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Lucky v. Way

Court of Appeals of Louisiana, Second Circuit

September 1, 2017

WILLIAM ARTMER LUCKY, IV Plaintiff-Appellee
v.
LINDSAY DIANE WAY Defendant-Appellant

         Appealed from the Twenty-Sixth Judicial District Court for the Parish of Bossier, Louisiana Trial Court No. 126336 Honorable Allen Parker Self, Jr., Judge

          WEEMS, SCHIMPF, HAYNES, LANDRY, SHEMWELL & MOORE (APLC) By: Amanda D. Brotherton-Todd Kenneth P. Haines Carey T. Schimpf Counsel for Appellant

          AYRES, SHELTON, WILLIAMS, BENSON & PAYNE, L.L.C. By: Curtis R. Shelton BOWERS LAW FIRM, L.L.C. By: Gary A. Bowers Counsel for Appellee

          Before WILLIAMS, MOORE, and GARRETT, JJ.

          WILLIAMS, J.

         In this child custody dispute, the defendant, Lindsay Diane Way, appeals a trial court judgment awarding sole custody of the minor child to the plaintiff, William Artmer Lucky, IV, and granting her supervised visitation. She also challenges the appointment of a mental health professional to evaluate the parties. For the following reasons, we affirm.

         FACTS

         William Artmer Lucky, IV ("William")[1] and Lindsay Diane Way ("Lindsay") were involved in a relationship which resulted in the birth of "Quincy, " who was born August 31, 2007. William and Lindsay never married, and the relationship ended soon after Quincy's birth.

         On March 19, 2008, Lindsay took Quincy to her home state of Pennsylvania. According to William, Lindsay told him that she was traveling to Pennsylvania to visit her family; however, once she arrived, she informed him that she was going to enroll in a graduate program at the University of Pittsburgh, and she did not intend to return Quincy to the state of Louisiana.

         On April 23, 2008, William filed a petition seeking sole custody of Quincy and an order to require Lindsay to return Quincy to Louisiana. In the alternative, he sought to be named domiciliary parent. Further, William sought a judgment to be declared Quincy's biological father.

         On July 3, 2008, Lindsay filed a reconventional demand, seeking sole custody of Quincy and to be designated domiciliary parent.[2] Lindsay also requested that a mental health professional be appointed to evaluate William "and any other persons deemed necessary by said mental health professional to make recommendations to the court as to the best interest of the minor child[.]"

         On October 30, 2008, the parties filed a joint motion to have Dr. Mark Vigen evaluate William, Lindsay and Quincy. Initially, Dr. Vigen served as the mental health evaluator and facilitated visits between William and Quincy, whereby Lindsay would return to Louisiana with the child for overnight visits with William.[3] Over the following year, the parties filed numerous motions and pleadings.[4] On January 21, 2010, the court substituted Sandi Davis as the mental health professional for the parties and Quincy.

         Following a trial conducted on May 11, 12 and 14, 2010, a judgment was rendered, finding that William was the biological father of Quincy. Further, William and Lindsay were awarded "the joint care, custody and control of" Quincy. The parties entered into a "Joint Custody Implementation Plan" as follows: the parties alternated physical custody weekly, with the noncustodial parent being granted three hours of visitation on Wednesdays, if desired; each parent would serve as domiciliary parent during the week they enjoyed physical custody; Louisiana would be the legal domicile of Quincy and that any relocation would be governed by La. R.S. 9:355.1, et seq.; and Quincy would attend First Baptist Church School ("First Baptist"). Additionally, specific provisions were made for summer months and holidays. Moreover, the trial court appointed Sandi Davis as the parenting coordinator.

         In June 2010, Lindsay voluntarily returned to Louisiana with Quincy. Thereafter, both parties filed rules for various reasons.[5]

         The latest custody dispute commenced in April 2015, when William filed a rule seeking to be appointed sole domiciliary parent. He alleged numerous facts against Lindsay regarding the time Quincy was with her. Most of these allegations concerned Quincy's participation in sports, his education and his ability to communicate with his father. [6] William also requested that Sandi Davis be reappointed as parenting coordinator.

