KATHRYN MARIE OLAVARRIETA NO. 22-C-158
VERSUS FIFTH CIRCUIT
RICHARD S. ROBESON, JR. COURT OF APPEAL
STATE OF LOUISIANA
ON APPLICATION FOR SUPERVISORY REVIEW FROM THE TWENTY-FOURTH JUDICIAL DISTRICT COURT PARISH OF JEFFERSON, STATE OF LOUISIANA NO. 735-631, DIVISION "C" HONORABLE JUNE B. DARENSBURG, JUDGE PRESIDING
July 06, 2022
STEPHEN J. WINDHORST JUDGE
Panel composed of Judges Jude G. Gravois, Robert A. Chaisson, and Stephen J. Windhorst
AFFIRMED AS AMENDED SJW JGG RAC COUNSEL FOR PLAINTIFF/RELATOR, KATHRYN MARIE OLAVARRIETA Jennifer C. Carter
COUNSEL FOR DEFENDANT/RESPONDENT, RICHARD S. ROBESON, JR. Cindy H. Williams WINDHORST, J.
Kathryn Marie Olavarrieta seeks review of the trial court’s judgment denying
her exception of no cause of action to Richard Robeson’s motion for modification
of physical custody, her motion in limine to exclude the testimony of Dr. Karen van
Beyer, and her exception of res judicata.
FACTS and PROCEDURAL HISTORY
This is a custody matter. By consent judgment on custody dated December 3,
2019, the parties agreed to maintain joint legal custody of their child and have shared
physical custody, whereby Mr. Robeson has physical custody of the child every
Tuesday and Wednesday and alternating weekends and Ms. Olavarrieta has physical
custody of the child every Monday and Thursday and alternating weekends. On
September 22, 2021, Mr. Robeson filed a motion for modification of physical
custody schedule, seeking to change to alternating weeks with each parent. In his
motion, Mr. Robeson asserted that a material change in circumstances is unnecessary
to justify switching to an alternating week schedule, but that there has been a change
of circumstances in that the child is older now and can tolerate being away from each
parent for a week. Mr. Robeson also contended that an alternating week schedule is
in the child’s best interests.
LAW and ANALYSIS
Exception of No Cause of Action
Ms. Olavarrieta filed an exception of no cause of action, asserting that Mr.
Robeson failed to allege a material change in circumstances for a modification of
the current schedule or any reasons supporting that a schedule change would be in
the best interest of the child. In response, Mr. Robeson alleged that his motion for
modification of physical custody is simply a request for a change in visitation. He
argued that, because he is attempting to modify visitation alone, the applicable
standard is the best interest of the child, and that the allegations in his motion were
22-C-158 1 sufficient to state a cause of action. Alternatively, he claimed that there has been a
material change in circumstances.
Pursuant to the December 3, 2019 consent judgment, the parties in this case
have shared joint custody and, therefore, visitation is not at issue. See La. C.C. art.
136, which provides for visitation only in the event a parent does not have custody
or joint custody. Mr. Robeson is seeking a modification of the schedule of joint
physical custody instituted under La. R.S. 9:335. Therefore, this case must be
considered as a modification of custody. See Granger v. Granger, 09-272 (La. App.
3 Cir. 11/10/09), 25 So.3d 162, 164, writ denied, 09-2687 (La. 12/18/09), 23 So.3d
941; Jackson v. Harris, 05-604 (La. App. 3 Cir. 12/30/05), 918 So.2d 1163; Cedotal
v. Cedotal, 05-1524 (La. App. 1 Cir. 11/4/05), 927 So.2d 433; Davenport v.
Manning, 95-2349 (La. App. 4 Cir. 6/5/96), 675 So.2d 1230.
For a parent seeking a change in a custody arrangement, the burden of proof
differs depending on whether the prior custody award was made by a considered
decree or a stipulated decree. Boesch v. Boesch, 16-526 (La. App. 5 Cir. 2/8/17),
210 So.3d 937, 944; Silbernagel v. Silbernagel, 10-267 (La. App. 5 Cir. 5/10/11), 65
So.3d 724, 728; Bergeron v. Bergeron, 85-1936 (La. 1986), 492 So.2d 1193. A
stipulated custody decree is one in which “the parties consent to a custodial
arrangement, and no evidence of parental fitness is taken.” Boesch, 210 So.3d at
944. A considered decree, on the other hand, is “an award of permanent custody in
which the trial court receives evidence of parental fitness to exercise care, custody,
and control of children.” Id.
