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Mathes v. Faucheux

Court of Appeals of Louisiana, Fourth Circuit

August 9, 2017

JONATHAN MATHES
v.
GIA FAUCHEUX

         APPEAL 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 PLAINTIFF/APPELLANT.

          BENNETT WOLFF LAW OFFICES OF WOLFF & WOLFF, AND THEON AGNES WILSON LAW OFFICES OF THEON A. WILSON, COUNSEL FOR DEFENDANT/APPELLEE.

          Court composed of Chief Judge James F. McKay III, Judge Terri F. Love, Judge Rosemary Ledet.

          JAMES F. MCKAY III CHIEF JUDGE.

         This 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.

         STATEMENT OF FACTS AND PROCEDURAL HISTORY

         The child, N.M.[1], was born on September 6, 2012. The parents, Mr. Mathes and Gia Faucheux (Ms. Faucheux), were never married.

         Mr. 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.

         On 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. [2] Ms. Faucheux filed an Answer and Reconventional Demand, seeking sole custody of N.M.

         A 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, Louisiana.

         On July 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.

         On 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.

         In a 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).

         Dr. 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 custody.[3]

         On 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.

         Pursuant to Mr. Mathes' Motion to Determine Final Custody, trial was held on January 25, 26 and 27, 2017. [4] 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 Mr. Mathes.

         Ms. 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.

         Judgment was rendered on January 30, 2017, denying Mr. Mathes' Exception of No Cause of Action and his Motion in Limine.[5] 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.

         Mr. Mathes appealed both of the January 30, 2017 judgments. On appeal, Mr. Mathes asserts six assignments, some of which are duplicative.

         Assignments 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.

         LAW AND ANALYSIS

         Standard of Review

         Child 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.

         Assignments of Error One and Two: Exception of No Cause of Action/Relocation

         Mr. 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.

         The 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.

         Ms. 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.

         Assignments of Error Three, Five and Six: Custody/Best interest of the Child:

         Mr. 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 Louisiana domiciliary.

         It is 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 ...


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