Kristin Usner Norton Versus Taylor Montgomery Norton ( 2021 )

KRISTIN USNER NORTON NO. 21-CA-212
VERSUS FIFTH CIRCUIT
TAYLOR MONTGOMERY NORTON COURT OF APPEAL
STATE OF LOUISIANA
ON APPEAL FROM THE TWENTY-FOURTH JUDICIAL DISTRICT COURT
PARISH OF JEFFERSON, STATE OF LOUISIANA
NO. 802-741, DIVISION "C"
HONORABLE JUNE B. DARENSBURG, JUDGE PRESIDING
December 22, 2021
SUSAN M. CHEHARDY
CHIEF JUDGE
Panel composed of Judges Susan M. Chehardy,
Fredericka Homberg Wicker, and Marc E. Johnson
AFFIRMED
SMC
FHW
MEJ
COUNSEL FOR PLAINTIFF/APPELLANT,
KRISTIN USNER NORTON
Phillip A. Wittmann
Brooke C. Tigchelaar
DEFENDANT/APPELLEE,
TAYLOR MONTGOMERY NORTON
In Proper Person
CHEHARDY, C.J.
In this domestic dispute, plaintiff, Kristin Usner Norton (“Kristin”), appeals
the trial court’s January 4, 2021 judgment in favor of defendant, Taylor
Montgomery Norton (“Taylor”), granting him an immediate divorce pursuant to
La. C.C. art. 103(4), having found that Kristin physically abused him during the
marriage. For the following reasons, we affirm the trial court’s judgment.
FACTUAL BACKGROUND AND PROCEDURAL HISTORY
Kristin Norton and Taylor Norton were married on December 27, 2003, in
New Orleans, Louisiana, and made their home in Jefferson Parish (Metairie). Four
children were born of the marriage; namely, Taylor Montgomery Norton, II
(“T2”), Graham Sidney Norton, Addison Eileen Norton, and Alexis Estelle Norton.
On January 2, 2020, Kristin filed a petition for divorce and ancillary matters,
requesting a no-fault divorce pursuant to La. C.C. art. 102, on the basis that she
intended to live separate and apart from Taylor for the requisite amount of time (a
period in excess of 365 days) before obtaining this divorce. Taylor filed an answer
and reconventional demand on January 23, 2020, also seeking a divorce from
Kristin under the provisions of La. C.C. art. 102. In their respective pleadings
seeking a no-fault divorce, each party alleged that other spouse was guilty of fault
in the breakup of the parties’ marriage, yet neither party set forth the specific
conduct constituting the other spouse’s alleged fault.
On April 29, 2020, Taylor filed an amended and supplemental
reconventional demand seeking an immediate divorce pursuant to La. C.C. art.
103(4), alleging that Kristin physically abused him during the marriage. In
particular, Taylor identified two instances that occurred, one on September 24,
2019, and the other on December 24, 2019, where he claims he was physically
abused by Kristin.
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A hearing on the merits of Taylor’s demand for a La. C.C. art. 103(4)
divorce was held before the trial court on December 29, 2020. Three witnesses
testified at the hearing: Troy Norton, Taylor Norton, and Kristin Norton.
Testimony of Troy Norton
Troy Norton, Taylor’s brother, testified that during the early hours of
December 25, 2019, he received a call from Kristin wherein she told him that she
and Taylor had gotten into an argument and she was afraid that Taylor was going
to call the police. Kristin asked Troy if she could come to his house because she
had nowhere else to go. According to Troy, when Kristin arrived at approximately
12:30 a.m., her intoxication “was very obvious,” as she was “stumbling a little bit
… and she was very emotional” and “mumbling her words.” Troy explained that
the extended family had gathered earlier that evening at his parents’ home for a
Christmas Eve celebration, where both Kristin and Taylor had been drinking.
Troy testified that Kristin remained at his home for approximately an hour
and a half. While there, Kristin told Troy that she and Taylor had been arguing in
front of the kids and that “she struck [Taylor]” after becoming angry at something
he said. Kristin told him that after the argument, Taylor called the police, who
were on their way to the Nortons’ house, and she left because she did not want to
get arrested. Troy testified that when it came time for Kristin to leave, he and his
wife sent Kristin home in an Uber because they believed she was too intoxicated to
drive. He later sent Kristin a text to make sure that she was all right. According to
Troy, Kristin made no mention to him that Taylor had abused her in any way, that
Taylor was the aggressor, that Taylor had attempted to have sex with her, or that
Taylor had attempted to rape her in any fashion.
Troy testified that when he spoke to Taylor in the following days, he told
Taylor about Kristin having admitted to him that she physically struck Taylor
during the Christmas Eve argument. He stated that Taylor later showed him
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photographs of his arms, which Troy testified showed scratches and claw marks
consistent with the injuries Taylor had previously described as having been
inflicted by Kristin during the argument. Troy stated that during previous
discussions, Taylor told him about other instances where Kristin was intoxicated,
an argument ensued, and Kristin had physically hit or slapped him. According to
Troy, Kristin never attempted to defend her actions to him by stating that she was
acting in self-defense or that she accidentally struck Taylor. To the contrary,
Kristin specifically told Troy that she struck Taylor on “purpose because she was
provoked by some of his words spoken [not by some physical action by Taylor] in
front of the children.”
Troy conceded on cross-examination that once Kristin filed for divorce in
January 2020, he called her to tell her that he was sad that her marriage to Taylor
was ending. He stated that over the past several years, he had observed Taylor and
Kristin arguing more frequently and “when that happened it was usually as a result
of their intoxication.” He stated that on separate occasions, both Kristin and
Taylor expressed concern to him about the other’s drinking alcohol to excess.
