AMANDA COUSIN VERSUS MICHAEL COUSIN

Gretna, LA- Divorce lawyer represented Appellant with seeking review of the trial court's judgment for involuntary dismissal of his petition for nullity of judgment.

Michael and Amanda were married on December 17, 2005 and two children

were born from this marriage. On June 10, 2016, Amanda filed a petition for 102

divorce, stating that she intended to live separate and apart from Michael for the

requisite time period from the filing and/or service of her petition. On June 21, 2016,

Michael signed a waiver of citation and acceptance of service. On April 19, 2018,

Amanda filed an affidavit stating that the parties lived separate and apart for the

requisite period of time and a rule to show cause why her petition for 102 divorce

should not be granted. A hearing was set for May 11, 2018. On April 26, 2018,

Michael signed a waiver of citation and acceptance of service of the rule to show

cause stating that he received a certified copy of Amanda's rule to show cause for a

102 divorce, and that "he accepts service thereof, that he knowingly waives service

of process and formal citation thereof, and further waives all legal delays, notice of

trial and appearance at trial.” The waiver of citation and acceptance of service was

filed on April 30, 2018. On May 2, 2018, Amanda filed another affidavit stating that

the parties lived "separate and apart continuously since June 10, 2016, more than

365 days prior to the filing of the Rule to Show Cause, and are still living separate

and apart.” The affidavit further stated that to the best of her knowledge, Michael

did not and has not contested the divorce and that she desired a 102 divorce. On

May 7, 2018, Michael retained new counsel.

1

On May 11, 2018, a judgment of



1 New counsel withdrew on August 14, 2018, approximately three months after the judgment of divorce.

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divorce was granted in favor of Amanda, terminating the community of acquets and

gains retroactive to June 10, 2016.

2

Thereafter, on August 23, 2018, the parties

entered a consent judgment concerning custody and support.

On August 2, 2019, Michael filed a rule to nullify judgment of divorce

contending that at the time the petition for divorce was filed, the parties were living

together and continued to live together until February of 2018. He contended that

the requisite period of time had not lapsed prior the judgment of divorce granted on

May 11, 2018; therefore, the judgment of divorce was an absolute nullity under La.

C.C.P. art. 3953.

In response, Amanda filed exceptions of prescription, vagueness, and

unauthorized use of summary proceeding. On September 16, 2019, Michael filed a

petition for nullity of judgment of divorce. In the petition, Michael alleged that the

parties were living together at the time Amanda filed the petition for 102 divorce

and when she requested that he sign the waiver of citation and acceptance of service.

Michael contended that the parties lived together until February 2018 and thus, under

La. C.C.P. art. 3953, the May 11, 2018 judgment of divorce is an absolute nullity.

On August 2, 2019, in a separate case, Michael Cousin v. Amanda Cousin,

case number 797-938, Div. "D,” Michael filed a petition to annul and/or revoke the

act of donation inter vivos. The petition to nullify judgment of divorce and petition to

annul or revoke act of donation inter vivos were consolidated on September 24, 2019.

A bench trial was held on July 9, 10, and 14, 2020. At the close of Michael's

case-in-chief, counsel for Amanda orally moved for a motion for involuntary

dismissal pursuant to La. C.C.P. art. 1672 B as to Michael's petition to nullify

judgment of divorce.



2 On May 11, 2018, counsel for Amanda filed an Appendix 27.0A: La. C.C. art. 102 Divorce Checklist,

certifying the parties' eligibility for divorce.

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In granting Amanda's oral motion for involuntary dismissal and dismissing

the petition, the trial court gave the following detailed reasons:

. . . In viewing those pictures, you can look at them obviously

two ways. One of which is, as [counsel for Michael] would have

the Court interpret them, there is a consistent connection between

the parties, such that it would indicate that [Michael] was in fact

living at the Canary Ansas house during that time period, based

on the photographs of the cooking, and interaction with the

children, and family gatherings that these parties never actually

did live separate and apart during that time period. Obviously,

the other interpretation was suggested by the Court, which is that

the photographs indicate an attempt by [Amanda] to allow

[Michael] to participate with his children as much as possible

during those time periods where he was sober and capable of

doing so.

