Granger v. Granger

69 So. 3d 666, 11 La.App. 3 Cir. 77, 2011 La. App. LEXIS 773, 2011 WL 2327262
CourtLouisiana Court of Appeal
DecidedJune 15, 2011
DocketNo. 11-77
StatusPublished
Cited by8 cases

This text of 69 So. 3d 666 (Granger v. Granger) 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
Granger v. Granger, 69 So. 3d 666, 11 La.App. 3 Cir. 77, 2011 La. App. LEXIS 773, 2011 WL 2327262 (La. Ct. App. 2011).

Opinion

GREMILLION, Judge.

| tin this ongoing custody litigation, the father, Tommie Mack Granger, appeals the judgment in favor of the mother, Stephanie W. Granger.1 For the following reasons, we affirm in all respects.

FACTUAL AND PROCEDURAL BACKGROUND

In the latest installment of the litigation surrounding custody of their daughter, Savannah Granger, Granger alleges that Barnes has violated several Louisiana laws by relocating Savannah to California.

These parties have litigated over their daughter since 1999, at which time an Orleans Parish Court entered a Consent Judgement awarding Barnes and Granger joint custody with each exercising equal physical custody of Savannah on a two-week rotating basis. This judgment further authorized Barnes’ move to Memphis, Tennessee to complete a fellowship program and, further, prohibited Barnes from moving “outside of a 300 mile radius from Alexandria, Louisiana” with the exception being remaining in Memphis.

In August 2000, an Alexandria court rendered a considered decree maintaining joint custody, but naming Barnes the primary custodian and awarding Granger visitation every other weekend from Wednes[668]*668day to Sunday and summer visitation. At this time, Barnes resided in Little Rock, Arkansas.

In December 2008, the trial court implemented a second considered decree modifying Granger’s visitation schedule to Friday through Sunday with extra time in summer. At this time, Barnes was living in Shreveport. Granger appealed that ruling, and we affirmed the visitation schedule in Granger v. Granger, 09-2722 2(La.App. 3 Cir. 11/10/09), 25 So.3d 162, writ denied, 09-2687 (La.12/18/09), 23 So.3d 941.2

The current dispute involves Barnes’ most recent move to Coronado, California. Barnes hand-delivered written notice of the proposed relocation to Granger on August 10, 2010. Barnes filed a Motion for Court Authorization to Relocate Child on August 11, 2010. On August 16, 2010, Barnes filed a First Supplemental and Amending Motion for Court Authorization to Relocate Child, adding the following paragraph to her petition: “Mover shows that defendant does not have any objection to relocating the residence of the child to California, however the parties have not been able to agree on the modified visitation schedule of the child with defendant.”

On August 23, 2010, Granger filed a Dilatory Exception of Prematurity arguing that Barnes had not complied with any of the requirements of La.R.S. 9:355.4 because she had already relocated the child to California. He further argued that he should be made primary custodial parent. On August 31, 2010, Barnes filed an Opposition to Dilatory Exception of Prematurity with Incorporated Memorandum of Authorities in which she sets forth facts indicating that Granger was fully aware of the move as early as June 2010, and she attached a note handwritten by Granger in which he set forth various changes in the custody and child support arrangement based on the move to California. On September 7, 2010, Granger filed a Peremptory Exception of Res Judi-cata arguing that a 1999 consent judgment barred Barnes from relocating Savannah.3

laFollowing a hearing on September 27, 2010, the trial court denied Granger’s Dilatory Exception of Prematurity and Peremptory Exception of Res Judicata. It further granted Barnes’ Motion for Court Authorization to Relocate Child. Granger now appeals and assigns as error:4

1. The trial court’s overruling of the Dilatory Exception of Prematurity.
2. The trial court’s overruling of the Peremptory Exception of Res Judi-cata.
3. The trial court’s failure to follow the mandatory provisions of La.R.S. 9:355.1 after finding that Barnes had not complied with the statute.
4. The trial court’s failure to order that the minor child be returned to Louisiana and placed in his custody.
[669]*6695. The trial court’s finding that Barnes met her burden of proving that she complied with La.R.S. 9:355.4. Alternatively, the trial court manifestly erred by ordering Savannah’s relocation in the absence of compliance with La.R.S. 9:355.1 et seq.
6. The trial court erred by improperly modifying a considered decree in the absence of any evidence that complies with the Bergeron standard and that Barnes failed to meet her burden of proof. Alternatively, the trial court manifestly erred by ordering a change in custody.

PREMATURITY

The dilatory exception of prematurity asks whether the cause of action |4has matured such that it is ripe for judicial determination. La.Code Civ.P. art. 926, Williamson v. Hosp. Serv. Dist. No. 1 of Jefferson, 04-0451 (La.12/1/04), 888 So.2d 782. An exception of prematurity merely slows down the progress of the action, but does not usually defeat it. La. Code Civ.P. art. 423. We review a trial court’s denial of an exception of prematurity under the manifest error standard. Pinegar v. Harris, 08-1112 (La.App. 1 Cir. 6/12/09), 20 So.3d 1081.

Louisiana Revised Statute 9:355.3(A) requires a parent exercising primary custody to notify the parent of the proposed relocation of the child’s residence. Louisiana Revised Statute 9:355.4 sets forth the specific requirements of notification including notice by registered or certified mail no later than “[t]he sixtieth day before the date of the intended move or proposed relocation.” Subsection (2) requires notice no later than the tenth day after the custodial parent knows the information to be furnished if she could not have known the information in time to comply with the sixty-day notice required of Subsection (1).

Barnes concedes that she did not send, by certified mail, notice as required by the statute, but hand-delivered it to Granger on August 10, 2010. However, she argues that Granger knew of the proposed move in advance of August 10. While we do not condone failure to strictly comply with the statutory requirements of notification, it cannot be said that it would be in the best interest of the minor child to return her to Granger in order that Barnes can send him certified mail with notice of her intent to relocate.

The legislature provided the trial court with remedies it may exercise when the parent fails to notify the other parent in accordance with the statute. Louisiana Revised Statute 9:355.6 states (emphasis added):

|RThe court may consider a failure to provide notice of a proposed relocation of a child or relocation without court authorization as provided by R.S. 9:355.3 and 355.4 as:
(1) A factor in making its determination regarding the relocation of a child.
(2) A basis for ordering the return of the child if the relocation has taken place without notice or court authorization.
(3) Sufficient cause to order the parent seeking to relocate the child to pay reasonable expenses and attorney fees incurred by the person objecting to the relocation.

The trial court took note of the improper notification method in its oral reasons. The best interests of the child trump the procedural requirements of La.R.S. 355.4.

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Cite This Page — Counsel Stack

Bluebook (online)
69 So. 3d 666, 11 La.App. 3 Cir. 77, 2011 La. App. LEXIS 773, 2011 WL 2327262, Counsel Stack Legal Research, https://law.counselstack.com/opinion/granger-v-granger-lactapp-2011.