Troy stated that Taylor also conveyed to him his concern regarding Kristin’s use of
the drug, Lexapro, especially when she drank alcohol while also taking the drug.
Troy testified that while he never personally witnessed Kristin inflicting
physical abuse upon Taylor, in addition to telling Troy about Kristin’s physical
abuse on Christmas Eve, Taylor did describe to him previous instances where he
was physically abused by Kristin, which mostly occurred during arguments where
Kristin was intoxicated. Troy also recalled that Taylor complained to him on
multiple occasions that he was tired of Kristin physically abusing him and
“behaving that way.” Troy testified that, based on his prior discussions with
Taylor, he believed that Kristin’s use of Lexapro, Taylor’s suspicion of Kristin’s
infidelity, and Kristin’s physical abuse of Taylor when she was intoxicated, were
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all “contributors” to Taylor’s filing the amended and supplemental reconventional
demand seeking a fault-based divorce from Kristin.
Regarding the alleged altercation that took place between Taylor and Kristin
on September 24, 2019, Troy testified that he had no knowledge or recollection of
the incident.
Testimony of Taylor Montgomery Norton
At the hearing, Taylor explained that while he initially filed for a
reconventional demand seeking a La. C.C. art. 102 divorce, because there was not
going to be a reconciliation between the parties, he filed for the La. C.C. art.
103(4) divorce because he could obtain a divorce sooner. He testified that he was
not going to return to a relationship where he was being physically abused, and that
he wanted a divorce “sooner rather than later.”
Taylor testified that Kristin physically abused him on multiple occasions
during their marriage. He claimed that “[s]he had a tendency to become irate and
[they] would get into word matches and whenever [Kristin] felt like she couldn’t
get her words to mend, then she would [physically] lash out” at him. According to
Taylor, Kristin would typically claw at and/or slap his face and, occasionally, his
arms. Kristin also often cursed at him, which only seemed to be getting
progressively worse over time, particularly with her use of Lexapro. Taylor
testified that he finally reached the point that he did not want Kristin to abuse him
anymore, especially in front of the children. Taylor denied that he ever physically
or verbally abused Kristin.
With regards to the final physical altercation between the parties that
occurred on December 24, 2019, Taylor stated that he, Kristin, and the children
had previously been at a Christmas Eve celebration at his parents’ home. Although
he had been drinking that evening, he did not believe he was intoxicated or even
had a “buzz,” but testified that Kristin was “on her way [to] being intoxicated”
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because she was stumbling and slurring her speech. Taylor testified that they
arrived home from the party between 11:00 and 11:30 p.m. After putting cookies
and milk out for Santa, and putting the children to bed, he and Kristin went to their
bedroom. He asked Kristin if she wanted to be intimate; she did not. According to
Taylor, Kristin walked out of their bedroom into the boys’ room, and crawled into
bed with their eldest son, Taylor (also referred to as “T2”). Taylor claimed that
when he was near the boys’ room, he could hear Kristin talking negatively about
him to T2, including telling T2 that Taylor was a horrible person. Taylor stated
that he proceeded into the boys’ room, and when he attempted to tell T2 to “relax
[and] go to sleep” and that it was “all going to be okay,” Kristin became irate and
physically attacked him. Taylor explained that as he leaned into T2 and attempted
to put his arm around him, Kristin “reach[ed] out [and] grab[bed his] face … with
her claws …” She then dug her fingernails into his arms with such force that he
could not pull his arms away. According to Taylor, Kristin grabbed and clawed
him in front of T2, who was next to her on the top bunk, and Graham, who was in
the bottom bunk. According to Taylor, when he was able, he backed away and
told Kristin that he was “not taking this anymore.”
Taylor testified that because Kristin was intoxicated and irate, and he
believed things would only escalate if she did not calm down, he called the police
thinking they would be able to stop her escalating erratic behavior. Once Taylor
called the police, however, Kristin became even more irate, and left the house.
Taylor explained that while he did make a police report, which was admitted into
evidence for a limited purpose, he opted not to press charges against Kristin.
At the hearing, Taylor admitted into evidence photographs that he had taken
with his iPhone on the morning of December 25, 2019, approximately eight hours
after the altercation, which showed the “physical abuse inflicted upon [him] by
Kristin.” According to Taylor, the photographs showed the scratches or lacerations
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and abrasions that Kristin inflicted upon his arms when she “gashed” him with her
fingernails, “scratched [them] and then gripped in hard.”
