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Loya v. Loya

Court of Appeals of Louisiana, Fifth Circuit

February 21, 2018




          Panel composed of Judges Susan M. Chehardy, Jude G. Gravois, and Stephen J. Windhorst.


         Plaintiff/appellant, Alexander Loya, appeals the trial court's June 21, 2017 judgment that denied his Petition for Contact with Minor Biological Children. For the reasons that follow, we affirm the judgment.


         Plaintiff/appellant, Alexander Loya, and defendant/appellee, Sandra Cummings Loya, were married on January 10, 1998. Of their marriage, three children were born. Their oldest child, who was born in November 1999, is now a major; their second and third children, born in 2001 and 2003, respectively, are still minors. In 2009, Mr. Loya, then a Captain in the United States Army, was convicted by court-martial of several counts of various crimes involving sexual acts with his then-minor step-daughter, K.L., who is Mrs. Loya's daughter by a previous marriage. For his crimes, Mr. Loya was sentenced to "confinement for 50 years and dismissal from the service." As part of his sentence, Mr. Loya was also prohibited from writing, visiting, or making other contact with Mrs. Loya, and from "having any contact with minor children." On or about August 26, 2010, the couple divorced.

         On January 13, 2017, Mr. Loya filed a "Petition for Contact with Minor Biological Children."[1] At the time his petition was filed, Mr. Loya was incarcerated at the United States Disciplinary Barracks in Fort Leavenworth, Kansas. He is currently incarcerated in Pollock, Louisiana. In his petition, Mr. Loya averred that it was in the best interest of his minor children that he be allowed to contact them via telephone and/or U.S. mail, to send them gifts, and to have access to information and documentation pertaining to them, including but not limited to academic and athletic achievements such as report cards, standardized testing results, and any competitive awards or accomplishments. Mr. Loya requested that the court appoint a custody facilitator/parenting coordinator to arrange, facilitate, and supervise any telephone contact with the children and to receive and deliver cards, letters, and gifts to the children. He noted that he had completed the Army-sanctioned "Reason and Rehabilitation Class, Anger Management Class and Alpha Course."

         Upon request of the trial court, [2] Mr. Loya filed a memorandum of law in support of his petition. In his memorandum, Mr. Loya argued that pursuant to La. C.C. art. 136, [3] he was seeking to establish a way to be part of his minor children's lives without the interference or prevention of Mrs. Loya. He also contended that La. R.S. 9:364.1, quoted infra, provided him, as an incarcerated parent, with a statutory basis for his request. Mr. Loya further relied on La. R.S. 9:351[4] to argue that at the very least, he should be provided with his minor children's medical, dental, and school records, including but not limited to extra-curricular activities.[5]

         On June 14, 2017, the trial court conducted a hearing on the petition. At the hearing, Mr. Loya's attorney argued that Mr. Loya was not convicted of anything involving his three biological children at issue herein.[6] Counsel argued that Mr. Loya simply wanted contact with his children by sending cards, communicating via telephone, and/or receiving information about their health and education. Counsel further suggested that the trial court appoint someone to facilitate the contact to ensure the safety of the children. Counsel for Mr. Loya presented no witnesses and submitted no evidence at the hearing in support of his requests. His case consisted entirely of argument of counsel.

         Mrs. Loya, appearing pro se, testified at the hearing and submitted exhibits in opposition to the petition. She provided that Mr. Loya has had no contact with the children since his arrest in 2009. When Mr. Loya was first sentenced, Mrs. Loya only told the children that he was accused of wrongdoing and that the court had found him guilty. She also told the children that if they wanted contact with their father, she would not stop it; however, she said that they had never brought up wanting to contact him. Mrs. Loya testified that the children are now together, healed, successful, and stable. She said that she did not want the children receiving gifts and cards from Mr. Loya, even through an intermediary, because their lives are stable and she did not want to do anything to jeopardize their current path of life.[7] She stated that Mr. Loya previously attempted contact with the children by sending several letters to Mrs. Loya's mother, requesting that she give them to the children. However, the children never saw these letters. Mrs. Loya found them in her mother's possessions after her death. Copies of the envelopes containing the letters were submitted into evidence. Mrs. Loya also submitted into evidence correspondence she received from the Army stating that Mr. Loya was prohibited from having any contact with her and "with minor children." She further submitted a copy of the General Court-Martial Order listing Mr. Loya's convictions and sentence.

         Mrs. Loya further testified that her daughter, K.L., the victim of Mr. Loya's crimes, although now a major, is "extremely mentally unstable." She stated that as a minor, K.L. had been sent to juvenile court several times. Additionally, she was hospitalized twenty-five times in a period of four years as a result of the trauma she received at the hands of Mr. Loya. Mrs. Loya denied the allegations by Mr. Loya that K.L. has since recanted some of the things she testified about regarding the charges against Mr. Loya, and that K.L. said that Mrs. Loya set it up for her to make the claims against Mr. Loya.

         At the conclusion of the hearing, the trial court took the matter under advisement. On June 21, 2017, the trial court rendered a written judgment denying all of the claims and relief requested in Mr. Loya's petition.[8] Written reasons for judgment were issued that same day. This timely appeal followed.

         On appeal, Mr. Loya, appearing pro se, asserts in his first assignment of error (styled "Issue I" by Mr. Loya) that the trial court erred when it denied his petition based on Mrs. Loya's testimony. Though the trial court stated that it perceived Mrs. Loya to be honest, candid, and forthright, Mr. Loya argues that her statements on the record and the facts in his brief show that she was "consciously deceptive" and lied to the trial court. In support of his argument, Mr. Loya refers this Court to affidavits of Daurice Cummings Bealer and Tania Favela Loya attached to his brief.

         Mr. Loya asserts in his second assignment of error (styled "Issue II" by Mr. Loya) that the trial court erred when it denied his petition based on the emotional trauma K.L. suffered, first because he denied that any abuse ever occurred, and second because the contact he presently seeks is with his three biological children, not with K.L. He argues that the suffering and emotional trauma in K.L.'s life was due to Mrs. Loya's own manipulation that caused her to accuse Mr. Loya falsely and unjustly put him in prison. He again refers to attachments to his brief as the support for his argument.

         Finally, Mr. Loya asserts in his third assignment of error (styled "Issue III" by Mr. Loya) that the trial judge was "an old family friend" of Mrs. Loya and thus should have recused himself from the case, arguing that "this makes the Court appear unethical to the general public."

         Mrs. Loya did not file an appellee brief with this Court.


         The legal authority for visitation with incarcerated parents is found in ...

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