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NOT DESIGNATED FOR PUBLICATION NO. 2009-CA-0462 * GEORGE S. HEWITT VERSUS MARIAN W. HEWITT * COURT OF APPEAL * FOURTH CIRCUIT * STATE OF LOUISIANA ******* CONSOLIDATED WITH: GEORGE STEPHEN HEWITT VERSUS MARIAN WILLIAMS BEATTY HEWITT CONSOLIDATED WITH: NO. 2009-CA-0463

APPEAL FROM CIVIL DISTRICT COURT, ORLEANS PARISH NOS. 2004-17612 C/W 2005-29, DIVISION "M-DRS3" Honorable Paulette R. Irons, Judge ****** Judge Dennis R. Bagneris, Sr. ****** (Court composed of Judge Charles R. Jones, Judge Dennis R. Bagneris, Sr., and Judge Edwin A. Lombard)

George S. Hewitt 622 Napoleon Avenue New Orleans, LA 70115 IN PROPER PERSON DEFENDANT/APPELLEE Sammie M. Henry 7924 Wrenwood Boulevard Suite C NOVEMBER 12, 2009 Baton Rouge, LA 70809 COUNSEL FOR DEFENDANT/APPELLANT

AFFIRMED

Defendant, Marian W. Hewitt, appeals the trial court judgment denying her request for permanent spousal support. For the reasons set forth below, we affirm. Mirian and George Hewitt were married on August 19, 1989. On December 16, 2004, Mr. Hewitt filed for a protective order alleging physical and verbal abuse by his wife. The protective order was granted the following day. On January 3, 2005, Mr. Hewitt filed a petition for divorce. Ms. Hewitt thereafter filed a motion for spousal support. In January of 2005, Mr. Hewitt agreed to pay $265 per week in interim spousal support for six months, until June of 2005, when the divorce could be finalized. A judgment of divorce was granted on August 15, 2005. Ms. Hewitt's motion for spousal support was continued numerous times by the parties, and then by Hurricane Katrina. Ms. Hewitt's motion for spousal support was brought

before the trial court on January 14, 2009, wherein Ms. Hewitt was represented by counsel for the first time. Mr. Hewitt appeared in proper person. In a judgment signed January 20, 2009, Ms. Hewitt's motion for permanent spousal support was denied based on the trial court's finding that Ms. Hewitt was not free from fault in the dissolution of the marriage. The judgment further ordered Mr. Hewitt to pay

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$650 per month in interim spousal support, commencing February 1, 2009. Although the judgment is silent as to the duration of the payments, it is evident from the transcript of the proceedings that the trial court ordered that the $650 be paid for six months (February through July). Ms. Hewitt's timely devolutive appeal followed. On appeal, Ms. Hewitt asserts two assignments of error: 1) the trial court erred in finding that Ms. Hewitt was not free from fault, thereby denying her request for permanent spousal support; and 2) the trial court erred in failing to allow cross-examination of Mr. Hewitt and the introduction of rebuttal evidence before rendering its judgment. Mr. Hewitt, in his pro se brief to this Court, simply reiterates his argument that Ms. Hewitt was at fault in the dissolution of the marriage. He does not challenge the trial court's award of interim spousal support. In her first assignment of error, Ms. Hewitt argues that the district court erred in finding that she was not free from fault thereby denying her request for permanent spousal support. La. C.C. art. 111 provides that in a proceeding for divorce or thereafter, the court may award final periodic support to a party who is in need of support and who is free from fault prior to the filing of a proceeding to terminate the marriage. Further, La. C.C. art. 112 provides that when a spouse is free from fault and 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. Legal fault includes, but is not limited to, habitual intemperance or excesses, cruel treatment or outrages, and abandonment. Walker v. Walker, 41,573, pp. 2-3 (La. App. 2 Cir. 11/1/06), 942 So.2d 605, 608. To prove cruel treatment a party needs to show a continued pattern of mental harassment, nagging, and griping by
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one spouse directed at the other so as to make the marriage insupportable as mere bickering and fussing do not constitute cruel treatment for purposes of denying permanent spousal support. Gilley v. Gilley, 2007-0568, p. 2 (La. App. 5 Cir. 12/11/07), 976 So.2d 727, 728. A spouse who petitions for permanent support need not be totally blameless in the marital discord. Only misconduct of a serious nature, providing an independent contributory or proximate cause of the breakup, equates to legal fault. Gremillion v. Gremillion, 39,588, p. 11 (La. App. 2 Cir. 4/6/05), 900 So.2d 262, 269-270. The burden is on the claimant spouse to prove freedom from fault. Wolff v. Wolff, 2007-0332, p. 3 (La. App. 3 Cir. 10/3/07), 966 So.2d 1202, 1204. The trial court's findings of fact on the issue of a spouse's fault for the purposes of determining final support will not be disturbed on appeal unless found to be manifestly erroneous. Washington v. Washington, 2002-2226, p. 16 (La. App. 4 Cir. 4/23/03), 846 So.2d 895, 904, writ denid, 2003-1470 (La 9/26/03) 854 So. 2d 360. The trial court is vested with vast discretion in the determination of fault because this issue turns largely on evaluations of witness credibility. Gilley, 2007-0568 at p. 3, 976 So.2d at 728; Jones v. Jones, 38,790, p. 12 (La. App.2 Cir. 06/25/04), 877 So.2d 1061, 1070. In the present case, Mr. Hewitt testified that Ms. Hewitt struck him on many occasions. He further testified that the verbal abuse and degrading remarks were constant throughout the marriage. He stated that Ms. Hewitt would disparage his friends and relatives and isolate him from his friends. Finally, Mr. Hewitt testified that during the marriage he had two nervous breakdowns, which he attributed to the constant emotional abuse Ms. Hewitt put him through. Ms. Hewitt denied

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being physically or verbally abusive to Mr. Hewitt. However, she admitted to slapping him once early in their marriage. Mr. Hewitt called no witnesses on his behalf. Ms. Hewitt called two

acquaintances, Mildred Faroux and Joel Woods, who testified that they were not aware of any marital problems between the parties. In finding that Ms. Hewitt was not free from fault, the trial judge stated, "I believe that she did torment him, nag him, constantly putting him down." The trial judge further explained, "[s]he's not free from fault because I don't believe that. And I evidently believed it at the time of the protective order that she did hit him, that she did, that he was afraid of her and there was a problem in their marriage for me to give him a protective order." After a thorough review of the record, we do not find that Ms. Hewitt satisfied her burden of establishing her freedom from fault. In light of the

conflicting testimony and facts presented at trial, and considering the vast discretion provided the trial court, we find no error in the trial court's denial of Ms. Hewitt's motion for permanent spousal support. without merit. We find no merit in Ms. Hewitt's second assignment of error that the district court erred in failing to allow cross-examination and rebuttal evidence. After a thorough reading of the transcript, there is no indication that the trial court prevented Ms. Hewitt from cross-examining Mr. Hewitt, or from introducing rebuttal evidence. In fact, the record reveals that at the conclusion of Mr. Hewitt's direct testimony, Ms. Hewitt's attorney made no attempt to cross-examine Mr. Hewitt or to introduce evidence. This assignment of error is

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Decree For the foregoing reasons, we find no error on the part of the trial court in denying Ms. Hewitt's motion for permanent spousal support. Accordingly, the judgment is affirmed.

AFFIRMED

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