Taylor also testified regarding another incident that occurred on September
24, 2019, where Kristin physically abused him. According to Taylor, on that
occasion Kristin arrived home intoxicated after spending several hours with
colleagues at Clancy’s restaurant and was “very belligerent” to him. Taylor stated
that Kristin appeared to be “upset at the world” and provoked an argument with
him in the presence of their four children, by slapping and clawing at his face with
both hands. Taylor admitted that in order to remove Kristin’s fingers from his
face, he used both hands to pull her forearms away, and then he restrained her
hands from continuing to attack his face and so that he could back away. Taylor
denied that he physically held Kristin down or intentionally bruised her. Taylor
denied that he threatened or provoked Kristin in any fashion before she attacked
him. He explained that he did not take photographs on that occasion as he did not
want to take a “selfie” of his face. He also did not call the police as he believed it
would have upset the children even more. Taylor introduced into evidence at the
hearing text messages exchanged between himself and Kristin on the day after the
altercation, which he alleged corroborated his testimony of the incident.1
Taylor also testified that while he did not like the fact that Kristin took
Lexapro, because he felt she would “lose a sense of love and feeling [and it] gave
her sort of [a] mean demeanor,” he especially did not like Kristin drinking alcohol
while also taking Lexapro. On those occasions, Taylor described Kristin as
becoming “mean and belligerent.” He described Kristin as becoming “more irate”
and “on edge” when she drank. According to Taylor, he noticed a progressive
1
In the text messages, Taylor asked Kristin if she could assure him that she would not physically
attack and claw his face in front of their children as it was unhealthy for them to see that. Without
denying that she physically attacked and clawed Taylor’s face, Kristin responded, “Please assure me you
will not physically hold me down and give me bruises.” Taylor replied, “I merely pried your hands off
my face and then held them open so that you would not pull my face.” He further said that he was truly
sorry if she got bruised in that process and that he truly loved her. Kristin did not respond further.
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change in Kristin over time, where she became erratic and would use curse words
when talking to him and/or the children.
Testimony of Kristin Usner Norton
Kristin testified that she filed for a La. C.C. art. 102 divorce because she was
tired of being a “victim of narcissistic abuse” by Taylor. She stated that whenever
Taylor would not get his way, he would rage and devalue her with verbal and
emotional abuse. She testified that he exerted his power and control over her by
forcing her to have sex against her will on a regular basis, and that this was a
pattern of behavior that, by the end of their marriage, made her no longer feel safe
in her own home. She claimed she walked on eggshells and at night, when Taylor
came home late and she heard the door beep, her anxiety rose because she knew
that he was going to force sex upon her. She stated that Taylor accused her of
things that were not true—i.e., infidelity, alcoholism, and that her use of Lexapro
made her incapable of feeling or knowing how to love other people—and that he
baited her—i.e., telling her that he made more money than her brother, who
happens to be a millionaire in Texas, and that she should “go back to the Westbank
where she belongs.”
Kristin described Taylor as a narcissist and one who “knows how to stay
calm and collected,” and claimed that he intimidated her. According to Kristin,
Taylor would come at her with words, and things would escalate to the point that
she could not take it anymore, and her response “would not be nice.” Kristin
denied that she was ever physically abusive of Taylor, as he is much larger than
she is, and that Taylor never complained to her that she was physically abusive
towards him. Kristin testified that Taylor repeatedly accused her of infidelity to
deflect his own indiscretions and affairs. She claimed that it was Taylor’s
continued baseless allegations of her infidelity that led her to tell him that she was
going to seek a divorce. When Taylor realized that she was serious, Kristin
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claimed that he threatened to financially destroy her and even threatened to go after
her pharmacy license.
Kristin testified that on December 15, 2019, she went to Taylor’s office and
told him that she planned to file for divorce. Although he did try to dissuade her
and recommended marriage counseling, Kristin told him that it was too late for
that. Later, on December 24, 2019, after going to Christmas Eve Mass and
enjoying family game night with their children, they went to Taylor’s parents’
home for a party, where “the alcohol was flowing.”
Kristin testified that when they returned home from the party, Taylor went to
bed and she stayed up reading a book to the children. After putting the girls to bed,
Kristin claimed that she and the boys put out the Santa toys. When finished, she
went to bed, and because she had already previously told Taylor on December 15
that she planned to file for divorce, she intended to go straight to sleep. However,
when she got into bed, Taylor attempted to have sex with her against her will, and
when she refused, Taylor went into a rage. Kristin testified that she felt like she
had to escape him so she first went into the children’s playroom and lied down on
the couch. She claimed Taylor followed her and began to verbally attack her, so
she went into her sons’ room and climbed into T2’s bunk, thinking Taylor would
leave her alone. Kristin stated that Taylor followed her, however, and continued to
verbally attack her accusing her of affairs in front of their son. Kristin testified that
it was such a traumatic experience that the only thing she could think to do was to
push Taylor’s face away in order to get him to stop saying inappropriate things in
front of their son.
At one point during her testimony, when asked directly by her counsel if she
“clawed” Taylor, Kristin admitted that she did, but denied that he was bleeding in
any way or that he sought medical attention:
Q. … [D]id you claw him?
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A. Yes. …
Q. I understand. Was he bleeding in any way?
A. No.
Q. And did he seek medical attention?
A. No.
Later during her testimony, however, Kristin denied that she “clawed”
Taylor, but claimed to have only attempted to push his face away. She also denied
having caused any injury to his arms. Instead, Kristin stated that when she reached
towards Taylor, he jumped back, “all cool, calm, and collected” and then he called
the police on her saying, “I’m going to get you on domestic abuse.” Kristin
claimed this whole thing was a set-up by Taylor because he knew she planned on
filing for divorce and he wanted leverage to file for divorce against her. No longer
feeling safe in her own home “because of Taylor attacking” her, Kristin testified
that she left the house and went to the home of Troy Norton, Taylor’s brother.
Kristin testified that when she got to Troy’s home, she explained to him
what happened; in particular, that Taylor had been verbally abusive to her. She
claimed that Troy’s reaction was very supportive. Although Kristin admitted that
she did not tell Troy that the reason Taylor had gotten mad in the first place was
because she refused to have sex with him, “[b]ecause that’s private information,”
she did tell Troy that she swung her arms to move Taylor away from her and her
son. She denied ever having told Troy that she slapped or struck Taylor. Kristin
also denied that she was intoxicated that night or that she took an Uber home from
Troy’s house because she was intoxicated. Kristin testified that she fled her house
that night because she was scared for her safety, not because she had physically
attacked Taylor or was running from the police. She claimed that instead of filing
her own police report giving her side of the story, her response was to file for
divorce as soon as she could, which she did only eight days later.