* * *

You take those photographs, obviously, as an element of

evidence in connection with the testimony. The testimony -- the

best testimony -- of how these parties were interacting during that

time period is only really from [Michael] and [Amanda], in terms

of what the interaction entailed. [Amanda] obviously has a

completely different view of what those interactions involved, as

opposed to [Michael]. The Court asked questions of both parties

in an attempt to reconcile or look for some commonality in some

of the factors that the Court must consider in determining

whether or not the parties did live separate apart in such a manner

as the community would be aware of their separation as

suggested by Lemoine and other cases. So each of the questions

that I asked came from case law and factors that have been

considered by the Courts. For instance, when asked how many

times did you go out of town together, [Amanda] answered four

times, always with the kids. [Michael] answered three or four

times. How many times did you spend the night; [Amanda]

answered on occasion, as I recall, but never in the bedroom. And

[Michael] answered roughly 85 percent of the time. How many

times did you have sexual relations; [Amanda] could specifically

remember one occasion, as I recall, after a bridal shower, and that

was it. [Michael] suggested it was thirty times or more. Were

the visits from [Michael] consistent, intermittent, sporadic or

otherwise; [Michael] suggested that they were consistent, was his

word, and [Amanda] was having difficulty using the Court's

choice of words, but was in the nature of a sporadic or

intermittent-type visitation. Did [Michael] rent a separate

residence; [Amanda] said yes, there was a lease from March '16

to September of '16. [Michael] suggested that he rented an

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apartment at most, four months sometime in August and

September of '16. Did you ever intend to resume the marital

relationship or a romantic relationship; [Amanda] said no, that

any relationship she had with [Michael] during that time periods

was exclusively for the kids' benefit, and [Michael] stated that

obviously yes, he did intend to resume that relationship. How

many people did you tell that you had split up, or were separated

or were divorced; [Amanda] indicated that she told her friends,

her family, her dance moms, teachers, and employers. [Michael]

indicated that family and friends were aware, but not anyone

within his work environment. Did [Michael] ever move all of his

belongings; [Amanda] indicated that he did remove what he

needed, but other items remained at the house. . . . [Michael]

indicated that he kept old clothes there -- old clothes at his

parents' house, but he kept the majority of his belongings that he

was using in the master bedroom at the Canary Ansas house. In

which room did you keep your belongings at the home before

they were removed; [Amanda] indicated the office or guest

bedroom. Again, [Michael] indicated the main marital bedroom.

Was he allowed access to anywhere in the home; [Amanda]

indicated that no, at night it was locked –her door was locked.

He said that he could come and go as he pleased throughout the

home, and in and out of the home. How many times that

[Michael] and [Amanda] go out together after filing for divorce

without the children; [Amanda] could recall two times.

[Michael] recalled roughly thirty- six times, he would estimate

because they frequently attend movies and what not together, by

themselves without the children.

The longest continuous period of time that [Michael]

stayed at the house; [Michael] indicated was from October of '16

to February of '17 was the longest continued period of time that

he stayed away was only a couple of days; I unfortunately did

not jot down notes about [Amanda] and her answer to those

questions or whether or not I asked her those questions.

Presumably, based upon the other answers, her answers would

differ significantly.

The point in going through those individually and

somewhat believably, is that they are irreconcilable. There's no

way you either spent a couple of nights at the home or 85 percent

of the nights at the home. There is no way that you went out a

few times together without the children or at least thirty-six times

without the children. There's also no way you and he only had

sex one time during that time period or thirty times or more

during that time period. So, there's obviously no way for the

Court to reconcile the difference in that testimony. You can't

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simply say well, you know, we'll split the difference or

something along those lines. Obviously, one party is giving the

Court information that is not true. In that regard, and looking to

the credibility of the parties, I think it's only fair to say that I am

struck by [Michael's] testimony with respect to the fact that when

asked questions on direct, he had no trouble remembering the

answer or anything else to any question asked on direct, but had

difficulty remembering the answer or was able to answer very

few questions, if any, directly, when posed by defense Counsel.

It seems, again, incongruent to the Courts that someone would

have an adequate memory on direct, and then completely

inadequate memory on cross.

It appears to the Court, considering the totality of the

circumstances as I'm required to do, that in viewing all of the

evidence -- the photographs, the testimony, the testimony of the

other parties and I think it's fair to mention both Mr. and Mrs.

