Janway v. Jones

88 So. 3d 713, 2012 La. App. LEXIS 426, 2012 WL 1080305
CourtLouisiana Court of Appeal
DecidedMarch 30, 2012
DocketNo. 47,203-CA
StatusPublished

This text of 88 So. 3d 713 (Janway v. Jones) 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
Janway v. Jones, 88 So. 3d 713, 2012 La. App. LEXIS 426, 2012 WL 1080305 (La. Ct. App. 2012).

Opinion

STEWART, J.

11 Cecil “Tom” Janway, Jr., and Rosalyn Janway (hereinafter referred to as “the Janways” or “Tom” and/or “Rosalyn”) are appealing a trial court judgment granting Matthew Brian Jones’ (hereinafter referred to as “Matthew”) motion for involuntary dismissal and denying their motion for visitation. For the reasons expressed, we affirm the judgment.

FACTS

The Janways’ daughter, Wendi Janway Jones (hereinafter referred to as “Wendi”), married Matthew on November 30, 2002. Soon thereafter, the couple moved to Houston, Texas. In January 2004, Wendi, who was born with Common Variable Immune Deficiency, moved back to her parents’ home in Monroe, Louisiana, to recover from a medical procedure. Matthew later relocated to Monroe in August 2004.

On August 2, 2006, Wendi gave birth to them daughter, Z.J. Soon after the birth, Wendi suffered from complications, and had to return to the hospital for approximately two weeks. Wendi’s health continued to decline, and Tom, Rosalyn, and Matthew shared the responsibility of caring for Z.J.

Matthew, Wendi, and Z.J. moved out of the Janways’ home when Z.J. was approximately 11 months old. Wendi primarily cared for the child, but Rosalyn assisted Wendi in Z.J.’s care when Wendi was ill.

On October 9, 2009, Wendi died of complications from her disease. After her death, Z.J. stayed with the Janways for approximately four to six weeks. She then moved back in with Matthew, but the Jan-ways continued to care for her during the day while Matthew was at work. In August 2010, Z.J. began attending day school [715]*715at the First United Methodist Church in I^Monroe from 8:30 a.m. to 11:30 a.m. Rosalyn assumed the responsibility of picking her up from day school, and caring for her until Matthew got off work.

In September 2010, Rosalyn made the decision to leave Z.J. after school, without consulting Matthew, so that she could participate in “lunch bunch,” an afternoon childcare program. After this incident, Matthew met with the Janways to inform them that he should be consulted before any changes in Z.J.’s schedule were made. At this meeting, he also requested that Rosalyn refrain from talking about him or his family in Z.J.’s presence. Even though Matthew was upset that Rosalyn did not inform him of Z.J.’s participation in this afternoon childcare program, he chose to continue to bring her to the Janways’ home daily.

In November 2010, Z.J. informed the Janways that Matthew was dating a woman named “Leanne.” Concerned, they called a meeting with him to discuss Z.J.’s exposure to overnight guests of the opposite sex. They also suggested that he spend more time with his daughter. Following this meeting, Rosalyn began informing friends and neighbors that Matthew was dating and “shacking up” with “Leanne.”

In December 2010, Rosalyn planned a cruise for her, Tom and Z.J. Matthew asserts that he was not consulted while this vacation was planned. However, he did allow Z.J. to go. When they returned from the trip, Matthew was not contacted for several hours to let him know they were home. Later that month, Rosalyn asked Matthew if her sister could stay at his home during the New Year’s holiday. Matthew, who was going to be |3out of town for the holiday, agreed. He left the front door unlocked and left a key inside the house for Rosalyn’s sister to use. When Rosalyn went to Matthew’s house with her sister, she became upset when she discovered that Matthew had changed the locks. She also took property from the home, including a Patagonia blanket, cookbooks, T-shirts, jackets, and a picture of Matthew and Wendi. After discovering that these items were missing, Matthew contacted the Janways to inform them that he was coming to their home to retrieve Z.J.’s backpack and birth certificate. He also told them that they would “no longer have influence on Z.J.” Rosalyn then demanded to pick up her furniture from Matthew’s house.