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As to the September 24, 2019 incident, Kristin testified that she had
attended a work dinner and, after arriving home at 10:00 p.m., she discovered the
kids were just eating dinner and that they had not done their homework. She
claimed she had learned that their seven-year-old twin daughters had been left
alone because Taylor failed to come home from work on time before their sons had
been picked up for soccer practice. Kristin stated that she also learned that Taylor
had failed to pick up T2, and that he had to go home from practice with a “new
stranger friend.” She claimed that upon learning all of this, she became upset and
went into their bedroom. Taylor followed her. Kristin admitted that, having had
enough, she did use her hand and “pushed his face,” but she denied that she
“clawed” Taylor’s face. Taylor then took her arms and pinned her wrists back onto
the bed, restraining her, while she struggled and they continued to yell at one
another. When he finally let her go, Kristin claimed that she told Taylor to get out
of the house and to go to his mother’s home [down the street]. According to
Kristin, while the children could hear them arguing that night, contrary to Taylor’s
version of the incident, the argument occurred behind closed doors and not in front
of the children. Kristin stated that her wrists were bruised and her chest was sore
for days thereafter. She claimed that the following morning she also learned that
Taylor had flushed her entire prescription for Lexapro down the toilet.
Despite having already testified that Taylor was not physically abusive
towards her during the marriage (only verbally abusive and intimidating), Kristin
stated that she recalled two specific instances where he had, in fact, been
physically abusive. First, was the September 24, 2019 incident, where he pinned
her down and bruised her wrists, and the second occurred in November 2015,
while the family was at their home in Mississippi. According to Kristin, in front of
the children, Taylor “literally held [her] and almost punched [her] …” and
physically pushed her out of the house and locked the doors. She claimed the
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children, who were inside and could see her through the windows out on the porch,
were told by Taylor not to let her back in the house even though she was begging
to get back in.
On cross-examination, Kristin conceded that she made no allegations of
physical abuse by Taylor in any of the pleadings she filed, but claimed that she
“chose the non-fault route cause [she] did not want to emotionally have to testify
[sic] some of the horrific moments in [the] years of [her] life.” She further
conceded that despite having filed numerous exceptions and affirmative defenses
to Taylor’s reconventional demand, nowhere did she ever claim “provocation” or
that she had acted in “self-defense.” She explained that she chose not do so
because she “did not want to file a fault divorce” and “was waiting to defend
[her]self in trial.”
Kristin testified that while Taylor “never cursed” her, he “has an art of how
to verbally and emotionally devalue you [using] words without cursing.” Kristin
denied having ever intentionally physically attacked Taylor, much less attacked
him in front of the children. She claimed that Taylor initially verbally attacked her
and that she merely responded by pushing his face away. Kristin also testified that
Taylor’s alleged concern about her mixing alcohol and Lexapro is unfounded
because “there is no drug interaction between alcohol and Lexapro.” Moreover,
despite her testimony of Taylor’s various affairs, Kristin claimed that she did not
have the money to hire a private investigator in order to prove the alleged affairs.
At the close of the hearing, the trial judge granted a divorce in favor of
Taylor pursuant to La. C.C. art. 103(4) finding that Kristin physically abused him
during the marriage. Specifically, in oral reasons, the trial court stated, in part:
Alright. Let me start by saying neither of you I find is
innocent in any of this. And I will say Ms. Norton I
believe you when you say that Mr. Norton inflicted
verbal abuse on you. I think you’re being truthful about
that. However, when someone puts verbal abuse on you
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it does not give you the right to become physical with
that person. Especially in front of the children. … So I
understand why you left the home when he called the
police. Because if you had not if you had been arrested
he would have to report that arrest and when you renew
your license. … But it does not give you the right to
become physical. And that’s when you know it’s time to
leave. When things become physical it is time to leave
because the physical altercation[s] start and they get
progressively worse. It appears that this is what
happened. September it wasn’t so bad. But came
December things got a little worse. And so with that said
I think there was a physical altercation. Definitely on the
24th of December and the 24th of September probably so.
But I am convinced that there was something physical
that went on. … So with that said, I’m going to grant the
103.4 divorce that was filed by Mr. Norton based on
physical abuse that occurred during the marriage.
A written judgment to this affect was signed on January 4, 2021. It is from
this judgment that Kristin timely filed the instant appeal.
ASSIGNMENTS OF ERROR
Although Kristin sets forth two assignments of error in her brief on appeal,
we find the sole issue for this Court’s review is whether the trial court erred in its
determination that Taylor proved by a preponderance of the evidence that Kristin
physically abused him during the marriage entitling Taylor to an immediate
judgment of divorce pursuant to La. C.C. art. 103(4). After a thorough review of
the record in its entirety, we find no manifest error in the trial court’s
determination, nor that the trial court’s judgment was legally wrong.
