FROM CIVIL DISTRICT COURT, ORLEANS PARISH NO. 2014-00185,
DIVISION "D" Honorable Nakisha Ervin-Knott, JUDGE.
CYNTHIA DELUCA REBECCA GILSON MARY RUSSO AND DAVID COURCELLE
LAW OFFICE OF DAVID I. COURCELLE, LLC, COUNSEL FOR
BENNETT WOLFF LAW OFFICES OF WOLFF & WOLFF, AND THEON
AGNES WILSON LAW OFFICES OF THEON A. WILSON, COUNSEL FOR
composed of Chief Judge James F. McKay III, Judge Terri F.
Love, Judge Rosemary Ledet.
F. MCKAY III CHIEF JUDGE.
appeal stems from a contentious custody dispute. Jonathan
Mathes (Mr. Mathes) seeks review of two judgments rendered on
January 30, 2017, setting forth custody and denying his
Exception of No Cause of Action. For the reasons set forth
below, we affirm both judgments.
OF FACTS AND PROCEDURAL HISTORY
child, N.M., was born on September 6, 2012. The
parents, Mr. Mathes and Gia Faucheux (Ms. Faucheux), were
Mathes and Ms. Faucheux began a long distance relationship in
2010 while Mr. Mathes resided in Algiers (a subdivision of
New Orleans), Louisiana, and Ms. Faucheux resided in Houston,
Texas. After becoming pregnant, Ms. Faucheux lived with Mr.
Mathes in New Orleans for a short time, moving back to
Houston when she was four months pregnant. N.M. was born in
Houston. Shortly thereafter, Ms. Faucheux and N.M. moved to
New Orleans to reside with Mr. Mathes. Following a rocky
relationship, Ms. Faucheux and N.M. moved back to Houston on
January 1, 2014.
January 7, 2014, Mr. Mathes filed a Petition for Joint Legal
Custody, seeking domiciliary status. On January 14, 2014, Mr.
Mathes filed a motion objecting to Ms. Faucheux's
unauthorized relocation of the minor child pursuant to
Louisiana's relocation statute, La. R.S. 9:355.1 et
seq.  Ms. Faucheux filed an Answer and
Reconventional Demand, seeking sole custody of N.M.
hearing was held on April 2, 2014. The parties entered into a
Consent Judgment, signed by the court on May 1, 2014,
recognizing Mr. Mathes as the biological father of N.M. and
designating Louisiana as the child's home state. An
Interim Consent Judgment was also rendered on May 1, 2014,
wherein the parties agreed to participate in a custody
evaluation with court appointed expert, Martha Bujanda (Ms.
Bujanda). The Interim Consent Judgment further set forth an
"interim" physical custody schedule "without
prejudice." Pursuant to this schedule, the parties would
share a one week on/one week off arrangement, with the
exchange of N.M. taking place on Sundays in Lafayette,
14, 2014, Ms. Bujanda issued her first report. Based on her
evaluation of Ms. Faucheux, Mr. Mathes, and N.M., she
recommended that the parties keep the same one week on/one
week off schedule. She further recommended that Louisiana
should be the child's primary residence.
March 16, 2015, the trial court ordered Ms. Bujanda to update
her evaluation. After conducting a re-evaluation, a second
report was issued on May 25, 2015, wherein her
recommendations for shared custody remained unchanged. Ms.
Bujanda again recommended that the child's primary
residence remain in Louisiana.
judgment dated June 16, 2015, the trial court ordered that
Ms. Bujanda's recommendations be implemented on an
interim basis. In accordance with that ruling, N.M. moved
back to Louisiana to take up his primary residence with Mr.
Mathes. The judgment further ordered that the parties
participate in a custody evaluation with Dr. Erin L. Skaff
Vandenweghe (Dr. Vandenweghe).
Vandenweghe conducted an evaluation of the parties and
rendered a report in December 2015, wherein she recommended
that Ms. Faucheux be designated as the primary custodian with
as much visitation to Mr. Mathes as possible. Dr. Vandenweghe
further stated that if the parents were to live in the same
city, she would recommend equal physical
January 19, 2017, Mr. Mathes filed an Exception of No Cause
of Action, asserting that Ms. Faucheux's Reconventional
Demand failed to make any request to relocate the minor
child's residence. Mr. Mathes asserts that Ms. Faucheux
failed to provide notice of the request for relocation, and
therefore failed to abide by the relocation statute. Mr.
Mathes also filed a Motion in Limine seeking to prohibit
testimony by Dr. Vandenweghe, and to exclude her report
because it makes recommendations regarding the relocation of
the child to Houston, which Ms. Faucheux failed to properly
plead. Both motions were deferred to the day of trial.
to Mr. Mathes' Motion to Determine Final Custody, trial
was held on January 25, 26 and 27, 2017.  The trial court
heard testimony from Ms. Faucheux, Mr. Mathes, court
appointed evaluators Ms. Bujanda and Dr. Vandenweghe, along
with Dr. Kristen Luscher (Dr. Luscher), a witness called by
Bujanda and Dr. Vandenweghe testified as to their findings
based on their court ordered evaluations. Dr. Luscher never
evaluated the parties. Rather, Mr. Mathes called Dr. Luscher
as an expert in clinical psychology to critique the
evaluations of the court appointed experts. Dr. Luscher
opined that some of the tests used by Dr. Vandenweghe were
not applicable to child custody evaluations. Dr. Luscher
could not say whether she agreed with the opinions of Ms.