         On June 19, 2015, Lindsay filed an answer denying William's allegations. She asserted that William did not want Quincy to participate in baseball or any sports in which she was coaching because of his desire to alienate Quincy from her. She also asserted that William's allegations regarding Quincy's education were false and that William had never before shown any interest in Quincy's education.[7] Further, Lindsay maintained that William failed to provide any reasons for his allegation that her employment as a teacher at First Baptist was detrimental to Quincy.[8]

         Additionally, Lindsay filed a reconventional demand, seeking sole custody of Quincy, or in the alternative, to be designated sole domiciliary parent. She alleged as follows: William had "knowingly and intentionally" violated the joint custody order by depriving her of her Wednesday night visitation during her "off" week; William had enrolled Quincy in an extracurricular activity, without her knowledge, and had refused to provide her with any details of the activity so that she could attend Quincy's events; William attempted to remove Quincy from First Baptist and had sought tutoring for him without discussing it with her; William had refused to sign the new enrollment contract for Quincy's attendance at First Baptist and had attempted to arrange a meeting at the school without her knowledge; William had contacted Quincy's baseball coach and told him that Quincy would be removed from the team if Lindsay was allowed to act as assistant coach; William had instructed Quincy not to speak to her or acknowledge her at school during William's days of domiciliary custody; and William allowed Quincy to ride "four-wheelers" without wearing a helmet.

         Thereafter, William obtained another attorney and filed a myriad of pleadings, motions and other notices. Most of the filings arose from Lindsay's alleged interference with William's ability to communicate with Quincy when he was in Lindsay's custody, William's desire to enroll Quincy in another school, and various issues with certain people with whom Lindsay associated.[9] William also sought orders to appoint Sandi Davis as the mental health professional, Shelley Booker, LCSW, as parenting coordinator and for Lindsay to undergo a forensic psychiatric evaluation.[10]

         On July 15, 2016, the trial court signed a judgment that provided as follows: (1) Quincy "shall not return as a student to First Baptist Church School for the 2016-2017 school year";[11] (2) Lindsay was permanently enjoined from "exposing [Quincy] to Gregory Cooper Bell in any manner whatsoever"; and (3) the joint custody plan was modified such that physical custody would continue on a week/on week/off basis during the summer months and the "off-Wednesday" visits were eliminated. On July 20, 2016, the parties stipulated that Quincy would be enrolled in A Kid's Choice Foundation and that the director of A Kid's Choice would be given "exclusive authority" to "reintegrate [Quincy] into a conventional school setting."

         On August 31, 2016, Davis filed a detailed 30-page report with the trial court. Davis recommended that William be designated primary domiciliary parent and "have sole decision making in the area of medical care, educational development and spiritual guidance for Quincy." Davis also recommended that Lindsay have visitation every other weekend, and for a three-hour period "during the off week." In the report, Davis stated the following:

The parties are in conflict over anything and everything involving [Quincy];
We agree that this back and forth chaos is unnecessary and needs to cease;
Based on all we have seen, the parties in this case can no longer do a shared custody arrangement. *** I understand that joint custody means joint decision-making. Over the years, we have seen [William and Lindsay's] co-parenting communication decline, as we have also seen Lindsay's involvement in other activities / as other people have recognized her uncommon / peculiar methods of interactions when it comes to Quincy.
Joint decisions will not work in this case, as we have seen a defiant attitude when given specific instructions, as Lindsay tends to be more focused on her own agenda, which hinders her ability to be flexible and cooperative. Lindsay shows a pervasive pattern of instability of interpersonal relationships. In my opinion, she shows frantic efforts to avoid real or imagined abandonment, specifically as it relates to her relationship with Quincy;
[William] has shown displays of hostility towards Lindsay, which has resulted in him expressing his negativity in front of Quincy. He shows a willingness to be more mindful of his temperament, and has avoided interactions with others, including school faculty [at First Baptist] and mostly avoiding Lindsay and her counterparts. [William] has removed Quincy from certain school events in hopes of avoiding conflict that would arise from coming face to face with Lindsay. He recognizes that he has had a difficult time containing his anger and frustrations; therefore, he makes decisions to circumvent what might be a more difficult encounter.

