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
COUNSEL FOR DEFENDANT/RELATOR, ALEXANDRA ROBIN HOLLEY
Mitchell J. Hoffman Jeffrey M. Hoffman Abigail F. Gerrity.
composed of Judges Susan M. Chehardy, Fredericka Homberg
Wicker, and Jude G. Gravois.
FREDERICKS HOMBERG WICKER JUDGE.
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.
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
AND PROCEDURAL BACKGROUND
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. 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
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. 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.
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). 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,  but that
the written notification did not provide a specific address
in Baton Rouge as required under La. R.S. 9:355.5. On April
10, 2017, Mr. Holley responded through correspondence to Ms.
Holley's counsel, objecting to the proposed relocation.
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.
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.
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,
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
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.
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.
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.
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.
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
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.
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.
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.
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 ...