.A.,3 born on September 26, 2017. On November 16, 2018, LeBouef filed

for divorce under La.Civ.Code art. 102.4 In her petition, LeBouef requested that the

parties be awarded joint custody of the child with her being designated as the

domiciliary parent and with Aguillard having reasonable supervised visitation

pending completion of a hair-follicle drug test screening and evaluation for

substance abuse. LeBouef also sought child support, exclusive use of the family

home, and other incidental requests.

Aguillard filed an answer and reconventional demand on December 4,

2018, requesting the parties be awarded joint custody of the child with him having

frequent visitation. In addition to other incidental requests, Aguillard sought

exclusive use of the family home; interim spousal support; issuance of a temporary

restraining order (TRO) prohibiting LeBouef from alienating any community assets,

borrowing against or changing beneficiaries of life insurance policies; and issuance

of a TRO against LeBouef pursuant to La.R.S. 9:372.1, prohibiting harassment

through direct or indirect contact with Aguillard’s family or former family members.

The parties signed a Consent Judgment on March 1, 2019, settling

issues concerning the use of the family home, child support, interim spousal support,

3
Initials are used to ensure the confidentiality of minors. Uniform Rules—Courts of
Appeal, Rule 5-2.
4
The parties are now divorced by judgment dated November 15, 2019.

2

and separation of community property. On March 6, 2019, the parties also entered

into a Stipulated Joint Custody Implementation Plan and a Community Property

Partition Agreement, and a Judgment of Partition was signed by the trial court.

After the hearing officer conference on May 2, 2019, LeBouef filed a

Petition for Protection from Abuse pursuant to La.R.S. 46:2131-2143, charging

Aguillard with domestic abuse. LeBouef alleged physical abuse, sexual abuse,

stalking on social media, and verbal intimidations, which included Aguillard

threatening to accuse LeBouef of physically abusing A.E.A. and N.K.A.5 LeBouef

was granted an ex parte TRO and the matter was scheduled for conference before a

hearing officer. See La.R.S. 46:2135(A) and (I). After Aguillard was ordered to

show cause why the TRO should not be converted to a protective order, he obtained

an order to forego a hearing before a hearing officer.

Trial on LeBouef’s Petition for Protection from Abuse was held on June

28, 2019 and July 9, 2019. During trial, LeBouef presented testimony from her

father, Bernard LeBouef; two officers from the Eunice Police Department,

Lieutenant Michael Dunn and Officer Jack Ardoin; and a licensed social worker,

Jennifer Glasscock.

Lieutenant Michael Dunn worked with Aguillard at the Eunice Police

Department. Lieutenant Dunn testified that he never personally witnessed Aguillard

threaten LeBouef, nor did he recall ever being contacted by LeBouef to report

Aguillard being violent or threatening violence.

5
A.E.A. and N.K.A. are the minor children from Mr. Aguillard’s previous marriage.

3

On cross-examination, Lieutenant Dunn was asked whether he trusted

Aguillard to carry a loaded fireman when they worked together on a daily basis.

Lieutenant Dunn answered, “Up to a certain point[.]”

On re-direct examination, Lieutenant Dunn clarified his answer,

testifying he did not fully trust Aguillard because of a theft that occurred and his

opinion Aguillard was intoxicated at work. Lieutenant Dunn estimated it was May

2018 when Aguillard was told to voluntarily resign from the Eunice Police

Department in lieu of criminal charges.

Officer Jack Ardoin testified he also worked with Aguillard at the

Eunice Police Department. He recalled going to LeBouef’s residence in November

2018, and advising LeBouef to contact the Eunice City Marshal’s Office if she

became concerned with Aguillard’s behavior upon his return home from inpatient

rehab in Mississippi. Officer Ardoin recalled LeBouef being fearful. He was also

called to LeBouef’s residence only a week earlier, after LeBouef’s father reported a

suspicious package was found in her mailbox.

On cross-examination, Officer Ardoin acknowledged there was no

evidence linking Aguillard to the suspicious package. He also testified he never

witnessed Aguillard commit domestic violence, and he acknowledged Aguillard

advocated for victims of domestic violence in his job as a police officer. Officer

Ardoin and Aguillard attended the police academy together, and Aguillard held the

position of class president.

