Rusk v. Rusk

• Decision Date: 06 June 2012
• Docket Number: No. 12–176.,12–176.
• Citation: 102 So.3d 193
• Parties: Eddie RUSK v. Delores RUSK.
• Court: Court of Appeal of Louisiana — District of US

102 So.3d 193

Eddie RUSK

v.Delores RUSK.

No. 12–176.

Court of Appeal of Louisiana,Third Circuit.

June 6, 2012.

Henry H. Lemoine, Jr., Pineville, LA, Field Vernon Gremillion, III, Alexandria, LA, for Defendant/Appellee, Delores Rusk.

Susan Ford Fiser, Alexandria, LA, for Plaintiff/Appellant, Eddie Rusk.

Court composed of ULYSSES GENE THIBODEAUX, Chief Judge, OSWALD A. DECUIR, and MARC T. AMY, Judges.

AMY, Judge.

[3 Cir. 1]The plaintiff sought a divorce, and the defendant brought a reconventional demand, contending that she was entitled to final periodic support. After a hearing, the trial court found in favor of the defendant and awarded final periodic support. The plaintiff now appeals that judgment. For the following reasons, we affirm.

Factual and Procedural Background

According to the record, the plaintiff, Eddie Rusk, married the defendant, Dolores Rusk,¹ on April 7, 2001. However, the parties separated on September 3, 2006, and Mr. Rusk filed for divorce under La.Civ.Code art. 102 shortly thereafter. Ms. Rusk filed a reconventional demand, asserting that she was entitled to final periodic support/permanent spousal support. A judgment of divorce was entered on April 30, 2007.

This matter was initially assigned to Judge Davidson, who held a hearing on Ms. Rusk's motion for final spousal support on October 29, 2007. At the hearing, Ms. Rusk testified that she was “a good wife” who prepared meals, cleaned the house, and satisfied the marital bed. She also testified that she was diagnosed with fibromyalgia after the marriage and that she was unable to work because of this condition. In support of this, Ms. Rusk submitted paperwork from the Teachers' Retirement System indicating that she was receiving disability retirement and a “Physician Report of Disability Condition” that indicates that she suffers from several medical problems, including fibromyalgia, cervical spondylosis, and [3 Cir. 2]depression.²

According to her testimony, she was in “a lot of pain” because of her disability, but conceded that some days were not as bad as others. Ms. Rusk also conceded that she had done work on the hunting lease, including driving a tractor and riding a four-wheeler, as well as going hunting. However, she also testified that she would hurt when she did so. According to Ms. Rusk's testimony, she attempted to obtain a part-time job after she became disabled but was only paid for one day because she broke her foot while using a bush hog. Ms. Rusk felt that she was not the “same person” that Mr. Rusk married because of her health issues.

Further, Ms. Rusk conceded that the parties argued about money, but she denied that she spent Mr. Rusk's money wantonly. She testified that they primarily lived off of Mr. Rusk's earnings but that their health insurance came out of her disability check. Ms. Rusk testified that she was responsible for paying the bills and that Mr. Rusk “constantly” asked where the money went. According to Ms. Rusk, there was at least one incident where she became angry when Mr. Rusk accused her of taking his money. Ms. Rusk admitted that she told Mr. Rusk that she “should blow his head off” during that argument.

In addition to her own testimony, Ms. Rusk's two sons and a family friend testified on her behalf. Their testimony was generally consistent and to the effect that Ms. Rusk was an active person before she became disabled and that she kept the house clean and prepared meals.

Mr. Rusk's testimony was often contradictory to Ms. Rusk's testimony, especially concerning her ability to work and her behavior around the house. Mr. Rusk insisted that Ms. Rusk was able to work and that she had retired because she [3 Cir. 3]did not want to transfer. In support of this contention, he testified that she could do yard work and go hunting. Mr. Rusk specifically recalled that Ms. Rusk had helped do maintenance on their hunting lease, including using a tractor and a bush hog, fixing deer stands, and picking up limbs. He also testified that Ms. Rusk had been hunting with him and his friends.

Mr. Rusk attributed the breakup of the marriage to Ms. Rusk “abus[ing]” and “us[ing]” him, especially with regard to finances. He testified that the couple had a joint bank account that he put his money into, and she had a separate bank account that she put her money into. Mr. Rusk recounted one argument in particular concerning money in the joint bank account. According to his testimony, she had taken almost all of the money out of the account. When he asked her about it, she got mad and said “[i]f I had a gun I'd blow your ... head off.” Mr. Rusk testified that there were guns all over the house and that she wanted him to leave after that argument. However, Mr. Rusk conceded that although Ms. Rusk wanted him to return, he refused to do so.