The present case involves a stipulated custody decree because the prior
custody decree from 2019 was a consent judgment. The party seeking to modify a
stipulated custody decree bears the burden of proving that: 1) there has been a
material change in circumstances since the prior custody decree was entered; and 2)
the proposed modification is in the best interest of the children. Evans v. Lungrin,
22-C-158 2 97-451 (La. 2/6/98), 708 So.2d 731, 738; Silbernagel, 65 So.3d at 728. Thus, Mr.
Robeson must satisfy this burden to prevail on the motion for modification.
The exception of no cause of action serves to test the legal sufficiency of a
petition by determining whether the law affords a remedy on the facts
alleged. Atkinson v. Atkinson, 16-759 (La. App. 4 Cir. 2/15/17), 212 So.3d 631,
634. The pertinent inquiry is whether, in a light most favorable to the plaintiff and
with every doubt resolved in plaintiff’s favor, the petition states any valid cause of
action for relief. La. C.C.P. arts. 927, 931; City of New Orleans v. Bd. of Directors
of Louisiana State Museum, 98-1170 (La. 3/2/99), 739 So.2d 748, 755. The
exception is triable on the face of the petition, with the trial court presuming that all
well-pleaded facts in the petition are true. Atkinson, 212 So.3d at 634. Contrary
factual assertions are considered defenses which must be tried on the merits.
Angelica v. Angelica, 608 So.2d 256, 259 (La. Ct. App. 1992), writ denied, 612
So.2d 65 (La. 1993).
Based on statutory law and case law, the only issue before us relative to the
exception of no cause of action is whether Mr. Robeson has alleged facts sufficient
to state a cause of action for modification of the physical custody schedule. If so,
then a trial on the merits is necessary to determine whether a modification is
warranted.
In his motion for modification of physical custody schedule, Mr. Robeson
does allege there has been a material change of circumstances in that the child is
older now and can tolerate being away from one parent or the other for a week; Ms.
Olavarrieta is less than fully supportive of the child’s extracurricular activities; the
child has to attend aftercare often when he is in Ms. Olavarrieta’s care; and the
change would reduce conflict between the parties. Mr. Robeson also alleges that the
modification is in the child’s best interests.
22-C-158 3 Every child custody case must be viewed in light of its own particular set of
facts and circumstances. Tinsley v. Tinsley, 2016-0891 (La. App. 1 Cir. 1/18/17),
211 So. 3d 405, 411. The trial court is therefore in the best position to ascertain the
best interest of the child given each unique set of circumstances. Id. A trial court’s
determination of custody is entitled to great weight and will not be reversed on
appeal unless an abuse of discretion is clearly shown. Id. Based on the allegations
of Mr. Robeson’s motion for modification, we cannot say the trial court erred in
denying the exception of no cause of action. We do not address the merits of his
motion at this time.
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KATHRYN MARIE OLAVARRIETA NO. 22-C-158
VERSUS FIFTH CIRCUIT
RICHARD S. ROBESON, JR. COURT OF APPEAL
STATE OF LOUISIANA
ON APPLICATION FOR SUPERVISORY REVIEW FROM THE TWENTY-FOURTH JUDICIAL DISTRICT COURT PARISH OF JEFFERSON, STATE OF LOUISIANA NO. 735-631, DIVISION "C" HONORABLE JUNE B. DARENSBURG, JUDGE PRESIDING
July 06, 2022
STEPHEN J. WINDHORST JUDGE
Panel composed of Judges Jude G. Gravois, Robert A. Chaisson, and Stephen J. Windhorst
AFFIRMED AS AMENDED SJW JGG RAC COUNSEL FOR PLAINTIFF/RELATOR, KATHRYN MARIE OLAVARRIETA Jennifer C. Carter
COUNSEL FOR DEFENDANT/RESPONDENT, RICHARD S. ROBESON, JR. Cindy H. Williams WINDHORST, J.