         The details that Davis documented regarding her sessions with Quincy were quite troubling. According to Davis, Quincy had expressed the following: Lindsay instigates arguments with William and his current wife during his (Quincy's) school and extracurricular events; Lindsay told him that William "wanted to kill him before he was born"; at times, he did not want to return to Lindsay's house and would rather stay with William; he does not "feel safe" at Lindsay's house; if he had his way, he would spend one month with William and two days with Lindsay; Lindsay "always talks on the phone with someone about 'court'"; he hated First Baptist because he did not have many friends and other children "picked on" him; he was unable to "get caught up" in his school work at First Baptist; Lindsay "lies all the time"; his stepmother attempted to pick him up from school one day and Lindsay grabbed him by the arm, twisted his arm, "drug him" back inside the school and refused to allow him to leave with his stepmother; during William's weeks of custody, Lindsay searches his book bag after school and removes some of his papers; at times, Lindsay takes his homework papers to the library and takes pictures of them; he was embarrassed because other children have witnessed Lindsay's actions; Lindsay followed him, William and William's wife to a rodeo event and "followed them around"; he was anxious and nervous because he always feared that Lindsay was going to "record" him; Lindsay told him that William "took drugs" and had been to jail; Lindsay told him that she had called the police department on William because "she didn't feel safe anymore and that she saw a bunch of drugs in the fridge"; Lindsay and Greg Bell "recorded him a lot"; he was concerned that Lindsay was going to take him back to Pennsylvania and he would not have an opportunity to spend time with William; he is reluctant to share information/plans with Lindsay; he does not like the fact that Lindsay sends various people to pick him up from school because of her after-school coaching duties; and he is not interested in some of the activities Lindsay wants him to try, but she "never listens to [me] anyway."

         On September 6, 2016, William filed another rule nisi, requesting that he be awarded primary domiciliary custody and that Lindsay be allowed visitation every other weekend per Davis' recommendation. William sought an interim custody order, in addition to a court order prohibiting Lindsay from the following actions: contacting Quincy's school; "physically going on the premises" of the school "for any purpose"; and enrolling or registering Quincy in any extracurricular or educational activities or tutoring programs. Further, William sought an order declaring that he, his wife and his parents "shall exclusively provide or arrange for the transportation of [Quincy] to and from the campus" of his school.[12]

         In response, Lindsay filed exceptions of prematurity and no cause of action, arguing that William had not shown any immediate or irreparable injury to Quincy, and was not entitled to an interim custody order. She also argued that William was attempting to circumvent a trial on the merits by obtaining an interim order based solely upon the report of Sandi Davis. Further, she denied the allegation that she would be unable to transport Quincy to and from school, asserting that her schedule had become more flexible. Lindsay also filed a reconventional demand, alleging, inter alia, that Michael Gonyea, William's friend and frequent visitor, had been arrested for multiple counts of possession of child pornography. She sought an order prohibiting Gonyea from having any contact with Quincy. Further, Lindsay requested that all previously agreed-upon injunctions between Quincy "and certain individuals" be vacated.

         A hearing was conducted on September 22, 2016, during which Sandi Davis, Kim Slack and Laura Way (Lindsay's sister) testified. Following the hearing, the trial court issued an interim order granting William's request for domiciliary custody. Lindsay was awarded visitation every other weekend and for three additional hours during the week immediately following her weekend of visitation.[13] However, before the judgment was reduced to writing, on September 23, 2016, Sandi Davis sent an "urgent" message to the trial court and the attorneys for the parties:

I need to speak to you about some very disturbing things that I've discovered on social media as it relates to the overall well-being of Quincy Lucky. I knew it wouldn't take long for the drama to happen, but I am most concerned because the exchange is scheduled to take place at 3:00 pm today. Based on this information, the Court may need to intervene. This is very serious to me and I don't take what I've read lightly at all.
***

         Davis attached various photographs and social media exchanges between Greg Bell, Jill Way and others. The social media postings attached to Sandi Davis' memorandum were as follows:

[JILL WAY] - Things will be big and soon! WE WILL NEED ALL OF YOUR HELP!! We have to save Quincy from his Satan family here on earth
***
[GREG BELL] - Some numbers to digest . . . when Quincy gets done with "school" this year he will be the most "Ordered by Judgement [sic] Truant Child" in the United States at 136 days of school missed!
[JILL WAY] - I predict he will be enrolled in a school in the next few weeks as soon as he is done playmate [sic] gets bored!

         Other messages contained the following hashtags: "weneedyourhelp" and "stopcorruption."

         Additionally, Davis forwarded a report that Shelley Booker had prepared on June 28, 2016, in which Booker expressed concerns that Greg Bell had researched her personal social media accounts.[14] Following a telephone conference with the attorneys for both parties, the court, on its own motion, ordered the suspension of Lindsay's visitation and granted supervised visitation to her "for two one[-]hour periods per week at her expense until further orders of this Court."[15]

         On October 10, 2016, William filed a supplemental and amending rule, seeking the "sole care, custody and control" of Quincy, "subject to whatever visitation the Court deems to be appropriate considering the disturbing conduct of Lindsay D. Way and the recommendations of Ms. Sandi Davis and Ms. Shelley Booker with respect thereto."