Wong [friends and witnesses to act of donation] were aware of

that the fact [Michael] and [Amanda] were divorcing or were

separated. Mrs. Cousin -- Mrs. Linda Cousin [Michael's mother]

-- specifically testified that she had told her friends that she was

aware that they were separating or divorcing. And I think, as

someone pointed out, was not upset about that. It would appear

to the Court that the most logical explanation and the most

realistic explanation for the discrepancy in the testimony and the

photographs would be that [Amanda] was making an effort to

include [Michael] with the children when, again, he was capable

of doing so based upon his sobriety. I think it is basic human

compassion to not force someone to sleep in the rain and to allow

him to sleep in the playhouse or perhaps downstairs, when he had

nowhere else to go that does not constitute a situation where the

parties have not lived separate and apart for 365 days. There was

no indication to the Court that at any time [Amanda] -- and the

witnesses were presented more specifically -- that at any time

[Amanda] told anyone that she was working on her relationship,

she was trying to get back together, that she was letting Michael

live in the house for a time period to see if they could work it out.

No such testimony came into the record. [Amanda] specifically

denies there was ever an attempt to reconcile; she never intended

to go back with [Michael].

So I think the evidence, as presented, can most fairly be

viewed as attempt by [Amanda] to include [Michael] in the

children's lives where, again, he was capable of participating.

That being said, this is not, again, a confirmation of the divorce,

this is not simply a preponderance of the evidence, and again I

have to take note of the fact that these issues weren't contested

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by [Michael] at the time they were presented to the Court when

the divorce was sought. Had [Michael] believed that they had

not lived separate and apart for the requisite 365 days at the time

the divorce was sought, he certainly could have proposed it at

that time and faced a much lesser burden in the eyes of the law.

As indicated in the case law cited by the Court, the Court is not

keen to overturn the Judgment once it has been rendered, thus the

higher burden of clear and convincing evidence. And I don't

think the evidence presented rises to the level, honestly, of a

preponderance, much less of a clear and convincing standard

such that the Action for Nullity should be granted.

I need to point out that the Action for Nullity had several

causes of or several theories of the case as well. There was

allegations of lack of capacity and that sort of thing. Those

allegations seem to be abandoned with respect to the Petition for

Nullity of Divorce. There was no argument that he didn't

understand whether he was signing or anything along those lines.

The argument for the divorce nullity seemed to come down to

simply they did not live separate and apart for the requisite 365

days.

* * *

. . . With all the reasons stated previously, taking the evidence in

the totality of the circumstances into consideration, the Court is

going to grant the Articles 1672 Motion for Voluntary Dismissal,

dismissing Petition for nullity of judgment of divorce.

This appeal followed.3

LAW and ANALYSIS

In his first and second assignments of error, Michael contends that the trial

court applied the incorrect standard of proof to the motion for involuntary dismissal

and to his petition for nullity of judgment of divorce, thus requiring this court to

review the matter de novo. In his third and fourth assignments of error, Michael

asserts that the trial court erred in granting the motion for involuntary dismissal and

dismissing his petition for nullity of judgment of divorce. We disagree.



3 On August 27, 2020, the trial court also granted Amanda's oral motion for involuntary dismissal pursuant

to La. C.C.P. art. 1672 of Michael's petition to annul and/or revoke act of donation inter vivos, a consolidated

matter, and dismissed Michael's petition. In a consolidated appeal, 21-CA-151, Michael appealed this

ruling.

21-CA-150 C/W 21-CA-151 7

A trial court's reasonable evaluations of credibility and reasonable inferences

of fact should not be disturbed on review unless they are manifestly erroneous or

clearly wrong. Wooley v. Lucksinger, 09-571 (La. 04/01/11), 61 So.3d 507; Rosell

v. ESCO, 549 So.2d 840 (La. 1989). When findings are based on determinations

regarding the credibility of witnesses, the manifest error standard demands great

deference to the trial court's findings; for only the factfinder can be aware of the

variations in demeanor and tone of voice that bear so heavily on the listener's

understanding and belief in what is said. Robinson v. Board of Supervisors for

University of Louisiana System, 16-2145 (La. 06/29/17), 225 So.3d 424, 430, citing

Rosell, 549 So.2d at 844-845.

