Dazet v. Price

202 So. 3d 563, 16 La.App. 5 Cir. 228, 2016 La. App. LEXIS 1726
CourtLouisiana Court of Appeal
DecidedSeptember 22, 2016
DocketNO. 16-CA-228
StatusPublished
Cited by1 cases

This text of 202 So. 3d 563 (Dazet v. Price) 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
Dazet v. Price, 202 So. 3d 563, 16 La.App. 5 Cir. 228, 2016 La. App. LEXIS 1726 (La. Ct. App. 2016).

Opinion

MURPHY, J.

Appellant, Leonard Dazet, Jr., has appealed the trial court judgment designating Melinda Dazet Bedi as primary domiciliary parent of their daughter, Lennie.1 For the following reasons we affirm the judgment of the trial court.

[566]*566FACTS AND PROCEDURAL HISTORY:2

Mr. Dazet and Ms. Bedi were married on April 10,. 2001. Their daughter, Lennie, was born on June 5, 2001. Mr. Dazet and Ms. Bedi separated on June 13, 2002 and were divorced on April 4, 2003. Initially the parents shared custody, with each parent alternating three-day periods of time with Lennie. On April 16, 2004, the parties were awarded joint custody of Lennie, with Mr. Dazet being designated as the domiciliary parent, and Ms. Bedi having visitation with Lennie every Monday night and Tuesday night. On May 1, 2006, the parties entered into a consent judgment whereby - Ms. Bedi’s visitation was increased over the summers to include every other weekend, in addition to Monday morning through Wednesday morning. The consent judgment provided that during the school year, Ms. Bedi would have visitation every other weekend.

On July 25, 2012, Mr. Dazet filed a Motion to Modify Visitation Privileges. On this same date, Mr. Dazet filed for and was granted a Temporary Restraining Order prohibiting Ms. Bedi from providing Len-nie “with any non-emergency medical treatment, including mental health counseling, pending further orders of this Court.” On July 30, 2012, Ms. Bedi filed a Motion for Contempt of Court and Change of Custody. It is unclear from the designated appellate record whether there was a ruling on these particular motions. On August 13, 2012, the Court ordered that the parties attend counseling at Families for Life.

On August 13, 2012, Ms. Bedi filed a Motion to Modify Custody, For the Implementation of Co-Parenting Guidelines, and For a Holiday Visitation Schedule. This motion was set for hearing on October 28, 2012 but the designated appellate record does not contain a ruling on this motion. On May 13, 2013, the trial court rendered a judgment denying Ms. Bedi’s Motion for Additional Visitation3 during the summer of 2013. On that same date, the trial court issued an Order for Evaluation regarding custody and visitation. On August 26, 2013, the trial court issued an interim order allowing Lennie to attend an out of state vacation with Ms. Bedi. In addition, this order granted Ms. Bedi overnight visitation on Thursday nights as suggested by the evaluator. This was in addition to the every other weekend visits Ms. Bedi continued to exercise. On October 18, 2013, the trial court rendered judgment maintaining Mr. Dazet as primary domiciliary parent, and awarding Ms. Bedi overnight visitation every Thursday night and every other weekend during the school year, and alternate weeks during the summer. In addition, this judgment ordered specific holiday visitation including the specific time period each visitation was to last. The judgment also ordered that the parties resume counseling at Families for Life. The trial court found that Mr. Dazet was in contempt of court for withholding visitation with Lennie from her mother. Rather than sentence Mr. Dazet for contempt, he was “allowed to purge himself of said contempt upon his making a good faith effort to obey the outstanding orders of this court.”

The designated appellate record indicates that the parties appeared in the trial court on April 7, 2014. On that date, a judgment was rendered specifying that during the summer months when the parties alternate weeks with Lennie, Ms. Bedi has the first full week after school ends, [567]*567specifying the pickup and delivery time is ] ..¡Sunday at 6 p.m. The judgment also specified visitation for the times during the school year when Lennie is not in school.

On May 19, 2015, Mr. Dazet filed a Motion to Allow Minor Child to Attend Enrichment Classes, Modification of Visitation, and for Contempt. In this motion,. Mr. Dazet requested the visitation schedule be modified to allow Lennie to attend a two week summer program at Archbishop Chapelle High School, that Thursday night visitation be discontinued, and requesting that Ms. Bedi be held in contempt for denying his visitation on January 3, 2015. On July 7, 2015, Ms. Bedi filed a Motion for Sole Custody, Change of Visitation and Contempt. On July 15, 2015, Mr. Dazet filed an Exception of No Cause of Action in opposition to the Motion for Sole Custody. The trial court held a hearing on these motions on July 20, 2015 and denied the Exception of No Cause of Action. The custody issue was taken under advisement. On July 28, 2015, the trial court rendered judgment designating Ms. Bedi as primary domiciliary parent, granting Mr. Dazet overnight visitation' every Thursday and every other weekend, alternating weeks during the summer, and specifying visitation for holidays. The judgment also awarded Ms. Bedi an additional four days and nights of visitation to make up for times that she was deprived of visitation during the past year. On August 10, 2015, Mr. Dazet was granted a devolutive appeal from the July 28, 2015 judgment.

LAW AND DISCUSSION:

Exception of No Cause of Action

In his first assignment of error, Mr. Dazat argues that the trial court erred in denying his Exception of No Cause of Action, claiming that Ms. Bedi’s Motion for Sole Custody does not meet the threshold requirements set forth in Bergeron v. Bergeron, 492 So.2d 1193, 1200 (La.1986).

Although an interlocutory judgment, such as the denial of exceptions, is generally not appealable, an interlocutory judgment is subject to review on appeal when an appealable judgment has been rendered in the case. Hancock Bank of La. v. 3429 H, LLC, 15-355 (La.App. 5 Cir. 1/13/16), 184 So.3d 274, 279.

In the context of the peremptory exception, a cause of action is defined as the operative facts that give rise to the plaintiffs right to judicially bring the action against the defendant. Foret v. Caruso, 15-682 (La.App. 5 Cir. 3/16/16), 194 So.3d 643. The function of this exception is to test the legal sufficiency of the petition, by determining whether the law affords a remedy on the facts alleged in the pleading. Id. In ruling on this exception, the court accepts well-pleaded allegations of fact as true to determine whether, on the face of the petition, the plaintiff is legally entitled to the relief sought. Id. On appeal, a de novo review is conducted on the ruling of an exception of no cause of action, asking the question of whether, in the light most favorable to plaintiff and with every doubt resolved in plaintiffs behalf, the petition states any valid cause of action for relief. Id.

In Bergeron, supra, the court held that a party seeking to modify custody has the burden of proving that maintaining the present custody is “so deleterious to the child” as to justify a change of custody or of proving that the harm which may be caused from a change is outweighed by its benefits to the child. Bergeron, 492 So.2d at 1200. This burden of proof to change a custody degree should be heavy in order to protect children from the detrimental effects of “too liberal standards in custody change cases.” Id. This heavy burden has been extended to any petition to modify [568]*568custody. Menge v. Menge, 545 So.2d 674, 676, (La.App.5 Cir.1989).

In her Motion for Sole Custody, Change of Visitation, and Contempt, Ms. Bedi alleged that Mr.

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Related

Dazet v. Price
204 So. 3d 1152 (Louisiana Court of Appeal, 2016)

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Bluebook (online)
202 So. 3d 563, 16 La.App. 5 Cir. 228, 2016 La. App. LEXIS 1726, Counsel Stack Legal Research, https://law.counselstack.com/opinion/dazet-v-price-lactapp-2016.