On re-direct examination, Officer Ardoin acknowledged a movement

to impeach Aguillard from the position of class president. However, he did not recall

on what grounds individuals sought to remove Aguillard.

4

Jennifer Glasscock was accepted by the trial court as a licensed clinical

social worker with the ability to treat domestic violence victims. LeBouef began

seeing Ms. Glasscock on August 2, 2018, for marriage counseling. Ms. Glasscock

testified that LeBouef told her Aguillard had choked her, and she was fearful of him.

Ms. Glasscock diagnosed LeBouef with acute stress disorder, exhibiting symptoms

of overwhelming fear, anxiousness, depression, and fear of harm, both physical and

psychological. She opined LeBouef was a victim of domestic violence and

explained the abuse affected LeBouef’s sense of worth, giving her a sense of

powerlessness, helplessness, and overwhelming fear. She observed LeBouef had

difficulty falling asleep and staying asleep, decreased appetite, and a sense of guilt

which she testified was a result of gaslighting. Ms. Glasscock defined gaslighting

as:

A psychological form of abuse in which the perpetrator
places seeds of doubt and insecurity in the victim and
turning – turning reality into – into a falsehood, redirecting
with lies and manipulation, intimidation through these
methods and leaving the victim unsure, uncertain, insecure
about what is – what is real, what is true.

According to Ms. Glasscock, her treatment has focused on stabilizing LeBouef’s

sense of safety and helping her with managing panic attacks.

On cross-examination, Ms. Glasscock testified it is her job to treat

claims of abuse; it is not her job to substantiate claims of abuse. Ms. Glasscock

acknowledged LeBouef has anger issues, but also noted LeBouef demonstrated a

self-awareness thereof. Also, Ms. Glasscock testified she found LeBouef’s anger to

be a natural human response to the sense of powerlessness and to being

overpowered.

5

LeBouef’s father, Bernard, testified that LeBouef told him of three

incidents of Aguillard’s abuse. The first occurred when Aguillard choked LeBouef

and the second occurred when Aguillard hit LeBouef and left a bruise on her leg.

He stated Aguillard called him the morning after hitting LeBouef. He was crying,

claiming self-defense, and professing remorse. Mr. Bernard testified the third

instance of abuse LeBouef reported to him was the first time Aguillard sexually

assaulted her.

During her testimony, LeBouef recounted several incidents of abuse

she alleged happened during her twenty-one-month marriage to Aguillard. The trial

court also accepted excerpts from LeBouef’s handwritten journal, wherein she

memorialized her relationship with Aguillard. According to LeBouef: on March

14, 2017, within a month of their marriage, Aguillard grabbed her by the throat,

immobilized her, and screamed in her face; on November 13, 2017, before she was

fully recovered from child birth in September 2017, Aguillard forcibly restrained

and sexually assaulted her; on November 23, 2017, Aguillard forced her to have sex;

on May 2, 2018, Aguillard used his foot to kick LeBouef and their infant out of bed

because he was awakened by the infant’s cries to be fed; on June 24, 2018, Aguillard

struck LeBouef’s upper right arm with his fist while she held their sleeping infant;

and on July 23, 2018, Aguillard struck LeBouef with his open palm on LeBouef’s

right thigh. LeBouef explained, “I swatted his right arm like, ‘Oh, boy, be quiet,’

something along those lines and he lost it and as hard – as he as hard as he could, he

hit me with an open hand on my leg and knocked the wind out of me.” LeBouef

testified Aguillard began blaming her, claiming she hit him in the face, claiming he

recorded her admitting she hit him first, and bragged that no one would believe her

because he is friends with the cops and the city judge, and his father is an attorney.

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LeBouef photographed her leg and sent a copy of the picture to a friend. The

photograph was introduced into evidence.

Twelve days later, on August 4, 2018, LeBouef called Aguillard’s

parents to pick him up because, for the second time in a matter of months, he had

been terminated from his job. Aguillard was brought to an inpatient rehabilitation

center while his two children, A.E.A. and N.K.A., remained with LeBouef. LeBouef

brought A.E.A. and N.K.A. to Aguillard’s parents’ home before she filed for divorce

on November 16, 2018.