STANDARD OF REVIEW
On appeal, we review the trial court’s findings of fact under the manifest
error standard. Martin v. Trushyna, 19-79 (La. App. 5 Cir. 11/13/19), 283 So.3d
1083, 1086. The trial judge is vested with great discretion in weighing the
evidence and credibility. Id. Where there is a conflict in the testimony, reasonable
evaluations of credibility and reasonable inferences of fact should not be disturbed
upon review, even though the appellate court may feel its own evaluations and
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inferences are as reasonable. Rosell v. ESCO, 549 So.2d 840, 844-45 (La. 1989);
Dean v. Ramos Corp., 00-1621 (La. App. 5 Cir. 2/28/01), 781 So.2d 796, 803. The
issue to be resolved is not whether the factfinder was right or wrong, but whether
his conclusion was a reasonable one. Stobart v. State through Dep’t of Transp. &
Dev., 617 So.2d 880, 882 (La. 1993). Thus, where two permissible views of the
evidence exist, the factfinder’s choice between them cannot be manifestly
erroneous or clearly wrong. Id. To reverse a factfinder’s determination, the
appellate court must find from the record that a reasonable factual basis for the trial
court’s finding does not exist, and that the record establishes that the finding is
clearly wrong. Rabalais v. Nash, 06-999 (La. 3/9/07), 952 So.2d 653, 657; Martin,
283 So.3d at 1086. Where the factfinder's determination is 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. Rabalais, 952 So.2d at 657. The trial court
sitting as the trier of fact is in the best position to evaluate the demeanor of the
witnesses, and its credibility determinations will not be disturbed on appeal absent
manifest error. Pellerano v. Pellerano, 17-302 (La. App. 1 Cir. 4/12/19), 275
So.3d 947, 950, writ denied sub nom., Acosta v. Perllerano, 19-756 (La. 9/17/19),
279 So.3d 379. Thus, the trial court’s findings of fact, including its assessment of
the weight of the evidence, evaluation of the demeanor of the witnesses, and
credibility determinations, may not be disturbed on appeal absent manifest error.
Aguillard v. Aguillard, 19-757 (La. App. 3 Cir. 7/8/20), 304 So.3d 473, 484.
The manifest error standard of review also applies to mixed questions of law
and fact. Martin, 283 So.3d at 1086; A.S. v. D.S., 14-1098 (La. App. 4 Cir. 4/8/15),
165 So.3d 247, 254. When an issue is a strictly legal question, the de novo
standard of review is used. Id.21-CA-212 13
DISCUSSION
A divorce shall be granted on the petition of a spouse upon proof that the
other spouse has committed physical abuse during the marriage. La. C.C. art.
103(4).2 The petitioning spouse bears the burden of proving his claims of physical
abuse by a preponderance of the evidence. See Tidwell v. Tidwell, 49,512 (La.
App. 2 Cir. 11/19/14), 152 So.3d 1045, 1047. A finding of fault is an issue that
turns largely on evaluations of witness credibility. Noto v. Noto, 09-1100 (La.
App. 5 Cir. 5/11/10), 41 So.3d 1175, 1179; Schmitt v. Schmitt, 09-415 (La. App. 4
Cir. 12/16/09), 28 So.3d 537, 540. A trial court’s finding of fault in a domestic
dispute is a factual determination subject to the manifest error standard of review.
Barnett v. Barnett, 15-766 (La. App. 5 Cir. 5/26/16), 193 So.3d 460, 466, writ
denied, 16-1205 (La. 10/10/16), 207 So.3d 406. The trial court’s factual
determination regarding physical abuse by one spouse upon the other is entitled to
great weight on appeal and will not be disturbed unless manifest error is shown.
See McFall v. Armstrong, 10-1041 (La. App. 5 Cir. 9/13/11), 75 So.3d 30, 35;
Dufresne v. Dufresne, 08-215 (La. App. 5 Cir. 9/16/08), 992 So.2d 579, 586, writ
denied, 08-2843 (La. 12/17/08), 996 So.2d 1123.
In the case sub judice, Kristin challenges the credibility determinations made
by the trial court and alleges the trial court improperly determined, based on the
evidence presented, that she physically abused Taylor during the marriage. Kristin
maintains that the evidence Taylor presented did not rise to the level of physical
2
One of the main benefits of obtaining a fault-based divorce under La. C.C. art. 103(4) is that there
is no waiting period; the divorce is immediate. 2015 La. Sess. Law Serv. Act 221 § 4. Martin, 283 So.3d
at 1089. The second major benefit of a fault-based divorce is in the area of spousal support. A spouse
who is awarded a fault-based divorce pursuant to La. C.C. art. 103(4) or (5), or is determined by the court
to have been a victim of domestic abuse during the marriage is presumed to be entitled to final periodic
spousal support. Id. at 1090; La. C.C. art. 112(C). Also, when support is awarded after a judgment of
divorce based on domestic abuse, “the sum awarded may exceed one-third of the obligor’s net income
and may be awarded as a lump sum.” La. C.C. art. 112(D). This is a benefit that is not available for other
types of divorce. Id. Spousal support is not an issue in the instant case, however, as the parties stipulated
that they have equal earning capacity.
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abuse as that term is understood in Louisiana law and jurisprudence, but rather, the
trial court relied solely on Taylor’s self-serving testimony that she scratched him.
Kristin contends the trial court, by determining that she physically abused Taylor,
“expanded the definition of ‘abuse’ beyond what any other court has held to
constitute physical abuse and how the Legislature has defined and applied that
term.” In short, according to Kristin, had the trial court applied the proper legal
standard, she would have prevailed.