Further, Mr. Rusk testified that when they were first married, Ms. Rusk cooked. However, after she “got laid off,” she would usually be asleep on the couch when he came home from work and she would not have prepared dinner. Mr. Rusk testified that he was upset about this but that he never talked to Ms. Rusk about it. Mr. Rusk also stated that Ms. Rusk occasionallydrank to excess and would sometimes lie in bed all day afterwards. In addition to these complaints, Mr. Rusk testified that Ms. Rusk treated his grandson badly, including incidents where she made his grandson sleep on the couch and insulted his weight.

The trial court took the matter under advisement at the close of the hearing. Shortly thereafter, the trial court issued reasons for judgment, finding that Ms. Rusk could not work, that she was not at fault in the breakup of the marriage, and [3 Cir. 4]that she was entitled to $600.00 per month in final periodic support. However, according to Mr. Rusk's brief, “the judgment was never signed and filed until [Mr. Rusk's] counsel discovered this fact years later.” A judgment awarding final periodic support was signed on October 18, 2011, after Mr. Rusk filed a Rule to Terminate Permanent Spousal Support. ³

Mr. Rusk appeals that judgment, asserting as error that:

1. The trial court committed legal error by applying an incorrect legal standard to determine the fault of Eddie Rusk in the breakup of the marriage, and in fact, never actually found him at fault, and further, the factual finding itself was reached by overlooking applicable legal principles, and thus a de novo review by this court is the appropriate standard.

2. The trial court committed legal error in failing to consider all mandatory and relevant factors contained in La. Civil Code Article 112 in determining the amount and duration of final spousal support, and thus a de novo review by this court is appropriate and necessary.

3. The trial court was manifestly erroneous in failing to recognize that the evidence resented [sic] did not establish that Delores Rusk was at fault in the breakup of the marriage.

4. The trial court erred in failing to find that Delores Rusk proved that she was unable to work and in accepting her self-serving testimony that she was unable to work.

Discussion

Judgment of the Trial Court

In his first assignment of error, Mr. Rusk contends that the trial court used the wrong legal standard in finding that Ms. Rusk was entitled to final periodic support. Mr. Rusk asserts that it is unclear which standard the trial court used in making its determinations, that the trial court inappropriately shifted the burden of proof to Mr. Rusk, and that “apparently” the trial court found that Mr. Rusk was at fault for the breakup of the marriage. Accordingly, Mr. Rusk requests that we [3 Cir. 5]review the record de novo.

Our review of the record does not support Mr. Rusk's contentions. As an initial matter, we observe that it is well-settled that appellate courts review judgments, not reasons for judgment. Wooley v. Lucksinger, 09–571 (La.4/1/11), 61 So.3d 507. A trial court's oral or written reasons form no part of the judgment and are “merely an explication of the trial court's determinations.” Id. at 572 (quoting State in the Interest of Mason, 356 So.2d 530, 532 (La.App. 1 Cir.1977)). It is not uncommon for judgments to be upheld for reasons other than those given by the trial court. Id.

In determining whether a spouse seeking final periodic support is entitled to such an award, La.Civ.Code art. 112(A) provides that “[w]hen a spouse has not been at fault and is in need of support, based on the needs of that party and the ability of the other party to pay, that spouse may be awarded final periodic support[.]” The burden of proof lies on the spouse seeking support to prove that he or she is “without fault in causing dissolution of the marriage, is in necessitous circumstances, and is in need of support.” McMullen v. McMullen, 11–220, p. 5 (La.App. 5 Cir. 12/13/11), 82 So.3d 418, 420.

Based on our review of the record, we find that the trial court considered the elements delineated in La.Civ.Code art. 112 in making its determination. Further, we do not find that the trial court inappropriately shifted the burden of proof to Mr. Rusk. Contrary to Mr. Rusk's assertion, the trial court's reasons for judgment neither state nor imply that he was at fault in the breakup of the marriage.⁴ In its reasons for judgment, the trial court had stated that the marriage had deteriorated “in response to the deterioration of Ms. Rusk's health.” The trial court went on to [3 Cir. 6]discuss the evidence presented by Mr. Rusk that he submitted to contradict that submitted by Ms. Rusk. As a part of that discussion, the trial court stated that “[e]vidence presented by Mr. Rusk is not sufficient to establish fault on behalf of Ms. Rusk.”

Accordingly, this assignment of error is without merit. We decline Mr. Rusk's suggestion that we review the record de novo.

Findings of Fact

Two of Mr. Rusk's assignments of error concern the trial court's findings of fact. Mr. Rusk specifically contends that Ms. Rusk failed to meet her burden...