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Holley v. Holley

Court of Appeals of Louisiana, Fifth Circuit

November 20, 2017

DRAYTON WATERS HOLLEY, II
v.
ALEXANDRA ROBIN HOLLEY

         ON APPLICATION FOR SUPERVISORY REVIEW FROM THE TWENTY-FOURTH JUDICIAL DISTRICT COURT PARISH OF JEFFERSON, STATE OF LOUISIANA NO. 747-986, DIVISION "O" HONORABLE DANYELLE M. TAYLOR, JUDGE PRESIDING

          COUNSEL FOR PLAINTIFF/RESPONDENT, DRAYTON WATERS HOLLEY, II Cynthia A. De Luca Rebecca Gil son Mary Cappie Tavary David I. Courcelle.

          COUNSEL FOR DEFENDANT/RELATOR, ALEXANDRA ROBIN HOLLEY Mitchell J. Hoffman Jeffrey M. Hoffman Abigail F. Gerrity.

          Panel composed of Judges Susan M. Chehardy, Fredericka Homberg Wicker, and Jude G. Gravois.

          FREDERICKS HOMBERG WICKER JUDGE.

         In this writ application, relator-mother seeks review of the trial court's judgment sustaining father-respondent's objection to her relocating their minor child from New Orleans to Baton Rouge. Additionally, relator-mother seeks review of the trial court's issuance of a preliminary injunction, enjoining her from leaving Orleans and Jefferson Parishes with the child "for any reason whatsoever, " as well as the trial court judgments awarding interim joint custody to the parties.[1]

         First, as to the relocation issue, we find that the trial judge committed a prejudicial legal error in applying the incorrect law and we, thus, conduct a de novo review of the relocation issue. Upon our de novo review, we find that the appropriate method to measure "miles" under the Relocation Act is by radial miles, or "as the crow flies, " rather than by surface or road miles. In this case, we find that the proposed relocation at issue is less than 75 radial miles from the father-respondent's domicile and, thus, the relocation statutes, La. R.S. 9:355.1 et seq., do not apply. Second, we find that the preliminary injunction issued is invalid as a matter of law because Mr. Holley failed to post security as required under La. C.C.P. art. 3610. Finally, as to the interim custody orders issued, we find that the trial judge erred in considering evidence not properly offered and introduced. Accordingly, for the reasons herein, we vacate the interim custody orders, the preliminary injunction, and the relocation judgment at issue, and remand this matter for further proceedings.

         FACTUAL AND PROCEDURAL BACKGROUND

         Drayton Waters Holley, II, and Alexandra Robin Holley were married on September 27, 2014. Of the marriage, one child, C.H, was born on January 4, 2015. Prior to the proceedings at issue filed in Jefferson Parish, the parties filed dual petitions for protective orders in Civil District Court for the Parish of Orleans.[2] In Ms. Holley's petition for protective order, she alleged that Mr. Holley "shook" C.H. when C.H. was a three-day old infant. On March 23, 2015, the trial judge in Orleans Parish granted Ms. Holley's petition for protection from abuse as to C.H. only and denied Mr. Holley's petition for protection from abuse. The transcript from the Orleans Parish hearing reflects the trial judge found that Mr. Holley's actions against C.H. were not intentional and ordered that both Mr. Holley and Ms. Holley attend new parenting classes at Children's Hospital. The trial judge in Orleans Parish issued a protective order on March 26, 2015, for a six-month period, with an established expiration date of September 26, 2015. The protective order additionally awarded Ms. Holley temporary custody of C.H. and Mr. Holley supervised visitation.

         On March 23, 2015, Mr. Holley filed a petition for divorce in the 24thJudicial District Court, seeking a divorce as well as a determination on initial custody and child support matters. On November 15, 2015, Ms. Holley filed exceptions of insufficiency of citation and service of process, lis pendens, and improper venue.[3] On April 21, 2016, the trial judge denied Ms. Holley's exceptions. In the same judgment, the trial judge awarded Mr. Holley supervised visitation with an independent supervisor, Ms. Martha Bujanda, and further appointed Dr. Edward Shwery to perform a custody evaluation as well as conduct psychological testing of both parties.[4]

