Cloud v. Dean

184 So. 3d 235, 15 La.App. 3 Cir. 1050, 2016 La. App. LEXIS 43, 2016 WL 147157
CourtLouisiana Court of Appeal
DecidedJanuary 13, 2016
DocketNo. 15-1050
StatusPublished
Cited by1 cases

This text of 184 So. 3d 235 (Cloud v. Dean) is published on Counsel Stack Legal Research, covering Louisiana Court of Appeal primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Cloud v. Dean, 184 So. 3d 235, 15 La.App. 3 Cir. 1050, 2016 La. App. LEXIS 43, 2016 WL 147157 (La. Ct. App. 2016).

Opinions

SAUNDERS, Judge.

| Relator, Emily Dean (hereinafter “Dean”), seeks supervisory writs from the judgment of the trial court, which denied Relator’s exception of no cause of action.

FACTS AND PROCEDURAL HISTORY

This case involves a child custody dispute over a minor child born to Relator and Plaintiff, Christopher Cloud (hereinafter “Cloud”), on July 21, 2013. On March 27, 2014, Cloud filed a petition to establish custody of the minor child. On April 10, 2014, Dean answered, alleging Cloud had committed acts of family violence and invoking the protections of the Post-Separation Family Violence Relief Act, LaR.S. 9:361 et. seq. In a custody decree signed on May 20, 2014, the trial court found that Cloud had a history of perpetrating family violence and that Dean was an abused parent pursuant to LaR.S. 9:362. Thus, the trial court awarded sole custody of the child to Dean and ordered Cloud to undergo domestic violence counseling.

Thereafter, on January 6, 2015, Cloud filed a rule for visitation and other relief, alleging that he had completed fourteen therapy sessions of the twenty-four required. Thus, he requested supervised visitation with the child. On March 2, 2015, an interim judgment was signed awarding Cloud supervised visitation with the child, which would graduate to unsupervised visitation. On June 17, 2015, Cloud filed an amended rule, in which he alleged that he had completed all of the [237]*237required anger management classes and requested that the parties be awarded joint custody of the child with Dean being named as the domiciliary parent. On July 31, 2015, Dean responded by filing an exception of no cause of action, asserting that Cloud’s rule and amended rule did not sufficiently allege circumstances necessary to warrant a change of custody pursuant to Bergeron v. Bergeron, 492 So.2d 1193 (La.1986).

| following a hearing, the trial court denied Dean’s exception. In its written reasons for judgment, the trial court explained:

[T]he trial court did not make a considered decree of permanent custody “in accordance with the best interest of the child” as provided by La. C.C. art. 131 along -with the factors in determining the child’s best interest pursuant to La. C.C. art. 134. Because there has not been a determination as to the best interest of the child, there has been no considered decree and therefore, the burden imposed by Bergeron does not apply.
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In a child custody, proceeding, it appears that the Post-Separation Family Violence Act and a child in need of care hearing are procedures created to provide immediate aid to a battered partner or a child being abused or neglected. If the Court finds the moving party proves their case, the Court can order the offending parent to participate in therapeutic treatment programs, i.e., anger management, substance abuse or mental health treatment, or any other treatment that may be necessary to resolve the problem. Once the Court is satisfied that the problem has been resolved, the parties can then proceed to a child custody case to determine the best interest of the child. However, the decision by the Court in those' cases are not to be considered decrees as defined by Ber-geron.

It is from the denial of the exception that Dean seeks review.

STANDARD OF REVIEW

“The denial of an exception of no cause of action is an interlocutory judgment.” Cormier v. McNeese State Univ., 13-12 (La.App. 3 Cir. 11/13/13), 127 So.3d 66, 70. Thus, it is not appealable. However, a litigant may seek review of such a judgment via an application for supervisory writ. See Gauthier v. Carencro Nursing Home, Inc., 06-893 (La.App. 3 Cir. 9/20/06), 938 So.2d 235.

In Scheffler v. Adams & Reese, LLP, 06-1774, pp. 4-5 (La.2/22/07), 950 So.2d 641, 646-47 (citations, omitted), our supreme court explained:

The purpose of the peremptory, exception of no cause of .action is to test the legal sufficiency of the . petition by determining whether the law affords a remedy on the facts alleged in the.petition. No evidence may be introduced to support or controvert the exception of no cause of action. The exception is triable on the face of the. pleadings, and, for purposes of resolving the issues raised by the exception, the well-hpleaded facts in the petition must be accepted as true. The issue at the trial of the exception is whether, on the face of the petition, the plaintiff is.legally entitled to the relief sought.
Louisiana retains a system of fact pleading, and mere conclusions of the plaintiff unsupported by facts will not set forth a cause or right of action. The burden of demonstrating that a petition fails to state a cause of action is upon the mover. Because the exception of no cause of action raises a question of law and the district court’s decision Is based [238]*238solely on the sufficiency of the petition, review of the district court’s ruling on an exception of no cause of action is de novo, The pertinent inquiry is whether, in the light most favorable to the plaintiff, and with every doubt resolved in the plaintiffs favor, the petition states any valid cause of action for relief.

DISCUSSION OF THE MERITS

In her application for a supervisory writ, Dean contends the trial court erred in denying Dean’s exception of no cause of action because no facts were alleged which would state a cause of action to modify custody pursuant to Bergeron. In support of this assertion, she contends that the trial court erred in concluding that the Bergeron standard did not apply and argues that the May 20, 2014 judgment was a considered decree, having determined custody “in accordance with the best interest of the child” pursuant to La.Civ.Code art. 131; In further support of this assertion, Dean 'contends that “when the court has received such evidence to sufficiently determine the applicability of the Post-Separation Family Violence Relief Act, the judgment is most certainly a ‘considered decree.’ ” For- the following reasons, we deny the writ, as we see no error in the judgment of the trial court.

“Ties between biological parents and their children aré recognized as the closest and strongest within the human family. A parent has a natural right to his biological child and that child likewise has a right to his parent.” In Interest of CLS, 94-531, p. 5 (La.App. 3 Cir. 11/2/94), 649 So.2d 532, 536. “The rights of parents to the companionship, care, custody and management of their children is a ^fundamental liberty interest warranting great deference and protection under the law.’’ State in Interest of D.D., 94-1404, pp. 3-4 (La.App. 3 Cir. 2/15/95), 650 So.2d 447, 449.

Custody must be determined “in accordance with the best interest of the child.” La.Civ.Code art. 131. In determining the best interest of the child, “[t]he court shall consider all relevant factors[J” La.Civ.Code art. 134 (emphasis added).

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188 So. 3d 395 (Louisiana Court of Appeal, 2016)

Cite This Page — Counsel Stack

Bluebook (online)
184 So. 3d 235, 15 La.App. 3 Cir. 1050, 2016 La. App. LEXIS 43, 2016 WL 147157, Counsel Stack Legal Research, https://law.counselstack.com/opinion/cloud-v-dean-lactapp-2016.