Kathryn Marie Olavarrieta seeks review of the trial court’s judgment denying
her exception of no cause of action to Richard Robeson’s motion for modification
of physical custody, her motion in limine to exclude the testimony of Dr. Karen van
Beyer, and her exception of res judicata.
FACTS and PROCEDURAL HISTORY
This is a custody matter. By consent judgment on custody dated December 3,
2019, the parties agreed to maintain joint legal custody of their child and have shared
physical custody, whereby Mr. Robeson has physical custody of the child every
Tuesday and Wednesday and alternating weekends and Ms. Olavarrieta has physical
custody of the child every Monday and Thursday and alternating weekends. On
September 22, 2021, Mr. Robeson filed a motion for modification of physical
custody schedule, seeking to change to alternating weeks with each parent. In his
motion, Mr. Robeson asserted that a material change in circumstances is unnecessary
to justify switching to an alternating week schedule, but that there has been a change
of circumstances in that the child is older now and can tolerate being away from each
parent for a week. Mr. Robeson also contended that an alternating week schedule is
in the child’s best interests.
LAW and ANALYSIS
Exception of No Cause of Action
Ms. Olavarrieta filed an exception of no cause of action, asserting that Mr.
Robeson failed to allege a material change in circumstances for a modification of
the current schedule or any reasons supporting that a schedule change would be in
the best interest of the child. In response, Mr. Robeson alleged that his motion for
modification of physical custody is simply a request for a change in visitation. He
argued that, because he is attempting to modify visitation alone, the applicable
standard is the best interest of the child, and that the allegations in his motion were
22-C-158 1 sufficient to state a cause of action. Alternatively, he claimed that there has been a
material change in circumstances.
Pursuant to the December 3, 2019 consent judgment, the parties in this case
have shared joint custody and, therefore, visitation is not at issue. See La. C.C. art.
136, which provides for visitation only in the event a parent does not have custody
or joint custody. Mr. Robeson is seeking a modification of the schedule of joint
physical custody instituted under La. R.S. 9:335. Therefore, this case must be
considered as a modification of custody. See Granger v. Granger, 09-272 (La. App.
3 Cir. 11/10/09), 25 So.3d 162, 164, writ denied, 09-2687 (La. 12/18/09), 23 So.3d
941; Jackson v. Harris, 05-604 (La. App. 3 Cir. 12/30/05), 918 So.2d 1163; Cedotal
v. Cedotal, 05-1524 (La. App. 1 Cir. 11/4/05), 927 So.2d 433; Davenport v.
Manning, 95-2349 (La. App. 4 Cir. 6/5/96), 675 So.2d 1230.
For a parent seeking a change in a custody arrangement, the burden of proof
differs depending on whether the prior custody award was made by a considered
decree or a stipulated decree. Boesch v. Boesch, 16-526 (La. App. 5 Cir. 2/8/17),
210 So.3d 937, 944; Silbernagel v. Silbernagel, 10-267 (La. App. 5 Cir. 5/10/11), 65
So.3d 724, 728; Bergeron v. Bergeron, 85-1936 (La. 1986), 492 So.2d 1193. A
stipulated custody decree is one in which “the parties consent to a custodial
arrangement, and no evidence of parental fitness is taken.” Boesch, 210 So.3d at
944. A considered decree, on the other hand, is “an award of permanent custody in
which the trial court receives evidence of parental fitness to exercise care, custody,
and control of children.” Id.
The present case involves a stipulated custody decree because the prior
custody decree from 2019 was a consent judgment. The party seeking to modify a
stipulated custody decree bears the burden of proving that: 1) there has been a
material change in circumstances since the prior custody decree was entered; and 2)
the proposed modification is in the best interest of the children. Evans v. Lungrin,
22-C-158 2 97-451 (La. 2/6/98), 708 So.2d 731, 738; Silbernagel, 65 So.3d at 728. Thus, Mr.
Robeson must satisfy this burden to prevail on the motion for modification.