         On April 26, 2017, Mr. Holley filed a pleading titled, "Objection to Defendant's Unauthorized Relocation of the Minor Child's Residence and Request for Attorney's Fees and Court Costs all with Incorporated Memorandum in Support[;] Request for Ex Parte Temporary Restraining Order Not to Remove Minor Child From Jurisdiction of the Court Pending a Hearing and Request for Injunction, Rule to Change/Modify Custody to Joint Custody with Petitioner Designated as Domiciliary Parent all with Incorporated Memorandum in Support." In his objection, Mr. Holley alleged that Ms. Holley relocated C.H. to Baton Rouge in February or March 2016, without his knowledge or proper notice as required under La. RS. 9:355.4(A).[5] Mr. Holley alleged that Ms. Holley forwarded correspondence to his counsel on March 28, 2017, notifying him that she planned to relocate C.H. to Baton Rouge on May 28, 2017, [6] but that the written notification did not provide a specific address in Baton Rouge as required under La. R.S. 9:355.5.[7] On April 10, 2017, Mr. Holley responded through correspondence to Ms. Holley's counsel, objecting to the proposed relocation.

         In his objection, Mr. Holley asserted first that Ms. Holley had in fact "relocated" C.H. as contemplated under the Relocation Act, i.e., that the proposed address in Baton Rouge exceeds the 75-mile restriction set forth in the Act and, second, that Ms. Holley should be prohibited from relocating C.H. to Baton Rouge as it is not in the minor child's best interest. Mr. Holley contended that Ms. Holley's March 28, 2017 correspondence was both insufficient and untimely to constitute proper notice of relocation under La. R.S 9:355.5.

         Mr. Holley further requested that the parties be awarded joint custody of C.H. He asserted that the custody evaluation with appointed evaluator Dr. Shwery was near completion and that supervised visitation, as ordered in the April 26, 2016 judgment, had continued with no incidents. He further contended that a change of circumstances occurred since the April 21, 2016 judgment awarding supervised visitation. Specifically, he alleged that Ms. Holly moved C.H. into her new husband's home in Baton Rouge and that Ms. Holley encouraged C.H. to refer to her new husband as "Daddy." Mr. Holley further alleged that Ms. Holley continued to refuse to inform him of C.H.'s whereabouts, including the address where C.H. lived.[8]

         Mr. Holley also requested a temporary restraining order, and a subsequent preliminary injunction, prohibiting Ms. Holley from removing C.H. out of Jefferson and Orleans Parishes pending a hearing on his objection to the relocation. On April 26, 2017, the trial judge issued a temporary restraining order prohibiting Ms. Holley from removing the minor child from Jefferson and Orleans Parishes "for any reason whatsoever" pending a hearing set for May 30, 2017.

         Ms. Holley filed an Answer to Mr. Holley's Objection, as well as a "Motion to Establish Child Support for the Minor Child, Terminate Supervised Visitation, Remove Ms. Bujanda as Supervisor, Request for Attorney Fees and Costs and for Sanctions, and that a TRO be Denied." In response to Mr. Holley's objection to relocation, Ms. Holley asserted that her move to Baton Rouge is not in fact a relocation because the distance between her prior residence, which was the child's primary residence, and her new residence is less than the 75-mile restriction provided in La. R.S. 9:355.2(B). Therefore, she contended that the relocation statutes do not apply in this case. Concerning custody, Ms. Holley claimed that any custody determination would be premature because the custody evaluation was not yet complete.

         The trial court conducted a hearing on May 30, 2017. The matters set before the court were visitation and custody; a request for an injunction prohibiting Ms. Holley from traveling with C.H. outside of Jefferson and Orleans Parishes; and Mr. Holley's objection to Ms. Holley's unauthorized relocation to Baton Rouge. Concerning relocation, Mr. Holley asserted first that Ms. Holley had in fact "relocated" the child as contemplated under the Relocation Act, i.e., that the proposed address in Baton Rouge exceeds the 75-mile restriction set forth in the relocation statutes and, second, that Ms. Holley should be prohibited from relocating C.H. to Baton Rouge because it is not in C.H.'s best interest.