Under the manifest error standard, the trial court's factual findings can be

reversed only if the appellate court finds, based on the entire record, no reasonable

factual basis for the factual finding and the fact finder is clearly wrong. Baker v.

PHC-Minden, L.P., 14-2243 (La. 05/05/15), 167 So.3d 528, 538. Where documents

or objective evidence so contradict the witness's story, or the story itself is so

internally inconsistent or implausible on its face, that a reasonable fact finder would

not credit the witness's story, then the court of appeal may find manifest error even

in a finding based on credibility. Robinson, 225 So.3d at 430. But where no such

factors are present, and the fact finder's finding is based on its decision to credit the

testimony of one of two or more witnesses, that finding can virtually never be

manifestly erroneous or clearly wrong. Id.; Bellard v. American Central Insurance

Co., 07-1335 (La. 04/18/08), 980 So.2d 654, 672.

In a nonjury case, the defendant may move for an involuntary dismissal of the

action against him after the close of the plaintiff's case. La. C.C.P. art. 1672 B.

4





4 La. C.C.P. art. 1672 B provides:

B. In an action tried by the court without a jury, after the plaintiff has completed the presentation of his

evidence, any party, without waiving his right to offer evidence in the event the motion is not granted, may

move for a dismissal of the action as to him on the ground that upon the facts and law, the plaintiff has

shown no right to relief. The court may then determine the facts and render judgment against the plaintiff

and in favor of the moving party or may decline to render any judgment until the close of all the evidence.

21-CA-150 C/W 21-CA-151 8

The appropriate standard in determining whether an involuntary dismissal should be

granted is whether the plaintiff has presented sufficient evidence in his case to

establish his claim by a preponderance of the evidence. Treen Const. Co., Inc. v.

Schott, 03-1232 (La. App. 5 Cir. 01/27/04), 866 So.2d 950, 954. The trial court has

much discretion in determining whether to grant a motion for involuntary dismissal.

Matherne v. Jefferson Parish Hosp. Dist. No. 1, 14-403 (La. App. 5 Cir. 12/16/14),

166 So.3d 297, 302, writ denied, 15-117 (La. 04/10/15), 176 So.3d 1032. An

appellate court may not reverse a ruling on a motion for involuntary dismissal unless

it is manifestly erroneous or clearly wrong. Id. On appeal, the issue to be resolved

is not whether the trier of fact was right or wrong, but whether the fact finder's

conclusion was a reasonable one. Id.

Because an involuntary dismissal of an action pursuant to La. C.C.P. art. 1672 B

is based on the "facts and law,” a review of the substantive law applicable to

Michael's case is necessary. See In re Fogg, 19-719 (La. App. 1 Cir. 02/21/20), 298

So.3d 291, 294; Lakeshore Chrysler Dodge Jeep, Inc. v. Windstream

Communications, Inc., 17-841 (La. App. 1 Cir. 12/21/17), 240 So.3d 939, 943.

La. C.C. art. 102 provides:

Except in the case of a covenant marriage, a divorce shall be

granted upon motion of a spouse when either spouse has filed a

petition for divorce and upon proof that the requisite period of

time, in accordance with Article 103.1, has elapsed from the

service of the petition, or from the execution of written waiver of

the service, and that the spouses have lived separate and apart

continuously for at least the requisite period of time, in

accordance with Article 103.1, prior to the filing of the rule to

show cause.

The motion shall be a rule to show cause filed after all such

delays have elapsed.

Further, La. C.C.P. art. 3953 provides:

A judgment rendered in accordance with Civil Code Article 102

shall be an absolute nullity when:

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(1) Less than the requisite period of time, in accordance with

Article 103.1, has elapsed between service of the petition, or

between execution of written waiver of service of the

petition, and filing of the rule to show cause.

(2) Less than the requisite period of time, in accordance with

Article 103.1, has elapsed between the date the parties

commenced living separate and apart and filing of the rule to

show cause.

(3) The requirements of this Title with respect to jurisdiction and

venue have not been met.

La. C.C. art. 103.1 provides that when there are minor children of the marriage, the

requisite time period for an article 102 divorce is 365 days. Additionally, a cause of

action for divorce is extinguished if the parties reconcile. La. C.C. art. 104.