LeBouef testified Aguillard was often intimidating. He would regularly

say, “I am the law,” remind her of his status as an attorney and a police officer, and

display weapons, i.e., guns, knives, and swords, to frighten her. She recalled an

argument when Aguillard pointed a loaded gun just above her head and laughed

when she became silent. Aguillard also reportedly boasted it would be futile for

LeBouef to report his bad behavior because he knew everyone, his family had clout

in the community, and she would never be believed.

LeBouef felt she was being watched by Aguillard. She testified that

during their marriage, Aguillard created fake social media accounts to follow both

his ex-wife, with whom Aguillard had ongoing custody issues concerning A.E.A.

and N.K.A., and his ex-wife’s boyfriend, John Chatman. LeBouef suspected

Aguillard was behind her recent receipt of multiple friend requests on social media.

She also suspected Aguillard attempted to access her Apple account in late-May

2019. LeBouef received an email from Apple Support, notifying her of unusual

activity on her Apple account. She had not released her Apple ID or password to

anyone other than him. In January 2019, LeBouef saw Aguillard watching her while

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he drove slowly past her home. She stated she was fearful of Aguillard’s behavior

to the point that she moved back into her parents’ home with J.F.A.

Under cross-examination, LeBouef conceded there had been no

physical abuse by Aguillard since their physical separation on August 4, 2018;

however, she maintained Aguillard stalked and harassed her since their separation.

LeBouef denied being comfortable with Aguillard and repeatedly meeting him with

no one else present.

When questioned why she agreed to sign the Consent Judgment in

March 2019, LeBouef testified she did so because Aguillard’s drug screenings were

negative and because her attorney advised “I was not going to be able to keep you

[Aguillard] from seeing your daughter,…unfortunately, it would take [J.F.A.]

physically being harmed[.]” Next, questioning LeBouef’s motive for filing a

petition for protection in May 2019, Aguillard asked, “What happened in March

[2019] that made your attitude toward me radically change?” LeBouef denied filing

her petition for protection in retaliation, stating Aguillard began in January 2019

declaring his children had been abused by LeBouef while he was not living at home

from August to November 2018. LeBouef also denied she was told by Ms.

Glasscock to file her petition for protection. LeBouef’s counsel objected when

Aguillard asked, “It sounds like you filed a Petition for Protection from Abuse after

therapy and what you say you remember and not because of anything that’s been

going on at the time?” The trial court announced:

Here is what the Court takes from what’s been said so far.
What she said was she didn’t realize the problem that she
had until she went through therapy. The therapist helped
her to realize what was going on in her life and it was at
that point she decided to file. That’s what the Court’s
finding is and I’ll adopt that as my finding so far based
upon the evidence that I’ve heard.

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Finally, Aguillard addressed LeBouef’s journal, primarily focusing on

a discrepancy between LeBouef’s petition for protection, which alleged Aguillard

choked LeBouef on March 14, 2017. Aguillard suggested LeBouef manufactured

the notebook and changed the date of the incident after he pointed out he was

physically incapable of mistreating LeBouef in this manner because he had open

heart surgery on February 10, 2017. LeBouef explained she simply misstated the

date because she did not have the journal with her when she wrote the allegations in

her petition for protection. She insisted that a month after surgery, Aguillard was

physically capable of normal activities.

After the hearing, the trial court granted an 18-month Protective Order

in LeBouef’s favor. A standard LPOR6 9 form Order of Protection was signed by

the trial court on July 10, 2019.

Aguillard filed a devolutive appeal. This Court affirmed the trial

court’s judgment and concluded that a reasonable factual basis existed that

LeBouef’s charges of physical, sexual, and psychological abuse at the hands of

Aguillard were supported by the record. Aguillard v. Aguillard, 19-757 (La.App. 3

Cir. 7/8/20), ___ So.3d ___.

On July 15, 2019, LeBouef filed an amending and supplemental

petition for divorce seeking, among other relief, a permanent injunction pursuant to

La.R.S. 9:372. On October 22, 2019, a hearing was held on the merits of LeBouef’s

request for a divorce and the permanent injunction. The trial court granted

LeBouef’s cause of action for divorce and a permanent injunction pursuant to

La.R.S. 9:372.

6
LPOR is the acronym for Louisiana Protective Order Registry.

9

On November 15, 2019, the trial court signed a standard LPOR Order

of Protection in connection with the ruling. Aguillard thereafter devolutively

appealed the issuance of the second order of protection under La.R.S. 9:372.

