Scarborough v. Scarborough
| Decision Date | 13 June 2018 |
| Docket Number | 17-1185 |
| Parties | GREGORY SCARBOROUGH v. TONYA D. SCARBOROUGH |
| Court | Court of Appeal of Louisiana — District of US |
NOT DESIGNATED FOR PUBLICATION
APPEAL FROM THE NINTH JUDICIAL DISTRICT COURT PARISH OF RAPIDES, NO. 232,534
VAN H. KYZAR JUDGE
Court composed of Sylvia R. Cooks, Phyllis M. Keaty, and Van H. Kyzar, Judges.
AFFIRMED.
George C. Gaiennie, III
Gaiennie Law Firm, L.L.C.
1920 Jackson Street
Tonya D. Scarborough
Koby D. Boyett
Gregory Scarborough
Defendant/Appellant, Tonya D. Scarborough (Tonya), appeals a judgment partitioning certain property of the former community of acquets and gains that existed between her and her former husband, Plaintiff/Appellee Gregory Scarborough (Gregory). For the reasons herein set forth, we affirm.
FACTS AND PROCEDURAL HISTORY
Tonya and Gregory were married on September 16, 1994, concurrently creating a community of acquets and gains. The parties were divorced by judgment rendered on October 30, 2008, thereby terminating the community of acquets and gains between them retroactive to the August 18, 2008 filing date of the Petition for Divorce, per La.Civ.Code art. 159. On March 3, 2014, Tonya filed a Petition for Partition of Community Property pursuant to La.R.S. 9:2801.
In response to the petition, Gregory filed his detailed descriptive list on February 16, 2016, and Tonya filed her detailed descriptive list on March 15, 2016. The trial of the partition proceeding was held over two days, January 27, 2017 and May 31, 2017. The trial court assigned written reasons for judgment and signed a judgment on August 16, 2017.
Tonya filed a motion for a new trial on August 30, 2017, alleging that the judgment rendered was contrary to the law and evidence. The motion was denied by the trial court without a hearing on September 7, 2017. This appeal followed, wherein Tonya asserts two assignments of error:
Tonya asserts on appeal that the trial court erred in excluding certain photographs from evidence. Tonya sought introduction of a number of photographs into evidence during the trial. The trial court allowed the introduction of some of the photographs as evidence but limited the number of the exhibits. During the second day of trial, Tonya testified as follows:
A review of the record does not reveal any offer of any photographic exhibits other than those actually introduced and considered by the trial court. Further, there is no indication in the record of any photographs being offered as evidence that were objected to by opposing counsel and disallowed by the trial court pursuant thereto. The record actually reflects that counsel for Gregory objected to the introduction of certain photographs offered on Tonya's behalf on the basis of a lack of foundation but that these objections were overruled, and the photographs allowed. When the overabundance of photographs was originally produced on the first trial date and the trial court questioned Tonya's intent regarding them, as there appeared to be many duplications, even Tonya and her counsel, identified below as "MR. GAIENNIE", appear to have acknowledged that not all of the photographs were intended to be admitted.
Counsel did not object to the trial court's decision or attempt to offer or proffer the entirety of the photographs. When the photographs are again discussed on the second date of trial, the record reflects that the trial court's main concern regarding the photographs was not excluding them, but merely the sheer number of them and the cumulative nature of the evidence depicted therein. This can be seen by the following colloquy:
After this exchange, counsel for Tonya had her describe the various photographs that were actually tendered, and the photographs were admitted into evidence. There is no indication of any objection to the trial court's actions. Further, Tonya fails to point out in brief any example of any specific ruling by the trial court denying the attempted introduction of any particular photograph or photographs into evidence. Rather, the record reflects that the only evidence excluded by the trial court, which was then proffered on Tonya's behalf, are three vehicle titles in the names of other persons not party to this suit, which were offered as Proffer #1, Proffer #2, and Proffer #3. Thus, we can find no ruling of the trial court on which to base any alleged error.
A ruling on the admissibility of evidence is a question of law and is not subject to the manifest error standard of review. Frank L. Maraist, Louisiana Civil Law Treatise: Evidence and Proof, Vol. 19, § 2.10, p. 36. A party may not complain on appeal about an evidentiary ruling in the trial court unless the trial judge was given the opportunity to avoid the perceived error, and the ruling "affected" a "substantial right" of the party. Id. (Citing La. C.E. art. 103(A)(1)).
Trascher v. Territo, 11-2093, p. 4 (La. 5/8/12), 89 So.3d 357, 362.
In the instant case, there was no offer of the photographic evidence complained of here. The trial judge was not given the opportunity to actually rule thereon and avoid any potential error. Thus, Tonya cannot now complain of a perceived evidentiary error on appeal. This is particularly true given that there was no objection made at trial to any evidentiary ruling of the trial court by either party.
An objection to a witness or to the introduction of evidence is waived if the objection is not raised at a time when the error can be corrected. Briscoe v. Briscoe, 25,955 (La.App.2d Cir. 8/17/94), 641 So.2d 999. To preserve an evidentiary issue for appellate review, it is essential that the complaining party enter a contemporaneous objection to the evidence or testimony and state the reasons for the objection. Stephens v. Town of Jonesboro, 25,715 (La.App.2dCir.8/19/94), 642 So.2d 274, writs denied, 94-2351, 94-2557 (La. 11/29/94), 646 So.2d 400.
Kose v. Cablevision of Shreveport, 32,855, p. 10 (La.App. 2 Cir. 4/5/00), 755 So.2d 1039, 1048, writ denied, 00-1117 (La. 6/16/00), 764 So.2d 964, and writ denied, 00-1289 (La. 6/16/00), 765 So.2d 340.
Having found no specific offer of the evidence referred to, and thus no specific ruling of the trial court denying the introduction of such evidence, and further finding no contemporaneous objection to the trial court's handling of any evidentiary issue, we find no merit to Tonya's first assignment of error.
Tonya next asserts that the trial court erred in denying her motion for a new trial without holding a hearing thereon. The standard of review for the denial of a motion for new trial is abuse of discretion. Zeno v. Nixon, 13-1267 (La.App. 3 Cir. 3/12/14), 133 So.3d 1285. In certain instances, a new trial may be granted by the trial court at its great discretion, whereas in others the granting of a new trial is mandatory. Both instances are regulated by the Louisiana Code of Civil Procedure. Louisiana Code of Civil Procedure Article 1972 states:
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