Louisiana Civil Code article 103(4) does not define “physical abuse,” nor do
the laws or jurisprudence addressing family violence or domestic abuse provide a
concrete definition or what actions would constitute “physical abuse” for purposes
of obtaining an immediate divorce pursuant to Article 103(4). Similarly, because
the article is relatively new, there is scant jurisprudence that has directly addressed
the evidence sufficient to support a finding of “physical abuse” in the context of an
Article 103(4) divorce.3
Nonetheless, Kristin argues that physical abuse can serve as a grounds for
fault for purposes of a fault-based divorce under Article 103, only if the fault
consists of serious misconduct and was the cause of the breakup of the marriage.
Specifically, Kristin contends that “although a single instance of physical abuse
may be sufficient to constitute fault for purposes of separation (or divorce) in
certain instances, this rule is inapplicable if there exists mutual fault by the parties
or if the fault/abuse at issue is the result of provocation on the part of the other
spouse.” Consequently, Kristin avers the trial court erred as a matter of law and
abused its discretion by finding that she was legally at fault in the breakup of the
marriage because the single scratch that she may have inadvertently inflicted upon
3
In 2014, No. 316, § 1, La. C.C. art. 103 was amended and added subsection (4), which provided
that “[t]he other spouse has physically or sexually abused the spouse seeking divorce or a child of one of
the spouses, regardless of whether the other spouse was prosecuted for the act of abuse.” In 2015, No.
221, § 1, La. C.C. art. 103(4) was again amended to add the language, “During the marriage, …”
21-CA-212 15
Taylor—which was done in self-defense and in direct response to his verbal abuse,
physical intimidation and provocative actions towards her—does not rise to the
threshold level of physical abuse under La. C.C. art. 103(4). Additionally, Kristin
argues that, because of the trial court’s statement that neither party was “innocent
in all of this”—which Kristin contends was tantamount to finding that the parties
were mutually at fault in the breakup of the marriage—the trial court was
precluded from granting a fault-based divorce in favor of Taylor.4 We disagree.
The question of whether a single physical altercation between spouses rises
to the level of physical abuse, which would warrant a fault-based judgment of
divorce under La. C.C. art. 103(4), presents a mixed question of fact and law that is
to be determined by the trier of fact. As previously noted, mixed questions of fact
and law should be accorded great deference by appellate courts under the manifest
error standard of review. O’Hern v. Department of Police, 13-1416 (La. 11/8/13),
131 So.3d 29, 33. Accordingly, as a mixed question of fact and law, a trial court’s
finding that a physical injury inflicted by one spouse upon the other rises to the
level of physical abuse sufficient to warrant a fault-based divorce should be
afforded great deference by a reviewing court.
Here, the trial court record clearly indicates that, while Taylor may have
used provocative language, Kristin became increasingly physically abusive.
Despite Kristin’s suggestion to the contrary, it was not necessary in this case for
the trial court to decide whether or not a criminal conviction or a domestic abuse
prevention order for her physical abuse of Taylor could have been obtained. The
trial court determined that, based on the evidence and testimony presented at the
hearing—which established that the physical injuries Kristin inflicted upon Taylor
4
Although Troy Norton testified at trial that Kristin admitted to him that she struck Taylor’s face
during the Christmas Eve altercation, Kristin denied that she struck Taylor or inflicted scratches and
abrasions on his arms. Moreover, despite having initially testified that she did, in fact, “claw” Taylor, she
later changed her testimony and stated that she merely “pushed” him away from her in self-defense as she
was afraid he might take aggressive actions against her.
21-CA-212 16
amounted to more than the “single inadvertent scratch” she alleges herein—
Taylor’s physical injuries were significant and sufficient to prove that Kristin
physically abused him during the marriage. Article 103(4) does not require that
Taylor had to have sought medical attention for his injuries in order to have
satisfied his burden of proving physical abuse. Moreover, based on the testimony
of the witnesses, the trial court found that the physical altercations between the
parties, and the physical actions taken by Kristin, appeared to be escalating in
severity as the marital relationship deteriorated and the acrimony between the
parties increased. We cannot say the trial court’s finding of physical abuse was
manifestly erroneous or clearly wrong.
To support her contention that the trial judge’s purported finding that both
Kristin and Taylor were “mutually at fault” in the breakup of the marriage
precluding the granting of a fault-based divorce in favor of Taylor, Kristin relies on
Caldwell v. Caldwell, 95-963 (La. App. 5 Cir. 3/13/96), 672 So.2d 944, 946 and
Lyons v. Lyons, 33,237 (La. App.2 Cir. 10/10/00), 768 So.2d 853, 860. Kristin’s
reliance on these cases, however, is misplaced as they are factually distinguishable
from the instant case. In both Caldwell and Lyons, at issue was not whether the
husband was legally entitled to the divorce, but rather, whether the wife’s fault in
the breakup of the marriage precluded her from receiving permanent spousal
support. In the case sub judice, spousal support, where the “mutual fault” of the
parties may be relevant, was not at issue; the sole issue before the trial court was
whether Taylor was legally entitled to an immediate divorce based on Kristin’s
physical abuse of him during the marriage.
While the statutory law does not specify what grounds constitute fault so as
to bar an award of final periodic spousal support, the statutory law does specify
what grounds constitute fault for purposes of obtaining an immediate divorce.