III.

STANDARD OF REVIEW

A trial court is granted wide discretion in the issuance of protective

orders. Ned v. Laliberte, 18-999 (La.App. 3 Cir. 6/26/19), 277 So.3d 517. A court

of appeal reviews the issuance of domestic abuse protective orders for abuse of the

trial court’s discretion. Fontenot v. Newcomer, 10-1530, 10-1531 (La.App. 3 Cir.

5/4/11), 63 So.3d 1149. The trial court’s finding of fact, including its assessment of

the weight of the evidence, evaluation of the demeanor of the witnesses, and

credibility determination, may not be disturbed on appeal absent manifest error.

Craig v. Bishop, 19-166 (La.App. 3 Cir. 10/23/19), 283 So.3d 521; Cummings v.

Bishop, 19-168 (La.App. 3 Cir. 10/23/19), 283 So.3d 507. To reverse the trial court’s

factual determination, the appellate court must find from the record that a reasonable

factual basis does not exist for the finding of the trial court, and that the record

establishes the finding is clearly wrong. Rabalais v. Nash, 06-999 (La. 3/9/07), 952

So.2d 653. “Where the [fact-finder’s determinations] are reasonable, in light of the

record viewed in its entirety, the court of appeal may not reverse. Even where the

court of appeal is convinced that it would have weighed the evidence differently to

reach a different result[.]” Id. at 657.

However, “when a trial court applies incorrect legal principles and these

errors materially affect the outcome of the case and deprive a party of substantial

rights, legal error occurs.” Vidrine v. Vidrine, 17-722, p. 8 (La.App. 3 Cir. 5/2/18),

10

245 So.3d 1266, 1274 (citing Evans v. Lungrin, 97-541 (La. 2/6/98), 708 So.2d 731).

When a trial court commits legal error, “the manifest error standard is no longer

applicable, and, if the record is otherwise complete, the appellate court should make

its own independent de novo review of the record and determine a preponderance of

the evidence.” Evans, 708 So.2d at 735.

IV.

LAW AND DISCUSSION

Peremptory Exception of Res Judicata:

Whether LeBouef’s action is barred by res judicata.

On August 5, 2020, Aguillard filed a Peremptory Exception of Res

Judicata with this court pursuant to La.Code Civ.P. art. 2163 and La.R.S. art.

13:4231. However, the specific wording of La.R.S. 46:2134(E) negates Aguillard’s

argument and addresses the issue of res judicata directly.

Louisiana Revised Statutes 46:2134(E) (emphasis supplied) states in

relevant part:

If a suit for divorce is pending, any application for a
protective order shall be filed in that proceeding and shall
be heard within the delays provided by this Part. Any
decree issued in a divorce proceeding filed subsequent to
a petition filed or an order issued pursuant to this Part may,
in the discretion of the court hearing the divorce
proceeding, supersede in whole or in part the orders issued
pursuant to this Part. Such subsequent decree shall be
forwarded by the rendering court to the court having
jurisdiction of the petition for a protective order and shall
be made a part of the record thereof. The findings and
rulings made in connection with such protective orders
shall not be res judicata in any subsequent proceeding.

Here, the suit for divorce was pending when LeBouef filed an amending and

supplemental petition for divorce subsequent to the trial court’s order of Title 46

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protection. LeBouef’s amending and supplemental petition for divorce sought a

second injunction for protection under La.R.S. 9:372. It was within the trial court’s

discretion to grant the second injunction and supersede the first injunction ordered.

Therefore, the July 15, 2019 amending supplemental petition for

divorce seeking a second injunction prohibiting abuse cannot be subject to res

judicata with respect to the October 22, 2019 divorce proceeding. The trial court

had the authority to grant the second injunction according to the specific language

of La.R.S. 46:2134(E).

However, we choose to buttress our conclusion of the directive of

La.R.S. 46:2134(E), by examining the assertions and merits of Aguillard’s exception

of res judicata. Aguillard argues that LeBouef’s amending petition attempts to

relitigate the issue of protection from abuse based upon the same alleged facts,

information and evidence that LeBouef alleges were in existence, and litigated at the

time of the first trial on her request for a Title 46 protective order. Further, Aguillard

alleges that LeBouef’s second protective order pursuant to La.R.S. 9:372 is founded

on the same alleged facts, demands the same thing, and is between the same parties

as the prior cause of action for her first protective order. We disagree.

