FROM THE NINTH JUDICIAL DISTRICT COURT PARISH OF RAPIDES, NO.
232, 274 HONORABLE THOMAS M. YEAGER, DISTRICT JUDGE
Gregory N. Wampler Lemoine & Wampler COUNSEL FOR
PLAINTIFF/APPELLEE: Misty Luneau Noland
Michael H. Davis Attorney at Law COUNSEL FOR
PLAINTIFF/APPELLEE: Misty Luneau Noland
Bradford H. Felder G. Andrew Veazey Huval, Veazey, Felder
& Renegar, L.L.C. COUNSEL FOR DEFENDANT/APPELLANT: Ryan
composed of John D. Saunders, Billy H. Ezell, and D. Kent
KENT SAVOIE, JUDGE
custody dispute, Ryan Noland appeals the trial court's
judgment denying his motion for modification of custody.
Misty Noland filed an answer to appeal in the trial court
requesting certain restrictions placed on her in the judgment
be removed. For the reasons set forth herein, we
affirm the judgment and decline to consider Misty
Noland's Answer to Appeal.
AND PROCEDURAL BACKGROUND
and Misty Noland were married on June 16, 2007. Of the
marriage, two children were born - Conner on February 11,
2005, and Lillian on August 20, 2007. A Petition for Divorce,
including a request for child custody and support, was filed
on December 17, 2008. The petition designated Misty as the
primary domiciliary custodian of the minor children with Ryan
entitled to specific periods of custody.
5, 2012, Misty filed a Rule for Modification of Child Support
and Custody/Visitation and Contempt of Court that was tried
on July 23, 2012. Written reasons and judgment were rendered
on July 31, 2012. The trial court ordered a more specific
visitation and custody schedule.
15, 2015, Ryan, now remarried and living in Oklahoma, filed a
Motion for Ex-Parte Custody and Modification of Custody,
Visitation and Child Support. An ex-parte order granting
custody of the children to Ryan was improperly signed which
led to a sequence of events wherein Misty's mother,
Dorothy Luneau, attempted to use the order to gain custody of
the children. Misty then filed a Motion to Vacate the
Ex-Parte Order which was granted on July 17, 2015 after a
hearing on the matter. Ryan's original modification of
custody was heard in December 2015 and February 2016 and
culminated with days of testimony from twenty-seven witnesses
and sixty-five exhibits. The trial court issued written
reasons dated March 24, 2016, and judgment was signed May 2,
2016. The judgment denied Ryan's motion for modification
of custody and ordered the following actions be taken by the
(1) Misty is to submit to random drug screens at Louisiana
Occupational Health Services, 3018 Jackson Street, Ste. 100,
Alexandria, Louisiana, as follows:
a) Random and observed urine screens twice weekly for six (6)
months from the date of this judgment, and then once weekly
for the following six (6) months; b) A hair follicle test
once monthly for twelve (12) months from the date of this
judgment; and c) Misty is to execute a medical release form
with Louisiana Occupational Health Services, 3018 Jackson
Street, Ste. 100, Alexandria, Louisiana, authorizing all test
results to be mailed to Thomas M. Yeager, District Judge,
P.O. Box 1431, Alexandria, Louisiana 71309, or delivered to
Judge Yeager by facsimile at 318.484.2704.
(2) Misty to undergo substance abuse and family counseling
with Lydia Roy, 3921 Independence Boulevard, Ste. 101,
Alexandria, Louisiana 71309 (Telephone: 318.528.8717), with
the frequency and length of that counseling to be determined
by Ms. Roy. Misty is to execute a medical release form with
Ms. Roy, authorizing and directing Ms. Roy to provide a
progress report every ninety (90) days, to be mailed to
Thomas M. Yeager, District Judge, P.O. Box 1431, Alexandria,
Louisiana, 71309, or delivered to Judge Yeager by facsimile
(3) Misty is to continue treatment by Dr. Edwin Urbi, MD,
5920 Coliseum Boulevard, Alexandria, Louisiana, and to take
all medications prescribed by Dr. Urbi.
(4) Misty is prohibited from consuming alcohol and from
entering bars, lounges, and casinos and is not to consume any
controlled dangerous substances (CDS) unless prescribed by a
physician; however, prior to any such prescription being
written, Misty is to notify the physician of her substance
abuse addiction and request that the physician prescribed a
non controlled substance, if possible.
(5) The minor children, Conner Michael Noland, born February
11, 2005, and Lillian Ryan Noland, born on August 20, 2007
(sometimes jointly hereafter "the children") are to
have reasonable access to communicate with Ryan and that
communication will not be censored nor monitored in any
manner. Ryan is to have contact with the children by
telephone, Skype, or Facetime at least four times a week,
with Misty having the responsibility for placing the calls.
(6) Misty is not permitted to make or allow to be made, in
the children's presence, any derogatory comments,
directly or indirectly about Ryan, Lindsey Noland, or her
mother, Dorothy Luneau.
(7) Misty is, with the assistance of her substance abuse and
family counselor, to work on a plan to reestablish a
relationship with her children and their grandparents.
(8) Misty is to have both children evaluated for ADHD and to
follow any treatment recommendations or medication
recommendations made by the evaluator.
(9) Both Misty and Ryan are to purchase services provided by
Our Family Wizard at www.OurFamilyWizard.com or by
trial court reserved its ruling on the issue of child support
and all other motions filed by the parties. It is from this
judgment that Ryan appeals.
1. The trial court erred when it applied the
Bergeron standard rather than the Evans
standard for modification of custody.
2. Regardless of whether the Bergeron or
Evans standard applies, Ryan met the standard
justifying a modification of custody, and the trial court
erred when it failed to properly apply the Civil Code Article
134 factors and to name Ryan domiciliary parent and award
Misty custodial periods appropriate for someone living
approximately eight hours away from the primary custodian.
3. The trial court erred in considering the evidence of
Lilly's educational improvement during the course of the
litigation as paramount in its determination of custody. At
the time Ryan filed his initial request for modification of
custody on July 15, 2012, Lilly had failed the first grade
and was repeating that grade after having repeated
pre-kindergarten. Only after Ryan sought modification of
custody, while Misty was under microscope, did Lilly
allegedly improve with her school work. In other words, the
trial court erred both in considering post-filing facts
influenced by the ongoing litigation (and the involvement of
Misty's father) and in its putting undue weight on only
one of the twelve factors.
4. The trial court erred in holding that Ryan failed to meet
his burden to modify the July 31, 2012 Judgment, but then
modifying that judgment in an effort to reform Misty and
protect the children from her with continued involvement and
oversight of the trial court. In other words, the provisions
that the trial court included in the judgment to reform Misty
establish that Ryan did, in fact, meet his burden even if the
Bergeron standard applies. Therefore, the trial
court erred in establishing itself as a "safety
monitor" for the children rather than placing the
children with Ryan with whom there were no concerns for their
5. Alternatively, the trial court erred when it failed to
amend Ryan's custodial periods given that Ryan now lives
eight hours away from Misty.
6. The trial court erred in sustaining Misty's objection
to the introduction of a Facebook posting between she and ...