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Ganaway v. Ganaway

Court of Appeals of Louisiana, Third Circuit

February 28, 2018

DANIELLE GANAWAY
v.
KYLE GANAWAY

         APPEAL FROM THE THIRTIETH JUDICIAL DISTRICT COURT PARISH OF VERNON, NO. 83, 609-C HONORABLE SCOTT WESTERCHIL, DISTRICT JUDGE

          Elizabeth B. Carr Bolen, Parker, Brenner, Lee & Engelsman, Ltd. COUNSEL FOR PLAINTIFF/APPELLANT: Danielle Ganaway (now Semento-Brooks)

          Misty Dawn Smith Attorney at Law COUNSEL FOR DEFENDANT/APPELLEE: Kyle Ganaway.

          Court composed of John D. Saunders, Marc T. Amy, and D. Kent Savoie, Judges.

          D. KENT SAVOIE, JUDGE

         In this custody matter, Danielle Ganaway (now Semento-Brooks) appeals the trial court's ruling that (1) modified a co-domiciliary custody order to name Kyle Ganaway as the primary domiciliary parent of the parties' children, and (2) denied her motion seeking authorization to relocate her children to the Dallas-Fort Worth area. For the reasons that follow, we reverse the trial court's modification of custody and affirm the denial of Danielle's motion for relocation.

         FACTUAL AND PROCEDURAL BACKGROUND

         Danielle Ganaway and Kyle Ganaway were married in 2005. They are the parents of two children who were born in 2005 and 2008, respectively. The parties separated in July 2010, and on August 13, 2010, Danielle filed a petition for divorce. The parties reside in Vernon Parish.

         On September 23, 2010, the parties entered into a stipulation wherein they agreed that they would be the co-domiciliary parents of the children, with Kyle to have reasonable visitation every Friday through Sunday pursuant to a "Joint Implementation Custody Plan." A judgment was signed on November 22, 2010, in accordance with the parties' agreement.

         On January 27, 2011, the parties entered into an "interim joint stipulation" agreeing that the children would live with Danielle's parents in Texas for the next six months. According to Danielle, the children returned to Vernon Parish in July 2011 and moved in with her as she had secured public housing.

         A judgment of divorce was rendered November 26, 2012. The judgment also stated that Danielle was allowed to remove the minor children from Louisiana for the purpose of relocation to Keller, Texas, and that Kyle would have visitation any weekend provided that he gave Danielle three days' notice. However, according to Danielle, she decided not to move to Keller, Texas at that time, but rather wanted to wait until the end of the school year; by that time, however, Kyle did not consent to the children moving.

         On January 6, 2015, Danielle filed a Rule for Contempt alleging that Kyle had failed to return the children following a scheduled holiday visitation. She also sought a modification of custody. That same day, Kyle filed a motion seeking temporary ex-parte custody alleging that he had been notified by the sheriff's department that Danielle was required to be hospitalized due to a suicide attempt. The trial judge denied the interim relief sought by Kyle, but set the matter for hearing.

         The matter was heard on February 5, 2015, at which time the parties stipulated to a joint, co-domiciliary, custody arrangement. The trial court signed a judgment on February 26, 2015, in accordance therewith. Danielle was awarded with physical custody of the children, with the exception of the second, third, and fourth weekends of the month, and Wednesday nights, when Kyle would have physical custody. A holiday visitation schedule was also established.

         On December 5, 2015, Danielle filed a petition which sought to modify custody as well as a ruling of contempt and suspension of visitation. She alleged that Kyle had physically abused the children during a visitation. On December 14, 2015, the trial judge denied the interim emergency relief requested by Danielle, but signed an "interim order, " stating that the visitation schedule for Kyle shall remain in effect until the matter was heard and that his visitation was to be supervised. The matter was heard January 21, 2016, at which time the parties entered into a stipulation. Judgment was rendered that day, but not signed until November 28, 2016. The judgment ordered that:

the interim order of custody with supervised visitation in favor of Kyle Ganaway be continued until he completes both a parenting class and an anger management class and provides proof of completion of the same to opposing counsel. Once Kyle Ganaway completes the aforementioned classes and provides proof of completion to opposing counsel, his visitation shall resume unsupervised, in accordance with the judgment signed February 26, 2015[.]

         The judgment further required Kyle to become current on his child support obligation within fifteen days.

         On May 26, 2016, Danielle filed a motion seeking to relocate the children's residence from Leesville, Louisiana to the "Dallas-Fort Worth Area." She alleged that she had remarried, that her current husband was in the Army Reserves and was stationed there, that the children's maternal grandparents resided there, that she wanted to complete her degree at the University of North Texas for increased job opportunities, and that there were improved educational options for her children. Danielle's motion was set for hearing July 11, 2016, and thereafter was continued several times. Meanwhile, on September 13, 2016, Judge Anthony Eaves recused himself from these proceedings, which were then reassigned to Judge Scott Westerchill.

         Danielle's motion to relocate the children was heard before Judge Westerchill on November 28, 2016, and January 10, 2017. The trial court signed a judgment on February 21, 2017, that denied Danielle's motion to relocate. The judgment also modified the February 26, 2015 judgment to name Kyle as the primary domiciliary parent while maintaining the same physical custody schedule between the parties.

         Danielle appeals and asserts the following as assignments of error:

1. The Trial Court erred when it changed domiciliary status when the issue was not plead by either party and neither requested or was granted permission to amend the pleadings or request a change in domiciliary status.
2. The Trial Court erred when it denied plaintiff's Motion for Authorization to relocate the residence of the children when that decision was based upon its ruling regarding domiciliary status, an issue which was not properly before the Court and the Court ...

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