The Title 46 protective order and the Title 9 protective order are not

demanding the same thing. The Title 9 protective order is a different cause of action.

Title 46 is a remedy in law, but it is preliminary and expires on January 10, 2021.

Title 9 is different because it is permanent, i.e., it does not expire.

Moreover, Title 9 and Title 46 are different because of who they

provide protection to. Title 9 grants an injunction prohibiting a spouse from

physically or sexually abusing the other spouse or a child of either of the parties.

Whereas Title 46 grants an injunction for protection to anyone who has a particular

12

relationship to each other; it is not limited to marital status. In this case, Title 9 is

the proper injunction to be sought, LeBouef and Aguillard were spouses at the time

of LeBouef’s demand for protection under Title 9.

Thus, Aguillard’s peremptory exception of res judicata is hereby

denied.

Whether the trial court abused its discretion by granting a
permanent injunction in favor of LeBouef.

La.R.S. 9:372(A) states, “In a proceeding for divorce, a court may grant

an injunction prohibiting a spouse from physically or sexually abusing the other

spouse or a child of either of the parties.” The provisions of the statute contain no

specification of the applicable burden of proof, or what showing at a hearing on the

merits is necessary in order to obtain relief. However, we do not agree with

Aguillard’s assertion that the requirements of La.Code Civ.P. art. 3601 should be

applied. Article 3601 addresses issues other than spousal abuse during the pendency

of the marriage.

Aguillard argues that the trial court abused its discretion because it

applied the wrong legal standard to determine if LeBouef was entitled to the

permanent injunction under Title 9. Aguillard asserts that LeBouef should have to

prove a “need” for an injunction to issue in the form of immediate and irreparable

harm; and that she must prove it through evidence other than uncorroborated

testimony. In support of this assertion, Aguillard cites Green v. Green, 19-37

(La.App. 5 Cir. 12/11/19), 286 So.3d 1103. In Green, the fifth circuit opined that

the trial court was justified in holding a petitioner under La.R.S. 9:372.1, after a

divorce has been granted, to the standard for issuance of an injunction found at

La.Code Civ.P. art. 3601. However, Green is distinguishable because the parties in

13

Green had been divorced for over a year at the time the petitioner requested a

permanent injunction under Title 9. There was no proceeding for divorce pending.

Therefore, the showing of immediate and irreparable harm was necessary. Here,

LeBouef requested relief under Title 9 during the pendency of the divorce

proceedings. The trial court found that LeBouef carried her burden of proof through

the evidence provided.

We do not agree with Aguillard’s assertion that LeBouef should be held

to the “immediate and irreparable harm” standard. Therefore, we find that the trial

court did not abuse its discretion in granting a permanent injunction in favor of

LeBouef.

Whether the trial court committed an error by failing to apply an
adverse inference against LeBouef.

While appellate courts in Louisiana can exercise plenary and

supervisory powers, the scope of our appellate consideration is generally limited to

specifications of errors and issues that were presented to the trial court “unless the

interest of justice clearly requires otherwise.” This issue was never presented to the

trial court and the “interest of justice” caveat does not apply in this case. We,

therefore, decline to address this issue See Rule 1-3 Uniform Rules—Courts of

Appeal.

Whether the trial court committed a legal error by considering
evidence not in the record of the October 22, 2019 hearing.

Aguillard asserts that the trial court committed a legal error when it

considered evidence not in the record at the October 22, 2019 hearing. However,

we disagree. Under La.Code Evid. art. 201, a court may take judicial notice of

adjudicative facts, whether requested or not. A judicially-noticed fact must be one

14

not subject to reasonable dispute in that it is either “generally known within the

territorial jurisdiction of the trial court;” or “capable of accurate and ready

determination by resort to sources whose accuracy cannot be reasonably

questioned.” La.Code Evid. Art. 201. Aguillard argues that the trial court did not

provide notice of its use of judicial notice. However, La.Code Evid. art. 201 does

not require the trial court to give notice that it will take judicial notice of evidence

provided at previous hearings.