Reconciliation occurs when there is a mutual intent to reestablish the marital

relationship on a permanent basis. Lemoine v. Lemoine, 97-1626 (La. App. 3 Cir.

07/01/98), 715 So.2d 1244, 1248.

As the trial court correctly pointed out, the appropriate issue in this case is

whether the parties lived separate and apart continuously for 365 days, without

reconciliation, prior to the filing of the rule to show cause. Living separate and apart

for the purpose of obtaining a divorce means that the parties live apart in such a

manner that those in the community are aware of the separation. Lemoine, 715 So.2d

at 1248; Billac v. Billac, 464 So.2d 819 (La. App. 5 Cir. 1985).

Here, the trial court held:

In this case, June 10th, 2016, Amanda Cousin filed the Petition

for the 102 Divorce. On June 21st, 2016, Michael Cousin

executed a Waiver of Service of the 102 Divorce Petition. 667

days later, by my calculation, on April 19th, 2018, Amanda

Cousin filed a Rule to Show Cause for Divorce, obviously well

over the 365 days required, and ultimately on May 11th, 2018,

the Judgment of Divorce was rendered, pursuant to 102.

The issue is whether the parties have lived separate and apart.

There is a strong public policy against disturbing or declaring invalid a

judgment of divorce, especially after a long period of time where the marital status

21-CA-150 C/W 21-CA-151 10

of innocent parties who relied on the validity of that judgment would be disturbed,

and more particularly, where a decree would render innocent parties guilty of

bigamy. Peschier v. Peschier, 419 So.2d 923 (La. 1982); Wilson v. Calvin, 221 La.

451, 59 So.2d 451 (1952); Walsh v. Walsh, 215 La. 1099, 42 So.2d 860 (1949);

Rouse v. Rouse, 219 La. 1065, 55 So.2d 246 (La. 1951). Because of this strong

public policy and a presumption as to the regularity of the judicial proceedings,

plaintiff must prove by clear and convincing evidence the grounds for annulment of

a judgment of divorce.

5

Id.; See also Hemavathy v. Shivashankara, 34,440 (La. App.

2 Cir. 02/28/01), 782 So.2d 115, 118.

Upon review of the law and transcript of the trial on the merits, we do not find

that the trial court applied the incorrect standard of proof to the motion for

involuntary dismissal pursuant to La. C.C.P. art. 1672 and to his petition for nullity

of judgment of divorce. Furthermore, based on the testimony and evidence, and

considering the trial court's thorough and detailed reasons, we do not find that the

trial court was manifestly erroneous in finding that the parties lived separate and

apart continuously for 365 days, without reconciliation, prior to the filing of the rule

to show cause. The trial court's findings were based on determinations of the

credibility of witnesses and the parties. In this case, the trial court found Amanda's

version of the events to be more credible than Michael's. Giving vast deference to

the trial court, we find no manifest error. We find the trial court's decision regarding

the credibility of the witnesses, especially Amanda and Michael, to be reasonable.

Only the factfinder can be aware of the variations in demeanor and tone of voice that

bear so heavily on the listener's understanding and belief in what is said. Robinson,



5 Citing State ex rel. Dept. of Social Services v. Langlois, 03-849 (La. App. 1 Cir. 03/03/04), 874 So.2d 216,

217, Michael contends that the plaintiff in a nullity action has the burden of proving his case by a

preponderance of the evidence and that the trial court incorrectly applied the more difficult standard of clear

and convincing. Langlois, however, involved the nullification of a default judgment rendered against a

defendant who was not properly served with the petition and citation. La. C.C.P. arts. 1201 and 2002.

Langlois is therefore inapplicable to the nullity of a judgment of divorce. We find the Peschier to be

controlling of a petition for nullity of a judgment of divorce.

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supra. Therefore, we find that the trial court was not manifestly erroneous in

granting Amanda's oral motion for involuntary dismissal pursuant to La. C.C.P. art.

1672 B, and dismissing Michael's petition for nullity of judgment of divorce.

Accordingly, for the above stated reasons, we affirm the trial court’s August

27, 2020 judgment granting Amanda Cousin’s oral motion for involuntary dismissal

pursuant to La. C.C.P. art. 1672 B, and dismissing Michael Cousin’s petition for

nullity of judgment of divorce.