Tarbutton v. Tarbutton
| Decision Date | 27 June 2018 |
| Docket Number | No. 52,102–CA,52,102–CA |
| Citation | 251 So.3d 590 |
| Parties | Stephen Louis TARBUTTON, Plaintiff–Appellee v. Breanna Danielle TARBUTTON, Defendant–Appellant |
| Court | Court of Appeal of Louisiana — District of US |
BREANNA DANIELLE TARBUTTON, Appellant In Proper Person
SHELLEY A. GOFF, Ruston, Counsel for Appellee
Before WILLIAMS, PITMAN, and STEPHENS, JJ.
Breanna Tarbutton appeals a judgment awarding her $63.40 per month in interim and final spousal support until the homeschooling of the children ends or the oldest child's 18th birthday. The trial court denied Breanna's ex parte motion for a continuance and found that Stephen Tarbutton should continue paying the amount of the monthly premium of Breanna's auto insurance as spousal support. For the following reasons, we amend the judgment and affirm as amended.
After the parties were divorced in April 2016, a hearing was scheduled on Breanna's request that Stephen's visitation with their two children be supervised and that she receive spousal support. At the hearing, Breanna sought a continuance to allow her time to obtain a new attorney. At the rescheduled hearing in September 2016, Breanna again appeared without counsel and sought another continuance, which was denied by the district court. After testimony by Breanna and Stephen, the court denied her requests for spousal support and supervised visitation. The district court awarded the parties joint custody with daily visitation by Stephen to participate in the homeschooling of the children, alternating weeks in the summer and holidays. Breanna appealed the denial of spousal support and the award of joint custody. On appeal, this court reversed that part of the judgment denying spousal support and remanded the matter. Tarbutton v. Tarbutton , 51,486 (La. App. 2 Cir. 5/2/17), 217 So.3d 1281.
On remand, the parties were ordered to file affidavits of income and expenses. At the hearing, Breanna appeared and sought a continuance, which was granted. The trial court reset the hearing for September 21, 2017, without any objection by Breanna. On September 20, 2017, Breanna filed an ex parte motion for continuance alleging that September 21 was Rosh Hashanah, a day of religious observance for her. The district court staff contacted Breanna and told her that she would need to appear at the hearing unless Stephen agreed to a continuance. The next day, Breanna failed to appear at the hearing and did not send any further communication to the court. Stephen's attorney informed the court that her office had been contacted by Breanna seeking consent to the continuance, but she was informed that Stephen would not agree. The trial court proceeded with the hearing, denying the motion to continue.
Stephen's affidavit of income and expenses was admitted into evidence and he testified about his knowledge of the mobile home situation. Stephen stated that Breanna was living with their children in a mobile home that had been purchased for her use and located on land that he had inherited from his father. He explained that she was living in the home without paying rent and he supplied water, but she paid the other utilities. Stephen testified that he had agreed that Breanna could keep the mobile home as her property, but she would need to remove the home from the land after the youngest child turned 18 years old or pay rent. Stephen stated that he was not aware that Breanna observed Rosh Hashanah.
In written reasons for judgment, the trial court stated that because Breanna did not appear and could not be questioned about her financial affidavit, the document had not been introduced into evidence and was not considered in the determination of spousal support. Instead, the trial court considered Breanna's testimony about her income and expenses admitted into evidence at the prior hearing in September 2016. The court noted that Stephen had been paying Breanna's monthly auto insurance premium of $63.40 and found that her earning capacity would be sufficient to meet her expenses if she were not homeschooling the children. The trial court rendered judgment awarding Breanna the amount of $63.40 per month as interim and final spousal support until the homeschooling of the two children ends or the oldest child turns 18 years of age, whichever occurred first. Breanna appeals the judgment.
Breanna contends the trial court erred in denying her motion for continuance. She argues that the court's denial of the continuance violated her constitutional rights to the free exercise of religion because the hearing was scheduled for the date of Rosh Hashanah, a day of religious observance for her.
A continuance may be granted in any case if there is good ground therefor. La. C.C.P. art. 1601. The trial court must consider the particular facts in each case in deciding whether to grant or deny a continuance. Some factors to consider are diligence, good faith and reasonable grounds. Connor v. Scroggs , 35,521 (La. App. 2 Cir. 6/12/02), 821 So.2d 542. Equally important is the other party's corollary right to have his case heard as soon as is practicable. The trial judge may also weigh the condition of the court docket, fairness to the parties and other litigants before the court and the need for orderly and prompt administration of justice. A trial judge is vested with wide discretion in granting or denying a continuance and the ruling will not be disturbed on appeal in the absence of clear abuse. Tarbutton, supra ; Connor, supra .
Pursuant to the First Amendment of the United States Constitution and Art. I, Sec. 8 of the Louisiana Constitution, no law shall be enacted respecting an establishment of religion or prohibiting the free exercise thereof. Not all burdens on religion are unconstitutional and the court may consider important governmental interests in assessing a limitation of a party's First Amendment rights. State v. Victor , 15-339 (La. App. 5 Cir. 5/26/16), 195 So.3d 128.
In this case, contrary to Breanna's contention in her brief that the trial court could have granted her ex parte motion without Stephen's consent, La. C.C.P. art. 1605 provides that all contested motions for continuance require a contradictory hearing. It was Breanna's delay in filing her motion that required the hearing on the continuance to be held on the asserted holy day. In addition, Breanna's claim that she was unable to file her motion sooner because of "confusion" about the date of the holy day is not plausible, since she could have consulted a calendar or a religious official to determine the date well before the afternoon prior to the hearing which had been scheduled two months earlier.
In support of her position, Breanna cites the First Amendment and the Religious Freedom Restoration Act of 1993 (RFRA), 42 U.S.C. Sec. 2000bb, et seq. , which provides that the government shall not substantially burden a person's exercise of religion. The record shows that in considering the motion for continuance, the trial court weighed Breanna's religious concerns and her delay in requesting a continuance with Stephen's interest in proceeding with the scheduled hearing and the efficient administration of justice. Based upon the circumstances of this case, we cannot say the trial court abused its discretion in denying the ex parte motion for continuance. Thus, the assignment of error lacks merit.
Breanna contends the trial court erred in considering testimony from the opposing party regarding her religious beliefs. Breanna argues that she was prejudiced by the court's act of hearing testimony in her absence because she did not have the opportunity to cross-examine the witness or present rebuttal evidence.
Preliminary questions concerning the competency of a person to be a witness or the admissibility of evidence shall be determined by the court. La. C.E. art. 104. Every person of proper understanding is competent to be a witness. La. C.E. art. 601. The plaintiff in a civil case shall have the right to rebut evidence adduced by her opponent. La. C.E. art. 611(E).
In the present case, although Breanna refers to the confrontation clause of the Sixth Amendment to the United States Constitution, we note that the Sixth Amendment gives a right of confrontation to defendants in criminal prosecutions, not to parties in civil actions such as this case. See Austin v. United States , 509 U.S. 602, 113 S.Ct. 2801, 125 L.Ed.2d 488 (1993). Breanna has not shown that Stephen was not a competent witness to testify about matters within his personal knowledge. Regarding a question about Breanna's religious beliefs, Stephen responded that he did not know if she observed Rosh Hashanah. Breanna did not have an opportunity to cross-examine the witness or present rebuttal evidence because she failed to appear at the hearing even though she had been given notice of the hearing date and informed that her motion for continuance would not be granted before the hearing. Based upon this record, we cannot say the trial court erred in considering the witness testimony presented at the hearing. The assignment of error lacks merit.
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