It is clear from the trial court record that LeBouef presented evidence

of at least eight separate incidents of assault against her during her marriage to

Aguillard. The trial court had previously found evidence to support the issuance of

a temporary injunction in favor of LeBouef against Aguillard. Furthermore, the

previous hearings were heard by the judge presiding over the October 22, 2019,

divorce proceeding and injunction hearing. The trial court had the authority to take

judicial notice of the evidence previously presented and part of the public record.

Whether the trial court committed legal error by granting relief
that was not procedurally available to LeBouef.

A hearing on the merits of LeBouef’s amended petition for divorce and

an injunction pursuant to La.R.S. 9:372 was conducted on October 22, 2019. After

addressing the related matters, the trial court took up the cause of action for divorce

and granted relief. Aguillard argues at that point, there was no longer a “proceeding

for divorce” within the meaning of La.R.S. 9:372 and the parties were no longer

“spouses” by virtue of the trial court granting the divorce seconds before discussing

the injunction. Aguillard cites Lawrence v. Lawrence, 02-1066 (La.App. 3 Cir.

3/5/03), 839 So.2d 1201, to support his argument. However, the factual timeline of

Lawrence does not coincide with the factual timeline of this suit. In Lawrence, the

15

parties were divorced for over three years before the trial court granted the

permanent injunction. The divorce proceeding in Lawrence had concluded at the

time the former Mrs. Lawrence filed for the permanent injunction.

Conversely, LeBouef filed for the permanent injunction during the

pendency of the divorce proceeding. The petition for divorce pursuant to

La.Civ.Code art. 103(5) and the judgment of divorce in this case included the

language required to continue the injunction permanently. Aguillard was given

proper notice of LeBouef’s intent to seek the Title 9 injunction which was later

discretionarily granted by the trial court.

Therefore, we find that Aguillard’s application of the procedural

language in La.R.S. 9:372 to be incorrect. The trial court was within its discretion

to grant the Title 9 injunction.

Whether the trial court’s order is unconstitutional.

Aguillard argues that the order of the trial court unconstitutionally

infringes upon his inalienable rights. Specifically, he asserts that the order should

be struck down as unconstitutional. Every statute is presumed constitutional and the

court must uphold the constitutionality of a statute if it is reasonable to do so.

Interstate Oil Pipe Line Co. v. Guilbeau, 217 La. 160, 46 So.2d 113 (La.1950).

Although Aguillard states in brief that he is “not arguing the constitutionality of a

statute” we opine that he is. Aguillard is, however, not following the proper

procedure for attacking the constitutionality of a statute.

In Olivedell Planting Co. v Town of Lake Providence, 217 La. 621, 632,

47 So.2d 23, 27 (La.1950), the Supreme Court of Louisiana stated, “[T]he burden of

proof is on the litigant, who asserts to the contrary, to point out with utmost clarity

wherein the Constitution of the State or Nation has been offended by the terms of

16

the statute attacked.” According to Vallo v. Gayle Oil Co., Inc., 94-1238 (La.

11/30/94), 646 So.2d 859, a party must raise the unconstitutionality of a statute in

the trial court, then the unconstitutionality of the statute must be specifically pleaded

and the grounds outlining the basis of unconstitutionality must be particularized.

Furthermore, the constitutionality of a statute cannot be considered for the first time

on appeal. Stubbs v. Bain, 173 La. 544, 138 So. 96 (La.1931). Aguillard has not

pled the constitutionality of the statute nor the trial court’s order in the trial court.

The first time the issue of constitutionality was addressed was in Aguillard’s brief

to this court.

Therefore, we find that Aguillard has not followed proper procedure for

attacking the constitutionality of La.R.S. 9:372.

V.

CONCLUSION

For the foregoing reasons, the trial court did not abuse its discretion in

granting LeBouef’s request for permanent injunction pursuant to La.R.S. 9:372. We

find a reasonable factual basis exists for the finding of the trial court that LeBouef’s

charges of physical, sexual, and psychological abuse by Aguillard are reasonably

supported.

Therefore, the judgment of the trial court is affirmed. The costs of this

matter are assessed to the Appellant, Caleb K. Aguillard.

EXCEPTION OF RES JUDICATA DENIED; JUDGMENT

AFFIRMED.

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