Soon thereafter, Rosalyn emailed Z.J.’s teacher, making derogatory statements about Matthew. Rosalyn called Matthew’s place of employment, the Department of Transportation and Development, in an attempt to have him terminated. She contacted the Executive Board of the Department of Transportation and Development to inform them that he was “dating a contractor,” and that her husband wanted to know if that was a conflict of interest. Rosalyn admitted that she knew that Matthew could lose his job when she made these phone calls. Tom admitted that pri- or to Rosalyn making the call, he thought that if Matthew lost his job, he could not support his daughter.

As a result of Tom and Rosalyn’s actions, Matthew discontinued all visitations between Z.J., Tom and Rosalyn in January 2011.

On January 11, 2011, Tom and Rosalyn filed a Petition for Grandparent Visitation. On January 18, 2011, Tom and Rosalyn went to | .¡Matthew’s house unannounced. They also began attending Z.J.’s gymnastics and dance classes, without Matthew’s consent. When Matthew changed the date of her gymnastics class, Rosalyn contacted the gymnastics studio to ask for the new day and time. When Rosalyn learned that [716]*716Z.J. was playing soccer, she contacted the soccer organization to find out what team Z.J. was on and the time of her games. After these events and many others occurred, Matthew sought and obtained a Temporary Restraining Order prohibiting Tom and Rosalyn from coming in contact with Z.J. or himself.

After Matthew obtained the restraining order, Tom and Rosalyn filed a Rule seeking the legal and physical custody of Z.J., contending that she would suffer substantial harm by residing with Matthew.

The hearing regarding the Janways’ petition commenced on April 13, 2011. At the close of the Janways’ case, counsel for Matthew moved for an involuntary dismissal. The trial court found that visitation would not be in the best interest of the child and denied the Janways’ motion for visitation. Matthew’s motion for involuntary dismissal was granted. The trial court also dismissed the Janways’ rule for custody. The Janways appeal.

LAW

Involuntary Dismissal

In an action tried by the court without a jury, after the plaintiff has completed the presentation of his evidence, any party, without waiving his right to offer evidence in the event the motion is not granted, may move for a dismissal of the action as to him on the ground that upon the fact and law the plaintiff has shown no right to relief. La. C.C.P. art. 1672(B). A motion [Bfor involuntary dismissal requires the trial court to evaluate all the evidence presented by the plaintiff and render a decision based upon a preponderance of the evidence. Chandler v. Chandler, 45,308 (La.App. 2 Cir. 5/19/10), 37 So.3d 569; Gray v. Monroe, 41,087 (La.App. 2 Cir. 5/17/06), 930 So.2d 1148. When a party fails to carry his burden of proof there is no necessity for the opposing party to rebut insufficient evidence. Humphrey v. Humphrey, 614 So.2d 837 (La.App. 2 Cir.1993). The appellate court should not reverse an involuntary dismissal in the absence of manifest error, and there is no manifest error if there is a reasonable factual basis for the finding of the trial court. Gray, supra.

Visitation

La. R.S. 9:344(A) states:

A.

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Related

Humphrey v. Humphrey
614 So. 2d 837 (Louisiana Court of Appeal, 1993)
Chandler v. Chandler
37 So. 3d 569 (Louisiana Court of Appeal, 2010)
Lindsey v. House
699 So. 2d 1190 (Louisiana Court of Appeal, 1997)
Gray v. City of Monroe
930 So. 2d 1148 (Louisiana Court of Appeal, 2006)
State ex rel. D.E.
83 So. 3d 8 (Louisiana Court of Appeal, 2011)

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Bluebook (online)
88 So. 3d 713, 2012 La. App. LEXIS 426, 2012 WL 1080305, Counsel Stack Legal Research, https://law.counselstack.com/opinion/janway-v-jones-lactapp-2012.