Specifically, La. C.C. art. 103 currently entitles a spouse to seek a fault-based
21-CA-212 17
divorce on the basis of the other spouse’s adultery, conviction of a felony with a
sentence of death or imprisonment at hard labor, the physical or sexual abuse of the
spouse seeking a divorce (or a child of one of the spouses) during the marriage, or
the issuance of a protective order during the marriage against the other spouse to
protect the spouse seeking the divorce (or a child of one of the spouses) from
abuse. Barnett, 193 So.3d at 466. Conversely, in the context of periodic spousal
support, the jurisprudence has found the necessary conduct constituting “fault” not
only to include the fault grounds which currently entitle a spouse to a divorce
under La. C.C. art. 103, but also the fault grounds which previously entitled a
spouse to a separation under La. C.C. art. 138. Barnett, 193 So.3d at 466. Prior to
its repeal, Article 138 provided the grounds for separation, which included
adultery, habitual intemperance, excesses, cruel treatment or outrages, making
living together unsupportable, and abandonment. Id. The jurisprudence has
further broadened what constitutes “fault,” which would preclude spousal support,
beyond the fault grounds set forth in Article 103 and former Article 138, to also
include other conduct or substantial acts of commission or omission by a spouse
violative of his or her marital duties or responsibilities. Id. In short, while habitual
intemperance, excesses, cruel treatment or outrages, abandonment, or substantial
acts of commission or omission by a spouse violative of his or her marital duties or
responsibilities could constitute fault in the context of final periodic spousal
support, such conduct or actions would not constitute fault for purposes of a
spouse’s entitlement to an immediate divorce pursuant to La. C.C. art. 103.
Thomas v. Thomas, 17-760 (La. App. 4 Cir. 2/21/18), 238 So.3d 515, 518.
Additionally, although Kristin contends the evidence at trial established the
parties were “mutually at fault” for the breakup of the marriage, Taylor’s “fault”
was not at issue in the divorce proceeding below. Even considering the trial
court’s statement in oral reasons that neither party was “innocent in all of this,” the
21-CA-212 18
evidence of Taylor’s alleged fault in verbally and emotionally abusing Kristin
and/or intimidating her during the marriage does not constitute grounds—or
fault—for divorce under La. C.C. art. 103. Moreover, despite Kristin’s testimony
that Taylor physically abused her during the marriage, which would arguably
constitute grounds for divorce, she did not allege physical abuse in any of her
pleadings, and the testimony regarding the issue was conflicting. Additionally,
even though freedom from fault is a prerequisite to a spouse’s claim for final
periodic support, we have found no corresponding statutory or jurisprudential rule
that requires a spouse’s freedom from fault in order to obtain an Article 103
divorce. See La. C.C. art. 112; Smith v. Smith, 08-575 (La. App. 5 Cir. 1/12/10),
31 So.3d 453, 462. To the contrary, a trial court may render a judgment of divorce
notwithstanding the mutual fault of the parties as long as the judgment of divorce
is based on one of the grounds set forth in La. C.C. art. 102 or La. C.C. art. 103.
See Harrison v. Harrison, 503 So.2d 116, 119-20 (La. App. 5th Cir. 1987), writ
denied, 503 So.2d 1017 (La. 1987).
In short, we find no merit to Kristin’s contention that the spouse seeking a
divorce under La. C.C. art. 103(4), after proving by a preponderance of the
evidence that he or she was physically abused by the other spouse during the
marriage, is precluded from obtaining a fault-based divorce because he or she may
also bear responsibility, or be “mutually at fault,” in the breakup of the marriage.
Similarly, even though a spouse will not be denied final periodic support if his or
her actions were considered reasonable or a justifiable response to the other
spouse’s provocative acts, there is nothing in La. C.C. art. 103 or the jurisprudence
to suggest that these are matters for consideration when determining whether a
spouse is entitled to a fault-based divorce. See Smith, 31 So.3d at 464.
Kristin next argues the trial court erred in granting Taylor a fault-based
divorce based on physical abuse because her conduct was “justifiable as self-
21-CA-212 19
defense and reasonable under the circumstances,” and that she was acting out of a
reasonable fear of her safety. We find that Kristin waived her right to raise this
defense by her failure to plead it in her answer to Taylor’s supplemental and
amended reconventional demand for divorce under La. C.C. art. 103(4) or to
include it in the affirmative defenses that she filed. La. C.C.P. art. 1003 provides
that the answer “shall set forth all affirmative defenses as required by Article
1005.” La. C.C.P. art. 1005 provides, in pertinent part:
The answer shall set forth affirmatively
negligence, or fault of the plaintiff and others, duress,
error or mistake, estoppel, extinguishment of the
obligation in any manner, failure of consideration, fraud,
illegality, injury by fellow servant, and any other matter
constituting an affirmative defense. [Emphasis added.]
An “affirmative defense” is one which will have the effect of defeating the
suit on the merits. Abadie v. Markey, 97-684 (La. App. 5 Cir. 3/11/98), 710 So.2d
327, 332. La. C.C.P. art. 1005 requires that the answer set forth matters
constituting an affirmative defense. Louisiana courts have liberally construed
Article 1005, however, when a party fails to plead an affirmative defense, no proof
can be offered at trial in support of the defense. Perfection Metal & Supply Co. v.
Independent Supply of N.O., Inc., 97-800 (La. App. 5 Cir. 1/14/98), 707 So.2d 86,
90. Generally, such a defense must be specifically pleaded or it is waived.
Allvend, Inc. v. Payphone Commissions Co., Inc., 00-661 (La. App. 4 Cir. 5/23/01),
804 So.2d 27, 30. The purpose of pleading a special defense is to give fair and
adequate notice of the nature of the defense in order to prevent surprise. Abadie,
710 So.2d at 332. The party pleading an affirmative defense has the burden of
proving it by a preponderance of the evidence. Reily Elec. Supply, Inc. v.