         At the hearing, Mr. Holly testified that he resides at 160 Citrus Road in Jefferson Parish. He testified that he received correspondence dated March 28, 2017 from Ms. Holley's counsel indicating that she intended to relocate C.H. to Baton Rouge on or about May 28, 2017. He testified to his suspicions that Ms. Holley relocated with C.H. sometime between Halloween and Christmas of 2016 without his knowledge or the permission of the Court. He testified that he searched MapQuest, Google maps, and AAA Direction to determine the distance between Ms. Holley's Baton Rouge address and C.H.'s principal residence in Orleans Parish. He testified that Google Maps reflected the drive to be 75.7 miles and MapQuest reflected the drive as 75.1 miles.[9]

         Ms. Holley testified at trial that she is married to Mr. Richard Dickson, who lives and works in Baton Rouge. She testified that her mailing address is 9472 Boone Drive in Baton Rouge and that, since the April 26, 2017 restraining order was issued, she has resided with C.H. at 7300 Lakeshore Drive in New Orleans. She testified that she has abided by the restraining order and further that she has never prevented Mr. Holley from exercising visitation. Although she testified that a relocation to Baton Rouge would make visitation with Mr. Holley more difficult, she maintained that she would still drive to Jefferson Parish to allow Mr. Holley to exercise his visitation with C.H. Ms. Holley introduced into evidence a map reflecting that the mileage, in straight-line or radial miles, from the child's principal residence in New Orleans to the proposed Baton Rouge address is 64 miles.

         Ms. Holley discussed the MapQuest route suggested by Mr. Holley and testified that the route she takes from New Orleans to the Baton Rouge address involves exiting the interstate one exit closer to New Orleans than the route proposed by Mr. Holley, and traveling through residential streets. She testified that everyone in her neighborhood avoids taking the Essen Lane exit of the highway, which is the interstate exit reflected in the MapQuest and other search engines' results, because the hospital near the interstate exit creates a significant amount of traffic. She stated that the route she takes "religiously" reflects a 73.8-mile drive on MapQuest from C.H.'s principal residence in New Orleans to the proposed Baton Rouge residence.

         Mr. Richard Dickson testified that he is married to Ms. Holley and that he resides at 9472 Boone Drive in Baton Rouge. He testified as to his customary route he travels from Ms. Holley's residence in New Orleans to his home in Baton Rouge, which travels through residential neighborhoods and reflects a 73.8-mile drive. He reiterated Ms. Holley's testimony that the highway route proposed by Mr. Holley, reflecting a 75.7-mile drive, is not his customary route because it includes exiting the interstate next to a major hospital, which significantly increases travel time due to heavy traffic.

         During the hearing, the trial judge made it clear that the only issue to be determined, initially, was whether the proposed relocation of C.H.'s principal residence would be considered a "relocation" to which the Relocation Act notice requirements would apply. When counsel attempted to question Ms. Holley on her reasons for moving to Baton Rouge, the trial judge instructed, "I think that would go to the [relocation] factors, if we got to the factors. But we are not there yet." Counsel reiterated that "we're limiting ourselves strictly to the number of miles. I would like to put on a relocation case, but I understand your Honor would prefer I not." The trial judge stated on the record that the merits of relocation was not before the Court at that time.

         The Court took a recess and indicated that, upon return, the hearing would continue on the issues of custody and visitation. During the recess, the parties and counsel attempted to reach a compromise on the issue of custody. However, the record indicates that Ms. Holley, who was pregnant at the time, experienced a panic attack and left the hearing to seek medical treatment. No consent judgment was reached and no agreement was read into the record.

         At the conclusion of the recess, the trial judge returned to the bench and issued her ruling. As to Mr. Holley's objection to relocation, she determined that "the intention of the legislature was the distance to mean traveling distance and not as-the-crow flies distance." She found that "we are not crows" and determined that the "most commonly traveled route" should be utilized when calculating mileage under the relocation statutes. She consequently found that the distance between C.H.'s principal place of residence in New Orleans and the proposed relocation address in Baton Rouge is more than 75 miles and, thus, the relocation statutes apply to this case.

         On June 22, 2017, the trial judge issued a written judgment sustaining and granting Mr. Holley's Objection to Ms. Holley's "Unauthorized Relocation." The judgment further granted Mr. Holley's request for a preliminary injunction in the same form and substance as the temporary restraining order issued April 26, 2017, prohibiting Ms. Holley from ...


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