         On October 13, 2016, Lindsay filed a motion to "vacate, set aside or remove" the trial court's order with regard to supervised visitation. In the pleading, Lindsay alleged that she was unaware that Bell and her mother had made the social media postings and she had previously agreed to, and abided by, the "no contact" orders against Bell and her mother. Further, Lindsay argued that the social media postings did not constitute "clear and convincing evidence of a threat to warrant any revocation of visitation[.]"

         On that same date, Davis wrote to the trial court and counsel for both parties, in which she addressed Lindsay's filing. Davis explained that she decided to bring the social media comments to the attention of the trial court because Lindsay's family lives in Pennsylvania, and she believed that "they might try to abscond with [Quincy] and enroll him in school in Pennsylvania."[16] Davis further wrote:

After [the trial judge] read the fax, I explained to him my concerns about the content of these posts and how seriously I interpreted the underlying meaning. "We have to save Quincy from his Satan family here on earth." Well I took this to mean what it said, which means if they have to save Quincy, they have to remove him from the Satan family here on earth. And then to engage every one's help in this matter. My main priority was to alert the Court of my concern about these posts and to seek the Court's advise [sic] as how to proceed.
***
I am in no way over dramatizing these concerns, as I have consulted with Shelley Booker, LCSW *** who expressed similar concerns.
***

         On October 19, 2016, the trial court signed a judgment in which William was designated interim domiciliary parent and was given "sole authority to make all decisions affecting Quincy *** including, but not limited to *** any medical and dental care issues, any issues surrounding the educational development of Quincy, including Quincy's education at A Kid's Choice Foundation, and any matters of religion and spiritual guidance of Quincy." Lindsay was granted visitation every other weekend and for three hours every other Tuesday "until further orders of this Court[.]" Further, the judgment prohibited Lindsay from contacting any employee of Quincy's school and from going on the premises of the school "for any purpose whatsoever." Additionally, both parents were prohibited from enrolling Quincy in any additional educational or tutorial activities. Moreover, the trial court granted Lindsay's motion to prohibit William from exposing Quincy to Michael "Brandon" Gonyea and denied her motion to vacate the prior "no contact" orders regarding Jill Way, Greg Bell and John Anthony Fertitta.

         On December 16, 2016, William filed a supplemental rule, seeking sole custody of Quincy and limiting Lindsay to supervised visitation "subject to and conditioned upon [Lindsay] securing some form of psychiatric treatment and/or therapy." He alleged the following: after the trial held on September 22, 2016, "members of LINDSAY D. WAY's crew commenced posting negative, derogatory, hateful, slanderous and malicious statements on social media sites"; Lindsay's vehicle was registered in Pennsylvania, the state to which she "originally absconded with" Quincy; Lindsay was mentally ill; and Lindsay was engaged in "voodoo or other occult practices." William also made the following specific allegations:

***
17.
***
(A) LINDSAY D. WAY suffers from and is afflicted by some form of serious mental illness;
(B) WILLIAM ARTMER LUCKY, IV is scared to death that IF [Lindsay] ever gets access to this child free and clear of supervised visitation, there is no telling what [Lindsay] and her crew of defiant supporters and sociopaths will do to or with this child, including, but not limited to, abducting this child and absconding from the State of Louisiana or even worse; and,
(C) LINDSAY D. WAY obviously needs some significant psychiatric treatment.
***

         Additionally, William sought a permanent injunction to prohibit Lindsay, "her agents, accomplices and anyone acting on her behalf *** from exposing [Quincy] *** to participate as a member in any form of spiritual practice not specifically approved by [William]; this prohibition should include any form of occult group, any form of voodoo, witchcraft or satanic worship, any paranormal practices and/or any other form of comparable antisocial behavior." Attached to the petition was a photograph of Lindsay wearing a hula hoop, to which she had attached rubber chickens. In the background of the photograph was a prayer that Lindsay had written on large slate tablets. In response, Lindsay denied being involved in any "occult practices" or "voodoo." She explained that the hula hoop was a target game she made for Quincy and the students in her physical education classes. She also averred that the picture was taken in her living room, and the location of the prayer/slate tablets in the background of the photograph was coincidental.

         Subsequently, on December 22, 2016, William filed another rule, seeking an order to prohibit Lindsay from exposing Quincy to Laura Way, Lindsay's sister, "in any manner whatsoever[.]" William alleged that Laura Way had "verbalized a threat to kill" him and that she posed "an extremely real and present danger" to Quincy.[17] Further, William sought an injunction prohibiting Lindsay from notifying and/or inviting Laura Way to attend any events in which Quincy would be involved and from allowing Laura to come to Lindsay's home when Quincy would be there. On December 27, 2016, William filed a supplemental rule seeking an ...


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