Hollenberg, 535 So.2d 1321, 1323 (La. App. 5th Cir. 1988).
The affirmative defenses listed in La. C.C.P. art. 1005 are merely illustrative
and not exclusive. Abadie, 710 So.2d at 332; Webster v. Rushing, 316 So.2d 11121-CA-212 20
(La. 1975). Although self-defense is not included in the illustrative list of
affirmative defenses in Article 1005, “self-defense is clearly an affirmative
defense” under the provision in the article, “any other matter constituting an
affirmative defense.”5 See Barnes v. Wilhite, 434 So.2d 638 (La. App. 3d Cir.
1983), writ denied, 440 So.2d 148 (La. 1983); see also Albarado v. Abadie, 97-478
(La. App. 5 Cir. 11/12/97), 703 So.2d 736, 742, writ denied, 97-3081 (La.
2/13/98), 709 So.2d 756. Thus, as an affirmative defense, Kristin was required to
specifically plead “self-defense.” A review of Kristin’s “Exceptions, Affirmative
Defenses, and Answer to [Taylor’s] Original and Amended and Supplemental
Reconventional Demand for Divorce” shows that Kristin did not assert self-
defense. Furthermore, the record does not include any requests by Kristin to
amend her pleadings to assert self-defense as an affirmative defense. While Kristin
did allege in her petition for a no-fault pursuant to La. C.C. art. 102 that Taylor
was “guilty of fault” in the breakup of the marriage, we find that this does not meet
the requirement of affirmatively pleading the defense of self-defense. The record
shows that the first time Kristin asserted that her physical conduct towards Taylor
was “justifiable as self-defense and reasonable under the circumstances” was at
trial. Consequently, we find that Kristin waived the affirmative defense of “self-
defense” by failing to properly plead it.
Moreover, as previously stated, the party raising an affirmative defense, such
as “self-defense,” has the burden of proving it by a preponderance of the evidence.
The transcript shows that the trial judge liberally allowed Kristin to testify at the
hearing regarding her fear of Taylor, and how her physical actions were in direct
response to his verbal abuse, physical intimidation, and provocative actions
towards her on Christmas Eve, and on other occasions during the marriage. Even
5
In Clark v. State, Depart. of Public Saf. and Corr., 03-455 (La. App. 5 Cir. 11/12/03), 861 So.2d
603, 612 (citing Landry v. Bellanger, 02-1443 (La. 5/20/03), 851 So.2d 943, 954-55), the court held that
“[s]elf-defense … is a true defense in that it operates as a privilege to committing the intentional tort.”
21-CA-212 21
though such evidence could and should have been excluded, the trial judge clearly
gave Kristin every benefit of the doubt. Nonetheless, the trial judge apparently did
not find her testimony in this regard to be credible, or conversely, found Taylor’s
testimony to be more credible or compelling. After reviewing the testimony and
the evidence, we find no manifest error in the trial court’s factual finding.
In conclusion, after evaluating the conflicting testimony and credibility of
the witnesses, and considering the other corroborating evidence introduced at the
hearing, the trial court determined that Taylor had satisfied his burden of proving
that Kristin physically abused him during the marriage by a preponderance of the
evidence. We do not find manifest error in the trial court’s assessment of the
weight of the evidence, its evaluations of the witnesses’ demeanor, or its credibility
determinations. See Martin, 283 So.3d at 2086. We find a reasonable factual basis
exists for the trial court’s determination that Taylor’s allegations of physical abuse
by Kristin was credible. Contrary to Kristin’s assertion that the trial court relied
solely on Taylor’s self-serving testimony, the trial court was presented with
photographs that were consistent with Taylor’s description of the scratches and
abrasions he received to his arms on December 24, 2019, during the altercation
with Kristin. The trial court was also presented with the testimony of Troy Norton,
who did not actually see the altercation, but who testified that Kristin admitted to
him after arriving at his home that she had struck Taylor. Additionally, the trial
court was presented with the police report Taylor filed Christmas Eve night, which
corroborated his testimony that he called the police after the altercation wherein he
claimed that Kristin physically injured him. Accordingly, on review of the record
in its entirety, we cannot say the trial court’s factual findings, or its legal
conclusion as applied to those facts, were manifestly erroneous or legally wrong.
21-CA-212 22
DECREE
For the foregoing reasons, we affirm the trial court’s judgment granting an
immediate divorce pursuant to La. C.C. art. 103(4) in favor of Taylor Montgomery
Norton.
AFFIRMED
21-CA-212 23
SUSAN M. CHEHARDY CURTIS B. PURSELL
CHIEF JUDGE CLERK OF COURT
NANCY F. VEGA
FREDERICKA H. WICKER
CHIEF DEPUTY CLERK
JUDE G. GRAVOIS
MARC E. JOHNSON
ROBERT A. CHAISSON SUSAN S. BUCHHOLZ
STEPHEN J. WINDHORST
FIRST DEPUTY CLERK
HANS J. LILJEBERG
JOHN J. MOLAISON, JR. FIFTH CIRCUIT
MELISSA C. LEDET
JUDGES 101 DERBIGNY STREET (70053)
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DECEMBER 22, 2021 TO THE TRIAL JUDGE, CLERK OF COURT, COUNSEL OF RECORD AND ALL PARTIES
NOT REPRESENTED BY COUNSEL, AS LISTED BELOW:
21-CA-212
E-NOTIFIED
24TH JUDICIAL DISTRICT COURT (CLERK)
HONORABLE JUNE B. DARENSBURG (DISTRICT JUDGE)
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