The exception of no cause of action serves to test the legal sufficiency of a
petition by determining whether the law affords a remedy on the facts
alleged. Atkinson v. Atkinson, 16-759 (La. App. 4 Cir. 2/15/17), 212 So.3d 631,
634. The pertinent inquiry is whether, in a light most favorable to the plaintiff and
with every doubt resolved in plaintiff’s favor, the petition states any valid cause of
action for relief. La. C.C.P. arts. 927, 931; City of New Orleans v. Bd. of Directors
of Louisiana State Museum, 98-1170 (La. 3/2/99), 739 So.2d 748, 755. The
exception is triable on the face of the petition, with the trial court presuming that all
well-pleaded facts in the petition are true. Atkinson, 212 So.3d at 634. Contrary
factual assertions are considered defenses which must be tried on the merits.
Angelica v. Angelica, 608 So.2d 256, 259 (La. Ct. App. 1992), writ denied, 612
So.2d 65 (La. 1993).
Based on statutory law and case law, the only issue before us relative to the
exception of no cause of action is whether Mr. Robeson has alleged facts sufficient
to state a cause of action for modification of the physical custody schedule. If so,
then a trial on the merits is necessary to determine whether a modification is
warranted.
In his motion for modification of physical custody schedule, Mr. Robeson
does allege there has been a material change of circumstances in that the child is
older now and can tolerate being away from one parent or the other for a week; Ms.
Olavarrieta is less than fully supportive of the child’s extracurricular activities; the
child has to attend aftercare often when he is in Ms. Olavarrieta’s care; and the
change would reduce conflict between the parties. Mr. Robeson also alleges that the
modification is in the child’s best interests.
22-C-158 3 Every child custody case must be viewed in light of its own particular set of
facts and circumstances. Tinsley v. Tinsley, 2016-0891 (La. App. 1 Cir. 1/18/17),
211 So. 3d 405, 411. The trial court is therefore in the best position to ascertain the
best interest of the child given each unique set of circumstances. Id. A trial court’s
determination of custody is entitled to great weight and will not be reversed on
appeal unless an abuse of discretion is clearly shown. Id. Based on the allegations
of Mr. Robeson’s motion for modification, we cannot say the trial court erred in
denying the exception of no cause of action. We do not address the merits of his
motion at this time. We merely recognize that Mr. Robeson, as the father, (1) has the
right to seek modification of custody; (2) states sufficient facts to allege a material
change of circumstances exists warranting the modification; and (3) claims the
modification would be in the best interest of the child.
Because a no cause of action hearing is not the proper procedural device for
addressing the merits of Mr. Robeson’s motion and he has a right to file a motion
for modification in this matter, we find the trial court properly denied Ms.
Olavarrieta’s exception of no cause of action.
Motion in Limine
Ms. Olavarrieta also contends that the trial court erred in denying her motion
in limine to exclude any testimony by Dr. Karen van Beyer. Prior to the December
3, 2019 stipulated judgment, Dr. van Beyer conducted a custody evaluation and
rendered a report on July 31, 2019. Ms. Olavarrieta challenges the trial court’s ruling
taking judicial notice of Dr. van Beyer’s report and ordering Ms. Olavarrieta to
submit to an updated evaluation relative to Mr. Robeson’s motion for modification
despite having prohibited Dr. van Beyer from testifying about any new information.
Ms. Olavarrieta asserts the trial court should not have taken judicial notice of
Dr. van Beyer’s 2019 report. A court may take judicial notice of its own
proceedings. Shields v. Ponsaa, 01-1283 (La. App. 5 Cir. 2/26/02), 811 So.2d 1058,
22-C-158 4 1061. Dr. van Beyer’s 2019 report is part of the record in this case. We therefore
find no error in the trial court taking judicial notice of this report.
The court may order an evaluation of a party or the child in a custody or
visitation proceeding for good cause shown. La. R.S. 9:331. The language of the
statute is permissive, and the decision to require the evaluations lies in the discretion
of the court. C.M.J. v. L.M.C., 14-1119 (La. 10/15/14), 156 So.3d 16; Jones v.