Bujanda and Dr. Vandenweghe because she never met with the
parties or the child. Moreover, she did not provide a
recommendation of her own concerning the custody of N.M.
was rendered on January 30, 2017, denying Mr. Mathes'
Exception of No Cause of Action and his Motion in
Limine. A separate judgment was rendered on that
date, granting joint custody to the parties and designating
Ms. Faucheux as the domiciliary parent with liberal and
reasonable visitation to Mr. Mathes. The judgment sets forth
a very detailed schedule for school year, summer, and holiday
visitation with the child.
Mathes appealed both of the January 30, 2017 judgments. On
appeal, Mr. Mathes asserts six assignments, some of which are
of error one and two assert that the trial court erred in
denying the Exception of No Cause of Action regarding
relocation and in making a relocation determination not
properly before the court. Assignments of error three, five,
and six assert that the trial court erred in making its
custody determination without a finding of a change in
circumstances and without considering the best interest
factors under the relocation statute. In assignment of error
four, Mr. Mathes avers that the trial court erred in
admitting highly prejudicial text messages, which he sent to
Ms. Faucheux before N.M. was born.
custody determinations are reviewed under the abuse of
discretion standard. State through Dep't of Children
& Family Servs. Child Support Enforcemtent,
2016-0979, p. 12 (La.App. 4 Cir. 4/12/17), 216 So.3d 130, 139
(citing Leard v. Schenker, 2006-1116, p. 3 (La.
6/16/06), 931 So.2d 355, 357). Likewise, in a relocation
case, the trial court's determination "will not be
overturned absent a clear showing of abuse of
discretion." Curole v. Curole, 2002-1891, p. 4
(La. 10/15/02), 828 So.2d 1094, 1096. "In reviewing the
record to determine whether the trial court's ultimate
conclusion constitutes an abuse of discretion, an appellate
court must accept each factual finding the trial court made
in arriving at that conclusion, unless the particular factual
finding is manifestly erroneous." LaGraize v.
Filson, 2014-1353, p. 15 (La.App. 4 Cir. 6/3/15), 171
So.3d 1047, 1054.
of Error One and Two: Exception of No Cause of
Mathes filed an Exception of No Cause of Action, wherein he
asserted that Ms. Faucheux's Reconventional Demand failed
to make a request to relocate the minor child. For that
reason, Mr. Mathes has asserted that the issue of relocation
was not properly before the court. The exception was denied.
Louisiana Supreme Court has summarized the law regarding the
peremptory exception of no cause of action as follows:
A cause of action, when used in the context of the peremptory
exception, is defined as the operative facts that give rise
to the plaintiff's right to judicially assert the action
against the defendant. Ramey v. DeCaire, 03-1299, p.
7 (La. 3/19/04), 869 So.2d 114, 118; Everything on Wheels
Subaru, Inc. v. Subaru South, Inc., 616 So.2d 1234, 1238
(La. 1993). The function of the peremptory exception of no
cause of action is to test the legal sufficiency of the
petition, which is done by determining whether the law
affords a remedy on the facts alleged in the pleading.
Ramey v. DeCaire, p. 7, 869 So.2d at 118. No
evidence may be introduced to support or controvert an
exception of no cause of action. La. Code Civ. Proc. art.
931. Consequently, the court reviews the petition and accepts
well-pleaded allegations of fact as true. Ramey v.
DeCaire, p. 7, 869 So.2d at 118; Jackson v. State ex
rel. Dept. of Corrections, 00-2882, p. 3 (La. 5/15/01),
785 So.2d 803, 806; Everything on Wheels Subaru, 616
So.2d at 1235. The issue at the trial of the exception is
whether, on the face of the petition, the plaintiff is
legally entitled to the relief sought. Ramey v.
DeCaire, p. 6, 869 So.2d at 118; Montalvo v.
Sondes, 93-2813, p. 6 (La. 5/23/94), 637 So.2d 127, 131.
State, Div. of Admin., Office of Facility Planning &
Control v. Infinity Sur. Agency, L.L.C., 2010-2264, pp.
8-9 (La. 5/10/11), 63 So.3d 940, 945-46.
Faucheux's Reconventional Demand seeks custody of N.M.,
for which the law clearly provides a remedy. As applied to
the facts of this case, an exception of no cause of action is
not the proper procedural vehicle to raise the failure of Ms.
Faucheux to make a request for relocation, or to question
whether the relocation issue was properly before the court.
Thus, we find no error in the denial of the exception.
Nonetheless, the question of whether the trial court erred in
ruling on the merits of the relocation issue will be
discussed more fully below.
of Error Three, Five and Six: Custody/Best interest of the
Mathes maintains that this is a relocation case, and that the
trial court erred in not applying the relocation statute in
determining custody of N.M. Ms. Faucheux counters, asserting
that the relocation statute does not apply here because this
is a simple custody dispute between a Texas domiciliary and a
evident from the record that the trial court agreed with Ms.
Faucheux's argument and applied the best interest of the
child factors listed in La. C.C. art. 134, rather than the
factors enumerated in the relocation statute, La. R.S.
9:355.1, et seq. For the reasons set forth below, we
find that the ...