Jones, 19-66 (La. App. 5 Cir. 5/29/19), 274 So.3d 811, 820. Considering the
circumstances present here, we cannot say the trial court abused its vast discretion
in ordering an updated custody evaluation. Dr. van Beyer’s previous evaluation was
three years ago when the child was five years old and had just completed pre-K. The
child is now eight years and finishing second grade. Further, an updated evaluation
is relevant because Mr. Robeson, as the father, is attempting to modify the custody
schedule.
Ms. Olavarrieta contends the trial court erred in prohibiting Dr. van Beyer
from testifying on any new information but ordering her to meet with Dr. van Beyer
for an updated evaluation. Considering that the trial court ordered an updated
custody evaluation, we find that Dr. van Beyer should not be prohibited from
testifying about new information obtained in conducting the updated evaluation at
the trial on Mr. Robeson’s motion for modification.
She further questions Dr. van Beyer’s potential bias in this case based on Dr.
van Beyer’s meeting with Mr. Robeson regarding his motion for modification. The
transcript indicates that the trial court questioned Dr. van Beyer as to whether she
remained a neutral party in this matter. Dr. van Beyer responded that she remains a
neutral party and considers the best interest of the child to be the most important
concern. While the meeting between Dr. van Beyer and Mr. Robeson is of some
concern due to the appearance of possible bias, the effect and weight to be given
to expert testimony is within the broad discretion of the trial court. Succession of
22-C-158 5 Gendron, 21-14 (La. App. 5 Cir. 6/23/21), 325 So.3d 584, 601, writ denied, 21-
01075 (La. 11/23/21), 328 So.3d 79. Having questioned Dr. van Beyer under oath
and viewed her responses, the trial judge can best assess her credibility and the
weight her recommendations deserve. The trial judge may consider this issue in
determining whether to accept or reject Dr. van Beyer’s opinion.
Exception of Res Judicata
Finally, Ms. Olavarrieta asserts the trial court erred in denying her exception
of res judicata and not finding Mr. Robeson’s issues are co-parenting issues that
should be resolved with a co-parenting coordinator. “Judgments awarding custody
and child support are always subject to modification and are thus never final.”
Kaptein v. Kaptein, 19-784 (La. App. 4 Cir. 1/22/20), 289 So.3d 1198, 1200, writ
denied, 20-325 (La. 6/3/20), 296 So.3d 1069. Thus, the doctrine of res judicata is
not applicable here, and the trial court did not err in denying this exception.
DECREE
For the reasons stated above, we find no error in the trial court’s judgment
denying the exception of no cause of action, denying the exception of res judicata,
taking judicial notice of Dr. van Beyer’s 2019 report, and ordering an updated
evaluation. To the extent the judgment prohibits Dr. van Beyer from testifying
regarding an updated custody evaluation, we amend the judgment to allow
consideration of Dr. van Beyer’s testimony regarding new information related to the
updated custody evaluation.
AFFIRMED AS AMENDED
22-C-158 6 SUSAN M. CHEHARDY CURTIS B. PURSELL
CHIEF JUDGE CLERK OF COURT
MARY E. LEGNON FREDERICKA H. WICKER INTERIM CHIEF DEPUTY CLERK JUDE G. GRAVOIS MARC E. JOHNSON ROBERT A. CHAISSON SUSAN S. BUCHHOLZ STEPHEN J. WINDHORST FIRST DEPUTY CLERK HANS J. LILJEBERG JOHN J. MOLAISON, JR. FIFTH CIRCUIT MELISSA C. LEDET JUDGES 101 DERBIGNY STREET (70053) DIRECTOR OF CENTRAL STAFF POST OFFICE BOX 489 GRETNA, LOUISIANA 70054 (504) 376-1400
(504) 376-1498 FAX www.fifthcircuit.org
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22-C-158 E-NOTIFIED 24TH JUDICIAL DISTRICT COURT (CLERK) HONORABLE JUNE B. DARENSBURG (DISTRICT JUDGE) JENNIFER C. CARTER (RELATOR) CINDY H. WILLIAMS (RESPONDENT)
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